Durga Amma vs State Of Chhattisgarh

Conviction,Sentence

Under Section 20(b)(ii)(C) of the NDPS Act,"Rigorous Imprisonment for 15 years and fine of Rs.1,00,000

in default of payment thereof, addi(cid:39)onal rigorous

imprisonment for 2 years

Now, we shall examine the evidence on record with regard to compliance of the provisions of Section 55 of the NDPS Act. According to the",

statement of C. Khalko (PW8), he had prepared 3 samples of 50 Grms. each after mixing of the Ganja kept in 3 bori (bags) on 26.8.2014 and had sent",

all the 3 sample packets to the office of Assistant District Excise Commissioner, Durg on 26.8.2014 itself vide Ex.P27 for safe custody. He had also",

sent the remaining quantity of recovered Ganja in 3 tin containers to Bhilai Bhatthi Police Station on 26.8.2014 itself vide Ex.P21 for safe custody. In,

this regard, Malkhana Register (Ex.P36) of Excise Circle Bhilai No.1 has been produced in which relevant entries are made with regard to the above",

mentioned sending. Assistant Sub-Inspector of Bhilai Bhatthi Police Station, namely, J.S. Bhadoriya (PW6) deposed that he had received Ganja in 3",

tin containers on 26.8.2014. During cross-examination, he admitted that on 26.8.2014, he was not the Station House Officer of the said police station.",

He further admitted that he had not handed over the said received Ganja to the Station House Officer. He also admitted that the Station House,

Officer had not affixed his seal on the said tin containers containing Ganja in his presence. He further admitted that after keeping the Ganja in,

Malkhana, he had not obtained any acknowledgment thereof from the Malkhana Moharrir. From the above admissions made by J.S. Bhadoriya",

(PW6), it is well established that in this case, the provisions of Section 55 of the NDPS Act have not been complied with.",

Regarding safe custody of the seized Ganja, only Ex.P36C, i.e., the entries of Malkhana Register of Excise Circle Bhilai No.1 is available to show",

that 3 tin containers containing Ganja were sent to Bhilai Bhatthi Police Station and 3 sample packets of Ganja were sent to the office of Assistant,

District Excise Commissioner, Durg. J.S. Bhadoriya (PW6), Assistant Sub-Inspector of Bhilai Bhatthi Police Station admitted the fact that he had not",

obtained any acknowledgment of the deposit of the Ganja made in the Malkhana. The concerned Malkhana Moharrir has also not been examined in,

this regard. Likewise, there is no evidence available on record to show that 3 sample packets of Ganja marked as A, B and C were deposited in the",

office of Assistant District Excise Commissioner, Durg. No documentary evidence is submitted in this regard nor has any witness been examined to",

show the deposit of the sample packets in the said office. Therefore, there is no evidence available on record to show that the sample packets and the",

remaining quantity of recovered Ganja were kept in safe custody.,

Now, we shall examine the evidence led by the prosecution regarding conscious possession of the Appellant on the seized Ganja. According to the",

case of prosecution, the house in question from where the Ganja was recovered was in exclusive possession of the Appellant and she was living there.",

C. Khalko (PW8), in paragraph 44 of cross-examination, admitted that by investigation, it could not be found out that who was the owner of the said",

house. The house was of the ownership of the Appellant, there is no documentary evidence available on record in this regard. According to the case",

of prosecution, the house was in exclusive possession of the Appellant. From perusal of the spot-map (Ex.P15) prepared by C. Khalko (PW8), it",

reveals that the house in question contained only one bedroom and the Ganja was recovered from that bedroom itself. One panchnama (Ex.P14) of,

possession of the house was also prepared by C. Khalko (PW8) mentioning therein that in that house the Appellant was residing along with her,

children for many years. On completion of the whole proceedings on the spot, a panchnama thereof (Ex.P16) was prepared mentioning therein that on",

completion of the proceedings, possession of the house was delivered to the daughter of the Appellant, namely, Tulsi. During the course of",

investigation, on 11.10.2014, 2 panchnamas (Ex.P34 and P35) were prepared by C. Khalko (PW8) in which also, it is mentioned that the Appellant",

was living in that house along with her children. Thus, from the documents prepared by C. Khalko (PW8) himself, it is established that in the house in",

question, the Appellant was not residing alone, but was residing there along with her children. Patwari Purendra (PW7), who prepared the spot-map",

(Ex.P22) deposed that he prepared the said spot-map as narrated by Tulsi, the married daughter of the Appellant. No statement of Tulsi has been",

recorded by the prosecution regarding exclusive possession of the Appellant on the house in question. Tulsi was given intimation of arrest of the,

Appellant vide Ex.P13 in which also address of the house in question is mentioned to be of Tulsi. Thus, it appears that in the house in question, along",

with the Appellant, her married daughter Tulsi and the other children of the Appellant were also living. The house in question consisted of only one",

bedroom in which Ganja was found. Since it appears that in the house in question along with the Appellant her major and married daughter Tulsi and,

other children of the Appellant were also living, the Ganja which was found in the bedroom of the said house was in conscious possession of the",

Appellant is suspicious.,

On a minute examination of the evidence named above, it is clear that in this case the provisions of Section 55 of the NDPS Act have not been",

complied with. The seized sample packets and the remaining seized quantity of Ganja were kept in safe custody is also not established. The house in,

question from where the Ganja was recovered was in ownership of the Appellant, no evidence to this effect is available on record. There is also no",

conclusive evidence available on record to show that the house in question was in exclusive possession of the Appellant. Rather, from the material",

available on record, it is established that the Appellant was living in the said house along with her children and out of them one was her major daughter",

Tulsi who was married. Therefore, the Appellant was in conscious possession of the recovered Ganja is also not established. Therefore, in our",

considered view, the Appellant is entitled to get benefit of doubt.",

In the result, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charge",

framed against her. She is reported to be in jail. She be set at liberty forthwith, if not required in any other case.",