AFR

C A V Judgment

1. This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 09.06.2017 passed by the Special Judge (under N.D.P.S. Act), Janjgir Champa (C.G.) in Special Criminal Case No.10/2015, whereby, the respondents have been acquitted with regard to the offence punishable under Section 20(b)(ii)(B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act,1985’).

2. Briefly stated the facts of the case are that on 20.04.2015, at 18.30 hrs., a secret information was received by the In-charge Police Station, Navagarh that, two persons are travelling along with contraband article (cannabis) in a motorcycle bearing registration No. CG-11 BB 9015 and are proceeding towards the village Kera and, based upon which, a Mukhabir Panchanama was prepared vide Ex.P-43 and was forwarded to the Sub-Divisional Officer (Police), Navagarh, District Janjgir Champa under Section 42 of the Act, 1985 and thereafter, the witnesses were called by issuing notices under Section 160 Cr.P.C. and, the accused persons were apprehended and while apprising them to be searched either by the Magistrate or the Gazetted Officer as required under Section 50 of the Act, 1985 and, that after taking their consent to be searched by the Investigation Officer, a search was carried out in presence of two witnesses, namely, Ramnarayan and Prakash Sagar, where, seven packets of contraband article (Ganja) were recovered from them, which were kept in one plastic bag in their alleged motorcycle. The alleged seizures were made from the accused persons vide Ex.P-21, while motorcycle bearing registration No. CG-11 BB 9015 was seized from respondent No.1- Sahil Dheevar under seizure memo (Ex.P-22) and, the Baramdagi Panchanama was, accordingly, made vide Ex.P-13 and identification of it was made vide Ex.P-14 and upon its weighing, it was found to be 06 kg and 500 gm vide Ex.P-18 and thereafter, a Samras Panchanama was made vide Ex.P-15, while mixing those contraband articles and, sampling of ganja in two packets containing 50-50 gm each were prepared. The alleged seized articles were deposited in Malkhana on 20.04.2015 vide Ex.P-34/C and physical verification of it was conducted on 02.05.2015 vide Ex. P-28 in presence of the Executive Magistrate and after completion of due investigation, a charge-sheet was submitted before the trial Court and the respondents have been charge-sheeted for the offence punishable under Section 20(b)(ii)(B) of the Act, 1985, which was denied by them and claimed to be tried.

3. The trial Court, after considering the evidence led by the prosecution, arrived to a conclusion that the alleged contraband article (Ganja) was not recovered from their conscious possession, as its witnesses have not supported the same and, held further that the alleged contraband article was neither found to be deposited in the Malkhana in a sealed manner, nor its physical verification (Ex.P-28), made on 02.05.2015, i.e.12 days upon its recovery, was duly established and, in consequence, the respondents have been acquitted from the commission of the alleged crime and, being aggrieved, the instant appeal has been preferred.

4. Learned counsel appearing for the appellant/State submits that the finding of the trial Court holding that the physical verification (Ex.P-28) of the alleged contraband article was not made in proper manner and thereby, acquitting the respondents for the non-compliance of sub-section (2) of Section 52-A of the Act, 1985, is apparently contrary to law, however, the same was duly made before the Executive Magistrate, as such, the alleged physical verification ought not to have been disbelieved, particularly when its authenticity was not questioned by the respondents.

5. On the other hand, learned counsel appearing for the respondents has supported the impugned judgment of acqu