Dhubai Charan Sahu Vs State of Chhattisgarh

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2024:CGHC:44121

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 516 of 2018

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1 - Ravinarayan Panda, S/o Dashrathi Panda Aged About 43 Years R/oVillage Naroda, Thana Patukura, District- Kendrapada (Orida), Orissa

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---- Appellant

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versus

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1 - State of Chhattisgarh Through- Police Station Simga, District- Baloda Bazar, Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh

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---- Respondents

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and

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CRA No. 645 of 2018

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1 - Dhubai Charan Sahu, S/o Bipra Sahu Aged About 27 Years R/oTirchipada, P.S. Monu Munda Baudh (Odissa), District : Baudh *, Orissa

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---- Appellant

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Versus

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1 - State of Chhattisgarh Through- P.S. Simga, District- Baloda Bazar, Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh

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---- Respondent

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For Appellants : Mr. Vikash Pradhan, Advocate in CRA No. 516/2018 & Mr. F.S. Khare, Advocate in CRA No. 645/2018.

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For State/Respondent : Mr. Pramod Shrivastava, Dy. Govt. Advocate.

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Hon'ble Shri Justice Narendra Kumar Vyas Judgment On Board

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13.11.2024

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Today the matter is listed before this Court on application for urgent hearing, but with the consent of both parties, the matter is heard finally.

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As both the criminal appeals arises out of same crime number, same Special Criminal Case No. 03/2016 and common order passed by the

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ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2024.11.18 17:20:59 +0530

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learned Special Judge (NDPS) Balodabazar, they heard analogously and are being disposed of by this common judgment.

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These appeals have been preferred by the appellants under Section 374 (2) of the Code of Criminal Procedure, 1973 against judgment dated 13.12.2017 passed by the learned Special Judge (NDPS Act), Baloda-bazar (C.G.) in Special Criminal Case (NDPS) No. 03/2016, wherein the said court convicted the appellants for commission of offence under Section 20(B)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act, 1985”) and sentenced them to undergo R.I. for 10 years each and fine of Rs. 1,50,000/- each and in default of payment of fine further R.I. for 1 year.

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The prosecution story, in brief, is that on 15.05.2016, Sub-InspectorRamesh Markam (PW-10) received secret information that the appellants were transporting contraband article ganja in Mahindra Pickup bearing registration No. OR 05Q 5574 which was driven by appellant- Ravinarayan Panda and appellant- Dhubai Charan Sahu sat in the vehicle. A raid was conducted by the police and 54 kg. contraband article ganja was seized from possession of the appellants accordingly, the offence as aforestated has been registered against the appellants. The police after usual investigation, submitted chargesheet before the concerned trial Court which was registered as Special Criminal Case (NDPS) No. 03/2016.

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The prosecution to prove guilt of the appellants has examined as many as ten witnesses and exhibited documents Ex. P/1 to P/38 whereas no witness was examined by the appellants for their defence. The appellants were examined under Section 313 of the Cr.P.C. and thereafter learned trial Court on the basis of evidence and material on

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record has convicted the appellants and sentenced as aforestated vide impugned judgment dated 13.12.2017. Being aggrieved with the aforesaid impugned judgment passed by the learned trial Court, the appellants have preferred these appeals before this Court.

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Learned counsel for the appellants would submit that the trial Court without appreciating the Standing Order No. 1/89 dated 13 th June, 1989 which has been framed by Government of India in exercise of powers conferred by sub-section (1) of Section 52A of the NDPS Act, 1985 with regard to disposal of seized Narcotics Drug Psychiatric substance has convicted the appellants. Learned counsel for the appellants has drawn attention of this Court towards Section 2 of the Standing Order which deals with the general procedure for sampling, storage, etc. They would further submit that as per Standing Order, Clause 2.4, in 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 the case of seizure of more than one package/container. In the present case, there are 54 packets are seized as evident from identification panchnama (Ex. P/11) of contraband article ganja, therefore, the prosecution should have taken sample in duplicate from each packages whereas in the present case after mixing the entire contraband ganja, they have prepared only two samples of 100-100 grams. From perusal of records, it is quite vivid that the contraband article kept in 54 packets have been mixed and out of samrash, two samples of 100-100 grams each were prepared.

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In support of his submission, he would further draw attention of this Court towards the judgment passed by Hon’ble the Supreme Court in

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the case of Union of India Vs. Bal Mukund and others reported in (2009) 12 SCC 161 . He would further submit that again Hon’ble the Supreme Court in the case of Union of India Vs. Mohanlal & another reported in (2016) 3 SCC 379 , has examined provisions of Section 52A & 55 of the NDPS Act, handling and disposal of seized narcotic drugs and psychotropic substance and has also considered the Standing Order No. 1/89 to ensure proper security against theft, pilferage and replacement of seized drugs. Learned counsel for the appellants would further submit that the Standing Order No. 1/89 has again come up for consideration before High Court of Delhi in the case o f Amani Fidel Chris Vs. Narcotics Control Bureau [CRLA No. 1027 of 2015 (Decided on 13.03.2020)], wherein the Division Bench of Delhi High Court has acquitted the accused on account of non-compliance of mandatory provisions of Standing Order No. 1/89. Against that order, Special Leave to Appeal (Crl.) No. 5088 of 2020 has been filed before the Hon’ble Supreme Court which has also been dismissed by Hon’ble the Supreme Court on 10.02.2021.

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They would further submit that the alleged contraband article ganja was seized by the prosecution from possession of the appellants, which is “person” as defined in Section 50 of the NDPS Act and compliance of Section 50 of the NDPS Act is mandatory in nature and in the present case, no such, compliance was done, therefore, the judgment of conviction is bad in law and the same deserves to be set aside. They would further submit that there is non-compliance of Section 50 of the NDPS Act, therefore, benefit of doubt should have been granted to the appellants, as such, the judgment of conviction passed against the appellants is bad-in-law and the same is liable to

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be set aside. In support of their contention, they would draw attention of this Court towards judgment passed by Hon'ble the Supreme Court in case of Arif Khan alias Agha Khan Vs. State of Chhattisgarh reported in (2018) 18 SCC 380 , State of Himachal Pradesh Vs. Pawan Kumar reported in (2005) 4 SCC 350 , Karnail Singh Vs. State of Haryana [CRA No. 36 of 2003 (Decided on 29.07.2009)] and would submit that there is non-compliance of Section 50 of the NDPS Act, therefore, the judgment of conviction passed against the appellants is illegal and same is liable to be set aside by this Court.

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On the other hand, learned State counsel opposing the submission made by learned counsel for the appellants would submit that there is clinching evidence against the appellants regarding commission of offence and the judgment of conviction passed by the Special Judge against the appellants is legal and justify and does warrant any interference by this Court. He would further submit that the learned trial Court after appreciating the evidence and material on record has recorded its finding that there is no violation of NDPS Act, therefore, the judgment of conviction passed by the learned trial Court is legal, justified and does not warrant any interference by this Court and would pray for dismissal of the appeals and would pray for dismissal of the appeals.

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

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Hon’ble the Supreme Court in case of Union of India Vs. Mohan Lal reported in (2016) 3 SCC 379 has held in paragraph 17 as under:-

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“17. 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

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so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (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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Having considered the facts and circumstances of the case the High Court of Delhi in the case of Amani Fidel Chris vs. Narcotics Control Bureau in CRL Appeal No. 1027/2015 decided on 13.03.2020, considered the Standing Order 1/88 which is pari materia with Standing Order 1/89 and has held in paragraph-17 of its judgment which reads as under :-

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“Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package.”

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13. Against the said order acquitting the accused in that case, SLP was preferred before the Hon’ble Supreme Court which was also dismissed on 10.02.2021.

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14. In light of the above legal position reverting back to the factual matrix of the case, statement of Ramesh Markam, Investigating Officer (PW10) who has been examined before the trial Court wherein he has stated in paragraph 6 that four bags containing 14, 13, 13, 14 kg. respectively (total 54 packets) total 54 kg. contraband article ganja has been seized from possession of the appellants and prepared identification panchanama (Ex.P/11) as well as measurement panchnama (Ex.P/3). He has further stated in paragraph 8 that all the 54 packets contraband article were mixed and two-two samples of 100-100 gms. were prepared and also prepared samrash panchnama (Ex. P/14) in front of the accused which were marked as A, B, C, D &

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A-1, B-1, C-1 & D-1 and the same was sent to State Forensic Science Laboratory for testing.

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From perusal of the statement of the Investigating Officer namely Ramesh Markam (PW-10), it is quite vivid that he mixed the entire seized material and thereafter two-two samples of 100-100 grams were prepared hence, the act of the Investigating Officer of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by the Supreme Court in case of Mohanlal (supra). This creates a serious doubt about the prosecution’s case that substance recovered was a contraband. Therefore, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt.

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Considering the submissions advanced by the learned counsel for the parties, material available on record, also considering the evidences of Ramesh Markam (PW- 1 0), Ram Dulare (PW-1), H.C. Yadav (PW-3) & Ashok Kumar Dhruv (PW-4) and applying the principle of law laid down by the Supreme Court in case of Mohanlal (supra) and other judgments, I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in convicting and sentencing appellants for offence punishable under Section 20(B)(ii)(C) of the NDPS Act, 1985. As such, the impugned judgment dated 1 3.12.20 17 passed by the Special Judge (NDPS Act), Baloda-bazar in Special Criminal Case No. 03/2016 is set-aside. The appellants are acquitted of the said charges. They are in jail. They shall be set at liberty forthwith if no longer required in any other criminal case.

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