SUKHCHAND Vs. STATE OF C.G.

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 29-07-2002 delivered by Shri R. S. Sharma, Special Judge, N.D.P.S. Act Bastar at Jagdalpur in Special Case No. 16/2002 whereby the appellant was convicted under Section 20(b)(ii)(C) Narcotics Drugs & and Psychotropic Substances Act (hereinafter referred to as the "Act") and sentenced to rigorous imprisonment for 10 years and fine of Rs. 1 lakh.

(2.) BRIEFLY stated the prosecution story is that on 06-05-2002, Town Inspector, Police Kotwali, Jagdalpur Shri M.K.Sharma received secret information that a person was illegally transporting illicit ganja in Borpadar. After recording the aforesaid information Vide Ex.P-3 and informing the C.S.P., Jagdalpur vide Ex.P-23 and also recording the said information in Roznamchasanha No. 285 Ex.P-22, Shri M.K.Sharma, Town Inspector (P.W.4) accompanied by C.S.P. Shri D.R.Aachla (P.W.3) and witnesses Mukesh PW-5 & Umesh reached Borpadar and found the accused-appellant coming on a cycle, carrying two bags thereon. The accused-appellant was interrogated. Notice under Section-50 of the Act, Ex.P-4 was given and consent of the accused-appellant was recorded vide Ex.P-6. Personal search of the raiding party was also given to the accused-appellant. Thereafter Town Inspector Shri M.K. Sharma searched the two bags carried by the accused-appellant on his cycle. It was found that the bags contained Ganja like substance and Panchanama Ex.P-5 was prepared. Both the bags were weighed vide weighment Panchanama Ex.P-10 and it was found that the two bags contained ganja like substance 11 K.G. and 10 K.G. respectively. Thereafter, four samples of 23 Grams each were lifted from the bags and sealed. The remaining ganja was also sealed. Sample Panchanama Ex;P-11 & Sample seal Panchanama Ex.P-12 were also prepared. The accused-appellant was arrested vide Ex.P-15. Seized ganja and sample were handed over to the Assistant Sub Inspector Rajendra Kumar Sinha PW-2 of police station Kotwali, Jagdalpur for safe custody who kept the articles in Malkhana, after making an entry in the Malkhana Register No. 46.

(3.) SHRI Prafulla Bharat, learned counsel for the appellant has assailed the conviction of the appellant only on the ground that there has been total noncompliance of Section-52(3) & Section-55 of the Act by Town Inspector Shri M.K.Sharma P.W. 4 and the Officer-in-charge of the Police Station-Kotwali, Jagdalpur. There is nothing on record to show that the ganja contained in the bags as well as the samples taken were sealed and Panchnama of specimen impression of the seal was prepared. It was not shown that such specimen impression of the seal was sent to the Forensic Science Laboratory. There is also nothing to indicate that the Officer-in-charge of the Police Station while receiving the seized article had ensured compliance of Section-55 of the Act. Constable Budhram Mourya who was entrusted with the articles seized, was not examined. The samples were sent to Forensic Science Laboratory, Raipur on 17-05-2002 but were received after considerable delay on 21-05-2002 for which there was no explanation. Therefore, since the articles alleged to have been seized from the appellant were not sealed in accordance with law, the possibility that the sample sent to the F.S.L. had been tampered with cannot be ruled out and the accused appellant was entitled to be acquitted. Learned counsel for the appellant placed reliance on State of Rajsthan Vs. Daulat Ram1, Gurbax Singh Vs. State of Haryana2, Mohd. Jahangir Pathan Vs. State of Gujrat3, Rajesh Vs. State4 and A mar Bahadur Khadak Bahadur Vs. State of Madhya Pradesh5. On the other hand, Shri U.K.S. Chandel, learned Panel Lawyer for the State has argued in support of the impugned judgment.