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Momin Khan v. State of Chhattisgarh

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 55 – Police to take charge of articles seized and delivered – Compliance of.

There are serious doubts present regarding compliance of Section 55 of the Act, 1985 and also regarding the safe custody of the contraband and the samples until the samples were delivered to the FSL laboratory for examination on the basis of the statement of the witnesses which is mentioned hereinabove. The wording of Section 55 of the Act, 1985 are very clear that officer in-charge of the police station shall take charge of the articles and keep them in safe custody until the same are delivered for FSL examination or delivered by orders of the Magistrate. Hence it is a clear mandate which is required to be followed and regarding compliance of this provision the witnesses have made casual statements. Conviction against the appellants is not sustainable. Hence, the appeal is allowed. [Paras 19 & 20]


HIGH COURT OF CHHATTISGARH, BILASPUR
Rajendra Chandra Singh Samant; Arvind Singh Chandel, JJ.
CRA No. 427 of 2014; 24/02/2022
Momin Khan v. State Of Chhattisgarh

For Appellants : Shri Pallav Mishra, Advocate; For Respondent/State: Shri Sudeep Verma, Deputy Govt. Advocate.

J U D G M E N T

R.C.S. Samant, J.

1. This appeal has been preferred against judgment dated 24-01- 2014 passed in Special Criminal Case No.11/2012 by the Special Judge (Narcotic Drugs and Psychotropic Substances Act, 1985) Mahasamund, Chhattisgarh convicting the appellants under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the Act, 1985’) and sentencing them with R.I. for 20 years along with fine Rs.2,00,000/- with default stipulation.

2. The case of the prosecution, in brief, is this, that on 02-08-2012 Sub-Inspector Rajaram Yadav (PW-6) received a confidential information, regarding transport of contraband Ganja from Orissa in a vehicle. The witnesses were summoned. Mukhbir Suchana Panchnama (Ex.-P/19A) was prepared. As the police officer did not have time to obtain search warrant, he prepared panchnama (Ex.-P/20A) in compliance of Section 42 of the Act, 1985. Sub- Inspector Rajaram Yadav (PW-6) proceeded with his team and the witnesses to the spot at Banjari Naka Rehtikhol. A blockade was created. The suspected vehicle bearing registration No. 09 CC 4281 was stopped. The vehicle was occupied by three persons including the driver. Both the appellants were found sitting in the vehicle. The driver of the vehicle absconded from the spot, however, the appellants were apprehended. The appellants were informed about the right to be searched in presence of Gazetted Officer or a Magistrate. The appellants gave their consent to be searched by Sub-Inspector Rajaram Yadav (PW-6) vide Ex.-P/2. Sub-Inspector Rajaram Yadav (PW- 6) and his team gave the appellants opportunity to search them vide Ex.-P/3, Ex.-P/4 and Ex.-P/5, in which no objectionable substance was found in their presence. After this proceeding, gunny bags present by the side of seat of the appellants was opened, in which 8 packets were found in presence of appellant No.2 and 7 packets were found in presence of appellant No.1 vide Ex.-P/6. The contents of the packets were taken and tested by burning and smelling and it was confirmed as Ganja vide Ex.- P/7 and Ex.-P/8. After verification of weighing instrument vide Ex.-P/9, the weightment procedure was carried out, according to which 76.850 kg. Ganja was found to be in possession of appellant No.1 and 58.1 kg. Ganja was found to be in possession of appellant No.2 vide Ex.-P/11. Samples were prepared of the seized articles vide Ex.-P/10. The contraband, vehicle and additional number plates present in the vehicle were seized vide Ex.-P/12 and Ex.-P/13. Spot map was prepared vide Ex.-P/16. Sub-Inspector Rajaram Yadav (PW-6) recorded the statement of witnesses. Seizure of Ganja and samples was also made. After returning to the police station the seized articles were handed over to Malkhana Moharrir and receipt Ex.-P/22 was obtained. An information was prepared regarding the complete proceedings vide Ex.-P/21 for dispatch to the office of the Sub-Divisional Officer (Police) Saraipali and the same was dispatched, regarding which receipt was obtained. The samples of the seized articles were sent for FSL examination. The FSL report (Ex.- P/30) was received, according to which the contents of the sample packets was found to be Ganja. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. On completion of the investigation charge sheet was filed.

3. The appellant was charged under Sections 20(b)(ii)(C)of the Act,1989. The appellants denied the charges and pleaded innocence. Learned trial Court commenced the trial and examined in total 10 witnesses from the prosecution side. On completion of the prosecution evidence the appellants were examined under Section 313 of the Cr.P.C. in which they denied all the incriminating evidence present against them. The appellants/accused persons again made statement of their innocence and stated in defence that both the appellants had taken lift in the vehicle. The driver of the vehicle absconded from the spot, whereas, the appellants who had no connection with the said contraband of Ganja. They were arrested and compelled to participate and sign in the proceedings by the police officer. Opportunity was availed for examining witnesses in defence, but no evidence was led in defence.

4. Learned trial Court after giving opportunity of hearing to the prosecution and defence has passed the impugned judgment convicting and sentencing the appellants in the manner mentioned hereinabove.

5. Learned counsel for the appellants submits that the conviction of the appellants is totally erroneous and bad in law. The conviction of the appellants is based only on the testimony of the Investigating Officer Rajaram Yadav (PW-6). One of the independent witnesses Santosh (PW-1) has turned hostile and he has not supported the prosecution case. Other independent witness of search and seizure has not been examined. Sub- Inspector Rajaram Yadav (PW-6) and other police witnesses were clearly interested to see that the appellants are convicted.

It is further submitted by learned counsel for the appellants that there is no evidence present to show compliance of Section 55 of the Act, 1985. The evidence regarding sampling procedure is also doubtful. There is no exclusivity present to show that all steps were taken to prevent tampering with the samples. Reliance has been placed on the judgment of Division Bench of this Court in the matter of Avinash Singh Rajput Vs. State of Chhattisgarh in Criminal Appeal No.222 of 2014 delivered on 30-09-2019, in which the Division Bench has emphasized on compliance of Section 55 of the Act, 1985.

Relying on the judgment of Hon’ble the Supreme Court in the case of Gorakh Nath Prasad Vs. State of Bihar, (2018) 2 SCC 305 it is submitted that the hostility of one of the independent witnesses and non-examination of another independent witness had been fatal to the prosecution case. The learned trial Court has not given any consideration to the same.

It is further submitted that there is clear non-compliance of Section 50 of the Act, 1985. Placing reliance on the judgment of Hon’ble the Supreme Court in the case of Vijaysingh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609 it is submitted that requirement of informing suspected person of his right under Section 50 of the Act, 1985 is mandatory and not a mere formality. The procedure conducted in this case for compliance of Section 50 of the Act, 1985 appears to be a mere formality. Therefore, non-compliance of this mandatory provision is fatal to the prosecution case.

It is submitted that the panchnama (Ex.-P/2) is a joint statement of both the appellants regarding their consent for search by the Investigating Officer Sub-Inspection Rajaram Yadav (PW-6). In the case of State of Rajasthan Vs. Parmanand and another, (2014) 5 SCC 345 it was observed by Hon’ble the Supreme Court that joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrated the very purport of Section 50. The communication of this right has to be clear, unambiguous and individual, which is not present in this manner in the present case.

Reliance has also been placed on the judgment of Chhattisgarh High Court in the case of Shivnath Shah and another Vs. State of C.G., 2006(3) C.G.L.J. 515. It is prayed that the appeal be allowed and the appellants be acquitted of the charges against them.

6. Learned counsel for the State/respondent opposes the submission made by learned counsel for the appellants. It is submitted that the prosecution has proved its case beyond reasonable doubt. Placing reliance on the judgment of Hon’ble the Supreme Court in the case of Baldev Singh vs. State of Haryana, (2015) 17 SCC 554, it is submitted that Hon’ble the Supreme Court has very clearly held that conviction of an accused in the case of NDPS Act can be based upon the evidence of official witnesses and the police witnesses. Although the independent witness Santosh (PW-1) has turned hostile, but he has admitted his signatures on all the memos of search and seizure prepared on the spot which shows his presence on the spot. Therefore, this is a circumstance which has to be taken notice of. It is submitted that the evidence of the Investigating Officer Sub-Inspector Rajaram Yadav (PW-6) and other witnesses of his team inspire confidence, therefore, learned trial Court has rightly relied on these evidence to convict the appellants in this case.

It is submitted that in the case of Semadri Jena Vs. State of C.G., 2013(3) C.G.L.J. 415 Single Bench of this High Court has upheld the conviction against the appellant by the trial Court in a similar case. Therefore, the present case is also on similar footing. Investigating Officer Sub-Inspector Rajaram Yadav (PW-6) has made full compliance of Section 50 and Section 55 of the Act, 1985. It is further submitted that in the present case it was not a case regarding search of person of the appellants, clearly the contraband was found packed in gunny bags kept inside the vehicle for which compliance under Section 50 of the Act, 1985 is not required. Similarly, there is evidence present to show the compliance of Section 55 of the Act, 1985. Hence, there is no ground present for interference in the impugned judgment. Therefore, the appeal filed by the appellants is liable to be dismissed.

7. Heard learned counsel for the parties and perused the record of the trial Court.

8. Considered on the submissions. The appellants have in a way admitted by making statement in defence that they were present in the car when the same was stopped, searched and seizure of articles were made. There also appears to be no dispute present that the contraband in the quantity mentioned hereinabove was present in the car, in which the appellants were occupants.

The first ground raised by the appellants is the reliability of the testimony of the Investigating Officer, Sub-Inspector Rajaram Yadav (PW-6). One of the independent witnesses of this procedure Santosh (PW-1), who has been examined in the trial, has not supported the prosecution case. However, he has admitted the presence of his signatures on different memos. He was being cross-examined by the prosecutor after he was declared hostile and he denied all the suggestions given to him, however, he has made statement, that before signing the memos he had read the same and found written on it, that two packets of Ganja were seized. This statement made by him has not been challenged in his cross-examination. Therefore, there is partial statement made by this witness in support of the proceeding of search and seizure by the Investigating Officer Sub-Inspector Rajaram Yadav (PW-6).

9. The question is whether there is reason to disbelieve testimony of Sub-Inspector Rajaram Yadav (PW-6). He has clearly given statement of all the proceedings conducted by him, starting from the service of notice upon the appellants, obtaining their consent for search and then searching the vehicle, finding the articles contraband in possession of the appellants, making identification panchnama of the article seized, conducting weighment procedure and finding the total weight of Ganja seized from appellant No.1 to be 76.850 kg. and 58.1 kg from appellant No.2 vide Ex.-P/11. He has stated about preparation of samples on the spot which was sealed vide Ex.-P/10 and also the seizure of forged number plates of the vehicle vide Ex.-P/12 and Ex.-P/13, lodging of the FIR vide Ex.-P/27 and handing over the articles for safe custody to Malkhana Moharrir and obtaining receipt Ex.- P/22. Further, dispatching the information of complete proceeding to the superior officer vide Ex.-P/21 and also has stated about the report of the FSL laboratory vide Ex.-P/30 which mentions that the content of the samples was Ganja, a narcotic substance.

In cross-examination his statement has remained totally unrebutted. He has denied the suggestions that the owner and driver of the vehicle were also caught who were later on released after taking bribe from them. He has clarified that the appellants had kept the contraband by side of their seat in the car. He has admitted that panchnama (Ex.-P/10) does not mention that the seized articles were homogenized before taking samples of the same and denied knowledge about the custody of the samples before the same were sent to FSL. This can be explained, that the witness had handed over the custody of the samples to the Malkhana Moharrir immediately after reporting at the police station and not mentioning of the homogenizing all the contents is not a serious irregularity. He has further denied all the adverse suggestions given regarding the procedure conducted by him. It is to be noted that only one personal allegation was made against him that owner and driver of the vehicle were caught who were released after a bribe transaction.

Only one of the witnesses of search and seizure has been examined, i.e., Santosh (PW-1). No question was put to him by the defence regarding the presence of owner and driver of the car and their release by the police. Similarly, the other member of the team, Constable Anil Kumar Manjhi (PW-3) who was on the spot was also not given any suggestion regarding the presence of owner and the driver and their being released unreasonably by the Investigating Officer. There is evidence that the driver of the vehicle had absconded. However, he has been identified, but the police has not been able to arrest him. Absconding accused driver, Darbar Singh has also been charge sheeted in absconsion. Therefore, the suggestion of the defence that the driver of the vehicle was released on account of some bribe appears to be baseless suggestion and there is no support from the evidence present in the record of the case, that owner of the said vehicle was also present at the time of search and seizure. Apart from this suggestion which has been denied by Sub- Inspector Rajaram Yadav (PW-6) there is no other suggestion given or no other statement made by the Investigating Officer Sub-Inspector Rajaram Yadav (PW-6) so as to infer that the Investigating Officer had any personal interest to falsely implicate these appellants.

10. In the case of Baldev Singh vs. State of Haryana (supra) it was observed in paragraph No.11 that:-

11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad v. State of M.P., (2007) 7 SCC 625, it was held as under:- (SCC pp. 632-33, paras 25-27)

“25 In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

26 It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217, Venkatarama Ayyar, J. stated: (AIR p. 230, para 40)

’40. …….The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.’

27. In Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341 para 6)

‘6. ……. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.”

11. In the case of Gorakh Nath Prasad Vs. State of Bihar (supra) Hon’ble the Supreme Court did not find the testimony of the police officials reliable. Therefore, the case hinges upon the reliability of the testimony of the Investigating Officer which has to be inferred and decided on the facts that are present in this case.

12. Another limb of argument of the appellants is regarding noncompliance of the mandatory provision under Section 50 of the Act, 1985. It is undisputedly clear that the quantity of the contraband seized in the case is huge and the same was found kept in bag or bags which were recovered and seized from the possession of these appellants. Although the proceeding was carried out for serving of notice under Section 50 of the Act, 1985 and obtaining consent of the appellants which may be questioned, but the question as to whether there was such requirement to serve the appellants notice under Section 50 of the Act, 1985, if answered it would be answered in negative.

13. Hon’ble the Supreme Court in the case of State of H.P. Vs. Pawan Kumar, (2005) 4 SCC 350 held very clearly that the applicability of Section 50 of the NDPS Act would be necessary only in case of search of a person not in case of bag, baggage or container. The word ‘person’ has been described in paragraph 10 of that judgment, which is as follows:-

“10. We are not concerned here with the wide definition of the word “person”, which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word “person” appears to be – “the body of a human being as presented to public view usually with its appropriate coverings and clothing”. In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one’s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word “person” would mean a human being with appropriate coverings and clothings and also footwear.”

14. Hon’ble the Supreme Court in the above judgment has mentioned the judgment of Constitution Bench in the case of State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 in paragraph No.13 which is as follows:-

“13. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh 1999 (6) SCC 172 and para 12 of the Report is being reproduced below : “12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.”

Therefore, now it is a settled law that compliance of Section 50 of the Act, 1985 is not mandatory in case of search of bag, baggage or container etc. Hence, the arguments raised by the appellants on this issue are not entertainable.

15. Another ground raised in the appeal regarding the sampling procedure and that there was possibility of the seized articles and samples being tampered before being sent to the FSL for examination needs consideration. Issue has also been raised regarding non-compliance of Section 55 of the Act, 1985. Investigating Officer, Sub-Inspector Rajaram Yadav (PW-6) has stated that the seized articles were sealed, samples prepared were also sealed and were handed over to Malkhana Moharrir, regarding which receipt Ex.-P/22 was obtained, this statement has not been specifically challenged in his cross-examination. Head Constable Diwakar Visi (PW-5) has stated that on 02-08- 2012 he was handed over the seized samples and other articles by Sub-Inspector Rajaram Yadav (PW-6) regarding which he had given him receipt Ex.-P/22. Seized articles were entered in the register (Ex.-P/23 and Ex.-P/24) on serial Nos. 33 and 34. In cross-examination his statement has unrebutted and he has denied all the adverse suggestions. Sub-Inspector Rajaram Yadav (PW-6) has stated that the samples were sent for FSL examination vide memo Ex.-P/28 which were received by FSL laboratory and receipt Ex.-P/29 was obtained for the same. The memo Ex.-P/28 for sending the samples to FSL is dated 03-08- 2012 which may be antedated as it appears from the statement of Constable Panchuram Baghel (PW-8) who had stated that he received the sealed samples, packets on 06-08-2012 and the same were deposited in the FSL laboratory on the same date regarding which receipt (Ex.-P/29) was obtained. In crossexamination he has stated that samples were kept in the police station from 02-08-2012 to 06-08-2012. He has admitted that on 03-08-2012 the samples were tendered before the FSL laboratory, but the same was not received, therefore, samples were returned to the Malkhana Moharrir and which were kept there until 06-08-2012 until the same were again sent to FSL. He has denied the suggestion of the samples being tampered. The statement of Head Constable Diwakar Visi (PW-5) is relevant on this point, who has stated in cross-examination that the samples were kept in Malkhana from 02-08-2012 to 03-08-2012 and he is ignorant as to where the samples were kept between 03-08-2012 to 06-08-2012. The Ex.-P/23A is copy of the Malkhana register showing deposit of the samples on 02-08-2012 and handing over of the samples on 03-08-2012 for their being sent to FSL. There is no entry of redeposit of the samples on 03-08-2012 and there being kept in Malkhana uptil 06-08-2012.

16. This situation of the fact cannot be ignored in view of the statement Constable Panchuram Baghel (PW-8) who has made clear admission for the first time the samples were tendered before the FSL laboratory, but the same was not received because of some defect and on that part the prosecution has remained silent. In the case of Avinash Singh Rajput Vs. State of Chhattisgarh in CRA No.222 of 2014, judgment delivered on 30- 09-2019 it was held that strict compliance of Section 55 of the Act, 1985 is mandatory.

17. Section 55 of the Act, 1985 is as follows:-

55. Police to take charge of articles seized and delivered. – An oficer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.”

The facts present in this case are again needed to be examined in the light of this provision.

Sub-Inspector Rajaram Yadav (PW-6) has stated that on the date of search and seizure, i.e., 02-08-2012 the samples were prepared on the spot vide Ex.-P/10, Ex.-P/10 also mentions similarly. The independent witness Santosh (PW-1) is hostile and another witness of this procedure has not been examined. Inspector Sahdev Thakur (PW-7) has made statement that in the present case the sampling procedure was conducted in presence of the Executive Magistrate, Saraipali, there is no other statement regarding the date on which the sampling procedure was conducted which gives impression that the samples were prepared twice. The receipt of the FSL dated 06-08-2012 mentions receipts of the samples packets and other articles, but there is no mention regarding the seal present on the same. The FSL report, Ex.-P/30 mentions presence of seal in casual manner and there is no specification as to which authority had affixed the seal on the sample packets. It further appears that Sahdev Thakur (PW-7) was the senior officer posted in Police Station Saraipali and he was officer in-charge of the police station. According to the statement of Sub-Inspector Rajraram Yadav (PW-6) he did not hand over the seized article and the samples to the SHO Sahdev Thakur (PW-7) and instead, he handed over the same directly to the Malkhana Moharrir.

18. In case of Avinash Singh Rajput Vs. State of Chhattisgarh (supra) this Court has made reference of judgment in the case of Narendra Bhushan Dubey Vs. State of Madhya Pradesh (now CG), 2011 (1) CGLJ 259 which is mentioned in paragraph 27 of the judgment, which is as follows:-

“27. In yet another decision in the case of Narendra Bhushan Dubey Vs. State of Madhya Pradesh (now CG), 2011 (1) CGLJ 259, violation of Section 55 of the Act was noticed, as below:-

“18. The Investigating Officer, who was the officer in charge of the police station and who seized the contraband has been examined by the prosecution as PW- 4. In his cross-examination, he has stated that seized ganja was sealed with the seal of the police station. In his cross-examination, he admits that he has seal in his own name. The mandate to Section 55 requires the officer incharge of the police station to seal the sample with his own seal. However, no explanation has come forth from the prosecution even in the cross-examination of R.K. Rai (PW-4) as to why the officer in-charge did not affix his seal as required under Section 55 of the Act. This aspect assumes importance as in the cross-examination, a suggestion has been given that the incident happened in the night at some other place and the accused was sent to the police station along with the constable and the Investigating Officer had gone to Sakari where signatures of the witnesses were taken on all the documents. Section 55 of the Act of 1985 requires the officer-in-charge of police station to take charge of and keep in safe custody all seized articles. The statutory scheme of the Act engrafted under Section 55 requires the officer-in-charge of the police station to seal all the samples with his own seal. The 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 the 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 the senior officers can be trusted to be fair in investigation and not indulging in dubious practices. When the prescribed procedure is abandoned, it gives rise to gnawing suspicion particularly when in the present case, the officer incharge/ S.H.O. himself had seized the articles.

19. The purpose and object of the provision contained in Section 55 of the N.D.P.S. Act is to rule out any possibility of tampering the sample as stringent provisions with regard to punishment for offence under the Act have been made. The sanctity of the sample therefore has to be proved by the prosecution by leading thorough evidence.”

19. On making close scrutiny of the evidence present in the case, we are of the view that there are serious doubts present regarding compliance of Section 55 of the Act, 1985 and also regarding the safe custody of the contraband and the samples until the samples were delivered to the FSL laboratory for examination on the basis of the statement of the witnesses which is mentioned hereinabove. The wording of Section 55 of the Act, 1985 are very clear that officer in-charge of the police station shall take charge of the articles and keep them in safe custody until the same are delivered for FSL examination or delivered by orders of the Magistrate. Hence it is a clear mandate which is required to be followed and regarding compliance of this provision the witnesses have made casual statements.

The specific fact which has to be taken notice of is that the Malkhana of the police station released the samples on 03-08- 2012 which was not received in the FSL laboratory until 06-08- 2012 and there are two sets of statements of the witnesses present, one witness stated that the samples were redeposited, whereas, the Malkhana Moharrir stated that he has no knowledge as to where the samples were kept between 03-08- 2012 to 06-08-2012. Hence, this is the situation on which basis it can be held that the testimony of the Investigating Officer, Sub- Inspector Rajaram Yadav (PW-6) alone does not inspire confidence.

20. In the case of Semadri Jena Vs. State of C.G. (supra) on which the State counsel has placed reliance, this Court has held that compliance of Section 55 of the Act, 1985 was proved by the prosecution. According to the material present in this regard this Court does not feel fully satisfied and finds no reason to hold similarly. Hence, after due consideration on all the facts, circumstances, evidence, case law cited and the law applicable we are of the view that conviction against the appellants is not sustainable. Hence, the appeal is allowed. Conviction and the sentence against the appellants is set aside and the appellants are acquitted. In case the appellants have made payment of the fine imposed upon them, the same shall be refunded to them.

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