Dismissed¶38

The State of Chhattisgarh v. Ezaz Khan @ Chhota Babu

Chhattisgarh HC13 Aug 2024ACQA/53/2019

Case brief

AI extract

What is this about?

Chhattisgarh High Court, Bilaspur — ACQA No. 53 of 2019, decided 14/08/2024 by Justice Arvind Kumar Verma; State acquittal appeal dismissed at motion stage. Keywords: Section 378(3) CrPC appeal against acquittal; NDPS Act Sections 21(B), 27(A), Section 50 non-compliance; brown sugar seizures 3.62 / 2.50 / 1.08 grams; seal mismatch BKK v. BBK, FSL report Ex.P-71; benefit of doubt; exclusive-possession doubt (Javed Khan / Iqbal Siddiqui); 'possible view' standard for reversing acquittal; Jafarudheen v. State of Kerala (2022) 8 SCC 440 para 25; State of Chhattisgarh v. Ezaz Khan @ Chhota Babu, Wasimuddin @ Simmi @ Malik and Kayyum Ahmad.

What did the court decide?

None; the acquittal of the respondents under Sections 21(B) and 27(A) of the NDPS Act stands upheld, no interference with the trial court's judgment. ¶38

The State of Chhattisgarh Vs Ezaz Khan @ Chhota Babu — Narcotics (NDPS) | Chhattisgarh HC (2024)

What the court decided

AI extract

Outcome

None; the acquittal of the respondents under Sections 21(B) and 27(A) of the NDPS Act stands upheld, no interference with the trial court's judgment.

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Issue for consideration

Whether the acquittal of the respondents under Sections 21(B) and 27(A) of the NDPS Act should be reversed on the State's appeal under Section 378(3) CrPC, the State contending that the trial court erred in appreciating the evidence, that the finding of acquittal is perverse, and that sufficient evidence connects the accused-respondents with the offence. +1 more

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Court's answer

Following the principle in Jafarudheen v. State of Kerala (2022) 8 SCC 440 (para 25) that an acquittal strengthens the presumption of innocence and the appellate court must be relatively slow in reversing it, the trial court rightly took the view that the prosecution failed to establish the charges beyond reasonable doubt, and the view taken is a possible one.

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Ratio / Principle

The seal on the seized memo and sealed sample read 'BKK' whereas the FSL examination report Ex.P-71 recorded 'BBK'; the conclusion drawn is that the brown sugar tested at FSL Raipur was not the substance seized from the accused-respondents. There were no witnesses in the case of respondent Qayyum Ahmed, who was therefore given the benefit of doubt.

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Key takeaways

In light of Section 50 of the NDPS Act this was a case of its total non-compliance: the officer in charge failed to put his seal on the case property kept in his custody pending the Magistrate's orders, so the possibility that the sample was altered could not be ignored; the mandatory provision of the NDPS Act not having been complied with, its benefit accrued to the accused, and the learned Special Judge was totally justified in acquitting the accused-respondents for the offences under Sections 21(B) and 27(A) of the NDPS Act.ratio¶32
It was not proved that the brown sugar said to be recovered from the house of respondent Ezaz Khan was recovered from premises in his exclusive possession: the Investigating Officer deposed that the house was in the possession of Javed Khan, whereas PW-6 deposed that the house belonged to Iqbal Siddiqui.ratio¶31

Detailed headnote1 paragraphs

Acquittal appeal (ACQA No. 53 of 2019) by the State of Chhattisgarh under Section 378(3) CrPC against the judgment dated 27.03.2018 of the Special Judge (NDPS), Durg in Special Criminal Case No. 02/2017, acquitting three respondents of offences under Sections 21(B) and 27(A) of the NDPS Act arising from seizures of brown sugar (55 packets weighing 3.62 grams from respondent No.1; 17 packets weighing 2.50 grams from a house on his instance; 30 packets weighing 1.08 grams from respondent No.2). Dismissing the appeal at motion stage (Justice Arvind Kumar Verma, 14.08.2024), the High Court found total non-compliance with Section 50 of the NDPS Act — the officer had not put his seal on the case property, so alteration of the sample could not be ruled out — and observed that the seal on the seized memo/sample ('BKK') differed from that in the FSL examination report Ex.P-71 ('BBK'), establishing that the material tested at FSL Raipur was not the substance seized; the house recovery was not proved to be from premises in respondent No.1's exclusive possession (Investigating Officer: Javed Khan; PW-6: Iqbal Siddiqui); and there were no witnesses against respondent Qayyum Ahmed. Relying on Jafarudheen v. State of Kerala, (2022) 8 SCC 440 (para 25) on the strengthened presumption of innocence and appellate restraint in reversing acquittals, the Court held the trial court's view was a possible one, declined to interfere, and dismissed the appeal.

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2024:CGHC:30885

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 53 of 2019

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1. The State Of Chhattisgarh Through District- Magistrate, Durg, Chhattisgarh., District : Durg, Chhattisgarh

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... Appellant

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versus

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1. Ezaz Khan @ Chhota Babu S/o Rafiq Khan Aged About 26 Years R/oVillage- Himouli, Police Station And District- Habibpur (U.P.) At Present R/oKelabadi Near Masjid, Near Anna General Stores, Durg, Chhattisgarh.,

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2- Wasimuddin @ Simmi @ Malik S/o Mukimuddin Malik Aged About 28 Years R/o Taj Nagar, Teka Char Khambha Chowk, Near Kabbadi Ground, Nagpur, Maharashtra.

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3- Kayyum Ahmad S/o Aminuddin Aged About 32 Years R/o- Taj Nagar, Behind Teka Kabbadi Ground, Police Station- Panch Pawali, District- Nagpur, Maharashtra.

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... Respondents

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For Appellant/State : Shri Ajit Singh, GA For Respondent : None

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(Hon’ble Shri Justice Arvind Kumar Verma)

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Order on Board

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14/08/2024

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This Acquittal appeal under Section 378(3) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) is filed by the appellant/State being

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aggrieved by the impugned judgment of acquittal dated 27.03.2018 passed in Special Criminal Case No. 02/2017 by the court of Special Judge (NDPS) Duirg whereby the respondents have been acquitted of the charges under Section 21(B) and 27(A) of the NDPS Act by giving benefit of doubt holding that the prosecution has failed to prove the charges beyond reasonable doubt.

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Brief facts of the case are that on 22.10.2016, the Investigating Officer Brajesh Kushwaha (PW-9) received information by the informer that accused/respondent No.1 is involved in illegal business of transporting brown sugar and he was standing near Laxmi Bai Chowk, Kelabadi searching for customers to sell the said contraband. On receiving the said information, he prepared memo Ex.P-48 and forwarded the same to the Superior Officer I.e City Superintendent of Police, Distt. Durg vide Ex.p-1 and proceeded to the spot where the accused/respondent was standing. After following all the procedures, he was served with a notice under Section 50 of the NDPS Act and on search being made, 55 packets of brown sugar was recovered from him in a yellow polythene ba which was seized vide Ex.P-10. Physical verification was done vide Ex.P-2 and the same was subjected to weighment vide Ex.P-3 and the total quantity was 3.62 grams. Memorandum statement of the accused/respondent No.1 was recorded by the Investigating Officer vide Ex.P-16 and on his instance 17 packets of brown sugar was recovered from the house of respondent No.1 vide recovery panchanama Ex.P-13. Physical verification was done vide Ex.P-4 and the total quantity of brown sugar came to 2.50 grmas. Spotmap Ex.P-21 & 22 was prepared. Accused/respondent was served with notie under Section 91 Cr.P.C vide Ex.P-58 for producing legal valid license o document but he has not produced any document and thereafter FIR (Ex.P-63) was registered under Section 21 of the NDPS Act. During investigation, statements of the

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accused/respondents and one co-accused were recoded vide Ex.P-40. During search 30 packets of brown sugar was recovered from the pocket of respondent No.2 vide Ex.P-35. Physical verification was done and after weighment total quantity came to 1.08 grams vide Ex.P-39. After following the prescribed procedure, charges were framed against the accused/respondents under Sections 21(B) and 27 (a) of the NDPS Act.

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In order to prove its case, the prosecution has examined as many as 9 witnesses and in the statements recorded under Section 313 Cr.P.C. the respondents/accused persons stated that they have been falsely implicated and they have not adduced any defence evidence. After evaluating the evidence, the trial Court acquitted the accused persons of the aforesaid charges. Hence, this appeal.

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Learned counsel for the appellant/State submits that the trial court has not appreciated the evidence in proper perspective and the finding arrived by the trial court is perverse and prays to allow the appeal and convict the respondents/accused. He further submits that that learned Special Judge was absolutely unjustified in acquitting the respondents/accused for the aforesaid offence as there is sufficient evidence available on record to connect the accused-respondents with the offence under Section 21(B) of the NDPS Act and, as such, it is a fit case where leave can be granted to the State to prefer appeal against the impugned order of acquittal. The trial Court has failed to consider the factum of seizure of illegal contraband (brown sugar) from the possession of the respondents/accused from the bag which he was carrying in weighing 55 packets of brown sugar in yellow polythene bag. He further submits that learned trial Court failed to appreciate the statement of the witnesses, wherein, they have stated about the prosecution case and seizure of brown sugar from the accused, however, despite these evidences the learned trial Court acquitted the respondent/accused. It is also pertinent to

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mention here that, on account of illegal transportation of the contraband (brown sugar) and failure of accused to adduce evidence or explanation regarding transporting of ganja, the offence was registered and then the investigation has been conducted and after completion of investigation the prosecution had filed charge sheet along with sufficient material evidences, however, the learned Special Court failed to appreciate and consider the case of the prosecution.

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I have heard learned State counsel, considered his submissions, perused the impugned order of acquittal and also other material available on record with utmost circumspection.

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It is not in dispute that psychotropic substances were seized by the Investigating Officer, namely, Brijesh Kushwaha (PW-9) from the accusedrespondents, which he has said to be deposited in the Malkhana of Police Station Padmanabhpur, district Durg. Apart from that, it has been stated that the samples were taken from the contraband brown sugar in presence of the accused and sent to the FSL. The seal of the packets of sample and seal shown in the FSL report is totally different as in the seized memo and the sealed sample it was mentioned BKK whereas in the FSL examination report Ex.P-71, it was mentioned as BBK and the conclusion drawn from the above is that the contraband brown sugar seized from the accused/respondents was not the one which was seized by them and sent to FSL Raipur. There were no witnesses in the case of accused/respondent Qayyum Ahmed and therefore after granting benefit of doubt he has been acquitted. The accused/respondents Ezaz Khan @ Chhota Babu and Malik @ Wasimuddin were also acquitted of the charges under Section 21(B) and 27(A) of the NDPS Act.

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It is pertinent to mention here that it is not proved that the contraband was seized from the house of Ezaz but it was not proved that the said house

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was in exclusive possession of Ezaz. The Investigating Officer has deposed that the house was in possession of Javed Khan but PW-6 has deposed that the house belongs to Iqbal Siddiqui.

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In the present case, in the light of provision of Section 50 of the NDPS Act and taking into consideration the fact that its a case of total noncompliance of Section 50 of the NDPS Act and the learned Special Judge was totally justified in acquitting the accused-respondents herein for the offence under Section 21(B) & 27(A) of the NDPS Act. On perusal of the records, it transpires that there is violation of provisions of Section 50 NDPS Act. Section 50 NDPS Act requires Offcer in-charge of the police station to keep the case property in his safe custody, pending orders of the Magistrate, but in this case he had not put his seal over the case property therefore there might be a possibility which cannot be ignored that the sample has been altered. Further, in this case also, the mandatory provision of the NDPS Act has not been complied with by the prosecution and benefit of which has been granted to the accused. As such the learned trial Court has acquitted the accused person on the ground that seizure of the contraband from the possession of the accused person is doubtful and there was non-compliance of Section 50 of the NDPS Act.

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In such circumstances, the trial court has rightly taken a view that the prosecution has failed to establish the charges beyond reasonable doubt and the view taken is a possible one. In the matter of Jafarudheen Vs. State of Kerala, (2022) 8 SCC 440, in respect of scope of appeal against acquittal, the following was observed vide para 25 :

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“25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the

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appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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In view of the above, this Court is of the opinion that the finding recorded by the trial Court is just and proper and does not call for any interference.

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Resultantly, the Appeal fails and is hereby dismissed at motion stage.

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Sd/(Arvind Kumar Verma)

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Judge

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Digitally signed SUGUNA by SUGUNADUBEY DUBEY Date: 2024.09.03 01:55:35 -0400

The State of Chhattisgarh v. Ezaz Khan @ Chhota Babu

Case brief

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The State of Chhattisgarh v. Ezaz Khan @ Chhota Babu

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