Santu @ Gurjeet Singh Vs State of Chhattisgarh

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2024:CGHC:44660

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 154 of 2006

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1 - M.Ramesh son of M.Subhash aged about 24 years, occupation unemployed, Resident of - MIG 1, Quarter No. 886, Hudco, Bhilai District Durg (C.G.)

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---- Appellant

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versus

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1 - State of Chhattisgarh Through: District Magistrate, Durg, District- Durg (C.G.)

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---- Respondent

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CRA No. 219 of 2006

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1 - Amit Sharma, son of Shri Kunj Bihari Sharma, aged about 26 years, occupation unemployed, Resident of Deepak Nagar, Durg, Street No. 16, P. S. Mohan Nagar, District- Durg (C.G.)

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---- Appellant

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Versus

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1 - The State of Chhattisgarh

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---- Respondent

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CRA No. 249 of 2006

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1 - Santu @ Gurjeet Singh son of Gurdeep Singh, aged about 26 years, Resident of Hospital sector, Quarter No. 2, Bhilai, Police Station - Kotwali Thana Sector- 6, Bhilai, District - Durg (C.G.)

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---- Appellant

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Versus

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1 - State of Chhattisgarh Through- S.H.O. Supela Police Bhilai, District: Durg (C.G)

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---- Respondent

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For Appellants : Mr. Shubham Tripathi, Advocate (CRA No. 154/2006) Mr. Uttam Pandey, Advocate (CRA No. 219/2006) Mr. Rajesh Jain, Advocate (CRA No. 249/2006) For Respondent : Mr. Anurag Tripathi, Panel Lawyer

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Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board

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02/07/2024

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All these three appeals are arising out of the same crime number, same sessions trial and by a common judgment, therefore, they are being heard and decided together.

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The present appeals have been filed under Section 374(2) of the Code of Criminal Procedure 1973, ( for short the, Cr.P.C. ) against the judgment of conviction and sentence dated 06.02.2006 passed by Learned Special Judge (N.D.P.S Act) Durg, (C.G.) in N.D.P.S. Special Case No. 08/2005, whereby the accused persons have been convicted for the offence under Section 8 (c) read with Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short N.D.P.S Act ) and sentenced for R.I. for 10 years with fine of Rs. 1,00,000/- in default of payment of fine 01 year additional R.I. to each of the accused persons.

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Brief facts of the case are that on 10.03.2005 (PW- 6) Rakesh Bhatt who was the Station House Officer at Police Station, Supela were on patrolling along with other staff of the police station. While they were on patrolling they saw 03 boys near Nehru Nagar Pond, behind the Gurudwara having some suspicious substances in their hands and they tried to hide it. On being suspicion, they have been interrogated by the police party and then they disclosed their names as Santu @ Gurjeet Singh, M.Ramesh and Amit Sharma. The accused Santu having a polythene bag in his hand from which Ganja like smell coming out. At the same time the independent witnesses Hemant Dua and Javed Khan were passing through and when these

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suspected articles shown to them they disclosed that it is Ganja. The incident was informed to CSP, Chhawni, through telephone and on their instructions the said Ganja have been seized from the accused Santu on the spot vide seizure memo Ex.P/5. On being weighed, it was found 1/2 kg and out of which the sample of 50gm were separated. The memorandum statements of the accused persons Ex.P/6, Ex.P/7 and Ex.P/8 have been recorded in which they disclosed that they have purchased 3 bags of Ganja from a person who came from Orissa and they kept it concealed at medical store of accused Amit Sharma at Katulbod.

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The police party given their own search to the accused persons and consent of his search from the accused Amit Sharma has been obtained vide Ex.P/9. The room attached with the medical store of accused Amit Sharma was also searched from where 3 bags contains with Ganja have been seized in presence of the witnesses vide seizure memo Ex.P/10. The sample of 50gm from the seized Ganja have been taken out and the remaining Ganja was re-filled in tin-container and it was sealed. The seized Ganja, its sample and the accused persons taken to police station where the F.I.R. have been registered. The sample drawn from the seized Ganja were sent for chemical examination to FSL, Raipur.

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Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation charge-sheet was filed before the learned trial Court for the offence under Section 20(b) of the N.D.P.S. Act.

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The learned trial Court has framed charge for the offence under Section 8 (c) read with Section 20(b)(ii)(C) of the N.D.P.S. Act. The accused persons denied the charge and claimed trial.

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In order to prove the charge against the accused persons, the prosecution has examined as many as 8 witnesses. The statement under Section 313 of Cr.P.C. of the accused persons have also been recorded in which they

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denied the circumstances appears against them, plead innocence and have submitted that the police persons have taken them from their house for interrogation but they are innocent and have been falsely implicated in the offence.

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After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the accused persons and sentenced them as mentioned in the earlier part of this judgment. Hence this appeal.

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Learned counsel for the respective appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. The mandatory provisions of Section 42, 45, 50, 52, 52-A, 55 and 57 of N.D.P.S. Act, have not been complied with and thereby there are serious lacunae in the prosecution case. The Circular No. 1/89 issued by the Central Government have also not been complied with. The independent witnesses have not supported the prosecution case. They would also submits that the entire search and seizure proceedings is doubtful. There is no specimen seal panchnama have been prepared and no samples seal have been sent to FSL for its comparing. There is no sufficient evidence on record to prove that the samples drawn from the alleged contraband were kept in safe custody of Malkhana before reaching to FSL. They would further submits that the prosecution has failed to prove the fact that the place from where the alleged contraband is said to have been seized was in exclusive possession of the accused persons and on their instance the same has been seized, therefore, there is no clinching and cogent evidence against the accused persons/appellants and they are entitled for their acquittal.

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On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and have submitted that all the mandatory provisions have duly been complied with during the search and

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seizure proceedings. But for minor omissions and contradictions the evidence led by the prosecution are sufficient to hold conviction of the appellants for the alleged offence. He would also submits that since the accused persons were caught on suspicion, non compliance of Section 42 of the N.D.P.S. Act would not affect the prosecution case. Section 50 of the N.D.P.S. Act would be applicable on personal search and in the present case it is not applicable. He would also submits that the room from where the alleged contraband is seized is adjoining to the medical store of the accused Amit Sharma which is part of the medical store and in possession of the accused Amit Sharma. He would also submits that although the FSL report has not been exhibited in the case but it is available in the case in which the sample packets sent for chemical examination were found to be of Ganja and the FSL report is admissible without there being any formal proof as provided under Section 293 of Cr.P.C. The specimen seal has also been impressed in the FSL report. Therefore, the prosecution has duly complied with all the mandatory provisions required for search and seizure and the learned trial Court has rightly considered the evidence available on record and have convicted and sentenced the accused persons which is strictly in accordance with law and the appeals are liable to be dismissed.

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I have heard learned counsel for the parties and perused the record.

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PW-1 Rajaram Sahu, who was the constable at Police Station, Supela have stated in his evidence that on 10.03.2005 when he along with Station House Officer Rakesh Bhatt were on patrolling, 3 suspected boys were interrogated by Station House Officer and on being searched of their articles, Ganja was found. They disclosed that they concealed Ganja behind the medical store at Katulbod but at the time of seizure of Ganja he was not there. In crossexamination he denied all the search and seizure proceeding conducted in his presence and stated that he is unaware about search and seizure

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proceedings and what proceedings the Station House Officer has drawn he did not know.

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PW-2 T. S. Rajput, Assistant Sub Inspector, posted at Police Station, Supela have stated in his evidence that he along with Station House Officer R. K. Bhatt were on patrolling duty on 10.03.2005 and they got information that one suspected boy hiding himself behind the pond some suspected substance in a plastic bag. When they proceeded towards the place of incident they called the independent witnesses and they interrogated the suspected person about the articles having with him then he disclosed that Ganja is there in it. After obtaining consent from the accused for his search and after giving their own search to the accused, 1/2 kg. Ganja has been seized from the accused Santu from which sample was also taken out. The accused Santu has disclosed that the accused Amit Sharma have concealed Ganja in his medical store and then they proceeded towards the place inform by accused Santu. They again gave their own search to the accused Amit Sharma. After, opening the medical store by its key, the accused Amit Sharma taken them towards back side of the medical store, where Ganja kept in 3 plastic bags. At that time Ramesh Sharma was also there with them. On being weighed, the Ganja was also found 30 kg. The samples were taken out from the seized Ganja on the date of incident on 20.03.2005. In cross-examination he admitted that the consent letter and Talashi panchnama is in handwriting of Station House Officer R.K. Bhatt. He further admitted that his signature is not there in his seizure memo. He further stated that where the sample was kept, he did not know. They received information at Nehru Nagar and after giving the information, the informant went away. He could not remember as to from which place the accused Amit Sharma was taken there. When Amit Sharma was called on the spot, he was also interrogated and he was searched near his medical store. He admitted that Ganja has not been seized from medical store but it has been seized

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from a hutment situated behind the store. He has not inquired as to who was the owner of the hutment.

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PW-3 Ajit Kumar Gupta, is the employee of accused Amit Sharma have stated that he was working as part time worker in the medical store of accused Amit Sharma but from 3 - 4 months he is not going in his duty. He stated that he did not know about Ganja.

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PW-4 Bhikhamchandra Barree is the Head Constable at Police Station, Supela and working as Malkhana Moharir at the time of incident. He brought Rojnamcha Sanha with him in which on 10.03.2005, the departure of the police party was endorsed and the said Rojnamcha Sanha is Ex.P/1 and its attested true copy is Ex.P/1-A. The said Rojnamcha Sanha was also endorsed with incoming of the police party with the accused as well as seized article Ganja which is Ex.P/2 and attested true copy is Ex.P/2-A. He has also brought the articles seizure register and according to which the 1/2 kg Ganja has been seized from accused Santu @ Gurjeet Singh out of which sample of 50 gm have been taken out. From the accused Amit Sharma 30 kg Ganja have been seized which was kept in 3 bags of 10kg each out of which samples of 50gm were taken out and seized in presence of witnesses. The article register is Ex.P/3 and its attested true copy is Ex.P/3-A. In cross-examination he admitted that in the departure Rojnamcha Ex.P/1 it has not been mentioned that on which direction police party had gone for patrolling. He admitted that the time of deposition of the seized Ganja has not been endorsed in the Malkhana register. He further admitted that the sample taken out from the Ganja seized from which accused, which has been sent to FSL, has not been endorsed. The sent sample have not been received back after its chemical examination. He further stated that the seized Ganja was brought in sealed condition from the spot and in the police station the seal was broke open and the Ganja was re-filled in tin container and the said tin container was sealed. He further admitted that the

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Rojnamcha Ex.P/1 and Ex.P/2 have not been endorsed by him and who has made it he did not know. He further admitted that the seal which has been used at the time of seizure and its specimen has not been deposited with him. The seal was kept inside the tin container but there is no separate endorsement of it. The seized Ganja of 3 bags was kept in 6 tin container and sealed. He admitted that in the Malkhana register there is no endorsement of sending the sample for its chemical examination.

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PW-5 Gupteshwar Singh Yadav, who is the constable at Police Station, Supela have stated in his evidence that he was also the member of patrolling party and during their patrolling they found 3 boys standing near pond at Nehru Nagar and they tried to hide something and when they interrogated, Ganja like substance were seized from them and it was 30 kg in weight. In cross-examination he stated that the entire 30 kg of Ganja have not been seized from the spot. But the accused persons were interrogated they disclosed that they concealed the Ganja in the medical store of accused Amit Sharma and thereafter the remaining Ganja have been seized from the medical store of Amit Sharma. Near the pond the Ganja along with carry bag has been seized in his presence and thereafter they proceeded further. He could not remember as to who has recorded his statement. Since all the proceedings have been drawn by his Senior Officer, therefore, he did not know as to which accused persons have disclosed what information. He further stated that who has caught which accused first he could not remember. From the pond they proceeded towards the place where they disclose about the concealing the Ganja. He was outside of the premises and the Ganja was taken from inside of the premises. At the time when they reached at the medical store, the accused Amit Sharma was called from his house. He was having key of said medical store by which he opened the store. He admitted that medical store from where Ganja is said to have been

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seized, having other shops adjoining to it and a number of persons were gathered there. The accused persons have caught on the basis of suspicion. 16. PW-6 Rakesh Bhatt, who is the Investigating Officer of the case have stated in his evidence that when he was in patrolling duty on 10.03.2005, near Nehru Nagar pond, behind the Gurudwara, three boys were seen in suspicious condition and they tried to hide something which was in their hands. On being interrogation they disclosed their names as Santu @ Gurjeet Singh, M. Ramesh and Amit Sharma, Santu was having a polythene carry bag with him from which the Gaja like smell coming out. The byepasser Hemant Dua and Javed khan were called and they disclosed that it was the Ganja. Santu has given his consent for Talashi. CSP Chhawni was informed through telephone and on their instruction Ganja was seized which was 1/2 kg in weight. The sample of 50 gm has been separated and separately sealed on the spot. All the three accused persons have disclosed that they purchased three bags of Ganja from the person who came from Orissa and all the three bags of Ganja kept the inner room of medical store of accused Amit Sharma at Katulbod. Their memorandum statement have been recorded the consent was obtained from the accused Amit Sharma and on the instance of the accused persons, 3 bags of Ganja have been seized from the room of the medical store of accused Amit Sharma. The sample of 50 gm was separated from the seized Ganja and remaining Ganja was kept tin-container and sealed. The F.I.R. of Crime No. 221/2005 has been registered at police station and the accused persons have been arrested. Statements of the witnesses have been recorded. The sample packets of Ganja were sent for its chemical examination to State FSL, Raipur through the memo of Senior Superintendent of Police, Durg on 11.03.2005. After completion of investigation charge-sheet was filed against the accused persons.

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In cross-examination he admitted that the registration number of the jeep by which they proceeded towards Nehru Nagar for patrolling have not been mentioned in the Rojnamcha Sanha. He further admitted that in the F.I.R. Ex.P/18, in whose hand the carry bag was and who had tried to hide it, is not mentioned. He voluntarily stated that the accused Santu was having a polythene carry bag in his hand which is mentioned in the F.I.R. He further admitted that Talashi panchanama Ex.P/4 is not in his own handwriting but it has been written on his dictation. He admitted that he has not given any notice in writing to Santu @ Gurjeet regarding his search. He also admitted that in consent letter Ex.P/4, accused Santu @ Gurjeet has not given any written consent in it. He further admitted that in Talashi panchnama Ex.P/4, it has not been mentioned that what articles have been found from the police party. There was no search of the police jeep. The 1/2 kg of Ganja seized from the spot was sealed on the spot itself. He admitted that he has not prepared specimen seal panchnama. The document Ex.P/3 to Ex.P/8 was not in his handwriting. The bags of Ganja was sealed at the place from where it has been seized and it has not been sealed at police station. He denied that after coming to police station, the seized Ganja was re-filled in tin-container and again it was sealed or the bags of Ganja have been sealed at police station. He further admitted that the 1/2 kg of Ganja seized from the accused Santu was not weighed and he mentioned its weight on assumption and that has been said by the accused also. The sample of 50 gm was also separated on assumption and it was not weight. The seized Ganja was kept at Malkhana in the same condition in which it has been taken to police station and it was only taken out at the time of sending it for chemical examination. He further stated that the statement of the witnesses are not in his hand writing and it has been written on his dictation.

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He further stated that there is no separate Talashi panchnama with respect to the Talashi of the accused Ramesh and there is no endorsement

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in any of the document for the same. Nothing has been seized from the accused M. Ramesh. He also stated that with respect to the Talashi of accused Amit Sharma, no separate panchnama have been prepared. On his Talashi, nothing has been seized from him. He further stated that in the document Ex.P/10, it has not been mentioned that the seized Ganja was refilled in tin-container and again sealed. He also stated that at that time the medical store was closed and it was locked. The lock of the medical store was opened from the key which was kept by accused Amit Sharma. There was no separate panchnama of keys of the lock. Even there is no panchnama with the effect that the lock of the store was opened from the key kept by accused Amit Sharma. There is no document with respect to the ownership of the store have been seized. He further admitted that he has not taken the separate samples from all the 3 bags and no separate weighment panchnama have been prepared.

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PW-7 Javed Khan and PW-8 Hemant Dua are the independent witnesses who have turned hostile and have not supported the prosecution case. Though they have admitted their signature over the documents.

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The main point of the appellant are that it was necessary for the prosecution to establish by cogent evidence that the alleged Ganja was seized from the exclusive possession of the accused/appellants. It was also necessary that all the seizure memo and physical verification proceedings were conducted before any Magistrate but in this case the prosecution did not follow mandatory provisions of the N.D.P.S. Act. It is also clear that the samples were not collected from all the bags which is clear from the evidence of the Investigating Officer PW-6 Rakesh Bhatt.

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From the evidence of PW-6 the Investigating Officer, it is clear that from the seized Ganja which was seized from 3 bags, only 1 sample of 50gm have been separated and except the seizure memo the other relevant panchnama regarding physical identification, homogenization or weighment panchnama

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have not been prepared by the police. Further no specimen seal panchnama have been prepared by the police and from the seizure memo Ex.P/10 there is no seal impression by which the seized Ganja was sealed. It is the case of the appellants that the Investigating Officer had not complied with the Standing Order 1/89 and not taken sample from each bags. Total 3 bags of Ganja were seized from the adjoining room of the medical store and only 1 sample were taken out from the seized Ganja which is not permissible as per law.

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Though no procedure is prescribed either in the N.D.P.S. Act or in the N.D.P.S. Rules regarding the manner in which the samples are to be drawn but a Standing Order 1/89 has been issued by the Central Government in this regard, wherein general procedures for sampling, storage etc. have been given which reads as under:

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“2.1. All drug shall be properly classified, carefully weighed and sampled on the spot of seizure.

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2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

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2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.

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2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish

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(charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.

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2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

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2.7. If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

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2.8. While drawing one sample (in duplicate) from a particular lot, it must he ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also he sealed and marked "Secret Drug sample/Test memo", to be sent to the chemical laboratory concerned.”

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From perusal of Instruction 2.4, it is evident that it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Instruction 2.5 provides an exception to Instruction 2.4. It has been provided in Instruction 2.5 that when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour, test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.

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Thus, in the aforesaid situations, a representative sample can be drawn after bunching together the contents of numerous packages. The essential requirement before such an action of drawing a representative sample can be undertaken is that the contents of each package have to be subjected to colour test by U.N. drug testing Kit. Once the test is conducted and the result indicates that all the packages are identical in all respects, then a representative sample can be taken out after bunching the packages. Hence, the Investigating Officer was under an obligation to collect separate samples from each of the packets so that the analysis of the contents of each of the packets could be performed individually. As the investigating officer before drawing the samples, proceeded to mix the contents of the all the packets without subjecting them to the test by the U.N. Kit, the accused has a right to contend that one of the packets might not have contained contraband ganja. If at all the prosecution desired to prove that all the packets contained ganja, then it was essential for the samples to have been collected and analysed individually from all the packets or else, the test by U.N. Kit should have been carried out on the material present in all the packets. The Hon'ble Apex Court considered a similar issue in the case of Gaunter Edwin Kircher v. State of Goa reported in AIR 1993 SC 145 6 and observed as below:-

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“5. We shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused.

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The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of

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law.”

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From the evidence produced by the prosecution, it is clear that the inventory

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has not been prepared by the Magistrate in the case which is violative of

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Section 52-A of N.D.P.S. Act. Section 52-A of N.D.P.S. Act is as under:-

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" Section 52-A: Disposal of seized narcotic drugs and psychotropic substances.

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(1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified.

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(2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing. marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-

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(a) certifying the correctness of the inventory so prepared; or

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(b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or

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(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

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(3) When an application is made under sub-section (2), the Magistrate shall, as may be allow the application.

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory,

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the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence.]"

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25. While interpreting the aforesaid provision, the Hon'ble Supreme Court in the

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matter of Union of India Vs. Mohanlal and Another, reported in (2016) 3 SCC 379 has held at paragraphs 15 to 17 as under :-

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"15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

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Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the Police Station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

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The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of - things arise. This is so especially when according Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."

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In view of the principles laid down by the Hon’ble Supreme Court in the above mentioned judgment, which was thus, the duty of the investigating officer to conduct an inquiry while following the provisions prescribed under Section 52-A of the N.D.P.S. Act. From the evidence of the witnesses and the investigating officer, it appears that after recovery of the alleged article, the

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investigating officer has failed to comply with the provisions prescribed under Sub Section (2) and (3) of Section 52-A of the N.D.P.S. Act. In view of such circumstances, the conviction as made by the learned trial Court cannot be held to be sustainable in the eyes of law. Further the seized Ganja was not produced before the learned trial Court at the time of trial.

¶105

In the matter of Sanjeet Kumar Singh @ Munna Kumar Singh Vs. State of Chhattisgarh, reported in 2022 LiveLaw (SC) 724, in para 30 to 33A of that judgment the Hon’ble Supreme Court has considered effect of the evidence of independent witness who has not supported the prosecution’s case and held that if the independent witness has not supported the prosecuion’s case the entire case of the prosecution about search and seizure is doubtful and for that benefit goes to the accused. Para 30 to 33 of

¶106

said judgment is as under:-

¶107

“ 30 . Exhibit C-2 is the notice served on the appellant herein (A-1) under Section 50 of the Act. The time shown therein is 18:00 hrs. This notice requires the appellant to indicate whether he would like to be searched in the presence of Magistrate or Gazetted Officer. It is also stated in the notice that the contents thereof were read over in the presence of witnesses. Exhibit C-3 is the consent Panchnama of the appellant agreeing to be searched by the police officer. This Panchnama contains the names of Sunil Malghani and Firuturam Banware (CWs 1 and 2). Even the search Panchnama of the accused marked as Exhibit C-4 refers to the presence of CWs 1 and 2 at the time of search.

¶108

31 . Therefore, it is clear that the I.O. examined as PW-7 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.

¶109

32 . In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. 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.

¶110

33 . Right from the beginning, the co-accused Reena Das (A-2) was implicated at every stage. Admittedly, the information received by PW-7 at 16:50 hrs. on 31.05.2014 contained a reference to the appellant as well as the co-accused Reena Das. But for some strange reason, PW-7 chose to serve a notice under Section 50 of the Act only on the appellant and not on the co-accused. PW-7 also omitted deliberately or otherwise, to record, (i) the consent Panchnama of co-accused; (ii) the search Panchnama of the coaccused; and (iii) the recovery Panchnama in relation to the coaccused. This led to the Special Court acquitting the co-accused. It is quite strange that, (i) the information received by PW-7, (ii) the FIR; and (iii) the charge-12 sheet implicated

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18

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the co-accused, but the prosecution accepted the finding of the Special Court that there could have been no recovery from the co-accused despite the fact that she was also travelling in the same car.

¶113

33-A . It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant, in our considered opinion will also be entitled to the same benefit as given by the Special Court to the co-accused.”

¶114

Thus, considering the facts and circumstances of the case, the nature and quality of evidence adduced by the prosecution, the fact that independent witnesses have not supported the prosecution case, the manner in which the investigation was carried out where the Investigating Officer has failed to comply with the instruction given in Standing Order 1/89, and non compliance of Section 52-A of N.D.P.S. Act and further keeping in view the settled legal position referred to above, I am of the opinion the prosecution has not been able to prove guilt of the appellants beyond all reasonable doubt. Being so, the learned trial Court was not justified in recording conviction of the appellants under Section 20(b)(ii)(C) of the N.D.P.S. Act.

¶115

In the result, all the criminal appeals are allowed . The impugned judgment of conviction and sentence passed by learned trial Court are hereby set aside. The appellants are acquitted from all the charge under Section 20(b) (ii)(C) of the N.D.P.S Act by extending them benefit of doubt. They are reported to be on bail their bail bond shall continue for further period of 6 months as provided under Section 481 of B.N.S.S., 2023.

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The record of the trial Court along with copy of this judgment be sent back to the trial Court concerned for compliance and necessary action.

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Sd/-

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(Ravindra Kumar Agrawal) JUDGE

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Alok

Santu @ Gurjeet Singh v. State of Chhattisgarh

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Santu @ Gurjeet Singh v. State of Chhattisgarh

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