The prosecution must produce seized contraband to establish possession; failure to do so, especially when independent witnesses turn hostile, undermines the case.

C A V Judgment

1. This appeal is directed against the judgment of conviction and order of sentence dated 6th April, 2004 passed in NDPS Special Case No. 19/2003 by the Special Judge (NDPS Act) Durg, Chhattisgarh whereby the appellant has been convicted u/s 8 read with section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo R.I. for 10 years and to pay a fine of Rs.1,00,000/- (Rupees one lakh), in default of payment of fine, to further undergo additional RI for 3 years.

2. The allegation against the appellant is that on 22.10.2003 evening at 6.30 p.m., he was keeping 66.100 Kgs. of ganja in his possession at Plat Form No.1 near GRPF Police Station, Durg thereby he violated the provisions of Section 8(c) and committed offence under section 20(b)ii)(C) of the NDPS Act.

3. The prosecution case, in brief, is that on 22.10.2003 Sub-Inspector A.S. Khan (P.W.4) was on duty at Govt. Railway Police Choki, Durg. In the evening, he left the Chowki for checking plat form which was recorded in Rosnamcha (Ex.P-9). At that time in the evening, the Samta Express Train arrived at Durg Railway station, from which accused got down along with 4 bags and a suit case and at platform where he engaged two railway porters Sadashiv (P.W.1) and Subhash Yadav (P.W.5) to take his goods to the outside Platform. When the accused was going outside the plat-farm with railway porters who were carrying 4 bags and when they reached to the end of RPF Station of Platform no.1, Sub-Inspector A.S. Khan (P.W.4) saw the accused and his property and on suspicion, they were stopped and four bags and a suit case were searched in the presence of police force and the two coolies and during search, the contraband (ganja) was found. At the same time, the Police continued their search in which no objectionable item was found in other bags. Panchnama Ex.P-1 was prepared and information regarding the right to search was given to the accused by Ex.P-2, in which the accused gave his consent for search to the office by writing STS. All the four bags and suit case were opened wherein ganja was found, which was identified by rubbing and smelling, for which, Panchnama Ex.P-3 was prepared. Further the property was taken to Dattatreya Engineering Workshop which is situated near the place of incident where the property was weighed. Upon which, 7.200 Kgs in a purple bag, 8.600 kgs in green- yellow bag, 12.600 Kgs in light yellow coloured bag; 16.400 in black coloured bag and 21.300 Kgs., in black coloured suitcase total 66.100 Kgs of Ganja was found. Weight Panchnama was prepared vide Ex.P-4 and on the spot the property was seized from accused vide seizure Memo Ex.P-5. According to the prosecution case, samples of 50-50 grams of ganja were collected form each of four bags & suit case and they were sealed vide Ex.P-5. Then the accused and property was brought to the Railway Police Station Durg where the FIR was recorded vide Ex.P- 12. The accused was arrested and Panchnama Ex.P-6 was prepared. The site map of incident was prepared vide Ex.P-7. Rosnamcha was recorded vide Ex.P.10. The property was kept preserved in Malkhana. The special report was sent to Superintendent of Police, the acknowledgment has been filed as Ex.P-14. The information regarding FIR was sent to the Court, the acknowledgment of which was filed as Ex.P-15. The samples of ganja were sent to FSL, Raipur through S.P., Railways vide Ex.P-16 and the acknowledgment was obtained vide Annexure P-17 and the FSL report (Ex.P-18) was received by Letter (Ex.P-19) wherein the samples were found to be Ganja. Further after recording the statements of witnesses and completing the investigation, the charge sheet was filed.

4. The statement of accused/appellant was also recorded in which he denied the guilt, pleaded innocence and false implication in the case. In order to prove the guilt of accused, the prosecution has examined 5 witnesses and exhibited 19 documents on its behalf. The learn