Madhaw Malik Vs State of Chhattisgarh

Challenge in this appeal is to the judgment of conviction and order of sentence dated 27/03/2022 passed by the learned Special Judge, (NDPS Act) Bastar at Jagdalpur (C.G.) in Special Case No. 58/2001, whereby the learned Court convicted and sentenced the appellant as under:-

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Conviction	Sentence
Section 20 (B) (i) of the NDPS Act	Rigorous imprisonment for four years
	and fine of Rs. 10,000/-, with default
	stipulation.

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The facts of the case, in brief, are that on 10.11.2001, Police SubDivisional Officer Rakesh Khaka (PW-5), who was posted at Police Station Fraserpur in a probationary capacity, along with Sub-Inspector S.R. Netam, was conducting joint vehicle checking at the Forest Naka on Geedam Road. During the checking, a taxi travelling from Keshlur towards Jagdalpur was stopped, and its driver and conductor furnished details regarding the permit. While inspecting the luggage of the passengers, the officers noticed that the appellant resisted the checking of his bag and attempted to conceal a bag and a jute sack, which aroused suspicion. Upon inquiry, he disclosed his name as Madhav Malik, resident of Police Station Kalimela, District Malkangiri (Odisha), and admitted that the bag and jute sack contained ganja which he was transporting from Raipur towards Kolkata. The officers immediately informed the Police Superintendent and the City Superintendent of Police, Jagdalpur, through wireless, and prepared the necessary documents under the NDPS Act, including the panchanama regarding non-availability of a warrant. The accused was informed of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate, but he consented to be searched by the SubDivisional Officer himself, and such consent, as well as the preliminary search of the staff, was duly recorded. Upon search of the appellant’s bag and jute sack, a total of 12.800 kg of ganja was recovered, comprising 5.500 kg from one bag and 7.600 kg from the other. Six sample packets of 25 grams each were drawn, and the entire seized contraband was

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sealed on the spot. A cash amount of ₹320/- was also recovered. The seized articles were taken into possession under the seizure memo. Subsequently, the appellant was arrested under the NDPS Act were complied with, and the matter was committed for trial before the concerned trial Court.

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In order to establish the charge against the appellant, the prosecution examined five witnesses. The statement of the appellant under Section 313 of the Cr.P.C. was also recorded, in which he denied the incriminating circumstances appearing against him and stated that he is innocent and has been falsely implicated in the case.

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The learned trial Court, after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for the aforementioned offence and sentenced him as stated hereinabove, against which the present appeal has been preferred by the appellantaccused questioning the impugned judgment of conviction and order of sentence.

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Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case and the prosecution has failed to establish conscious possession of the alleged contraband. It is submitted that PW-1 Rajesh Acharya, Head Constable, who was part of the police team, has clearly stated that he was not able to say who was the owner of the seized bag and jute sack, which creates a serious doubt about the prosecution story. It is further submitted that the appellant was merely

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travelling in the taxi as a passenger, and mere presence in a public vehicle does not amount to conscious possession, particularly when there is no independent evidence connecting the appellant with the ownership, custody, or control of the contraband. Learned counsel further contends that the statements of PW-3 and PW-4 are mutually contradictory. These discrepancies go to the root of the prosecution case and render the alleged recovery doubtful. It is, therefore, urged that the prosecution has failed to prove the essential ingredients of the offence under the NDPS Act, and the benefit of such inconsistencies ought to have been extended to the appellant. The conviction recorded by the trial Court is thus unsustainable in law and liable to be set aside.

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Learned counsel for the State would submit that the trial Court has rightly convicted the appellant on the basis of the evidence available on record. The official witnesses have supported the prosecution case. It is further contended that mere hostility of some witnesses does not by itself demolish the prosecution case, so long as the core testimony of official witnesses inspires confidence. The trial Court has appreciated the material evidence in proper perspective, and therefore, the conviction of the appellant was justified.

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I have heard learned counsel for the parties at length and have meticulously evaluated the case record.

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This Court is now required to examine whether, when the appellant was only a passenger in the taxi and the alleged contraband is claimed to

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have been recovered from a bag attributed to him, the prosecution has established through reliable and consistent witness testimony that the appellant was in conscious possession of the contraband.

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PW1- Rajesh Acharya, Head Constable posted at Police Station Kotwali, Jagdalpur, stated that he knows the accused present in Court. He deposed that on the date of the incident, he along with DSP, Khaka and SI Netam was conducting vehicle checking at the Forest Naka on Geedam Road. During checking of a passenger taxi, the accused was found carrying a bag and initially refused to allow the police to inspect it. As his conduct appeared suspicious, the bag was checked, and ganja was found inside. The substance was shown to the witnesses, and on burning a small portion, it was confirmed to be ganja. He further stated that 12 kg 800 grams of ganja was recovered, which he weighed at a nearby kirana shop. The weighing panchanama bears his signature. From three packets found in the jute sack, 25-gram samples were taken and sealed; the remaining ganja was also sealed and seized. The accused was then taken to Police Station Bodhghat along with the seized articles. PW-1 stated that the taxi was a jeep with 4–6 passengers. He denied the suggestion that he could not identify the owner of the bag and stated that the accused was holding the bag in his hands. He affirmed that he remained present during the entire procedure.

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PW2-B.D. Joshi (Head Constable) stated that he had brought the original Malkhana register (Seizure Register) to the Court. He stated that at serial

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number 148 of the register, the seized property relating to Crime No. 0333/2001 of Police Station Bodhghat was entered. The seized property consisted of 12 kg 800 grams of country-made ganja, one bag, one jhola, and inside the bag there were small polythene packets containing ganja, all in sealed condition. He further stated that 25–25 gram sample packets were prepared by Sub-Inspector Netam for chemical examination. PW-2 further stated that he made the corresponding entry in the Malkhana Register at serial number 148, which is Ex. P-3, and its photocopy is Ex. P-3A. Out of the six sample packets, three were sent to the Forensic Science Laboratory, Raipur, on 12-11-2001 through Constable No. 401. He stated that the seized material was deposited in the Malkhana on 1011-2001, and the sealed packets, after preparation, were forwarded for examination. He also stated that the remaining three packets were produced before the Court on 29-11-2001.

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In Cross-examination, he stated that he did not know whether any other ganja case was registered on the same day when the seized material was handed over to him. He denied the suggestion that a similar type of jhola was already lying in the Malkhana before this case.

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PW3- S.R. Netam (Sub-Inspector), stated that in November 2001 he was posted as an Investigating Officer at Police Station Bodhghat. He deposed that Probationary DSP Rakesh Kumar Khaka was posted at Police Station Parpa during that period. They had received information that country-made liquor was being illegally transported from rural areas

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to cities. Acting on the information, he, along with others, proceeded to the Forest Barrier for vehicle checking. He stated that while they were checking vehicles at the Forest Barrier, DSP Rakesh Khaka also arrived there with his staff, and he (PW-3) then joined DSP conducting the vehicle checking. A passenger taxi bearing No. CG-17/016 arrived from Keshlur side and was stopped for checking. The luggage of all passengers was being checked when one passenger/accused did not allow his bag to be checked. The accused was carrying a chain-type bag in his hand, and on touching it, PW-3 felt that it contained some solid substance. Upon questioning, the accused disclosed that the bag contained ganja. This witness further stated that Rajesh Khaka prepared the written information and sent it to superior officers, and also prepared the warrant-non-obtaining memo, vehicle checking panchnama and the informer’s information panchnama. The accused was informed in writing that his bag and his person were to be searched, and he was given the option of being searched before a Gazetted Officer or a Magistrate. The accused gave his written consent to be searched before DSP Rakesh Khaka asked the accused whether he wanted to search the staff or witnesses, but the accused declined. This witness also stated that witnesses Vimal and Baketayya were called, and the bag of the accused was searched. From inside the chain bag, two polythene packets were recovered, and from inside a jute bag, another packet was recovered. The substance was burnt and rubbed for identification, and the witnesses confirmed it to be ganja. The ganja was weighed, and the weighment

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panchnama was prepared. The ganja was seized under the seizure panchnama. From each packet, 25-25 gram samples were drawn, sealed, and the remaining ganja was also sealed. This witness stated that the DSP registered the Dehati Nalisi at the spot and handed over the seized articles and the accused to him. He brought the accused and the seized material to Police Station Bodhghat and handed the seized property to the Malkhana Moharrir, B.D. Joshi, obtaining a receipt. He prepared the spot map, which is on record. He further stated that the arrest memo, FIR, seizure memo and intimation to the Special Court were duly sent, and the carbon copies bear his signatures. The sample packets were sent to the Regional Forensic Science Laboratory, Raipur, through the memo issued by the Superintendent of Police, Jagdalpur. The FSL report confirmed the seized substance to be ganja.

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In Cross-examination, he admitted that he had not brought the original Rojnamcha for the day. He admitted issuing the information letter regarding illegal liquor transportation, and that the entire procedure in this case was conducted by DSP Rakesh Khaka, and that he merely accompanied him. He admitted that Head Constable Rajesh Acharya was present at the spot. He further stated that several persons were travelling in the taxi and that taxi drivers and conductors usually do not issue receipts for passengers.

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PW4- Amit Singh Chouhan deposed that about three months prior to his examination he was travelling from Kukanar to Jagdalpur in a

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Commander jeep. Near the Forest Naka, the police stopped the vehicle for checking. During the checking, one person (the accused) attempted to jump out of the jeep and run away, but the police apprehended him; a small child was also with him. The accused was carrying a jute/cloth bag, and on being searched in his presence, ganja was found inside the bag, though he stated he did not know the quantity. He did not know whether any written proceedings were prepared by the police, and stated that although the police questioned the accused, he was not giving any answers. This witness further stated that the weighing of the contraband was not done in his presence, and after seizing the bag, the police took the accused and the ganja away.

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In cross-examination, he stated that the accused was sitting in the vehicle before him, but he could not say which bag belonged to whom. He admitted he himself did not know anything about ganja, but said that everybody was saying that the bag contained ganja, and later added that even the accused had said so. He initially stated that the police had told him it was a ganja case when giving him the summons, but then corrected himself and said they only gave him a summons and asked him to appear as a witness. He also stated that the police took the accused, the child and the two bags to the police station, and denied the suggestion that he supports the police due to being a trader or for maintaining good relations.

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PW5- Rakesh Khaka, who was posted as a Probationary Deputy

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Superintendent of Police at Bodhghat on 10.11.2001, deposed that on that day he was conducting vehicle checking near Forest Naka on Mardum Road along with his staff. The Bodhghat police team, including Sub-Inspector S.R. Netam and Head Constable Rajesh Acharya, were also present for liquor-related checking, and he joined them in the vehicle checking. During this process, a taxi coming from Keshkal was stopped. One passenger seated in the middle appeared suspicious and was refusing to allow his luggage to be checked. Upon enquiry, he disclosed his name and address. PW-5 stated that notices were issued to the witnesses on the spot, and information under Sections 42 and 57 of the NDPS Act was sent to the superior officers. He prepared the vehicle checking panchnama, apprised the accused of his rights under Section 50, and served a written notice to him, after which the accused opted to be searched by PW-5 himself. As the accused could understand Hindi but could not write, SI Netam wrote the consent letter, read it over to him, and the accused acknowledged it. PW-5 further stated that the accused was carrying a bag and a jute sack, and on search, ganja was recovered from both. The contraband was identified by the witnesses by burning and smelling. A total of 12.8 Kg of ganja was found; samples of 25 grams each were prepared and sealed, and the remaining contraband was also sealed. Various panchnamas including search, seizure, identification, sampling, weighing and other mandatory documents were prepared on the spot. The accused was arrested, and information regarding his arrest was sent to his relatives. The seized articles and the

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accused were then handed over to SI Netam of Police Station Bodhghat for further action.

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In cross-examination, PW-5 admitted that he did not issue any notice requiring the accused to produce a licence for possessing ganja. He conceded that the case file did not contain a document showing that the accused was informed of the grounds of arrest, nor was there a document proving information of arrest sent to relatives, though he claimed such information was given. He accepted that reaching the spot from the police station would take about 20 minutes and the entire procedure took approximately five hours. He stated he received only oral instructions for further action. He admitted that Head Constable Rajesh Acharya carried out the weighing because the nearby shop had only a woman present who expressed her inability to assist. He also stated that several passengers were in the jeep, but maintained that the accused kept his luggage with himself and claimed it to be his own. He denied the defence suggestion of false implication and stated that independent witnesses were called from the passengers present.

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Having examined the testimonies of PW-1 to PW-5, this Court finds that the prosecution version suffers from material inconsistencies and contradictions which go to the root of the case. The most fundamental requirement under the NDPS Act is proof of conscious possession . While PW-1, PW-3 and PW-5 assert that the appellant was carrying the bag in his hand, PW-4 the only independent passenger witness

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categorically stated in cross-examination that he could not say which bag belonged to whom. His evidence also shows that the weighing of the contraband was not done in his presence, and that his knowledge of the contents of the bag was purely based on what the police said at the spot. This divergence between the police version and the independent witness significantly weakens the prosecution case. Furthermore, PW-3 himself admits that the entire procedure was conducted by PW-5 and that he only accompanied him, casting doubt on whether all the procedural requirements were strictly adhered to at the spot.

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In a prosecution under the NDPS Act, the burden lies heavily on the prosecution to prove beyond reasonable doubt that the accused had both physical control over and knowledge of the contraband. In the present case, the appellant was merely one of several passengers travelling in a taxi. There is no evidence to show that any ticket, identity tag, or distinguishing feature linked the seized bag exclusively to him. PW-4’s deposition that he could not identify the owner of the bag creates a substantial doubt, especially when the prosecution witnesses differ on whether the appellant attempted to flee or merely hesitated to open his bag. The prosecution has not explained why no attempt was made to ascertain ownership of luggage from the driver, conductor, or other passengers. In these circumstances, the possibility that the contraband may have been placed in the taxi without the appellant’s knowledge cannot be ruled out.

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The evidence of PW-3 and PW-5 reveals several procedural infirmities. Although PW-5 claims that all mandatory notices, including Section 50 consent, were prepared, he admits during cross-examination that important documents such as grounds of arrest or proof of intimation to relatives are not part of the judicial file. The prosecution has not produced the original Rojnamcha entries to corroborate the time of receipt of information, time of departure, or manner of compliance with Section 42. Further, the weighing of the alleged contraband was admittedly conducted by PW-1 at a nearby kirana shop, without the presence of an independent witness capable of certifying the accuracy of the weighment. Even the panch witnesses, as per PW-3, were passengers from the same vehicle and not independent local witnesses. Such deviations assume significance because strict, scrupulous compliance is mandatory in NDPS proceedings due to the severe sentencing involved.

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PW-2, the Malkhana Moharrir, stated that he received the seized material on 10-11-2001 and recorded it at Serial No. 148. However, he conceded that he did not know whether any other ganja case was registered on the same day. His inability to confirm that no similar jhola was already lying in the Malkhana introduces an element of doubt on the integrity of the property register. The prosecution has also failed to produce the original forwarding memo, transportation acknowledgment, or evidence of seal integrity when the samples were sent to the FSL. The absence of unbroken link evidence between seizure, storage, and laboratory examination creates reasonable doubt about whether the very samples

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tested by the FSL were the same as those allegedly seized from the appellant.

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PW-4, the sole independent witness, does not fully support the prosecution case. He admitted he did not know anything about ganja; he could not identify which bag belonged to whom; and he did not witness the weighment or preparation of documents. His version regarding how he came to know the contents of the bag also fluctuated sometimes attributing it to the accused, sometimes to the police. Such vacillation diminishes the credibility of the prosecution story and strengthens the defence contention that the recovery was not made in the manner alleged.

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On an overall assessment of the evidence, this Court finds that the prosecution has failed to prove beyond reasonable doubt that the appellant was in conscious possession of the contraband allegedly recovered. Material inconsistencies between the police witnesses, the unreliable and uncorroborated evidence of ownership of the bag, significant procedural lapses in compliance with mandatory provisions of the NDPS Act, and breaks in the chain of custody cumulatively create a serious doubt about the prosecution story.

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Consequently, the conviction recorded by the trial Court cannot be sustained and is hereby set aside. The appellant is acquitted of the charges levelled against him.

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In the result, the appeal is allowed . The appellant is reported to be on

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bail. However, his bail bonds are not discharged at this stage and shall remain operative for a further period of six months in view of Section 437-A of the Cr.P.C. (481 of Bharatiya Nagarik Suraksha Sanhita (BNSS)}.

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Registrar (Judicial) is directed to transmit the original record to the concerned trial Court within a week from today for necessary information and follow up action.

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SD/-

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(Bibhu Datta Guru) Judge

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Rahul/Gowri

Madhaw Malik v. State of Chhattisgarh

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Madhaw Malik v. State of Chhattisgarh

Case brief

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