HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR., J Criminal Appeal No, 542 of^OOl Appellant Chhanu alias Chhanulal Satnami Respondent Vs. State of Chhattisgarh. POST FOR PRONOUNCEMENT OF JUDGMENT Sd'- Judgf 1 ^-1 ^^•^'••\^-^?-^^-,r';.. ^[•t;<'^;L'-.'ZS',^^^5: rta^tsS — Appellant HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 542 of 2001 Chhanu alias Chhanulal Satnami s/o Dukalu Satnami, aged about 35 years, R/o Mini Basti Jarhabhata, P.S. Civil Line Bilaspur (C.G.) Respondent Versus State of Chhattisgarh Criminal Appeal U/S. Section 374 (2) of the Cr.P.C. (SB: Hon'bleMr. Ranganath Chandrakar, J.) Present: Shri Ravi Kumar Bhagat, counsel for the appellant. Shri RavindraAgrawal, Panel Lawyer for the State. JUDGMENT • (Delivered on this \7-H< day of December, 2009) 1. This appeal is directed against thejudgment of coriviction and order of sentence dated 06/06/2001 passed by Special Judge (constituted under NDPS Act, 1985), Bilaspur, jn Special Case No.58 of 2000, whereby the aecused/appellant has been convicted under Section 20 (B) (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985(for short, "the Act, 1985") and sentenced to undergo R.l. for three years and topay fineof Rs.5000/-, in defa'ult of payment of fine to undergo Rl for further period of six months. 2. According to the prosecution case, Sub Inspector K.S. Rathiya (PW/6) Civil Lines, Bilaspur received secret information atabout 20:15 hours. on 18-9-2000 from the informer thatthe accused/appellant was in illegal possession of Ganja for sate in his house at Mini Basti Jarhabhata. The ;Sub Inspector recorded this information in Roznamcha Sanha Ex.P/16, called the witnesses Rishi Kumar Khandekar (PW/1) and Ramprasad Chaturvedi and proceeded to the spot for entrapment along with the staff and panch witnesses. After issuing notice to the appellant vide Ex.P/2 and obtaining his consent vide Ex.P/3, his house was searched. On search, one box was recovered under the cot from the bedroom of the appellant in which 2 weighing machines, 4 weights, scissor, piece of papers, ganja seeds, ganja in polythene, one chilam and a cash amount ofRs.1810/-were kept. The ganja recovered from the house ofappellant was weighed vide Ex.P/8 and found to be 50 gms. All the articles recovered from the house of appellant including the contraband article i.e. ganja were seized vide Ex.P/1 in presence of the witnesses and sealed on the spot. The appellant was arrested and brought to the Police Station along with the seized articles where FIR Ex.P/15 was registered. The informationof the incident and the proceedings thereof was sent to the City Superintendentof Police vide Ex.P/14. The contraband article seized from the possession of appellant was sent to Forensic Science Laboratory for chemical examinations vide Ex.P/22 in a sealed packet. The FSL report Ex.P/23 was positive and ganja was found in the sealed packetsent for examination. 3. After completing the investigation, charge sheet was filed against the accused/appellant in the court of Special Judge, Bilaspur. The learned Special Judge framed the charges under Section 8 read with Section 20 (B) (1) of the NDPS Act against the accused/appellant for having been found in illegal possession of 50gms.ganja along with the other articles. The accused/appellant abjured the guilt. After recording the evidence of witnesses, the statement of the accused/appellant was recorded under ~ Section 313 of the Cr.P.C. in which he denied the circumstances 'rappearing against him and pleaded his innocence and false implication. " l^\ ^ 4. After due trial, the learned Special Judge, convicted and sentenced the accused/appellant as mentioned in para 1 of the judgment. 5. Learned counsel appearing for the appellant submits that the judgment of conviction and order of sentence passed by the Special Court are bad in law and facts. The mandatory provisions of Sections 41, 42,50 and 57 of the Act, 1985 have not been complied with. The learned Trial Court has not appreciated the evidence in its proper perspective. The prosecution has failed to prove that the alleged ganja was seized from the exclusive possession of the appellant. The seized property was not produced before the Court and the FSL report cannot be relied upon as the deposition of Investigating Officer did not mention the specific quantity of ganja sent to the FSL for examination. The prosecution failed to prove the offence against the accused/appellant beyond ^ll reasongble doubt. Learned counsel lastly submits that considering all the facts and circumstancesof the case, the judgment of conviction and order of sentence passed by the Special Court be set aside and the accused/appellant be acquitted ofthe charges. 6. Per contra, learned counsel appearing forthe respondent/State argued the matter in support of the impugned judgment of the Special Court. 7. Having heard learned counsel for theparties, 1 have perused the records ofthe trial Court and also the impugned judgment. 8. In order to prove the guilt against the accused/appellant, the prosecution examined seven witnesses. 9. PW/6- K.S. Rathiya, Sub Inspector, Civil Line Police Station, Bilaspur -stated in his deposition that on 18-9-2000, he received secret .informatjon at about 20:15 hours., from the informer that the , accused/appellant was in illegal possession of Ganja for sale in his f • '. • . • . - • •^ • )l L. -=/ ^s ih B I: ^l-il:l II;1 r'l: ^-i^fll 4 house at Mini Basti Jarhabhata. He recorded this information in Roznamcha Sanha Ex.P/16, called the witnesses Rishi Kumar Khandekar (PW/1) and Ramprasad Chaturvedi through constabte no. 1058 Basant Kumar and made entry thereof in Roznamcha Sanha no. 1029. Thereafter, he prepared Panchnama of the secret information vide Ex.P/6, sent the intimation to City Superintendent of Police, Civil Line Bilaspur vide Ex.P/13 regarding search the house of appellant without warrant and proceeded fo the spot alongwith the staff and the witnesses in a Police Vehicle no. M.P. 03/0376. He issued notice to the appellant vide Ex.P/2 and obtained his consentfor search his house vide Ex.P/3. Thereafter, preparjng search panchnamaof the frap partyvide Ex.P/4 he entered the house of appellant for search. On search, one box was recovered under the cot from the bedroom of the appellant in which 2 weighing machines, 4 weights, scissor, piece of papers, ganja seeds, ganja in a polythene, one chilam and cash amount of Rs.1810/- were kept. Search Panchnama of the house of appellant was prepared vide Ex.P/5. The ganja recovered from the house wasweighed vide Ex.P/8 and found to be 50 gms. All the articles recovered from the house of appellant including the contraband article i.e. ganja were seized vide Ex.P/1 in presence of the witnesses and sealed on the spot. The appellant was arrested vide Ex.P/10 on the spot and spof map was prepared vide Ex.P/11. Thereafter, the appellant was brought to the Police Station along with the seized articles and F1R Ex.P/15 was registered. The registration of FIR against the appellant is further corroborated by J.K. Rathore (PW/5), Sub Inspectorwho recorded the FIR on the basls of oral report given by this witness. The information of the incident and the proceedings thereof was sent to the City Superintendent of Police vide Ex.P/14 and the contraband article seized from the possession of appellant was sent to Forensic Science •i;: S'"; y Laboratory for chemical examination vide Ex.P/22 in a sealed packet. The FSL report received vide Ex.P/23 was positive andganja was found in the sealed packet sent for examination. This witness was cross examined at length but he remained consistent and unrebutted. 10.PW/1- Rishi Kumar.the Panchwitness corroborating the testimony of Investigating Officer PW/6 categorically stated in his deposition that on 18/09/2000 at about 9 p.m. he atong with Ramprasad was called through one constable named Ekka to Civil Line Police Station where they were intimated about the secret information received by Investigating Officer PW/6 and asked toaccompany the trap party whereupon they gave their consent to the Police and proceeded to the house of appellant for search. He categorically stated that aftergiving notice of search to the appellant, his house was searched, whereupon 50 gms. Ganja and other articles kept in a box under the cot were seized vide Ex.P/1 from the bedroomof the appellant. He admitted the seizure memo Ex.P/1,notice issued to the appellant Ex.P/2, consent of the appellant Ex.P/3,search panchnama Ex.P/4, house search panchnama Ex.P/5, panchnama of secret information Ex.P/6,identification panchnamaof ganja Ex. P/7, weighing panchnama Ex. P/8, house panchnama Ex.P/9, arrestmemo Ex.P/10, spot map Ex.P/11, sample of seal at 'B' to 'B' portion of Ex.P/1. In cross-examination, he denied almost all the suggestion given by the defense and remained unrebutted. The defense was unable to elicit anything contrary te his deposition by which his testimony can be held unreliable or untrustworthy. Hfs testimony is further corroborated by Indrajeet (PW/2), the independent witness who stated in his deposition that the appellant was involved in illegal business of ganja. ll.The testimony of the Investigating Officer (PW/6) and panch witness . 'Rishi Kumar (PW/1) was further corroborated by the head constable Varun Kumar (PW/3) who stated in his deposition that on 19/09/2000 he kept the 50 gms ganja and a cash amount of Rs.1810/- seized from the appellant in Malkhana, being given by K.S. Rathiya (PW/6) in a sealed packet for which he gave the receipt Ex.P/12. Thus, it is clear that the contraband articte seized from the appellant was deposited in malkhana for safe custody. 12.The case of the prosecution is further corroborated by Ramesh Chandra Adile (PW/4) and V.K.Mishra (PW/7). Ramesh Chandra Adile the then Reader to CSP Civil Lines Bitaspur admitted his signatures on the documents Ex.P/13 & Ex.P/14 and stated that the intimation of search and registration of crime was sent to the City Superintendent of Police, Civil Lines Bilaspur. Qn perusal of these documents, it is found that the Investigating OfRcer has duly sent the intimation about search the house of appellant without warrant u/s 42(1) of the Act vide Ex.P/13 and registration of offence against the appellant vide Ex.P/14. The other witness V.K.Mishra (PW/7) the then SHO, Civil Lines, Bilaspur deposed that he sent the alleged ganja to the Forensic Science Laboratory, Raipur for examination on 28.9.2000 through constable no.665 vide Ex.P/22and recorded the statements ofwitnesses. 13.So far as the submissions made by tearned counsel for the appellant regarding compliance with the provisions under sections 41, 42, 50 and 57 of the Act, 1985 are concerned, on reappraisalof the evidence as discussed above, it is clear that all these provisions have been duly complied with by the Investigating Offieer as is also clear from the documents Ex.P/16, Ex.P/17, Ex.P/18, Ex.P/19, Ex.P/20; Ex.P/21and Ex.P/22 which are the copies of Rojnamcha Sanha. These documents go to show that the tnvestigating Officer has cautiousty made entry of the ' each and every step taken by him during investigation in Rojnamcha •)- ^^•..*^,.t^^^a^, '%. '^-1::. ^ Sanha and the defense was unable to rebut these documents as well as the documents related toseareh and seizure. The order sheet ofthe Trial Court dated 16/11/2000 goesto show that the seized articles were produced before the Court and the samewere sent to Nazarat for safe custody. It is well established by the evidence on record that the ganja along with theother articles was recovered and seized from the bed room of the appellant. Thus, it cannot be said that the appellant was not in exclusive possession of the alleged ganja. So far as the reliance of FSL repost js concerned, it cannot be held unreliable only on the ground that the tnvestigating Officer did not state anything about sending the specific quantity of ganja to FSLfor examination whereas it is proved by the eogent evidence that the alleged ganja was kept in safe custody after seizure and sent to FSL through constable no.665, Kejau Ram whose name is also found in the FSL report Ex.P/23. Thusjn the instant case, the search and seizure are Well established by the prosecutionwith cogent evidence. The incriminating article was duly sent to FSL for chemical examination and a report thereof was positive. The provisions under sections 41, 42, 50 and 57 of the Act, 1985 have been fully compliedwith bythe prosecution. 14.After re-appraisal of the clinching evidence as mentioned above, it is found that on the date of incident the accused/appellant was found in illegal possession of Ganja for sale and the testimonies of the aforesaid witnesses go to show that no illegality was committed by the Investigating Officer in following the procedure providedunder the Act. 15.Considering all the facts and circumstances of the case, l am of the considered opinion that no interference is called for in the impugned judgment of the Special Court. 1 li J 1 K 16.Accordingly, the appeal being devoid of merit deserves to be and is hereby dismissed. 17. The appellant is on bail; his bail bonds shall stand cancelled. He shall be sent to.jail for serving the remaining part of sentence. —^^'—^-^^_^ Sd'- R.N. Ghaoi Judge 1