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2022 Supreme(Chh) 160
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
SANJAY K. AGRAWAL, RAJANI DUBEY, JJ.
State of Chhattisgarh, through Police Station Gandhinagar, Chhattisgarh - Petitioner
Versus
Devendra Singh, S/o. Dilbhadra Singh - Respondent
CRMP No. 858 of 2021
Decided On : 14-06-2022
Advocate Appeared:
For the Petitioner:Mr. Sudeep Verma, Deputy Government Advocate.
Headnote:
Criminal Procedure Code,1973 - Section 378(3) - NDPS Act - Sections 21©, 55 and 22© - Police to take charge of articles seized and delivered - Seeking leave to prefer - Appeal against acquittal - Polytechnic College, Ring Road within the ambit of Police Station accused was found in possession and selling following psychotropic substances - Injection-10 ml each, total weight 140 ml; (2) 06 Injection-30 ml each total weight 180 ml Injection-2 ml each, total 19 per pack (total weight 38 ml) & (4) 50 Pentazocine Lactate Injection IP, 1 ml each (total weight 50 ml) and, thereby, committed the offence under Section 21© of NDPS Act – Held, Accused was sent to the police station along with the constable and Investigating Officer had gone to Sakari where signatures of the witnesses were taken on all documents - Officer-in-charge of police station to take charge of and keep in safe custody all seized articles - Statutory scheme of Act engrafted under Section 55 requires officer-in-charge of the police station to seal all samples with his own seal - Legislative intention is that there should be fair investigation for keeping the seized article in safe custody of the highest officer of the concerned police station so as to eliminate the possibility of the sample being tampered with till the same reaches the hands of chemical examiner. Under provision contained in Section 55 such a duty has been enjoined upon the officer in-charge of the police station with the manifest object that senior officers can be trusted to be fair in investigation and not indulging in dubious practices - Procedure is abandoned - Section 55 of the NDPS Act has been followed in breach and there is no evidence available on record to show as to where the seized psychotropic substances were lying after the date of its seizure is crystal clear from document - appeal is dismissed.
ORDER :
Sanjay K. Agrawal, J.
This criminal miscellaneous petition has been filed by the petitioner-State under Section 378(3) of the Cr.P.C. seeking leave to prefer appeal against the order of acquittal dated 23.03.2021, passed in Special Criminal (NDPS Act) Case No.18 of 2017 by the Court of learned Special Judge constituted under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS Act”) Ambikapur, District Surguja (C.G.), whereby the learned Special Judge has acquitted the accused-respondent herein for offence under Section 21(c) of the NDPS Act.
2. The case of the prosecution, in brief, is that on 14.06.2017 at about 22:40 hours, near Polytechnic College, Ring Road, Ambikapur within the ambit of Police Station Gandhinagar, District Surguja (C.G.) the accused (respondent herein) was found in possession and selling the following psychotropic substances: (1) 14 Avil Pheniramine Maleaste Injection-10 ml each, total weight 140 ml; (2) 06 Clorfiniramin Mailiyet Injection-30 ml each total weight 180 ml; (3) Rexogesic Buprenorthin Injection-2 ml each, total 19 per pack ampul (total weight 38 ml) & (4) 50 Pentazocine Lactate Injection IP, 1 ml each (total weight 50 ml) and, thereby, committed the offence under Section 21(c) of the NDPS Act.
3. The learned Special Judge after conducting full-fledged trial and after appreciating the oral and documentary evidence available on record found that there is non-compliance of Section 55 of the NDPS Act and proceeded to acquit the accused-respondent herein for the aforesaid offence, against which the instant petition has been filed by the State seeking leave to prefer appeal against the aforesaid order of acquittal.
4. Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the petitioner-State submits that learned Special Judge was absolutely unjustified in acquitting the respondent/accused for the aforesaid offence for non-compliance of Section 55 of the NDPS Act; there is sufficient evidence available on record to show that Section 55 of the NDPS Act was fully complied with and there is ample evidence available on record to connect the accused-respondent with the offence under Section 22(c) of the NDPS Act and, as such, it is a fit case where leave can be granted to the State to prefer appeal against the impugned order of acquittal.
5. We have heard learned State counsel, considered his submissions, perused the impugned order of acquittal and also other material available on record with utmost circumspection.
6. It is not in dispute that psychotropic substances were seized by the Investigating Officer, namely, Deepak Kumar Sahu (PW-10) on 14.06.2017 from the accused-respondent, which he has said to be deposited in the Malkhana of Police Station Gandhinagar, District Surguja vide Ex.P/38, which is addressed to the Head Constable, Police Station Gandhinagar, District Surguja, asking him to deposit psychotropic substances alongwith other articles such as mobile etc. Apart from that, document Ex.P/28C has been filed which shows that the said psychotropic substances have been deposited vide Sr. No.74 on 17.06.2017 in the Malkhana of Police Station Gandhinagar.
7. The Investigating Officer-Deepak Kumar Sahu has been examined as PW-10, wherein he has categorically stated that he has seized the psychotropic substances on 14.06.2017 and deposited the same in the Malkhana of Police Station Gandhinagar on 17.06.2017. On being asked, as to where the seized psychotropic substances were on 15.06.2017 & 16.06.2017, because as per his own statement he has seized the psychotropic substances on 14.06.2017 and deposited the same in the Malkhana of Police Station Gandhinagar on 17.06.2017, he stated that vide Ex.P/38 the seized psychotropic substances were deposited with the Incharge of the Malkhana of Police Station Gandhinagar on 14.06.2017. Further, the Malkhana In-charge, namely, Jablun Kujoor, of Police Station Gandhinagar has been examined as PW-8, wherein he has
