^- -HC-22 ^a? v<INI<rt^, ^T{l^<l<o, i®«I11<iy ^nif^r XT5w HFWTT 5b*1icb "^ 200 'I^^T' 3^T^T ^Jch 3Tlt?T 5h+licb ^lf^ci ^ ^TI^T'^'^ITW^lf?^ CRIMINAL APPEftL N0.581 /2004 APPELLANT Ctn Jail) RE5PONOENT Vikram Naik al 19 years, R/o ^ Distt. Raigada Arun Kumar S/o Sundai Naik, aged |ld Bus Stand, Raigada, P.S. Raigada, ((prissa) Vs State of Chha' &istt.Roipur(C< ^ttegarh, Through P.5. Moudhapara, ^) Pre^nt; Mr. V.K. Pandey, Advocate for the appell Mr. Arvinct Oubey, Panel Lawyer for 1+ie ORAL J (5thNovet|i Per &hirendra Mishra. J: Heard. Admit. The matter is Ijsted on consent of the parties, the appeal is This appeal is directed agdnst- of sentence dated l7.2.2(X)7 passe<( N.D.P.S., Raipur in Special Criminal Judge has convicted the appellant u^ C»ru9s and PsYchotropic Substfmce^ sentenced to undergo R.I. for 3 ye4r defauh- of payment of fine to furthe|r Case of the prosecution, in Thakur, Assistant Police Inspectorj, secret tnformotjon that a person isj t^ ^i*i<yiT ^ fs<<! <f^i<^i< iT^rf^R3^n^T [nt. ^pondent-State. D6M ENT ber, 2007) MJCr.P. No.1916/04, however, with the |ieard finally. the judgment of conviction and order by learned Additionai Special Judge, ^a^e No.34/02 whereby learned Special |der Section 20 (8) (1) of the Narcotic Act, 1985 (for short- xth& Act') and 'e^rs and to pay a fine of Rs.lO,OCK)/-, in undergo RX for 6 months. srief, is thffit on 24.3.2002 Shri M.S. Police Station Maudhapara received standing near Marhi Mata Temple with J^-^l— HC-22 ^TT^T^T f^ri^^nl^T 5^+licb <lf^<l v^' ^ '^o? t<ii^i<n<Li, ^nl<i^<o, ^<ni<i^< @ MWVM 5b*<|cb^......^^...s&Ll0 \ N?""""""-"""--^"^^ "^^T' n^?T <fl1<^T^<TTW ^ETf^ •'Lf investiobtion proceed^ng a bag contdning cannabis. On rea same and proceeded for obtaining WQrrant before the procedure prescribed under cannabis from the possession of examjnartion found to be cannabis.1 to the Forensic Science Laborot< per report of the FSL, the confirmed to be cannabis. Learned counsel for th^ independent witnesses of recovei the case of prosecution and th|i assigned by the investigating offi memo of Ex.P-3 is not convindng.] has hot been established by the of the mandatory provisions of th| On the other hand, supported the impugned judgmerrtj. I have heard learned Impugned judgment as dso the ev|< M.5. Thakur (PW-5), 24.3.2002 he received secret inlf I"^ *1M<vff tf f^<<0 <f^^l< ^ 3rf?OT STT^T |<ving the information, he recorded the after recording reasons for not and thereafter after complying with |the Act recovered 7 kg 500 gms of 1-he appellant, w4iich was on preliminary Saniples of the ^ame were forwarded |ry through the superior officer and as arjticles seized from the appellant WQ.S appeliant submits that both the memo and seizure have not supported thjey have turned hostile. The reasons ;er for not obtaining warrant as per the Exclusive possession of the contraband )rosecytjon and there ig non-compliance Act. lear|ned Panel Lawyer for the State has cour(sel for the partjes. I have perused the lence avdlable on record. Invejstrgating Officer, has deposed that on ;ormation that a person putting on blue -HC-22 ^TT^T^T 'f^ri^^^r ^ti^^f ^-GC| '<ii^i<rt^, ^•al<i^(o, fc(diy^< ^?r T^ra? GP ^?T?^TW^[ colour T-shirt- and black full-pant ii *l^d'!fl4^«jK?J)'^^yl <^|< ^NwTa^T gtanding near Marhi Mata Mandir vi/ith jute bag contdning cannabis. T|he {nformation was recorded in the presence of witnesses and apprehejrtdjng that the appellant mdy dispose of the contraband, he proceeded fotj effecting search and seizure without obtdning warrdnt after recordii^ the reasons vide Ex.P-3 and after forwarding the same to the City |Superintendent of Poliee, City Kotwali. He took two independent witness^s along with his staff to the place of {ncidenf where he found the appe|lant standing with the bag. On enquiry the appellant told his name and th^peaftep, after giving him notice of Ex.P- 5 and Qpprisinghim about his !ega| rights under Section 50 of the Act and dfter obtaining hig consent vid^ Ex.P-6 the bag of the accused was gearched and in the sdd b<ig thej cannabig !ike substance was recovered, ,which was found to be cannabis ^n pretiminary examination. Thereafter, the cannabis was weighed, two s4mP'es vl/€re taken out and the packet of ganlptes was duty se<ited vide se{{zur€ mewo of Ex.P-9. This witness has been examSned at length by thej defence, however, the defence has not been abte to eh'dt any inconsisl conducted by this wtness/ as t 'ency or irregularity in the investigation ie mandatory provisions of the Act has been duly complied with. It is true that independe|it wtnesses nQmely Madanlal (PW-4) and Preetam Singh (PW-3) have not ^upported the case of the prosecution and they have turned hostile. Theyjhqve denied thot anything was seized in ^ ^n^T^RT fW^ 3T1^T 5h*iicb +t{^a t^ Roshan/- "^? ^i<<i<n<li, ^Til^^Ko, (®i<ni<i^< 3nip?r Ti=ra? ^li] HW^II ^^j^———••••—————•••—-^F^ ^00 'I^ST' ^TT^T ^TT^R ^rf?<T the their presence from the appelle admitted their gignatures in the| search memo of Ex.P-7, weighme|nt Ex.P-9 and arrest memo of of ExJ In view of the fact that Shri M.5. Thakur (PW-5) establisl| provisions of the Act before eff< appeltant and also considering t( hostile have not denied their during the investigation, there i; disbelieve the version of the inve|sti opinion of thi^ Court* the convictio^ the sojitary testimony of the the same does not ca!! for interfet In the result, the; appeo| substance, the same deserves to t^ cr»i<it<n<11i +iM<yff "^'fe^ iFsl^K ^T^Tf?W3TI^T ^t, ho^ver, both the witnesses have notice of Ex.P-5, consent of Ex.P-6, memo of Ex.P-8, recovery memo of 1-10. version of the investigating officer \es that he had duly compiied with the [cting seizure of the cannabis from the |crt' the independent wtnesses though m the relevant papers prepared no reason before the trial couri- to officer and in the considered and sentence of the appellant based on officer is jugt and proper and ence. sjgr|ort'ures jnv^stigating inve|stigating preferred by the appeilant has no dismisged and it js hereby dismissedl^ Sd/- Dhirendra Mishra Judge