(&im?BF11' IN 1-HS FIIQH COURT OF MADI-E-A PKADSSH ^ AT JABAL.PUR Criminal Appeal No ^1% Of 1996 -^" Appellant Tln JailT Respondent. Sashiram,age(3 about 35 yesrs, son of Chiritaram, resident of La'lbagicha, Shitlapaxa, P,S. Dhamtari,Tahsil Dhamtari, district Raipur (;';?)» Versus Sta-fce of Madhya Pradesh CKIMINAL APPEAL UNDER SECTION 374 (2) 05" THE CODE OS' ^ CRI1-IINAI.. FRWEDURE, 1973 . •• / '<\ ^ :1'^ :'^1 ^ ^ T' HIGH COORT OFCHHATriSClARH AT BILASPOR SB : HON'BLE MR. JUSTICB PRITtNKBR DIWAKBR APPBLIANT RE8PONDEKT CRA.NO. 978/1996 Kasbirain versus State ofMa&byeL Pradesh Shri Awadh Tripafhi, counsel for fhe ^peUaaa.t. Shri Va&hav Goverdban, P.L. for fhe Stete. APPBAL UNDER 8ECTIOM 374(21 OF TSOS COTSE, 0V GRUtINAL PROCBDURE JUDGBIBNT (04.07.2011) This appcal is directed againat fhe iaapugaed judgmeut and order dated 6.6.96 passcd by fhc Additional Sessions Judgp Dhamtari in Spl. Case No. 99/95 convictiag fhe accused/appeHaat undcr Section 20(b)(J^ of fhe NDPS Aet aad sentencmg h<m to uadergo RI for fhree ycara and to pay fine of Rs. 3,000 in dc&.ult of payment of fine to furfher undergo RI fer six nionttis. 2. Prosecution case in brief is fhat on 5.9.95, a secrct infomaation was received by Abdul Qadir. Khaa, Sub Inspector fhat fhe acGused/appeBant is canyiag and seUing ganja from Ns house at Ambikapur. Tbe panclmama (Ex.P/1) was prepared, mfonnattoa was sent to fhe hig^fer officer i.e. D.S.P. R.K.MisIu'a, cntries were inade ia thje rojnamdta sanha aad after giving D.0ttoe (Ex.P/10) uader Section 50 aad ,after obtemiag the consent fiom appeUant vide Bx.P/2 padchnama (Ex.P/3) was prepared and thereaftcr house of fhe aecused/appcUaut was raided and 21 kgs. of gcuya was foitnd in possessiou pf fhe .accused/appeUaat, wdghinent pancbaaam (EX.P/6) was. inade aad aftcr preparii^ the samptes vide Ex.P/5 and completiag thc other formalities fhe samplcs wcre sent for FSL and after receiyinag-tfac report (Ex.P/12), PIR (Ex.P/19) was regtetered ^ !" :Jj 1 against the accused/appellaat oa 8.9.96 itself. After iavest^ation, challan was fited on 5.10.95 under Section 20(b) oflhc NDPS Act 3. In oider to cstablish fhe guflt of the aecused, the prosccntion has examiaed 06 witoesscs. Statement ofthe accused/appeBant was also recorded imder Section 313 of fhe Cr.P.C. in which fae deiited the charges teweUed against him and pteaded his maocence and &lse impUcation in fhe case. , 4. Aftcr hearing counsel fbr fhe parties, thc trial Court has conwfcted aad sentenced fhe accused/appeUaat for ffae aSssace as inentioned above. Hence this appcal. 5. Contention of Shri Tripathi, counscl for thc appeBant is fhat mdependent witnesses naiaety Ashofc Tiwari (P.W.-l) aad IsbwaKlas Tejwani (P.W.-2) are the jpoclE»t-witaessesof fhc psosecution as fhcy are residcnts of Raipur whcreas tfac incident had takea place at Dliamtari. Hc furflier submits that during scarch of the faouse of fhe accused/appeUant, he was aot present and hc reached sStsr fhe incidcnt He further submits that merety on ttic baris of fhe statemeat of the investigating officer (he appeBaat <aanot be convfcted and the samc is bad. He subxnits that fhe incident had takcn place ia tbe year 1995, accused/appellaat faad afacady reinained ia jail for about 89 days, sentence be reduced to (he period already undei^one by him. 6. On the othcr hand, supportia^ the impi^ned judgment tt faas been argued by Shri Govcrdham, couasel for the Statc that compliance t^all tbe Baandatory sectioas ba»ebeen duly made by fhe piosecution and fhere is no infinmty ia tfae same. Hc further subiaifts fhat before enlBring fhe house ofthie «wuaed/appeBant,he was gwcn n&tice uader Section 50 of fhe NDPS Act vide &C.P/IO aad after obtainiag his coiisent (Ex.P/2) firstfy search was aiade of fhc acciised/apgellant iStad fhereafter the police par entered Ms house. He submite. that Astok Tiwari (P.W.-l) and Ishwardas Tejwam (P.W.- ^ indeperidcnt witnesses have duty supported thc ^osecution case aad even if (beir statemeat is ignored, statemeat trffhc lawsstigating \ officer '(P.W.-5) diriy supports fhe prosccutton case. He fiirtber subiitits fhat fhc court below has atoeady taken a lenient view and awaadcd a jaU sentencc of fhree ycars to fhe aocused/appeBant whereas looking to fhe quaatily of garga he ou^tt to have been awanled fhe maximum sentencc. 7. Ashok Tiwan (P.W.-t) fhe seizute witaess wfaiBe supportiag thc prusecution casc has stated tfaat on the date ofincidcnt he had gone to the police station to exiquire about fhe tfacft ofa disc and then he was requcstcd by thc poltee to acconipany them to go to the place af the-accused/appellant. He bas categoncsSty stated fhat beforc entertog fhe house of fhe accused/appeUaut aB the foniiaUties were conapteted by the police and then fhe gmyav/aa found in ttc suitcase tept by the accused/appeBaat. He has furtfaer stated that tae is witness to Ex.P/2, P/3, P/4, P/S, P/6,P/7 & P/8. In aress- esraaunation this witness stood veiy firm aad tias not stated anything which inay support fhc accused/appenant. Ishwardas Tcjwani (P.W.-2^ the other mdcpendcnt ^tness has also supported the proseeutioni case. Nandiiram (P.W.-3) is ttle witacss ofweighinent paachnama to Ex.P/8, bsas dso aupported the piosecution case; Kriparam Yadav (P.W.4) is th.e toustablewho liad sent (hie samptes for chenalcal exanunatfon has also •upported fhe pTosecution case. Abdul Qadir Khaa (P.W.-^ is the Investigatiag oflBccr who has supportcd the prosecutiDn case. D.S.P. Raan Krishna Mishra (P.W.-6) has also supperted the piosecutfoa casc. 8. M^uute exaaumation of tfae evidence inakes it clcar thM on fhe date of iacideBit, fhe accuscd/appcBant was fouiid in. possesslun af 21 kgs. tf ganja which was kept by hiin in fhe suitcase. Tbe pTOsecution has proved its case beyond aU reasonabie dodata and I find flo.force ia fhe arguincnt of Shri Tr^altii tbat Aahok 'Hwari (P.W.-l) aad Ishwanlas Tejwanl (P.W.-2) are fhe pocteet witoesses. The inere fe.et ttiat tfaqr are resMents of Raipzir wfll not nuffli^ fhcir stateinent specialty wbcn fhcy faavc categoricalty stated t6at &ey viere fhe'iaembers offhe ttap parly and they have sSao assigaed tte reason as fo for what ptupose fhcy had gone to fhe polfce atati&a. Evcn ^nQrii^ fhe stateinent ofAshofeTiwari (P.W.-l) aad Irfiwaids® Tejwanl (P.W.-2). Statement of Abdul Qadfr Khaa (P.W.-5) 1s ftdty leliablc who had categoricalty supported fhc prosccution oase. laaw in this respcct is very wcU sctflcd that merety oa basis offhe stateniait of fhe mvestigating officer also a persoa caa bc Goavteted uxuter the provisioas oftfae NDPS Acit iffhe same is found to be leMabte. fa fhe present case, the stateinent ofthe iavcsrtigatingof5cer s fulfy reliable and trustworfhv. 9. Considering the facts and circumstanccs of the ease, the conviction part of the impugned judgment is maintained. So far as fhe sentence part is coa<«med;it has tocen argucd by caunscl for fhe appeUant fhat the incident had taken plaoe in thc ycar 1995, it has been informed at bar that the accused/appellant has mst with a major accident and doea not keep good health, this Court is of the view that it would be in the interest ofjustice if the jail sentence imposed en the accused/appellant is reduced to- two yeare from that of three years. However, fhc fine amount as impc»sed by fhc trial Courf wfll remaia as it is. AppeBant 13 reported to bc on baB. His bafl bonds stand caaceUed. He be sent to jail forfliwith to undcrgo fhe reiaaimag part offhe seiitenceimposed onluitt. I—' Sd/- Pritinker Diwaker Jadge •• /