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2011 Supreme(Chh) 341
HIGH COURT OF CHHATTISGARH, BILASPUR
I.M. QUDDUSI & G. MINHAJUDDIN, JJ.
STATE OF C.G. - Appellant
Vs.
KAMLESH JURRI & ANOTHER - Respondents
Acquittal Appeal No. 136 of 2010,
Decided on : 21-11-2011.
Shri Rajendra Tripathi, Panel Lawyer, for the State/appellant.
Shri Parag Kotecha, Advocate, for the Respondents.
Failure to follow the procedure outlined in Section 55 of the NDPS Act for keeping seized articles in safe custody can lead to the acquittal of the accused.
Headnote:
NDPS Act - Acquittal under Section 20 (b) (2-C) - Section 55 - Summary: The court acquitted the accused under Section 20 (b) (2-C) of the NDPS Act based on the failure to follow the procedure outlined in Section 55 for keeping seized articles in safe custody. The prosecution witnesses, including independent witnesses, turned hostile, and the court found that the recovery of contraband from the accused could not be proved. The trial court's decision was upheld, and the appeal was dismissed.
Fact of the Case:
The police seized 102 kg and 100 grams of ganja from a car occupied by the accused. However, the trial court acquitted the accused due to doubts about the safe custody of the seized contraband and the failure to follow the procedure outlined in Section 55 of the NDPS Act.
Finding of the Court:
The court found that the prosecution witnesses, including independent witnesses, turned hostile, and the recovery of the contraband from the accused could not be proved. The trial court's decision to acquit the accused was upheld.
Issues: The issues revolved around the safe custody of the seized contraband, the failure to follow the procedure outlined in Section 55 of the NDPS Act, and the credibility of the prosecution witnesses.
Ratio Decidendi: The court's decision was influenced by the failure to follow the procedure outlined in Section 55 for keeping seized articles in safe custody, the hostile nature of the prosecution witnesses, and the inability to prove the recovery of contraband from the accused.
Final Decision: The appeal was dismissed, and the trial court's decision to acquit the accused was upheld.
As per hon'ble Shri. I.M. Quddusi, J. :-
1. The present appeal arises out of the judgment and order dated 31st March, 2009, passed by the Special Judge (NDPS Act), Jagdalpur in Special N.D.P.S. Case No. 26/2008, acquitting the accused/respondents from the charges under Section 20 (b) (2-C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act').
2. Brief facts of the case, as per the prosecution story, are that on 5.4.2008 at about 7.10 a.m. under the instructions of the Station House Officer, Police Station - Farasgaon, the Assistant Sub-Inspector Shri B. P. Yadav along with the police party started checking of vehicles on the barrier, in front of the police station. At about 9.50 a.m. they saw one white colour Maruti Car was coming from the direction of Kondagaon but when the police party gave signal to the driver to stop the vehicle, the driver did not stop the vehicle and tried to flee away to the direction of Raipur. The police party chased the Maruti Car by Jeep and Motorcycles and could be successful to stop the Maruti Car, bearing registration No. C.G. 04-ZD/1013 near Rituja Petrol Pump. Two persons going from the spot were requested to become witness to the panchnama, in whose presence the accused persons were asked to narrate their name and accordingly the driver told his name as Kamlesh Jurri and the person sitting by the side of the driver told his name as Har Prasad. At 10.00 a.m. the search panchnama (Ex.P/1) was prepared. Accused Kamlesh Jurri and Har Prasad were given separate notice under Section 91 of the Code of Criminal Procedure and thereafter the notice under Section 50 of the NDPS Act, 1985 was also given by Shri Yadav, A.S.I.. After obtaining the consent of the accused persons their personal search was conducted and thereafter the vehicle was searched. In the personal search no objectionable thing was found, however, ten jute bags, containing total 102 kilogram and 100 gram ganja was found from the Car. The samples were drawn from the seized contraband and were sent for chemical examination. The FIR (Ex.P/23) was registered on 5.4.2008 itself at 18.40 hours, the offence under Section 20(B) of the Act was registered at Crime No. 48/2008 and the accused/respondents were taken to the custody.
3. The seized articles were sent to the Malkhana. The report (Ex.P/25) of the entire proceeding under Section 57 of the Act, 1985 was prepared and was sent to the Sub Divisional Officer (Police) Kondagaon. Vide letter dated 9.4.2008 of the Superintendent of Police, Jagdalpur the samples were sent for chemical examination at F.S.L. Raipur from where the report (Ex.P/28) was received. After conducting the enquiry the challan was filed on 19.6.2008.
4. Learned trial Court framed the charges under Section 228 of the Code of Criminal Procedure and the statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, who abjured the guilt and prayed for trial.
5. Learned counsel appearing for the State/appellant submits that the police party had seized the contraband from the car occupied by the accused/respondents, which was contained in ten jute bags, having the quantity of 102 kilogram and 100 grams, which comes under the commercial quantity. Further, as per the E.S.L. report the seized article was ganja and the police had conducted the entire enquiry following the practice and procedure in accordance with various provisions of the Act, 1985. However, learned trial Court has held that the possibility of tempering with the seized contraband while keeping the same in safe custody of Police Station cannot be ruled out and thereby the accused persons/respondents have been extended the benefit of doubt.
6. On the other hand, learned counsel appearing for the respondents supporting the impugned judgment submits that the findings of the trial Court are strictly in accordance with law. He further submits that the provisions of Section 55 of the NDPS Act have not
