UMESH KUMAR SAHU Vs. STATE OF C G

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 6-2-2006 delivered by Shri T.K. Jha. Special Judge, Dantewada in Sessions Trial No. 4/2005 whereby the Appellants were convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act") and were sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1.00.000/- and in default of the same, to undergo additional S.I. for 1 year.

(2.) BRIEF facts of the case are that on 9-10-2005. upon receiving secret information that contraband ganja was being transported from Sukma to Jagdalpur in a Qualis vehicle bearing No. CG-04/B/2126 Shri G.N. Singh. P.W. 5 Station House Officer, P.S. Tongpal, Distt. Dantewada reduced the secret information to writing and after informing his senior officials, intercepted the above mentioned vehicle in front of P.S. Tongpal, Distt. Dantewada. The Appellant Umesh Kumar Sahu was driving the Qualis and the other co-accused Appellants were seated inside. After completion of the necessary legal formalities, search was conducted and total quantity of ganja 98 kgs, in 4 packets was seized from the possession of the Appellants vide seizure memo Ex. P-12. Two samples of 25 gms. each were taken out from each packet and sealed vide Ex. P-10. The 4 packets containing ganja and the 8 sample packets and also the Qualis vehicle bearing No. CG-04/B/2126 were entrusted for safe custody at the Malkhana of P.S. Tongpal to Head Constable C. Tigga P.W. 1 who made an entry thereof in the Malkhana Register vide Ex. P-1 (c). On 11-2-2005, 4 sample packets of ganja marked A-l, B-l, C-l and D-l were sent for chemical analysis to the FSL vide memo of the Superintendent of Police Ex. P-31 through constable Soman Markam No. 505. These 4 sample packets were delivered by Constable Soman Markam No. 505 at the FSL, Raipur on 14-2-2005 vide acknowledgment dated 28-6-2005 Ex. P-32. Vide report Ex. P-34, the F.S.L. confirmed that all the sample packets contained ganja. After completion of investigation, the Appellants were prosecuted under Section 20(b)(ii)(c) of the Act.

(3.) SHRI Prakash Tiwari, learned Counsel for the Appellants has argued that the independent witnesses Anil Pandey P.W. 2 and Bhagat Sethia P.W. 3 did not support the testimony of Sub Inspector G.N. Singh P.W. 5. There was no evidence to show that the ganja was seized from the conscious possession of the Appellants. A joint seizure memo Ex. P-12 was prepared by Sub Inspector G.N. Singh whereas the evidence of Sub-Inspector G.N. Singh did not show that each of the Appellant was seated in the Qualis vehicle in conscious possession of the contraband ganja. The testimony of Head Constable C. Tigga P.W. 1 was also referred to while arguing that it is extremely doubtful that Sub-Inspector G.N. Singh P.W. 4 had sealed the sample packets in the presence of the Appellants at the time of affecting the seizue. Ex. P-12 seizue memo was also referred while arguing that it was mentioned therein that the entire 4 bags of ganja as also the 8 sample packets were sealed at 1.50 p.m. whereas the weighment panchnama showed that the sample packets were sealed at 1.00 p.m. The testimony of head constable C. Tigga P.W. 1 created a serious doubt that till depositing the entire quantity of seized ganja in 4 bags at the Malkhana, SHRI G.N. Singh had not taken any samples therefrom. Lastly, it was argued that the possibility that sample packets examined by the F.S.L. were tampered with, could not be ruled out because the constable to whom the sample packets were entrusted on 11 -2-2005 by memo Ex. P-31 of the Superintendent of Police was not examined to explained the reason for the delay in delivering the samples at the FSL on 14-2-2005. It was also pointed out that the copy of the Malkhana Register Ex. P-1 (c) did not show that any identifying marks were put on the sample packets. It was also shown that the impression of the seal was also not deposited along with the seized substance and the sealed sample packets at the Malkhana. Therefore, the mention of identifying marks A-l, B-l, C-l and D-l to be found on the sample packets vide memo Ex. P-31 of the Superintendent of Police, Dantewada did not rule out the possibility that the samples had been tampered with. On these grounds, it was prayed that the conviction of the Appellants and the sentence awarded by the learned trial Judge was liable to be set aside.