APPELLANT: RESPONDENT; [• ,m Umakont Versus 5tate of Chhattisqarh (^) z^ +^ Sd/- T-P. Shanna sfs°S "^^^T®^.. 'SgiSlije, | '""^ ^; ^y' s HIW^COURT OF CHHATTISeARH. BILAsPUR Cnmiiial Apoeal No.284 of 2004 APPELLANT: (In Custody) RESPONDENT; Umakant, S/o Lote Dasrathi. aged about 34 y&urS^ R/0 Vtll<^£ AuSnu, P.S. iCotwoli^ JsijdclpU!', Distt. Bastar- (C.S 1 Ver-sus State of Chhattisqarh, Throuqh the Distract Mugi»tr'Gi£,, ^uydcilpuT, Di5tt. JaqdaiDur (C.S.) .=<^=a-ss=?8==, Present; Mr.Prafutl MissSQnoeeta •, counse! for the sppeliant. Mishrs, Pansl Lawyer for the Stats/respondent. •iminat appsa! under Section 374 ?2) of the Code of Cr'imlnal ,.,,;AL, G-~^.S.-.-CT '34 -5 .-^ A.UJB KS ?> 5 S A-^^ sn/iTH 0££T!Ori^30-o OT Tn®iM.U.f^.O. r\C7) Siniiis_Bench: Hon'ble Mr. T.P. Shorma. J (Psssed on ^-6 August, 2008) 1. Tnis soBeai is dis'ected against the judgment of conviction cndorder of sentence dated 14-1-2004 psssed by the 5pscial Judqe, N.D.P.S. Act, BQStw at Jsgdalpur in Specis! Case No.38/2003, whersby & whereunder iecirned 5pecial Judge aftsr holding ths cccused/appeiiGnt guiity under Section 20 (b) (ii) (B) of the Narcotic Druqs and psychotropic Substcnces Act, 1985 (for short 'ths Act'), sentsnced him to under-qo rigorous iniprisonment for five years & poy s fine of Rs.25,000/-, in defsult of paymerrt of fine to further undsrqo riqorous imprisonment for one ysar. 2. The impugnec judgmant is chalienged on the around that in sbsence of corroboration bv the Panch witnesses ond non-compliance of the mandatory p"ovisions of the Act, the trial Court has convicted srid ssntenced the appsli'ant ss aforsmeritioned.. 1 2 3. Z have heQ!'d learned eounsei for the parties and perused the impugnsd judgment as also the record of the tricl Court. 4. It is erqusd on behoif of th.e cppeiiant that fhe prosecution has concoctsd the documents. Statement of the Investiqatinq Ofticer ia not corroborated by the Pcneh witnssses. The Investioating Officer has stated that he has seized the contraband ar-icls fi-om Chstcn Dubey ond not frorn the appeiicnt. The clleged incident took piacs on 13-9-20Q3 but Mukhbir Pcnchnama Ex.P-3 has been litgitlSii;8|~ received by the Reader to Add'rtional Superintendent of Police, Jagdalpur ncimely, Prd<ash Shuk'a (&W-1) on 12-9-2003. It shows that the prosecution hss concocted the documenfs. Independent witnesses hwe not supported the case of the prosecution. 5. Cose of the prosecution, in short, is that 'in the month of June, 2003 Virendrs Chaturvedi (PW-3), Sub Inspector, was posted in Potica Station Nagarnaar, Distt. Bostar. On 12-9-2003 st (dsout 7.10 p.m., he recorded the information r'eceived by hira vide Ex.P-3 and had sent intimation to the Additiona! Supsrintendent of Police s»hichvios r'ecsived by ths Reader vide receipt Ex.P-18. The Sub Inspector hcs recorded the Roznamcho Ex.P-2 and pr-oceeded towards the spot alonq with his staff. On 13-9-2003 at obout 7 o.m. the aopeilant/sccused alonQ with co- sccused Cheton Dubsy came by Luna, both were stopped by the Poiice psrty and on enquiry they have stated their nsnies ss UmQkant & Chetan Dubey,they were informed about the information received by the Police Officer. PVs/-3 Virendra Chotijrvadi served notice to thsm vide Ex.P-0 relcting to their right of gettinq the secrch made by tha &GZetted Officer'/Magistrcts. The appellant consented for his sesrch by Sub Inspector' Vireridra Chcturvedi, rssultcntiy a bsq contcsining SQnj.s i«csfound in possession of the appellant cnd ssme wos rscovered from hira vids Baran-.adgi Pcnchnama Ex.P-6. After making sesreh vide sesrch panchanama :^ Ex.P-7. recover-ed articles were examined by ths witnesses vide identification memo Ex.P-8. Memo of specimen seal was prepcired vide Ex.P-9. Contrcband article wos selzed from the QRpellant vide Ex.P-10. Seized article was Kieiqhed by weighment msmo Ex.P-1 ar*d ssme was found 5 Kqs, Out of the said seized propsrty two sampies asch contsinim 24 gms. wos prepcred cnd ssma were properh'' seaied, remaining 4,952 qms. of 6cB"dc was separately seciled. 5pot map wss preporsd v'lde Ex.P-11. -'Wie cppeliGnt was a-rested vide Ex.P-12. t)ehati Naiishi was "scofded on the spot vide Ex.P-15. The InvsstiqQting Offieer returned to ths Poiics Stction with the accused persons snd ths seized property, crsd reqistered F.I.R. vide Ex.P-16. Iritimation of crrest was qiven to the wife of Chetan D'jbey i.e. sister-in-low of the appeliant vide Ex.P-17. Specicl retiort EX.P- 19 was sent to the superior officer vide Ex.P-18. Tha seized propsrty wsos kept in store room ond Roznsfflchc was recorded vide Ex.P-l4(C). Tlie samples of 6onja w®resent fo" chemica! anoiysis to the Dii'ector, Forensic 5cience Laboratory, Roipur vide ex.P-20 from where receipt of the semisles was received vide Ex.P-22 cnd prssencs of 6an.la was confirmsd vide F.S.L. report Ex.P-25. 6. After- comoletiori of usuci invsstiisatinii snd recording the statements of witnesses under Sections 161 of the Cr.P.C., chsrqe sheet wcs fi'.ad befors the Speciai j'udqe, Joqdolpur'. 7. IEI Oi-der to prove the guiit of the appeiiant, the prosecution hss examined five witressss cnd statsment of ths appetlont was recor'ded under 5ection 313 of fhe Cr.P.C. in -ffhich the apBsliant denied the circumstances aDpearinq aqainst him, p'ieaded innocence and false implication. The defence htss examined one witness namsly. Pi-akssh 5huk!a, Reisdar to ifte Additiona! Poiice Superintsndent, jQqdalRur. who hcs stcted in his evidence that he hos received memo r'eiating to the informotion on 1Z-9-2C03 vide Ex.P-lS ond spaciaj report on 13-9-2003. ,y ^Sssi^^ •'./-•^Sti "^. /" ~"f'), '^ ^ ';HliS®» B. i !Bs<' ;;!:'. :33I^ ® 8. Learnec counsei fo" the appeiiant argued that the silsged contriiband 6an.ja was not found in possessior\ of the oDpsliait snd the property hos not been seized from the cpseiiant. Tne prosecution has not complied the mandatory provisions of ths Act snd the Rules made thereunder. Ex.P-3 informdtion memo was recsived on 12-9-2003. Independsnt witnesses i.e. the Panch witnesses have not supportsd the case of the prosecution. Virendra Chcturvsdi (PW-3), the Investigating Officer, hifsse^'hos not said anythirg aqainst the appellant and he hes spscifically ststed thst he has deposited ths propsrty in store room which he hcs ssiaed trom Chetsn Dubey. Para 5 of his evidence shows thct the prosscution hcs not rscoversd any propsrty from Umoksnt, the oppellant herein. 9. On the Qther hcnd, the impugned jud9ment js supported on behatf of ths Stste/ resBondent and it is submi+ted on of the State/respondent that the prosecution has coniplied with ali the provisions of the Act although there are not msndctorv in nsture. The aDoetlant i»as found in oossession of the contraband orticle which hos beeh seized and the sampSe has been taken. On chsmicoi cnsiysis the scid scmple wcs found as 6snia. 10. In ordar to estoblish the quilt of ths sppeiisnt, the prosecution is required to establish the 'foiSowinQ inqredients of the offence; - (.) On tha dste of inci<ient the appeilant was found in oossession of the a!!eged contraband qrticie; (ii'i . the contrQband articie WQS chemically QnQlyzed aid. the same was found as 6an.i0; & ii'j the prosecution hos complied with the provisions of the Act and the Rules msde thereuncfer. ^3. ^ J] •^^ ^-•^" 11. In order to connect ths aooellcnt with the crims in iiuestion. the prosecution has sdduced orQl and documentary evidence. Virendra Chaturvedi (PW-3), who is the Investiga+ing Officer of the case, has stated in his evidence thct on 13-9-ZCX33 st cbout 12 noon he recsived information from the informant that two Dersons of Viilage Aasna had gone by Luna to take &anja and they will come bQck at late niqht. He recorded the informction in Rozncsmchc Ex.P-2, prepsred the infor'iTiotion memo vids Ex.P-3/snd sent a copy to the superior officer cnd also "ecor'ded Roznomcha Ex.P-4. !-ie left fof the oiace of occurrence. In the morning two parsons ceme.by Luna, the Poiice stopped thsm and enquired on which they have disclosed their namss as Chetan Dubey <& Umakcnt. He informed them obout the inforniation rsceivsd from the informant and served a notice Ex.P-5 relating to their right of search. They ogreed for search by Virendra Chisturvedi (PW-3), then hs searched them vide search memo Ex.P-7. TTie appellant was found in possession of the contraband article which was recovered vide Ex.P-6. The eontraband article was exsmined vide Ex.P-8 which was found to be San.ia, same was weighed by MukeA Mishra (PW-1), Constoble No.210, and 5 Kgs. of 6an.je was found in .oossession of the appeltant vids weighment memo Ex.P-1. Two sampies of 24 qms. ecch were prepored ond the pr'operty was seized vide Ex.P-10, Virendrs Chcturvedi (PW-3) hss ccrteqoricclly ststed in detail about the procedure foltowed by him, recording of Dehati Nalishi Ex.P-lo and registering of F.I.R. Ex.P-16. He 'hss proyed the documents Exs.P-1 to P-22. The safflple wcs sent for chemicsi anGJysis to the F.S.L., Raipur ond same was found as 6an.is vide report Ex.P-25. , 12. AAukesh Mishra (PW-1), Constable No.210, who has weighed the Gcn]a, hcsststed in his evidence thfft after receivinq the informatiSn he went to seize the contr'sbQnd Sania donci with Polica 5tation In-charge Vir'endra Chsturvedi (PW-3) whera the Police rscovered Sanja from the appelisnt, same was weighed by him and thct was 5 Kqs., two sampies were prepsr'ed snd the Sanjc was examined. WiKiK 13. Rcinu Bcghel (PW-4) <& SanQadhar Dos (PW-5) ars Panch wtnesses. Tney have admitted thei" signatur'ss in Exs.P-3 to P-5, P-6 to P-8, P-9, P-10 & P-12, but they had not supported the ccse of the prosecution. Rainu Baqhel (PW-4j has stated in his svidence that the accused persons were in motorcycle, tha Sanja a'as ^ "ecovared from them, the Police 'Vio.d shown 6an.ia to them cnd t'ne Police had taksn thair siqnstures on some papers. 6anqadhar Das (PW-0) hss also admitted that the Poiice informed him thot they had seized the Sanja and taken the si9natut-ss on soms paper-s. Rainu Baghel (PVi/-4) & &angadhGr Das (PW-5) hwe not supported fhe case of the prosecution in detail, but they had admitted fhot ths Police informed them that they had seized tha San.ja. 14. Jsnkus Toppo pW-2), Head Constabie No.718, hos stated in his evidence that on 13-9-2003 he received seated property form the 5tation In-charge and kept •riie scme in store room. The scimpie was sent to the F.5.L., Rai&ur on 15-9-2003. 15. Virendr-Q Chcturvedi (PW-3) has been cmss-examined by the defence in dstail. He has admittsd in his cross-examinotion that they wsnt to fhe spot Js9dalput- froni the outer road. But Mukesh AAishra (PW-l) has admitted in his cross- examination parc 4 that they recehed to the spot via Jaqdaipur because that was the onh/ way and there is no substantiai difference in reaching to the soot vic Jagdolpur or through outer way of Jaqdalpur. Thsre is some discrepancy in tha exsmination of Virendrs Chaturvedi (PW-3) but that is not material. 16, Pr'akash ShuklQ (DW-l) has admitted in his evidence that he has recsived informction on 12-9-2.003. Aithough Virendra Chatui-ved? (PW-3) hcs stated thst he has received informa+ion on 13-9-2003. snd recorded the sams vide Ex.P-3, ® itlitilini Ex.P-3 shows that it hos been recordsd on 12-9-2003 and cooy of the same hss also been received by Prakash 5hukls fDW-1) on 12-9-2003. 17. As per the docurnents, the Police received information o.n 12-9-2003. thsv went to the spot on 13-9-2003 Qt about 7 a.m. and tha appeiiant alonq wjth Chetan Dubsy cams to the spot, then seizure and investiqation wss conducted on the spot. It appacrs thct 13-9-2003 as stated by Virendra ChQturvedi (PW-3) is a bona fide mistake, which hai^ aiso been committed by Mukesh Mishra (PVi/-l) by savinq the dste as 13-9-2003. Panch witnesses have not supoorted the case of the prosecution, "but they hwe admitted their signctures on the documents. As has been he!d by the 5uprsme Court in the case of Stale of Ro.josthan v. La! (2008 AIR 5CW 3495), in absence of any story of taking signatures under tsrror, prsssure or without their free consent, it is proved thct the witnesses were present on the spot triiere the prosecution psrty has very much csrried out the procesdings. 18. The Pcnch witnessss hwe not suppor-ted the case of the prosecution in total and ths case of the prosacution rests on the evidence of the Investiqatinq Officer nameiy, Virendra Chsturvedi (PW-3) who hcs cctegor'ically stated about the incidsnt and the pp&scribed procedure foilowed by hiffl. The defence hss not been abie to elicit anything in his cross-examination to discredit his tsstimony. His testimony csnnot be discardsd on the around that he is a Police Officer' cnd interested in the outcome of the case, uniess interestedness or departure from the procedure is shown in the instant case. The prosecution has.suqqested nothina to show that he has not followed the procedure pr-escribed or hs 'is interested or inimical with the appeliont. He has stated in his evidencs thct he has recovered 6cin.jo from Chetan Dubey, co-aceused and Umskant, the present appsllant. In pa-a 5 of his svidence he has stated that he has deposited the ,^.ti,iU t.z ^s property rscovered from Chetan Dubey in a store room. In the instant case, this witness has recovered Ganw from the appeilant and co-accussd Chetan Dubey at the same time and he has Drosecuted both the accused separately. He hss also recovered San.ia from Chetsn Dubey and deposited the same in store room. 19. After appreciatinq the evidence wailable on record, learned 5pecial Judge convicted and sentenced the ODOeilant as aforementioned. Evidence of Virendra <f. Chaturvedi (PW-3) is corr'o&orated on material point by Mukesh Mishra (PVI/-15 & Jankus Topoo (PW-2) and briefiy by the Panch witnesses namsh/, Rainu Baqhel (PW-4) <S 6anqadhar Das (PW-5), which is Glso supported by the documents. His evidsnce inspir'es confidence and same 'is tr'ustworthy. On the basis of 1t)£ aforesaid ocular and documentary evidence. inference can be drcron tha1' the appellant was found in possession of 5 Kqs. of San.ja st the time of the incident. Thsrefore, conviction of -the appellant under 5ection 20 (b) (ii) (B) of the Act is sustainable. 20. As regards sentence. the appeliant was found in possession of 5 Kqs. of San.ja wlthout any propriety. TQking into consideration, the contrabcnd ar'ticie of huge quantity, the sentence of riqorous impr-isonment for five yecrs and fine of Rs.25.000/- is neither excessive nor uniust. 21. Conssquentiy, there is no forca in the appsai, scme is liabie to be dismissed and it is accordingly, dismissed. Sd/- T.P. Shas-ma Judge i