'•:,^/ ':^sy APPELLANT ffn Jaii) HI6H COUKT OF WHAmS6AfW AT BILASPUft Cr'iwinai nweal No. 521 <rf 2C©8 Mohnn Sdiu S/o Late Shr-i ^ahfag Sdhu, aged about 27 years, R/'o viiiage- Sukha, P.S. Dongripati, bisti-. Bargarh (Ocissa) RESPONDENT Versus State of Chhattisgarti Through Police Station, Sarqipaii, Distt'. Mahasamund (C.&.) (APPE.4L UN&ER SECTEON 374(2) OF CODE OF CRIMINAL PftOCEbURE) fSinale Bench: Hon'bte Mr. T.P. Shanna. J;) Present: ,r. Meuioj Kumoir Sinha, counse! fer the appeitant. Ms Sangeeta AAirfira, Poaiel uwyer for the State. - ORALJU&6MENT (Passedon 22nd S^)tember, 2008) This appea! is directed against tt>e judgment of conviction and order of sentence dated 27.7.2005 passed by •the Special Judge, feaipyr, in Special Cr-iminat Cass No. 30/2004 whereby the c^pettant has bew conVlc+ed fnr the offence punishable under Section 20 (b) (ii) (B) of thc NQrcotic iSrug aid Psychotropic Substance Act, 1985 (hereinafter refereed te as'the Act^and sentenced hint to underao RJ. for 10 years and to pay fine of fts. 1,00,GOO/-, in defnult of payment of fine to further under90 R.I. for 2 yearS. 2. The Judgment is chatlenged on "rtie ground that without there being fliiy conscious possession of the elictt ©cinjacnd ignor-ing th» factthat -ttie prosecution hos not complied with tfie mcmdatory prcyisions of the Act which is meant for safeguard to the accused, learnad tr-ial cAirt has cowmitted an illegdlity in conyicting and sentencmg •riie oppellantcs aforen'entioned. 3. Cnse of the prosecution, in brief, is that 5.7.2004 <ri- abait tO am. f-1P. Singh, Stotion Incharge, Saraipoli receiyed infopmation from •the mformant that the appellant \e coming with contrabend art-icle in rickshcw at Saraipali. He prepared panchnnma (Ex-P/7) and copy of the same has beKn sentto the superior officer. He !eft for the scene of occur'rence along with witnesses and police staff where he saaH t(iat appellant coming jn r'ickshaw along wtth <me gunny bng. H.P. Singh (PW-6) served notice Ex-P/1 to •the accused/typeilimt under Section 80 of the Act making him awnre of his valuabte right to aearch before the Magistrate or th-e gazetted officer. The oppellant consentsd fo?" searching by the poli<x officers. PW-6 H.P. Singh ^arched th< 'ypeillent where he was found 16.300 !(g. contraband nrt-icle (6anj<^. He prspared ponchr'ama yide Ex.P/2. Same was weighed by PW-5 ©ovardhanSahy in the presence of Uderom and Subron vide Ex.P/3 and found 16.300 Ka. 6anja. Two 25 grams sampies were •taken out from gunr^' ba9. The scid contraband erticte was seized ond seated vide Ex. P/4. Notice rehting to nuthority for •tfie possession of Gtviy VMS issued to the eypetbnt vide Ex.P^. Riehshaw was seized from the rickshaw puller yide Ex-P/6. The q3pell<mt wcs arrested ytcte Ex. P/12. PW-6 H.P. S'ngh. inyestigating officer came to the Police, Station along w'th accused and seized wticles tind fodged Fwst InforBntttion Report Ex. P/ll. Seized property were pr'odu<ad to ths police station for srfe custody. Rickrfiaw was given in Supurdnnma vide Ex^P/9.^Spot ws^ was prepar%d by Patwari vide Ex.P/10. F.I.P. was lodged by PW-6 1-t.P. Singh vide Ex.P/11 and copy of the same wcs sent to the JudiciaKAngistnats Fir'st Closs. Saraipali yide Ex.P/13. Seized ar+ictes were sent for chemtcai gxarnination yide Ex.P/14. Samples were examined by Forenac Science Laboratcry, ftaipu.'' vide Ex.P/18 and on chen''icnt exnntination, a-ibstence was foundtobeknown as ©onja. '• • :- ' - 4. After r'ecording the statement under Section 161 of the Code of Criuiinat Procedure, 1973 aid after comptetion of myestigfft-ion, chat-ge shset wns filed in -Hie Court of the Specja! Judge Raipur. 5. In order to proye the guitt of the appeilant/cccused, •ttie prossaition has examined as many as 8 witnesses. Stntement of the accused/appeflait was recorded under Section 313 of -the Code of Criminal Procedure, 1973, in wWch he denied the cir'cumstcncesappearin3a9ainsthtmandpleaded innocencs ond false imptication in the ca^. 6. I have heard Mr. Manoj Kumar Sinha, ceunsel for •t+>e appellont and Ws S<»i3e®taMishra, Panel taiwyei" for- the Stcte and perused"the ^udgi?ent impugned and record of •the trlal court. 7. Leamed counsel for- the nppellant submits that case. of the prosecutien has not been supported by cny independent panch witnsss and the prosecution has not comp'ied with the pcovisions of the Act wh'ch ars meant for safeguard to tiie accused/appellait. Learned counsel further submits that the appe!!ant is in custody since 5.7.2004 end he hqs completed morse than 4 years. Learned counsel also submits that he is very poorand he came to the Chhatf-isgarh S-tate for his Iwelihood and he was arrested by Ihe potice in the crime in question. 8. In order- to establish -Hie guih' of the appellant, -frie prosecution is required to establish the following essential ingredients of the offence;- [i) That o" S.7.2004 at about 10 a.m- the cypetkmt was found m possession of 16.300 Kg. contmband artfcle; (ii) Investigating Officer complied with the' mandatory provisions of 1+ie Act; Article r-ecovered from the accused/typetlant was 6anja. 9. In ordec to appreciate the contentions of the parties and in order to estoibljsh the complicity of the accused/oppetlant in the crime in questien, I haye exnmined the wctnesses available on record. PW«-6 H.P. Singh ^erchtd the appeltant where he was found 16.300 Kg. contrtdsand tti'ticte (Sanja). He prepared pianchnama yide Ex.P/2. Snme was.wej^ied by PW-S ©ovcn^lhanSahu in'rtie'presence of Uderanft and Subran "ideEx.P/3and fomd 16.300 Kg. - femja. Two 25 grams samples were taken out frorn the bag. The and contrabnnd article was seized und sealed v<de Ex. P/4. Notice rslating to authority for the possesswi of (Sanja wos issued to the tippetlait vide Ex.P/5. Rickshcw wos seized from •the rickshaw puller vide Ex.P/6. The Eippellcint was nrrested yide Ex. P/12. PW-6 H.P. Singh, investigcttng officer eame to the Police Station atong with cccused and seized art'iclea and»lodged prst Informction fteport Ex. P/ll. Seizet! propsrtv were produced to •t+ie, politse sta+ion for safe custody. Rickshaw was giyen n Supurclnamayiide ExP/9i Spot map was prepared by Patwari vide Ex.P/10. F-I.ft was lodged by; PW-6 H.P. Singh vide Ex-P/11 ond copy of the same was sent to the Jydicia! Magjstmte First Cleiss Saraipc!i yide Ex.P/13. Seized art'icles were sent for chem'cal examination yide Ex.P/M. Soimples were e.'<arnine.d by For'enste Science Laboratory, Raipur vide E?<.P/18 and on chemical exomination, substance was found to be known as 6anja. PW-7 t)aliram Sahu, const&ble, htis stated h his svjdence •rtiat he has deposited the snmptes to the por'ensic Science Laboratory, ftnipur vide Ex.P/17. Report of Forensic Scfence Lsboratory, Rajpur which he confirmed the contniband article was ftinja vide P/18. Panch witness PW-1 Uderam Chouhcin (6cda) has not supportsd 1+iB ca<e of the prosecution and Idter on, he turned host'le, but he has admitted his signature on •the docu'nents Exs.P/1 to P/5. He has stnted in para-3 of his eyidence thct when he was sitf'ing in police station at that ttme police cameto one person with r-ickshaw. PW-2 Patras Kerketta hcs stated in hjs eyldence that he has prepared AAukhibir panchnnma Ex.P/7 and he has supported Ihs case of prosecution- PW-3 Shiyshankc1' Sahu has also Qdmittedhjssigfta+ur'eanthe document Ex.P/7. PW-S ©oyerdhanSahu has suppor-ted the fact of wetghing articte- PW-8 Subrwn t)as, rjckriiow puiler, has stated i" his avidenee that at the instcnce of direction of the police he has lifted the Sanjo to the pofise, station. Prosecution hoss declared him hostile, but he hns supperted the case of the prosecution. 10. PW-6 H.P. Singh is potice offieer. Statement of the poiice officers cannot be discar-ded onty on the ground l+iat they ara interested in outcone of the case, untess interestedness or- departure from the prBcedure is specifically shown. In the present case, tte defence has failed to elicit any ground that these police officers are interested or hnving inimical terms wi-rti the accused/nppellojit or not afcted in accordance w'th itie procsdure prescribed under the law. He came to know by -the informant that appeHant is coming wi1+i contraband article in rickshaw at Saraipali. After fecording the panchnama, he left for Ihe scene of eccurrence <md conduc+ed tnyes+igotien. Statement of PW-6 H.P. Singh in^ire confidence and trustworthy sufficient fo?- conyiction. PW-1 Panch witness Udemm Ghouhan has notsugporl-ed the case of the prosecution, but he has not stock witness. He has hot stdted that he has signed the popers under the threat of 1+ie police. PW-3 Shfyshonkar Schu has specifically stated that the appellnnt vuess found in ppssession of contraband 60.1ja- He hcs not offered aiy explanation as to why he (ws yisited at Sara'pali especiaHy when he is residing at yi!!c^e;Sukha, Po'ice Station &on3ripali, bistrict Bargsrh (Orisai). II. In the nsafi-er of ©hasitaSahu V. Stata of Madhi»Pcedesh "rt- has been he!d by the Apex Court- that Panchas though not supporting case of •the prosecut'on and "ot stating that -they were not tocclities but theynre stock wilnesses, does not affect the case of the presecutjon. Relevant portion reads as under: "4. It was firstly contended by -the coun^l for the appelhnt that the search itself wos illegal os the Panchas for thesearch firstty had not supported the same and secondly tiiey werenot -the Ipcal panchas. We were, therefore, taken through the evielence''of -frie two Panchds Raju (PW 4) and Son^i Tiwari (PW 5). We have aa-efuliy gone through their evidence. Both of •rtiem hsws not supported the prosecution inasmudi as they hove be«nrefused to identify the accused. There is nothing in 1+ieir evidence to suggest tiiat fney were not loca! panehas. They have wot eveh been distantly suggested that they were -rtie usuat ponchas catd stock witnesses of iocal ooiice ana' were not residents of itie area 2UU8A1RSCW1435 liV' wherefrom the Sonjc was recovered. Laimed counsel tried to rely on the evidence of Arun Pondey (PW6). However nothing has been suggested to him in respeet of pcnchas not being iocai panehas. The Irtvestigating Officer seems to haye taken all precautions as per Section 100 of Criminai Procedure Code. Hen^ the contention is rejected." 12. In the matlsr of Stats of Rsyasthaa v, Udas Lsl it has bsen hald by the Apex Court •riint untess it is stated by the witnesses that -they have put •fheir signature on +he documents after being put under terror- or pressur®or without their free consent, their eyidence cannot be discarded. 13. In -the present cnse; the Panch witness has not stnled that he has signsd the popers under -rtie threat or pressure of the police. Tte defence has not been able to establish that the investigcting officer has not epmplied with the procedure prescribed under- the Act or he acted in unreasonable tinQnner. Merely because he is a police officer <md interested in tlie outcome of the case, is not suffident for disairding his tsstimony. 14. After (ypreciating the evidence ayailcble e" record, -riie leamed trial court' has conyicted and sentenced the accused/appel'ant as uforemsntioned. 15. As regards the questiori of sentence is concerned, the oppelhnt is in custody since 5.7.2004 and he is very poor villeqer. Taking int& consideratio" the quantity of contraband article found jn possession of the appellant sentence awarded to the appeltant is litl'le bitexcessive. 16. In the resuit, the appea! is part'ly a!low»d. Conyictiopi is maintalned a"d sentenced is reduced and instead of R.I. for 10 yeors and to pay fine of Rs. 1,00,000/-, the applicont is sentenced of ft.I for 5 year-s and to pay fine of P.s.30,000/-, in default of pnyment of fine, to further undei^o ft.I. forl T.P. Shacma Judge B/- -200iJAU(.SUW3495