KULESHWAR DHRUW Vs. STATE OF C.G.

JUDGEMENT

(1.) APPELLANT Kuleshwar was convicted under Section-20 (B) (ii) (B) of the Narcotics Drugs & Psychotropic Substances Act. 1985 (hereinafter referred to as the 'Act of 1985') and was sentenced to undergo rigorous imprisonment for 3 years and 6 months and also to fine of Rs. 15,000/- and in default of payment of fine to undergo additional rigorous imprisonment for 1 year by Shri R.S.Sharma, Special Judge (N.D.P.S. Act.), Bastar at Jagdalpur in Special Case Number-52/ 2003, vide judgment dated 27-02-2004.

(2.) BRIEFLY stated the prosecution story is that on 27-11 -2003 upon receiving secret information that the appellant and one Hemant were transporting contraband ganja on a motorcycle, Sub Inspector Arvind Kumar Dwivedi PW-1, Station House Officer, Pharasgaon after recording the said information proceeded to the spot with witnesses and intercepted the appellant Kuleshwar who was driving Hero Honda Motorcycle bearing Registration No.C.G.-05-8198. Another person Hemant, who was the pillion rider, was carrying 4 K.G. & 500 Grams ganja in his lap. 5 K.G. contraband ganja was also tied down in the rear of the motorcycle. After completing the necessary legal formalities Sub Inspector Arvind Kumar Dwivedi PW-1 seized the contraband ganja contained in 1 fertilizer bag alleging it to be in possession of the appellant Kuleshwar along with Hero Honda Motorcycle bearing Registration No. CG-05-8198 vide seizure memo Ex.P-14. Rajkumar PW-4, who was present at the spot weighed and found the contraband ganja inside the bag to be 5 K.G. Two samples of 50 Grams each were taken from the aforesaid quantity of ganja and were sealed and remaining quantity of ganja was also sealed. Seal Panchnama was prepared vide Ex.P-17 mentioning that the brass seal bore the impression "Police Station M.P.". However, specimen impression of the same was not affixed on the Seal Panchnama Ex.P-17. On 27-11 -2003, one white fertilizer bag containing 5 K.G. ganja in a sealed condition and two sealed sample packets of 50 Grams each allegedly taken from the aforesaid quantity of ganja and Honda Motorcycle bearing Registration No. CG-05-8198 were entrusted for safe custody to Head Constable/Malkhana Moharrir Jaydev Bhoi which was entered into Malkhana Register Ex.P-32(C) as mentioned above. On 03-12-2003 vide memo Ex.P-30 of Superintendent of Police, Bastar at Jagdalpur, one sample packet of ganja was sent for chemical analysis to the Forensic Science Laboratory, Raipur through Constable Gend lal Sahu No.80 which was received in the Forensic Science Laboratory, Raipur on 06-12-2003. Vide report dated 13-01-2004 Ex.P-31, it was opined that the sample packets contained ganja. In the report, Forensic Science Laboratory drew the impression of the seal which was found on the sample packet as "Police Station, Pharasgaon, M.P.". After completion of investigation, the appellant was prosecuted.

(3.) KU . Meenu Banerjee, learned counsel for the appellant has assailed the impugned judgment on two grounds. Firstly that the possibility that the sample analysed by the Forensic Science Laboratory had been tampered with could not be ruled out in view of the fact that the impression of the seal found on the sample packet by the Forensic Science Laboratory did not match with the impression of the seal described in the Panchnama Ex.P-17. It was pointed out that entry in the Malkhana Register did not show as to on what date the sample packet was taken put from the Malkhana for being entrusted to Constable Gend lal Sahu No.80. It Was also contended that Constable Gend lal Sahu No.80 who was entrusted with the sample packet on 03-12-2003 was not examined and the delay in reaching the sample packets by him to the Forensic Science Laboratory was nor explained. It was also contended that Maikhana Register Ex.P-32 (C) clearly shows that one white fertilizer bag containing 5 K.G. of ganja in a sealed condition was also deposited in the Malkhana for safe custody along with two sample packets of 50 Grams each ganja in a sealed condition. Since, the quantity of ganja seized from the possession of the appellant was alleged to be 5 K.G., it was extremely doubtful that the samples sent for chemical analysis to the Forensic Science Laboratory had been taken from the aforesaid quantity of ganja alleged to have been seized from the appellant. It was also contended that the prosecution had failed to prove that the alleged contraband ganja weighing 5 K.G. was in the conscious possession of the appellant since Sub Inspector Arvind Kumar Dwivedi PW-1 had admitted that the appellant who was driving the motorcycle was not the owner thereof and it was the pillion rider Hemant who was carrying a bag containing contraband ganja in his lap and another bag was tied down at the rear of the motorcycle. Lastly, it was contended that non-compliance of Section-55 of the Act of 1985 by Sub Inspector Shri Arvind Kumar Dwivedi PW-1 renders the conviction of the appellant bad in law. Reliance was placed on Avtar Singh & Others Vs. State of Punjab1, Narcotics Control Bureau. Jodhpur Vs. Murlidhar Soni and Others1 and Trinath Goudo Vs. State3 in support of the above contentions.