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2024:CGHC:28324
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1062 of 2003
Abdul Jalil @ Bablu S/o. Mahbub Khan, aged about 32 years, R/o.
Gauri Nagar, Near Railway Crossing Rajnandgaon, District-
Rajnandgaon (C.G.)
---- Applicant/Appellant
Versus
State of Chhattisgarh
----Respondent
_____________________________________________________________
For Appellant : Mrs. Usha Chandrakar, Advocate.
For State : Mr. Sanjeev Pandey, Dy. A.G.
_____________________________________________________________
Hon'ble Smt. Justice Rajani Dubey
Order on Board
31.07.2024
1. This appeal arises out of the judgment of conviction and order of
sentence dated 17.09.2003 passed by the Special Judge, (NDPS Act,
1985) Rajnandgaon, District- Rajnandgaon (C.G.) in NDPS Special
Case No. 44/2003, convicting the accused/appellant under Section
20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act ( in
short ‘’ the Act’’) and sentencing him to undergo R.I. for 10 years and to
pay a fine of Rs. 50,000/-, in default whereof to suffer additional R.I. for
02 years.
2. Facts of the case, in brief are that on 01.03.2003, Sub-Inspector T.
Khakha (PW-06) was posted at Police Station Kotwali, Rajnandgaon
(C.G.). On that date, he received secret information from the informant
that the appellant had kept contraband article ganja in a white plastic
bag near railway crossing on his black colour Boxer motorcycle bearing
Registration No. CG-08-A-3029. Upon receiving of this secret
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information, he recorded the secret information vide Ex. P/16 and
transmitted the same to the City Superintendent of Police and
thereafter, proceeded to the spot, i.e., near railway crossing. The
appellant was found there with a Boxer motorcycle bearing
Registration No. CG-08-A-3029 on which, the appellant kept a white
plastic bag. Notice under Section 50 of the Act was given to the
appellant, on which he consented in written for searching of plastic bag
which was on his bike be conducted, in presence of witnesses by Sub-
Inspector T. Khakha (PW-06) and accordingly panchnama vide Ex. P/2
was prepared and the accused/appellant had corporated with the
search, which was being conducted by the police personnel. However,
on such search being made, nothing objectionable was found from the
plastic bag from the possession of appellant which was on his
motorcycle bearing Registration No. CG-08-A-3029. While searching of
the trunk of the said motorcycle, a white plastic bag containing
substance like Ganja was found for selling purpose from the
possession of the appellant, panchanama of the same was prepared
vide Ex. P/3. On the spot itself the contraband article Ganja was got
examined by the witnesses by way of smelling and tasting and on the
basis of their experience, they found it to be Ganja. Thereafter,
contraband article Ganja when weighed alone found to be 08.100 KG
and when weighed with plastic bag found to be 08.300 KG, from which,
samples were separated from it and panchnama of the same was
prepared vide Ex. P/7. The samples and the remaining ganja were duly
sealed. Thereafter, Sub-Inspector T. Khakha (PW-06) recorded Dehati
Nalishi vide Ex. P/15. Sub-Inspector T.Khakha (PW-06) came back to
Police Station- Kotwali, Rajnandgaon along with the appellant and
seized articles and on the basis of Ex. P/15, the F.I.R. was registered
against the appellant vide Ex. P/14. The seized Ganja and its samples
were kept in Malkhana for safe custody. Spot map was prepared by
Sub-Inspector T.S. Khakha (PW-06) vide Ex. P/9. Statements of the
witnesses were recorded. The samples of seized ganja (Ex. P/11) were
sent to FSL for chemical examination and a report (Ex.P/12) was
received therefrom, which confirmed the contraband to be ganja and
thereafter a challan was filed against the appellant under Section 20 of
N.D.P.S. Act.
3. So as to hold the accused/appellant guilty, the prosecution examined as
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many as 07 witnesses in all. Statement of the accused/appellant was
also recorded under Section 313 of Cr.P.C. in which he denied all the
incriminating circumstances appearing against him in the prosecution
case, pleaded innocence and false implication.
4. The Trial Court after hearing counsel for the respective parties and
considering the material available on record, by the impugned judgment
has convicted the accused/appellant as mentioned in para 01 of this
judgment. Hence, this appeal filed by the appellant.
5. Learned counsel for the appellant submits that the learned Trial Court
has convicted the appellant without proper appreciating the evidence of
the witnesses. The learned Trial Court has erred in holding the
appellant’s guilty for an offence under Section 20 (b) (i) of NDPS Act
and the independent witnesses namely Ramesh Verma (PW-02) and
Parasram (PW-03) have not supported the prosecution case before the
Trial Court. Statement of the Investigating Officer T.S. Khakha. (PW-
06), is also full of contradictions and omissions. He further submits that
Investigating Officer, T.S. Khakha (PW-06) has not seized any
documents regarding the ownership of Boxer motorcycle bearing
Registration No. CG-08-A-3029 and the prosecution has failed to prove
this fact that the appellant was owner of the said motorcycle, from
where contraband was seized, PW-06 has also admitted this fact in
cross-examination that he did not produce any ownership documents
regarding the motorcycle and also regarding the house, in which the
motorcycle was recovered. The Investigating Officer, T.S. Khakha (PW-
06) does not comply with the mandatory provisions of N.D.P.S. Act and
the prosecution has utterly failed to prove its case beyond all
reasonable doubt, therefore, the impugned judgment of conviction and
order of sentence is liable to be set aside.
6. Reliance has been placed on the decision of Hon’ble Apex Court in the
matter of Sanjeet Kumar Singh @ Munna Kumar Singh Vs. State of
Chhattisgarh, reported in 2022 LiveLaw (SC)724.
7. Per contra, learned counsel for the State supported the impugned
judgment of conviction and order of sentence and submits that the
prosecution has proved its case beyond all reasonable doubt and the
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learned Trial Court has rightly convicted the appellant. Therefore, the
appeal is liable to be dismissed.
8. I have heard learned counsel for the parties and perused the material
available on record including the impugned judgment.
9. It is clear from record of learned Trial Court that prosecution has
examined as many as 07 witnesses to prove its case against the
appellant. Ramesh Verma (PW-02) and Parasram (PW-03) are search
and seizure witnesses of contraband article ganja and they admitted
their signature on Ex.P/1 to Ex. P/7, but they denied of any seizure
taking place before them and when prosecution declared them hostile
and cross-examined them, they denied all the suggestions of the
prosecution.
10. T.S. Khakha (PW-06), who is the Investigating Officer has stated in para
11 and 12 of his cross-examination that he did not seize any document
regarding the ownership of motorcycle bearing Registration No. CG-
08-A-3029 and did not seize any document regarding the ownership of
the house, from where the said motorcycle was seized. In Paragraph
12, he stated that the appellant lived in the said house, which is why he
stated that the said house was owned by the appellant.
11. Babulal Sinha (PW-04), who is the Head Constable stated in his
deposition that Ex. P/11 is the Malkhana Register and he deposited
contraband article ganja in Malkhana for safe custody. Sonchand
Thahriya (PW-05), who is the constable stated in his deposition that he
carried the sample of contraband article ganja to FSL, Raipur for
chemical analysis and the report of said contraband was produced
before the police Station, which is Ex. P/12 and its acknowledgment is
Ex.P/13.
12. It has been held by Hon’ble the Apex Court in the matter of Sanjeet
Kumar Singh @ Munna Kumar Singh Vs. State of Chhattisgarh
reported in 2020 LiveLaw (SC) 724 in para 31 & 32 which reads as
under:-
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“31. Therefore, it is clear that the I.O. examined as PW-07 claims to have
done everything only in the presence of independent witnesses. But those
independent witnesses not merely denied their presence and participation
but also came up with an explanation as to how their signatures found a
place in those documents.”
32. In such Circumstances, a serious doubt is cast on the very search and
seizure allegedly made by PW-07. But unfortunately, both the Special Court
and the High Court went by the law in theory, without applying the same to
the facts of the case.”
13. In the light of above judgment, in this case also independent witnesses
have not supported the prosecution case before the learned Trial Court
and also the prosecution did not file any documents regarding the
ownership of the said motorcycle and regarding the said house, from
where the motorcycle was stood and from which the contraband was
seized and the prosecution has also failed to prove this fact that the
said motorcycle and the said house belongs to the appellant. As per Ex.
P/13, memo of S.P., Rajnandgaon dated 03.03.2003, property was sent
to FSL, Raipur and deposited by Sonchand Thahariya (PW-05) on
05.03.2003 at FSL, Raipur. The prosecution has failed to prove this fact
that property was deposited by Sonchand Thahariya (PW-05) was
without delay. In these circumstances, the prosecution has completely
failed to prove the complicity of the accused/appellant in the crime in
question beyond all reasonable doubt.
14. In view of the aforesaid discussion and considering the facts and
circumstances of the case, this appeal is allowed. The impugned
judgment is set aside and the accused/appellant is acquitted of the
charge under Section 20(b) (i) of NDPS Act, 1985.
15. The appellant is reported to be on bail, therefore, his bail bond shall
remain in operation for a period of six months from today in view of
provision of Section 437-A of Cr.P.C.
16. The Trial court record along with a copy of this judgment be sent back
immediately to the trial court concerned for compliance and necessary
action.
Sd/-
(Rajani Dubey)
JUDGE
Amit Patel