HIGH COURT OF CHHATTISGARH AT BILASPUR fSB: Hon'bte Mr.T.P.SharmaJ.1 Criminal Appeal No. 592 of 2004 APPELLANT <. -; VERSUS RESPONDENT Saroj Patnaik S/o Ganpati Karan, Aged about 26 years, resident of viltage Kodpar, Thana Kodpar (Orissa) State of Chhattisgarh through, Police Station, Rajnandgaon, Distriot Rajnandgaon, CG Shri Suresh Tandon on behalf of Shri Satyendra Sahu counsel for the appel'ant. Shri V.V.S. Murthy learned Dy.AG with Shri Sushil Dubey GA for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF GRilVI!NAL PROCEDURE ORAL JUDGMENT (12.8.2008) This appeal is directed against the judgment of conviction and order of sentence dated 18.07.2003 passed by the Special Judge (NDPS), Rajnandgaon, in Special Case No. 45/2003 whereby the appellant has been convicted for the offence pynishable under section 20(B) (1) oftheNDPS Act and sentenced him to undergo rigorous imprisonment for five years and pay fine of Rs. 25,000/-, in default of payment of fine to further undergo rigorous impnsonment for one year. 2. The judgment of the triai Court is challenged on the ground that learned Special Judge has committed an i!!egality by convicting and sentencing the accused/appellant for the aforesaid offenoe without there being any evidence against him. 3. Heard counsel for the parties and perused the record of the trial Court as weli as the judgment impugned. \ 4. Case of the prosecution in brief is that on 26.9.2003 one M.G. Choukey (PW-4) at the relevant time posted as Assistant Sub Inspector, in Poiice Station Kotwali, Rajnandgaon, on receiving an information through some informant to ^ (^ -A- the effect that the accused/appellant carrying Ganja with him was going towards Railway Crossing, he along withhis staff members went to the spot and after following the procedure prescribed, made a search vide Ex.P-4 and found Ganja in his ppssession kept in a piastic bag which was seized vide Ex. P-1. On weighing the seized contraband (Ganja) it came to be 2.5 K.G. vide Ex. P-7. By taste and odour, it was identified to be Ganja. Two sampies of 50 grams each were taken. FIR Ex. P-15 and Dehati Nalisi Ex. P-14 were recorded. The seized contrabandwas sent for chemical anaiysis on which it was found to be Ganja vide Ex. P-19. After recording the statement under section 161 of the Code of Criminal Procedure (for short the "Code") charge sheet was filed against the appellant in theCourt of special Judge (NDPS) Act, Rajnandgaon. 5. In order to prove the guilt of the appellant the prosecution has examined seven witnesses. Statement ofthe accused/appetlant was also recorded under section 313 ofthe Code in which he has stated that he is innocent and has been falsely implicated in the crime in question. 6. It is argued on behalf of the accused/appellant that the Investigating Officerhas not complied with the procedure prescribed under the Act and the independent witnesses have not supported the seizure of contraband from the possession of the accused/appellant and therefore, the impugned judgment suffers from procedural irregularities and the same is iiable to be set aside. 7. In order the connect the appellant with the crime in question, the prosecution is required to establish that the accused/appellant was found in possession of 2.5 K.G of contraband (Ganja) and the search and seizure ofthe same was carried out after complying the procedure prescribed in the Act. 8. M.G. Choukey (PW-4) at the relevant time posted as Assistant Sub tnspector, has stated in his evidence that on 26.2.2003 acting upon the information received through some informant regarding accused/appeilant's possessing Ganja, he rushed to the spot along with the staff members, informed of his power to search him and after obtaining his consent, search was carried out vide Ex. P-4. On search being made Ganja was found in his possession ^HH^- -3- which was seized vide Ex. P-1 and on weighing the same it came out to be 2.5 KG vide Ex. P-7. Two samples of 50 grams each were prepared. The seized contraband was kept \n Malkhana. Thereafter Dehati Nalisi Ex P-14 and FIR Ex 15 were registered. Samples prepared were sent to Forensic Science Laborator/, Raipur, where it was found to be Ganja vide Ex. P-19. Uttam Kumar Mishra (PW-1) and Nizam (RA/-6) have not supported the case of the prosecution but admitted their signature over Ex. P-1 to Ex. P-9 relating to search and seizure though they have declared hostile. Babulal Sinha, Head Constable (PW-2) has stated that he kept the seized contraband in Malkhana and made entry of the same in the register Sudarlat Gorle, Head Constabie (RA/-3) has admitted that he received the intimation Ex. P-12. Nathmal Soni (RA/-7) has stated that he weighed the contraband and found the same to be 2.5 K.G. In cross examination, this witness has stat^j that the process of weighment was completed in Police Station Rajnandgaon. M.G. Choukey (PW-4) has denied the suggestion that he compieted atl the proceedings in the potice station. He has also denied the suggestion that accused/appellant is a resident of Orissa, and he had come to his relatives and has been falsely implicated in the case. This witness is a police officer and only on the ground that he is a police officer his testimony cannpt be discarded untess it suffers from serious infirmity or departure from the proc^dure. Defence has not been able to elicit anything to discredit the testimony of this witness. Rather this witness has specificalty stated that he has complied the procedure prescribed while investigating the matter. Evidence of this witness inspires confidence on the basis of which iearned trial court has convicted and sentenced the accused/appellant as mentioned above. 9. After hearing counset for the parties and carefully examining the material available on record, 1 do not find any illegality or irregularity in findings recorded by the trial Court as far as conviction is concerned. As regards sentence, it is stated by the counsel for the accused/appellant that the accused/appellant is in jail since 26.2.2003 and thereby he has completed five years ofjail sentence. He has also completed six months ofjail sentence for default of payment offine. It r~ ^. -l<^ is further submitted that the quantity of the contraband seized from possession of appellant was more than the small quantity but lesser than the commerciai quantity and for such offence imposition of fine is not mandatory. Appellant has already served the substantive sentence offive years. He has also served Rl for six months for default of payment of fine of Rs. 25,000/- 10. Accordingly, the appeal is partly allowed. Conviction of the appellant for the offence punishable under section 20(B) (1) ofthe NDPS Act is maintained. The sentence part of the judgment impugned is modified to the extent that instead of Rl for one year in default of payment of fine he is sentenced to rigorous imprisonment for six months. I T.P. Sharma Judge (iT