IMPORTANT POINTS
(1) Seizure of narcotics – Fact that informant also happened to be Investigator, may not by itself vitiate investigation as unfair or biased.
(2) Seizure of Ganja – The moment a doubt is cast upon most fundamental aspect of search and seizure, appellant will also be entitled to same benefit as given by Special Court to co-accused who was acquitted.

JUDGMENT :

V. Ramasubramanian, J.

1. Challenging his conviction for an offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’) and the sentence of rigorous imprisonment for 10 years together with a fine of Rs.1 lakh imposed upon him by the Special Court and confirmed by the High Court of Chhattisgarh, Accused No.1 has come up with the above appeal.

2. We have heard Mr. Somnath Padhan, learned counsel for the appellant and Mr. Sourav Roy, learned Deputy AG for the respondent State.

3. The case of the prosecution was that on 31.05.2014, the Station House Officer (SHO for short) of Chakarbhata Police Station received a secret information that the appellant and his friend Reena Das, were carrying ganja in the dickey of a car bearing registration no.CG-04HA-4850 and were travelling from Raipur to Pendra Road; that the SHO recorded this information in Rojnamcha Sanha, prepared Mukhbir Suchana, forwarded the said information to the higher officer, proceeded to the spot, stopped the car, served a notice under Section 50 of the Act, conducted a search and found 47.370 Kgs. of ganja kept in three bags in the dickey of the car; that after weighing the contraband and preparing Panchnama, the SHO collected samples from each of the three bags, sent them to Forensic Science Laboratory (‘FSL’ for short) and after receipt of the Report, filed a charge-sheet against the appellant as well as his friend Reena Das for an offence punishable under Section 20(b) of the Act.

4. The prosecution examined seven witnesses. Two independent witnesses were examined as court witnesses CWs 1 and 2.

5. By a judgment dated 10.05.2017, the Special Court convicted the appellant for the offence under Section 20(b)(ii)(C) of the Act, and imposed a sentence of rigorous imprisonment of 10 years. However, the co-accused Reena Das was acquitted by the Special Court.

6. The State did not file any appeal against the acquittal of Reena Das, who was A-2. But the appellant filed an appeal on the file of the High Court of Chhattisgarh, Bilaspur. The appeal was dismissed by a judgment dated 01.10.2019. Therefore, A1 who has suffered concurrent convictions has come up with the above appeal.

7. The Special Court, for coming to the conclusion that the appellant was guilty of the offence, relied extensively upon the testimony of Mr. N.L. Dhritlahre, Deputy Superintendent of Police, who acted both as the informant and as the Investigating Officer (‘I.O.’ for short) and who was examined as PW-7. The Special Court found that PW-7 had followed the procedure prescribed in Sections 43 and 49 of the Act and that his testimony remained unshaken.

8. Though PW-7 claimed that the search and the seizure was conducted in the presence of two independent witnesses examined as CW-1 and CW-2, these two witnesses claimed ignorance of the entire operation. Therefore, the Special Court came to the conclusion that the testimony of PW-7 was not corroborated by the evidence of independent witnesses.

9. However, the Special Court came to the conclusion that the entries made by PW-7 and the documents prepared by him both before and after the search and seizure, corroborated his oral testimony and that therefore the guilt of the appellant stood established beyond reasonable doubt, even without corroboration.

10. But, interestingly, the Special Court acquitted A-2 namely Reena Das on the ground,

(i) that though in the Daily Register of Exhibit P-12 and the Memo of Information, the name of A-2 was mentioned, PW-7 did not mention her name in his testimony;

(ii) that the notice under Section 50 was not served on A-2; and

(iii) that there was no proof beyond doubt to show that the seized contraband was under the possession and the knowledge of A-2.

11. As we have stated earlier, the State did not file an appeal against the acquittal of A-2. But the High Court held that the evidence of PW-7 remained unshaken even during cross-examinatio