,11111111 "CFb'000063041 IN fSSB HIGH COt%T ©P^-OTXIC&TtJRE W <7^BM»PUR( NP ) CRIMIN^X. APPEAI. 935^ /2000, •Single Bench (Crinfiinsl^ ^PEAL UNDER SEeTIGN 374(2} Gig CRIHIH»L PRGCEE^RE GQEE. ^PPEIiLWT/ (IM Jail) RESPGNEE^TT ,^ Basant ^K^ soa of Lasaaan Rao» age<a abcmt 55 years,r ^ Residerat of Tllak Nagar, BiMsptirCMP)* -Versus- t The State of M»P^ Crlminal AppealNo.99 5/2000 Basant Rao vs i^: ^l^ ^ ^fc! /^ .z .? -^l State of M.Po (C.G.) J U D G M E N T Post for : 3.'—8~2001 i ' ^ Sd/- R.S.Garg Judge IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL N0,995/2000 Basant Rao vs o . State of MoP* (C.G.) r~ " ' -<^,, 7- JUDGMENT P^r Hon<iR^S<»Garg/J' : Appellant Basant Rao being aggrieved by the judgmentdated 25-2-2000 passed in SpecialCaseNo. 52/99 by the learned Special .Judge (N,D.P»S»),Bastar(Jagdalpur) convlctlng the appellant under Sectlon 20(b)(i) of the Narcotic Drugs & Psychotroplc Substances Act, sentenclng hlm to.undergo R^Io for 3 years and pay flne of Rs.10,000/-, In default of payment of flne to undergo further R.I* for one year, has -flled this appeal. 2« 2KBl£iS The prosecution case Inbrief 1s that A.S.I, Tilu Slngh (P.W»7), under the (&i2r6<st,a;ons:-of Mis Superior was checking the vehl.de s , At that tlme bus no« M,P.25/0319 reached forest produce barrier, said ToS. Thakur stopped the bus and started checking the same. On seat no <»14^ the appellant aacused was sltting wlth two bags and one sllng bag . Developlng certaln .susplclons. sald T,S, Thakur-made inqulrles about the contents of the sald artlcleso The accused admltted before hlm that he was carrylng ganja, After receiving the s aid Informatlon f rom the accused, T,S* Thakur- gave him a notice under Section 50 ofthe N.D.P.,3. Acfc and required the accused to exercise his optlon £or his search either before a gazettedoffj.cer or a Maglstrate Pirst CIass or by the officer-ln-charge, The accused I—NN^ '^:- 2 '—» ~ ' • • '. consented forths Search belng taken by said T<»So taking Thakur^ Before (^m^h±n^ the search, T^So Thakur and his staff gave their own search<» Thereafter^ the two bags and the sling bag were searched\ 16 kg», 10 kg<i and 5 kg» ganja was recovered from the three bagso After taking the sald contraband Into custody, T^S* Thakur took out the samples of 30 gmso.each from those bags, sealed the bags and the s amples » After givlng the Informatlon to t he accused of the reasons for his arrest^ the accused was arrestedo An information relating to the arrest was sent to the relations of the accused • A dehati nalish was registered onttie spot • , Said T»S* Thakur broyght the said articles and the accused to police station, Jagdalpur.where the F<»I^R^ was reglstered at zero number^ thereafter the s aid flrst informatlon report was sent to police statxpn- Bodhghat where a numbered first information report was regl.stered^ The sald artlcles and the samples were kept In malkfcana and with t he permission of the Supe rlntendent of Pollce^ iTagdalpur the samples were sent for their analytlcal reporto The laboratory certlfled that the samples were of ganjao The investigating agency prepared different panchnamas, recorded the statements of the w-itnesses and after belng satisfied that the accused had Committed the offence, flled the challan agalnst him* The accused was put to trlal as he had denled the commission of the offence, After recording the evide'nce and hearlng the parties, the le arned trlal court convicted and sentenced the accused as aforesaido • 3\ Belng aggrleved by the said convlction and sentence, the appellant has preferred t]^s ap^al o ,J 1 4 <, Shri R<,N*Jha^ learned counsel for tte appeilant^ s.ubmits that the prosecutionUs fai-led te^-«^- ^compllance of Sectlons 42^50 and 57 of the Act, | therefore, and as the Independent wltnesses have not i supported the statements of P<W*7 T»S*Thakzir, the | accused deserves to be acquitted • , 5ft On the other hand, Shrl Ranveer Slngh, learned ©ovt^Advocate^ has submltted that the provlslons were fully complied with and even if the independent ; I wltnesses have not supported the c ase of the prosecution,] the same would not make any difference unless it is proved by the defence that P^Vh7 T.S^ Thakur was-.SS inimical to him^and was interested in prosecuting himo He submits that the prosecutlon was successful in brlnglng home the guilt and the court below was justifled In convicting the appellant * 6 <» Section 12 of the Act requires that If khe offlcer receives an informatlon about the contrabands^ then he 1s required an<3 obliged to record the Informa- tlon and send a copy of the same to hi3 superlor offtcers o In t he present case^ from the statements of P,W*7 ToS^ Thakur It would clearly appear that he was on a iroutine patrol/check and on inquxrles he was Informed by the accused hlmself that the accused was possesslng ganjao Present is not a case where P^M^ ToS^ Thakur received fche information from some Informant or had some personal knpwledge about the accused or that the accused was possessing ganja^ In the circumstances of the present case^ non-compliance of Section 42 of the—^ctwould not arise because there was no occasion for P,M*7 T^S<»Thakur to ^ecord,the t-^. T ^-\ 4 - . . ! . •• .' ! ~ information or send the same to hls offlcer superior because he never recelved any information from any informant.o 7\ So far as non-compllance of.section 50 of the Act 1s concerned, the argiiment can stralght-way be rejected because present is not a case where P*W^7 T.S^Thakur had some informafcion or personal kncwledge that accused was carrylng ganja^ From'thefaots, It would appear that T<,S<, Thakur casually Inquix^d from the accused about the contents of the bag and the accused in his fcurn Informed him that the said three bags contained ganjafr The Supreme Court has clearly observed that in a case whe^re a routlne.check/search is golng on^ then pre-compllance of Section 50 of the Act 1s not necessary but the moment the authorised offlcer comes to know that the accused is possessed of .^ ganja^ then he is required to observe the provisions of Section 50 thereafter^ In t he present case, Immediately after learnlng that t he accysed was carrylngy ganja, P<,W<»7 T<.S^ Thakur had issued the notice EK<»P/6 | to the accused o From a perusal of-EK oP/6, it would clearly appear that T^S<» Thakur had glven options to the accused in accordance with law» Prom EK oP/6^ i.t would clearly appear that a copy of the notice was recei.ved by the accused and the a ccused gave his consent for his search by P<W^7<, True It is that independent wltnesses have not supported P,W<,7 T<,S< Thakur on materlal counts but the quantity of ganja ' would di ^pel every suspiclon or doubt, The quantlty of ganja recovered from the accused would show that he was carrylng ganja which was about 31 kgo ^ ^ ^•- 5 -,:. . . . . . . ... 8 , Section 57 of the Act provldes that after effecfclhg the seizure axid arrest of the accused, the j officer effecting the s:^S3Ggh selzure and maMng arrest is required to infdrm his officlal superior about the | seizure and arrest. In tte present case, from Ex <,P/17, i it would clearly appear that P«W,7 T^S^^Thakur had sent the information to the superlntendent of Pollce ^ From t he -documents^ it would also appear that the bags and the samples were properly sealed e It would also appear from the statements of P<W<7 T^S< ThaJtur and from the statements of P^W»4 Joshl that on 5-5-1999 said Joshi received three seAled bags and samples in ( sealed conditlonso The said artlcles were kept In pollce maikhana arid under the dlrections pf S^P<| Jagdalpur ^ the s amples were sent to the P^S»L« on 11-5-B99 » The submlsslon of the learned counsel for the appellanf that whereabouts of the samples between 4-5-99 to 11-5-99 is jr\ not known to anybody, cannot be accepted* The F^S*L^^^^^^^^^^ report is available at E&< ^P/4 » From the report^ It would j 1 clearly appear that the samples were of ganja<» | 9o P.W,7 T*S* Thakur has clearly stated that while} he was checklng the bus he inquir'ed from the accused v and afterreceiving the informatlon from the accused that he was carrylng ganja the witness immedlately served Mm wlth a notlce und.er Section 50 of the Act, From the statements of PoW^2 T*P<,Naidu it would appear that the. accused wo.s boarded dovm from the bus and at the same tlme fehe -bags were opened and ganja was found in the s aid bags <, Prom the s tatemenfs of P<W<3 ,prad.eep Devangan, It would :agaln appear that after seizure of the artlcles l:t was wel.ghed in a shopj, "^- •^ '^r ^,: ^ 6 ' - . ! ! . . - 10 o ^he submission of the learned counsel that as the Independent wltnesses have not supported the prosecutlon story the accused is entifled to be acquitted cannot be accepted because it 1s not the quantity of the wltnesses but It 1s the quality of the statements of the wltnesses Wh4.ch persuade a Court to record a flnding thAs way or that way^ In the present case, npthing has been brought on fecord to show that P<.W<»7 ToS» Thakur was ini.mical to the accused or had 1 an ax^ to grind against him or was actlng wlth | vengeance • The quantl.ty of ganja would certainly rule out every possibility of plantatlon or false implicatlony 11 o After golng through the entire record, I am . . unable to hold t hat the court below was unjustlfled S In convicting the accused o Concurring x^xtht he flndlngs ' recorded by the court below^ I hold that the accused was carrylng 31 kg<» of ganja wlth hlm and the prosecutloni has proved compliar^e of everymandatory provislon of I N.D<,P,S« Act. • . , , •- ' . •' ' " ' 'l •« . , . - . . • 1 ? 12, Shri Jha had lastiy siriwiltted that the |i accused appears tobe in jail slnce 4-5-1999and by now he. has physically undergone two years and 3^2 months sentence and must have also earned about four months remission, therefore^ the sentence be , reduced to the peri od already undergone < 13 * TaMng Into conslderation the ttotallty of the clrcumstanoes and the fact that by now the accused must have undergone two years and seven months sentence^ I conslder present to be a flt case where the Jail sentence deserves to be reduced to the perlod already ^ undergoneo / | i ^- ^ \ ^.' 7 — ! ^ _ ' , • , .' -1 - - 14 ^ ^Ihile malntainlng the fine amount and the default sentence^ I reduce the jall sentence to the perlod already undergone* If the accused deposits the fine amount of Rs ol0, OOO/-, then.he shall immediately be released^lf not required In any case but if he does not deposit the fine amount- then he shail undergo R^I^ for one yearo 15« above ^ The appeal is allowed to the extent Andicated Sd/- R.S.Garg Judge ^ -8-2001. s/- (l7'2) C2^<