Point of Law:Search and seizer of Contraband Ganja – Conviction set aside - non-compliance of the provisions of Sections 52(3) and 55 of the Act- prosecution has completely failed to prove its case. The finding of conviction arrived at by the Trial Court is not in accordance with the evidence available on record.

JUDGMENT :

1. The instant appeal has been preferred against judgment dated 18.6.2015 passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth ‘the Act’), Raigarh in Special Case No.11 of 2014, whereby the Appellant has been convicted and sentenced as under:

Conviction Sentence

Under Section 20(b)(ii)(C) of the Act Rigorous Imprisonment for 10 years and fine of Rs.1,00,000 with default stipulation

2. Case of the prosecution, in brief, is that on 31.7.2014 G.R. Rathiya (PW8), Sub-Inspector/Station House Officer of G.R.P. Raigarh received a secret information that a woman was travelling in Jharsuguda-Gondiya Passenger and was sitting in the second bogie after the engine with airbag and jhola (carry bag) in which Ganja was kept. He recorded the information vide Ex.P2, called witnesses Vimal Sarkar (PW4) and Madhav Ghosh (PW5) and thereafter reached at platform No.2 along with the above witnesses and staff members. He entered the said bogie, where he found the Appellant. The Appellant was having one airbag and two jhola. On being asked, she informed that she was having Ganja. She was got down from the bogie to platform No.2 along with the airbag and jhola. On making her search at platform No.2, 11 Kgs. of Ganja was found in her airbag, 4½ Kgs. of Ganja was found in her one canvas jhola and 7½ Kgs. of Ganja was found in her other chain jhola. 1-1 sample of 50 Grams each, total 3 samples were prepared from each of the airbag and two jhola and were marked as A1, A2 and A3. The sample packets and the remaining Ganja were seized vide Ex.P15. After return to the G.R.P., he registered First Information Report (Ex.P17), deposited the seized property in the Malkhana and obtained acknowledgment thereof (Ex.P10). He informed the superior officer about the whole action taken. On completion of the investigation, a charge-sheet was filed against the Appellant. The Trial Court framed charge against her.

3. To bring home the offence, the prosecution examined as many as 8 witnesses. Statement of the Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which she denied the guilt, pleaded innocence and false implication. 1 witness has been examined in her defence.

4. On completion of the trial, the Trial Court, vide the judgment under challenge, convicted and sentenced the Appellant as mentioned in 1st paragraph of this judgment. Hence, this appeal.

5. Learned Counsel appearing for the Appellant submitted that the Appellant was engaged in selling brooms. Due to some previous dispute of the Station House Officer with the Appellant, she has been falsely implicated in the case. According to the case of the prosecution, the airbag and both the jhola were found kept below the seat of the bogie. Along with the Appellant, many other passengers were also travelling in the said bogie. The airbag and the two jhola did not have any mark or identification sign which could show that the same belonged to the Appellant. No statement of any other passenger travelling in the said bogie has been recorded to establish that the said airbag and jhola were of the Appellant. Since the airbag and the jhola were found kept below the seat of the bogie and many other passengers were also travelling in the said bogie, it is not established that the Appellant was in conscious possession of the said airbag and the jhola. It was further argued that there is non-compliance of the provisions of Sections 52(3) and 55 of the Act. The entries of the Malkhana Register do not include mentioning of deposit of the sample packets, namely, A1, A2 and A3. No entry is available in the Malkhana Register to show that when the said sample packets were taken out from the Malkhana for sending them to the Forensic Science Laboratory (FSL) for examination and to whom the said packets were handed over for taking to the FSL. Therefore, the said sample packets were kept in the Malkhana in sealed condition and the sample packets which w