Allowed

Mohammad Safi v. State Of Chhattisgarh

Chhattisgarh HC18 Nov 2024CRA/680/2017

Case brief

AI extract

What is this about?

Appeal against conviction under Section 20(ii)(B) NDPS Act for possessing 20 kg ganja. The Investigating Officer mixed samples from three seized packets into a single 50 gram sample, contrary to Standing Order No. 1/89 and Mohanlal. Finding the recovery thus doubtful, the High Court acquitted the appellant.

What did the court decide?

Impugned judgment set aside; appellant acquitted of charge under Section 20(ii)(B) NDPS Act and set at liberty; bond and surety under Section 437-A CrPC directed.

Mohammad Safi Vs State Of Chhattisgarh — Narcotics (NDPS) | Chhattisgarh HC (2024)

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2024:CGHC:45102

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 680 of 2017

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1 - Mohammad Safi S/o Mahammad Rajjaq Aged About 23 Years R/o Saray Pipariya, Police Station Musajhag, District Badayun, Uttar Pradesh., Uttar Pradesh

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... Appellant

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versus

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1 - State Of Chhattisgarh Through Station House Officer G R P Thana Raipur, District Raipur, Chhattisgarh., Chhattisgarh

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... Respondent

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For Appellant : Ms. Savita Tiwari, Advocate on behalf of Ms. Smriti Shrivastava, Advocate.

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For Respondent : Ms. Neeta Tulsani Thawani, Panel Lawyer.

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Hon'ble Shri Justice Narendra Kumar Vyas

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Judgment On Board

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19.11.2024

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This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 against judgment dated 24.01.2017 passed by the learned Special Judge (NDPS Act) Raipur, District- Raipur (C.G.) in Special Criminal Case No. 43/2016, wherein the said court convicted the appellant for commission of offence under Section 20(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act, 1985”) and sentenced him to undergo R.I. for 10 years and fine of Rs. 1,00,000/- and in default of payment of fine further R.I. for 6 months.

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The prosecution story, in brief, is that on 29.11.2015, Sub-InspectorL.S. Rajput (PW-10) received secret information that two persons came from Jagdalpur side kept narcotic substance and waiting for train to go

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Digitally signed by ARUN ARUN KUMAR KUMAR DEWANGAN DEWANGAN Date: 2024.11.21 10:32:08 +0530

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to Delhi. A raid was conducted by the police and 20 kg. contraband article ganja was seized from possession of the appellant accordingly, the offence as aforestated has been registered against the appellant. The police after usual investigation, submitted charge-sheet before the concerned trial Court which was registered as Special Criminal Case No. 43/2016.

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The prosecution to prove guilt of the appellant has examined as many as 10 witnesses and exhibited documents Ex. P/1 to P/29 whereas no witness was examined by the appellants for his defence. Learned trial Court on the basis of evidence and material on record has convicted the appellant and sentenced as aforestated vide impugned judgment dated 24.01.2017. Being aggrieved with the aforesaid impugned judgment passed by the learned trial Court, the appellant has preferred this appeal before this Court.

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Learned counsel for the appellant 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 3 packets of

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contraband article ganja were seized from possession of the appellant, 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 one sample of 50 grams. From perusal of records, it is quite vivid that the contraband article kept in 3 packets have been mixed and out of samrash, one sample of 50 grams was prepared.

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In support of her submission, she would further draw attention of this Court towards the judgment passed by Hon’ble the Supreme Court in the case of Union of India Vs. Bal Mukund and others reported in (2009) 12 SCC 161 . She 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 appellant would further submit that the Standing Order No. 1/89 has again come up for consideration before High Court of Delhi in the case of 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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She would further submit that the alleged contraband article ganja was

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seized by the prosecution from possession of the appellant, 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. He 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 appellant, as such, the judgment of conviction passed against the appellant is bad-in-law and the same is liable to be set aside. In support of her contention, she 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 appellant 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 appellant would submit that there is clinching evidence against the appellant 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. She 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,

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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 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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11. 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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12. In light of the above legal position reverting back to the factual matrix of the case, statement of L.S. Rajput, Investigating Officer (PW-10) who has been examined before the trial Court wherein he has stated in

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paragraph 9 that three packets containing 5, 5, 10 kg. respectively total 20 kg. contraband article ganja has been seized from possession of the appellant. He has further stated that keeping samples from each packets was mixed and one samples of 50 gms. was prepared which was marked as A-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 L.S. Rajput (PW-10), it is quite vivid that he kept samples from each packets and after mixing the same, one sample of 50 grams was 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 L.S. Rajpur (PW- 1 0), Lal Mohan Mehta (PW-1), HC Ramkumar Manjre (PW-3) & Dharamraj Dhruv (PW-6) 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(ii)(B) of the NDPS Act, 1985. As such, the impugned judgment dated 2 4.01.20 1 7 passed by the Special Judge (NDPS Act), Raipur, District- Raipur (C.G.) in

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Special Criminal Case No. 43/2016 is set-aside. The appellant is acquitted of the said charge. He is are in jail. He shall be set at liberty forthwith if no longer required in any other criminal case.

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The appellant is directed to file personal bond and one surety each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973.

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Accordingly, the instant appeal is allowed.

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Sd/(Narendra Kumar Vyas) Judge

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Arun

Mohammad Safi v. State Of Chhattisgarh

Case brief

What is this about?

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Mohammad Safi v. State Of Chhattisgarh

Case brief

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