1 2025:CGHC:773 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on :11.11.2024 Judgment delivered on :06.01.2025 CRA No. 446 of 2005 1 - Darasi Bai, Wd/o Bandi Gupta, Aged about 40 years, Occupation- Labourer, Dukandari, R/o Village- Gondhatoli, P.S. Jashpur, Tah & District- Jashpur (C.G.) ...Appellant versus 1 - State of Chhattisgarh, Through: P.S.- Jashpur Nagar, District- Jashpur (C.G.) ... Respondent For Petitioner : Mr. Sanjay Agrawal, Advocate For State /Respondent : Ms. Nand Kumari Kashyap, P.L. Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. This appeal is directed against the judgment of conviction and order of sentence dated 07.05.2005 passed by the learned Special Judge (N.D.P.S.) Jashpur, District- Jashpur (C.G.) in 2 Special Criminal Case No. 01/2004 whereby the learned trial Court convicted the appellant for the offence punishable under Section 20 (b)(ii)(B) of the N.D.P.S. Act and sentenced her to undergo RI for three years and to pay fine of Rs. 10,000/-, in default of payment of fine to further undergo RI for one year. 2. Brief facts of the case are that on 09.11.2003 at about 7:45 p.m., Sub-Inspector, Mahalaxmi Kuldeep (P.W.-1) of police Station- Jashpur received secret information that the present appellant was having ganja for sale in her house. After receiving the said information, the concerned officer along with his staff reached at spot i.e. house of the appellant and after completion of necessary legal formalities, the house of the appellant was searched. On being searched, two polythene bags kept in a tin box were seized. The said illegal contraband was seized in presence of the independent witnesses. The panchnama for recovery of ganja was prepared vide Ex.P/12. The seized ganja was weighed vide Ex.P/14. Upon weighment, the seized contraband was found to be 1.600 kg. 70 small packets of ganja were found in the polythene bag and on weighing it, it was found to be 350 gm of ganja. Thereafter, the samples were taken from both the packets. Out of 1.600 kg, 100 gm of ganja was taken for sample and sealed it and remaining ganja was also sealed in different packet. Seizure memo was prepared vide Ex. P/15. The entire proceedings were conducted in the presence of the witnesses on the spot. Panchnama was also prepared vide Ex.P/17. Thereafter, the 3 appellant was arrested. After completion of usual investigation, charge-sheet was filed before the learned trial Court for the offence punishable under Section 20 (B) of the NDPS Act followed by framing of charge, to which the appellant abjured his guilt and prayed for trial. 3. In order to prove its case against the appellant, the prosecution examined as many as 7 witnesses. Statement of the accused/appellant was also recorded in which she denied all the incriminating circumstances appearing against her and pleaded innocence and false implication in the case. The appellant did not adduce any evidence in her defence. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentence the appellant as mentioned in opening paragraph of this judgment. Hence, this appeal filed by the appellant. 5. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is contrary to evidence and law applicable to the facts and circumstances of the case. The weighment of Ganja was not done by the independent person as it was done by the police person. No mandatory provision of NDPS Act was complied during search and seizure. The ganja was not seized from the exclusive possession of the appellant as other inmates were also residing in the said house along with the appellant. Independent witness- Nilambar Prasad Sahu (P.W.-2) 4 did not support the search of ganja. The prosecution has completely failed to examine any independent witness to support its case against the appellant but the learned trial Court did not appreciate the oral and documentary evidence and convicted the appellant. Appellant is a lady and is aged about 60 years and she remained in jail for about 7 months. The prosecution has also failed to prove the FSL report in its favour. Therefore, the impugned judgment is liable to be set aside. Reliance has been placed on this Court’s judgments dated 13.02.2006 passed in Criminal Appeal No. 634 of 2005 in the matter of Santosh Vs. State of C.G.; 2006(1) C.G.L.J. 323, Laxmiprasad vs. State of M.P. (Now C.G.); 2010(2) C.G.L.J. SN 26 (CG) and Babulal Vs. State of M.P. ; 2009(4)C.G.L.J. 520. 6. Per contra, learned State counsel supports the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly convicted the appellant for the alleged offence. Hence, the impugned judgment passed by the learned trial Court is well merited and does not call for any interference by this Court. 7. Heard counsel for the parties and perused the material placed on record including the impugned judgment. 8. Upon perusal of the record, it is evident that the learned trial Court framed the charge under Section 20(B) of the NDPS Act against the appellant on the ground that 1.950 kg ganja was seized from the illegal possession of the appellant. 5 9. Mahalaxmi Kuldeep (P.W.-1), Govindra Soni (P.W.-4), Pilwan Ram (P.W.-5), P.R. Gopal Ram (P.W.-6) and S.L. Maravi (P.W.-7) are police personnel and they have supported all the proceedings conducted during the investigation against the appellant. 10. Neelambar Prasad Sahu (P.W.-2) and Ledaram (P.W.-3) are independent witnesses. Neelambar Prasad Sahu (P.W.-2) supported the search and seizure and admitted his signature on all the documents from Ex. P/2 to P/17. However, Ledaram (P.W.- 3) did not support the prosecution case. Prosecution declared him hostile and cross-examined him. In his cross-examination, he denied all suggestions of the prosecution and also stated that the appellant’s son namely Pawan lives with her and sometimes her daughter and her son-in-law also lives with her. 11. It is clear from the record of learned trial Court that FSL report has not been filed by the prosecution and only memo of Superintendent of Police (Ex.P/37) and receipt of FSL, Raipur (Ex.P/38) were attached in the charge-sheet and before passing the impugned judgment, no FSL report was filed by the prosecution but the learned trial Court only on the ground that the Investigating Officer identified the contraband article as ganja, convicted the appellant for the alleged offence. 12. This Court in the matter of Santosh (supra) held that when FSL report was not tendered as evidence by the prosecution and therefore it could not be used as evidence against the accused and therefore, the accused is entitled for acquittal. 6 13. In the matter of Laxmiprasad (supra), this Court held that where Sub-Inspector deposed that he has given the report on the basis of experience that the seized article was ganja but no certificate of training was filed in this regard and in absence of FSL report, conviction is not proper. 14. In this case also, no FSL report was filed by the prosecution and no training certificate was filed by the Investigating Officer who had identified the contraband article as ganja. It is also admitted by the independent witness that the house was not in exclusive possession of the appellant. Hence, it is clear that the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant. 15. From the foregoing discussion, it is clear that the conviction of the appellant under Section 20(b) (ii) (B) of NDPS Act and the sentence imposed thereunder cannot be sustained in the eye of law. 16. In the result, the appeal is allowed. The impugned judgment is set aside and the accused/appellant is acquitted of the charge under Section 20(b) (ii) (B) of NDPS Act. The appellant shall be at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to the appellant. 17. The appellant is reported to be on bail, therefore, her bail bond shall remain in operation for a period of six months from today in view of provision of Section 437-A of Cr.P.C. 7 18. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV