Chattisgarh High CourtDurga Amma vs State Of Chhattisgarh on 28 January, 2022Author:Rajendra Chandra Singh SamantBench:Rajendra Chandra Singh SamantAFR\n                HIGH COURT OF CHHATTISGARH, BILASPUR\n\n\n                        Criminal Appeal No.1341 of 2015\n\n                    Judgment Reserved on :      19.1.2022\n                    Judgment Delivered on :     28.1.2022\n\nDurga Amma, wife of Laxminarayan, caste Telgu, aged about 45 years,\nresident of Balaji Nagar, Near Ram Mandir, Khurshipar, Police Station\nKhurshipar, Bhilai, District Durg, Chhattisgarh\n                                                        ---- Appellant\n                                     versus\nThe State of Chhattisgarh through Excise Department, Circle Bhilai No.1,\nDistrict Durg, Chhattisgarh\n                                                               --- Respondent\n\nFor Appellant       :       Shri Kishore Bhaduri, Senior Advocate with\n                            Shri Goutam Khetrapal, Advocate\nFor Respondent      :       Ms. Shivali Dubey, Panel Lawyer\n\n\n           Hon'ble Shri Justice Rajendra Chandra Singh Samant\n                Hon'ble Shri Justice Arvind Singh Chandel\n\n                               C.A.V. JUDGMENT\n\nPer Arvind Singh Chandel, J.1.      This appeal is directed against the judgment dated 8.9.2015\n\n         passed by the Special Judge under theNarcotic Drugs and\n\n         Psychotropic Substances Act(henceforth 'theNDPS Act'), Durg in\n\n         NDPS Case No.17 of 2014, whereby the Appellant has been\n\n         convicted and sentenced as under:Conviction                     Sentence\n\n            UnderSection 20(b)(ii)(C)of Rigorous Imprisonment for\n            theNDPS Act15 years and fine of\n                                          Rs.1,00,000, in default of\n                                          payment thereof, additional\n                                          rigorous imprisonment for 2\n                                          years22.   According to the case of prosecution, C. Khalko (PW8) was posted\n\n     as Assistant District Excise Officer in Excise Circle Bhilai No.1,\n\n     District Durg. On 26.8.2014 at about 7:30 A.M., when he was on\n\n     patrolling duty along with his coordinate officers and staff, received\n\n     an information from an informant that Appellant Durga Amma was\n\n     in possession of cannabis (Ganja) at her house situated in Balaji\n\n     Nagar, near Ram Mandir, Khurshipar, Bhilai and she was selling\n\n     that cannabis illegally without any licence.      C. Khalko (PW8)\n\n     recorded this information and prepared a Mukhbir Suchana\n\n     Panchnama thereof (Ex.P19). In compliance ofSection 42of the\n\n     NDPS Act, he sent an information to the Assistant District Excise\n\n     Commissioner, Durg through Excise Constable Dhanpatsingh\n\n     Baghel (PW5). Dhanpatsingh Baghel (PW5) delivered a copy of\n\n     Ex.P19 to Receipt and Despatch Clerk Ms. Rohita in the office of\n\n     Assistant District Excise Commissioner, Durg and obtained an\n\n     acknowledgment thereof (Ex.P20). Thereafter, C. Khalko (PW8)\n\n     reached the spot along with witnesses. At that time, the Appellant\n\n     was present at her house. After obtaining her consent, search of\n\n     the house was made. On being searched, inside a diwan kept in\n\n     the bedroom of the house, Ganja was found kept in 3 bori (bags).\n\n     Ganja was recovered vide Ex.P4. On being weighed, total quantity\n\n     of the recovered Ganja was found to be 80 Kgs. and 850 Grms.\n\n     The Ganja kept in the 3 bori were mixed together and a panchnama\n\n     thereof (Ex.P7) was prepared. Thereafter, 3 sample packets each\n\n     of 50 Grms. were prepared and all the 3 sample packets were\n\n     marked as A, B and C. A sample panchnama thereof (Ex.P8) was3prepared. Specimen seal was affixed on Ex.P8 and a seal paper\n\n     panchnama thereof (Ex.P9) was prepared. The mixed Ganja was\n\n     again filled in 3 bori and those bori were sealed and a panchnama\n\n     thereof (Ex.P10) was prepared. After making seizures of the 3 bori\n\n     sealed Ganja and the 3 sample packets, a seizure memo thereof\n\n     (Ex.P11) was prepared. Regarding possession of the house of the\n\n     Appellant, a panchnama (Ex.P14) was prepared.               Spot-map\n\n     (Ex.P15) was also prepared. The Appellant and the seized material\n\n     were brought to the Excise Control Room.            The crime was\n\n     registered against the Appellant vide Ex.P25. The 3 seized bori\n\n     containing Ganja were kept in 3 tin containers and were sent to\n\n     Bhilai Bhatthi Police Station vide Ex.P21 for safe custody. All the 3\n\n     seized sample packets were sent to the office of Assistant District\n\n     Excise Commissioner, Durg vide Ex.P27.          On 28.8.2014, the\n\n     sample packets marked as A and B were sent to the Forensic\n\n     Science Laboratory, Raipur vide Ex.P28. FSL Report is Ex.P30\n\n     and P31.     The report is positive.   Regarding possession of the\n\n     Appellant on the house, a panchnama (Ex.P34) was prepared. On\n\n     completion of the investigation, a charge-sheet was filed against\n\n     the Appellant. The Trial Court framed charge against her.3.   In support of its case, the prosecution examined as many as 8\n\n     witnesses.    In examination underSection 313of the Code of\n\n     Criminal Procedure, the Appellant denied the guilt and pleaded\n\n     innocence. No witness was examined in her defence.4.   On completion of the trial, vide the impugned judgment, the Trial\n\n     Court convicted and sentenced the Appellant as mentioned in first4paragraph of this judgment. Hence, this appeal.5.   Learned Counsel appearing for the Appellant argued that the Trial\n\n     Court has convicted the Appellant without there being sufficient and\n\n     clinching evidence on record. It was argued that the prosecution\n\n     has totally failed to prove its case beyond reasonable doubt. The\n\n     provisions ofSections 42(1)and (2) and 55 of theNDPS Acthave\n\n     not been complied with. The prosecution has not submitted any\n\n     Malkhana Register of Bhilai Bhatthi Police Station nor has\n\n     examined any witness in this regard. There is totally no evidence\n\n     on record to show that the 3 bori (bags) of Ganja were kept in Bhilai\n\n     Bhatthi Police Station for safe custody.     Likewise, there is no\n\n     evidence on record to show that the sample packets were also kept\n\n     in the office of Assistant District Excise Commissioner, Durg for\n\n     safe custody. It was further argued that there is no evidence on\n\n     record to establish that the house in question was in ownership of\n\n     the Appellant. With regard to the possession of the said house\n\n     also, there is no conclusive evidence on record to show that the\n\n     said house was in exclusive possession of the Appellant.         The\n\n     prosecution has not examined any neighbour of the Appellant in\n\n     this regard. The evidence led by the prosecution itself shows that\n\n     in this house, along with the Appellant, her major children were also\n\n     living. Therefore, it is not established that the Appellant was in\n\n     conscious possession of the seized Ganja.In this regard, reliance\n\n     was placed on (1996) 9 SCC 462 (Mohd. Aslam Khan v. Narcotics\n\n     Control Bureau).6.   Opposing the above contentions, Learned Counsel appearing for5the State supported the impugned judgment of the Trial Court. She\n\n     argued that the provisions ofSections 42(1)and (2) and 55 of theNDPS Actare not mandatory in nature. Therefore, if there was any\n\n     non-compliance of any of the provisions in question, it is immaterial.In this regard, reliance was placed on (2009) 8 SCC 539 (Karnail\n\n     Singh v. State of Haryana). It was further argued that regarding\n\n     possession of the house in question, there is sufficient material\n\n     available on record to show that the Appellant herself was in\n\n     exclusive possession of the house and the Ganja was recovered\n\n     from the bedroom of the Appellant and, therefore, the Appellant\n\n     herself will be considered to be in conscious possession of the\n\n     recovered Ganja. Hence, the Trial Court has rightly convicted the\n\n     Appellant.7.   We have heard Learned Counsel appearing for the parties and\n\n     perused the statements of the witnesses and other evidence\n\n     available on record with utmost circumspection.8.   C. Khalko (PW8), who was the Investigating Officer of the offence\n\n     in question, deposed according to the case of prosecution. One of\n\n     the seizure witnesses, namely, Gyani Singh (PW1) has not\n\n     supported the case of the prosecution and turned hostile. He only\n\n     admitted that he put his signatures on the documents Ex.P1 to P16\n\n     on being asked by the police officials.     Other witnesses of the\n\n     seizure, namely, Chinna Rao and B. Satyanarayan have not been\n\n     examined.9.   As regards compliance of the provisions ofSection 42(1)and (2) of6theNDPS Act, C. Khalko (PW8) deposed that at about 7:30 A.M.,\n\n      he received the secret information from the informant and prepared\n\n      the Mukhbir Suchna Panchnama (Ex.P19).        He further deposed\n\n      that he sent an information regarding Mukhbir Suchna and\n\n      proceeding towards the spot without any search warrant to the\n\n      Assistant District Excise Commissioner, Durg through Excise\n\n      Constable Dhanpatsingh Baghel (PW5). Corroborating the above\n\n      statement, Dhanpatsingh Baghel (PW5) deposed that he went\n\n      along with a copy of Ex.P19 and a panchnama (Ex.P20) to the\n\n      office of Assistant District Excise Commissioner, Durg. Since the\n\n      said office was closed at that time, he waited there and on opening\n\n      of the said office at 10:35 A.M., he delivered the copy of Ex.P19\n\n      and the panchnama (Ex.P20) to Receipt and Despatch Clerk of that\n\n      office, namely, Ms. Rohita and obtained an acknowledgment\n\n      thereof on Ex.P20 itself. Perusal of Ex.P20 shows corroboration of\n\n      the statement of this witness.   Thus, from the above evidence\n\n      available on record, it is well established that the provisions ofSection 42(1)and (2) of theNDPS Acthave been duly complied\n\n      with.10.   Now, we shall examine the evidence on record with regard to\n\n      compliance of the provisions ofSection 55of the NDPS Act.\n\n      According to the statement of C. Khalko (PW8), he had prepared 3\n\n      samples of 50 Grms. each after mixing of the Ganja kept in 3 bori\n\n      (bags) on 26.8.2014 and had sent all the 3 sample packets to the\n\n      office of Assistant District Excise Commissioner, Durg on 26.8.2014\n\n      itself vide Ex.P27 for safe custody. He had also sent the remaining\n\n      quantity of recovered Ganja in 3 tin containers to Bhilai Bhatthi7Police Station on 26.8.2014 itself vide Ex.P21 for safe custody. In\n\n      this regard, Malkhana Register (Ex.P36) of Excise Circle Bhilai\n\n      No.1 has been produced in which relevant entries are made with\n\n      regard to the above mentioned sending. Assistant Sub-Inspector of\n\n      Bhilai Bhatthi Police Station, namely, J.S. Bhadoriya (PW6)\n\n      deposed that he had received Ganja in 3 tin containers on\n\n      26.8.2014.    During cross-examination, he admitted that on\n\n      26.8.2014, he was not the Station House Officer of the said police\n\n      station. He further admitted that he had not handed over the said\n\n      received Ganja to the Station House Officer. He also admitted that\n\n      the Station House Officer had not affixed his seal on the said tin\n\n      containers containing Ganja in his presence. He further admitted\n\n      that after keeping the Ganja in Malkhana, he had not obtained any\n\n      acknowledgment thereof from the Malkhana Moharrir. From the\n\n      above admissions made by J.S. Bhadoriya (PW6), it is well\n\n      established that in this case, the provisions ofSection 55of the\n\n      NDPS Act have not been complied with.11.   Regarding safe custody of the seized Ganja, only Ex.P36C, i.e., the\n\n      entries of Malkhana Register of Excise Circle Bhilai No.1 is\n\n      available to show that 3 tin containers containing Ganja were sent\n\n      to Bhilai Bhatthi Police Station and 3 sample packets of Ganja were\n\n      sent to the office of Assistant District Excise Commissioner, Durg.\n\n      J.S. Bhadoriya (PW6), Assistant Sub-Inspector of Bhilai Bhatthi\n\n      Police Station admitted the fact that he had not obtained any\n\n      acknowledgment of the deposit of the Ganja made in the Malkhana.\n\n      The concerned Malkhana Moharrir has also not been examined in\n\n      this regard. Likewise, there is no evidence available on record to8show that 3 sample packets of Ganja marked as A, B and C were\n\n      deposited in the office of Assistant District Excise Commissioner,\n\n      Durg. No documentary evidence is submitted in this regard nor has\n\n      any witness been examined to show the deposit of the sample\n\n      packets in the said office. Therefore, there is no evidence available\n\n      on record to show that the sample packets and the remaining\n\n      quantity of recovered Ganja were kept in safe custody.12.   Now, we shall examine the evidence led by the prosecution\n\n      regarding conscious possession of the Appellant on the seized\n\n      Ganja. According to the case of prosecution, the house in question\n\n      from where the Ganja was recovered was in exclusive possession\n\n      of the Appellant and she was living there. C. Khalko (PW8), in\n\n      paragraph 44 of cross-examination, admitted that by investigation,\n\n      it could not be found out that who was the owner of the said house.\n\n      The house was of the ownership of the Appellant, there is no\n\n      documentary evidence available on record in this regard. According\n\n      to the case of prosecution, the house was in exclusive possession\n\n      of the Appellant. From perusal of the spot-map (Ex.P15) prepared\n\n      by C. Khalko (PW8), it reveals that the house in question contained\n\n      only one bedroom and the Ganja was recovered from that bedroom\n\n      itself. One panchnama (Ex.P14) of possession of the house was\n\n      also prepared by C. Khalko (PW8) mentioning therein that in that\n\n      house the Appellant was residing along with her children for many\n\n      years.   On completion of the whole proceedings on the spot, a\n\n      panchnama thereof (Ex.P16) was prepared mentioning therein that\n\n      on completion of the proceedings, possession of the house was\n\n      delivered to the daughter of the Appellant, namely, Tulsi. During9the course of investigation, on 11.10.2014, 2 panchnamas (Ex.P34\n\n      and P35) were prepared by C. Khalko (PW8) in which also, it is\n\n      mentioned that the Appellant was living in that house along with her\n\n      children. Thus, from the documents prepared by C. Khalko (PW8)\n\n      himself, it is established that in the house in question, the Appellant\n\n      was not residing alone, but was residing there along with her\n\n      children.   Patwari Purendra (PW7), who prepared the spot-map\n\n      (Ex.P22) deposed that he prepared the said spot-map as narrated\n\n      by Tulsi, the married daughter of the Appellant. No statement of\n\n      Tulsi has been recorded by the prosecution regarding exclusive\n\n      possession of the Appellant on the house in question. Tulsi was\n\n      given intimation of arrest of the Appellant vide Ex.P13 in which also\n\n      address of the house in question is mentioned to be of Tulsi. Thus,\n\n      it appears that in the house in question, along with the Appellant,\n\n      her married daughter Tulsi and the other children of the Appellant\n\n      were also living.   The house in question consisted of only one\n\n      bedroom in which Ganja was found. Since it appears that in the\n\n      house in question along with the Appellant her major and married\n\n      daughter Tulsi and other children of the Appellant were also living,\n\n      the Ganja which was found in the bedroom of the said house was in\n\n      conscious possession of the Appellant is suspicious.13.   On a minute examination of the evidence named above, it is clear\n\n      that in this case the provisions ofSection 55of the NDPS Act have\n\n      not been complied with.      The seized sample packets and the\n\n      remaining seized quantity of Ganja were kept in safe custody is\n\n      also not established. The house in question from where the Ganja\n\n      was recovered was in ownership of the Appellant, no evidence to10this effect is available on record.      There is also no conclusive\n\n              evidence available on record to show that the house in question\n\n              was in exclusive possession of the Appellant.          Rather, from the\n\n              material available on record, it is established that the Appellant was\n\n              living in the said house along with her children and out of them one\n\n              was her major daughter Tulsi who was married. Therefore, the\n\n              Appellant was in conscious possession of the recovered Ganja is\n\n              also not established.      Therefore, in our considered view, the\n\n              Appellant is entitled to get benefit of doubt.14.   In the result, the appeal is allowed. The impugned judgment of\n\n              conviction and sentence is set aside. The Appellant is acquitted of\n\n              the charge framed against her. She is reported to be in jail. She be\n\n              set at liberty forthwith, if not required in any other case.Sd/-                                     Sd/-\n\n              (Rajendra Chandra Singh Samant)              (Arvind Singh Chandel)\n                         Judge                                     Judge\n\nGopal