GOVIND RAM Vs. STATE OF CHHATISHGARH

JUDGEMENT

(1.) "this appeal is directed against the judgment dated 3-5-2003 delivered by Shri Raghubir Singh. SpecialJudge, N-D-PS. Act. Ambikapur, Surgujain special criminal case No- 16/2002 whereby the appellant was convicted under Section 22 of Narcotic Drugs and Psycholropic Substances Act (hereinafter referred to as "the Act) and was sentenced to R.I for ten years and a Fine of Rs- l.00.000/-, in default to undergo additional R,I- for three years.

(2.) Briefly stated the prosecution case is that on 19-3-2002 Sub-Inspector Haricharan Singh PW.8 of Police Station Ambikapur received secret, information that one person was in unauthorized possession of brown-sugar. After complying with the legal formalities, along with witnesses Shahid Khan P.W.5 and Anwar Qureshi P.W.1 he reached the spot near the school situated al Grain Asola. After giving notice under Section 50 of the Act, the appellant was searched. From his full pant, brown- sugar like substance was seized in two white coloured polythencs vide Ex.P.5. On weigh' ment. it weighed 10 gms, and 50 milligrams. The contents of both the packets were mixed. The packets were sealed- One white coloured fossil sheet found in cigarette packets having stains showing thai brown-sugar was consumed was also seized. The seized scaled packets of brown sugar were handed over to Head Constable Mahesh Prasad Gupta P.W.2 for safe custody. On 20-3-2002 both the sealed packets were sent along with memo Ex.P25. of Superintendent or Police, Surguja for chemical analysis to the Forensic Science Laboratory, Raipur. Vide report dated 30th March, 2002. both the packets were found to contain diacital morphin (heroin). On completion of investigation, the accused-appellant was prosecuted under Section 22 of the Act. The accused abjured his guilt pleaded innocence and led no evidence in defence- The learned trial Judge it-lying upon the evidence led by the prosecution convicted and sentenced the accused-appellant as aforesaid in paragraph 1.

(3.) Suit. Savila Tiwari, learned counsel for the appellant has assailed the conviction of the appellant on the following grounds : i) Independent witnesses Anwar Qurcshi PW.1 and Shahid Khan P.W.5 did not support the prosecution slory which rendered the testimony of Iluncharan Singh, A.S.I, unreliable. Reliance was placed on Bhola Ram Kushwaha v. State of M.P., reported in 2001 SCC (Cri) 1 r (2001 Cri LJ 116} and Bahadur Singh v. State ol Madhya Pradesh, 2002 Cri IJ 579 : (2002 Cri LJ 579) (SC). ii) Chhedi Prasad P.W.G witness of weighment Panchanama also did not support the prosecution story whereby weighment Paneharuuna Ex-P-9 was rendered doubtful. iii) A.S.L Haricharan Singh P.W.8. in the notice under Section 50 ol" the Act Ex.P. 1, did nut mention that that he had informed the accused-appellant about his legal right to he searched before a Gazetted Officer or a Magistrate. Failure to do so, caused serious prejudice to the accused-appellant. Therefore, for non-compliance of the mandatory requirement of Section 50 of the Act, the appellant was entitled to be acquitted- Reliance was placed on K, Mohanan v. State of Kerala, reported in 2000 SCC (Cri) 1228. iv) It was lastly contended that there was no evidence to show that the seized substance was received in the Malkhana of P.S. Ambikapur after putting the seal of the officer-in-charge of P.S. Ambikapur on it. Thus, there was tola! non-compliance of Section 55 of the Act and it could not be ruled out thai, the sample sent for examination by the.- F.S.L- had been tampered with.