HIGH COURT OF GHHATTISGARH-AT BiLik‘or'xuiii; § I'SB: Hon’bIeMr.T.P.Sharma.J.1, CriminalwAnnealvNo. 842 of 2005 u Shri Y C Sharma counsel fot thetanoeliants 53hr. \av.nu:a Agmwa} P o .a.’ the §é3pohde§¥$tata v CRIMINAL AFPEAL UNDER SECTION 37g2) OF THECODE‘OF CRm‘RmAL PROCEOJRE’ JUDGMENT ( 10492008) This anneal is directed-againstlthe gudgment of conviotion and order of sentence dated 27.10.2005;passed« by the Speeial- Judge (NDFS): Dantewada; District Bastar, in SpeciaL Cased No.‘6_12004 convicting the accusedfaooenamsfor the offence punishabiea under section 20 (B) (II) (C) of the Narcotic Drugs and Psyohotropic Subsmnces Act- (for short the “Act-’3 and sentencing eachof themto undergo rigorous imprisonment for 1O years and pay tine of Rs. 1,00,000.00, in default of payment of fine to further underooxrigorous imprisonment for 2 years. 2.) Judgment is chaiienged on the ground that withoutthere being any. evidence connecting the accusedlappeiians with the crime in question invoivino the contraband articlevof commercial quantity, in their possession, APPELLANTS Lalji aiias Lalu Prasad Gunta son of Shri / Rad": Vauabh su§:a, "§8u abGih 55 years resident ot Megan; Kalp: Thana Kalpi (UR) 2. Deshraj son oi Shri Sawan Kushwaha aged about 23 years, rAsadcw "f Jotaidpur, Thana Kaipi, District Jalaun, UP. w o o. VERSUS RESPONDENT - State of Chhamsuath throuah 8H0 PGhU¢ U “HUII 351%“ a}, 9:93;? “isms: a Dantewada, b G \ ‘ \ ie‘arned trial Court has committed an iltegamy in convicting and sentencing. them as mentioned above. 3. Prosecution case in brief is that on 14.10.2004 GN‘ Singh (PW-4) who at the, relevant time was posted as Sub Inspector. Tonanal. District Dantewada-: received an information from some informant that two persons carrying Ganja:,with them were coming in Maruti- Van bearing registration No. CG-04/ZP 1167 fromrthe side of Kama, to go towards Raiour. He recorded Rojnamcha Ex. P—1 5. Hevcommunicated» thersaidinformation to the AdditionaW§uperintendent of Police, Sukma. on wireless andtelephone. After calling witnesses Sukumar Chaudharv andSwaminath he prepared the information memo vide-‘Ex. P-2. He went outside the police station along t with thepolice people and the witnesses at 11 am. Meanwhile. said mruti van came there. he stopped; it and on ’inauiry the driver of the vehicle disclosed his name as Lalji alias Lalu- Prasad Gupta and the other Dotson disclosed his name as Deshraj. He nave notice Ex. P‘3 to the accused persons to the effect that according to his information there was Gania in the vehicle and asked them whether they would get their vehicle searched bv some Gazetted Officer or by this witness, upon which thev agreed to search by this witness itself. Thereafter. this witness. policerstaff and the Panch witnesses/were searched by the accused/aonellants vide Ex. P—4.- Then he searched the-said Maruti van and found 7 jute bags kept in it containing Gania. He also found Rs. 11.55000 with accused Lalii alias Lalu Prasad- Gupta vide Ex. P-5. After tasting and snift’Ina the same it was identified to be Ganja vide Ex. P-6. Weighing instruments were verified vide Ex. P-7. The conhaband contained in seven bags marked as A to G seized from vehicte in possession of the accused bersons was weiohed vide Ex. P—8 which came out to be 21 Kg, 21 Kg. 20 Ko. 21 Kn. 22 Kn. 21 Koand 20 Ko. (total \ 146 Kg). 2 samples of 25 grams each were prepared from each bag. Spot map EXP-24. was prepared. Samples wem sent to Fmensic Science Labemtory for chemical examination vide Ex. P—25. Amount of Rs. 11,550.00, registration book of the vehicle. which was in the name of Ramashankar Gupta, driving licence in the name of accused-Lalji alias Lalu, Prasadr Gupta were, seized vide Ex. P4 0. Contraband found in possession of the accusedlappeiiame was seized vide Ex. P-1 1r. Accusedlappeiiants were arrested vide Ex; P-12 and, P-13. First Information Repovt was registered vide Ex. P—18. Seized'contrabend was kept in the Malkhana, Nqtiee Ex, P-1 7 was given to the aocusedlappeiianmto produce the licence; if any: for transportingthe-contraband; information regarding arrest was sent do Superintendent. of Police, Jaiion vide Ex. P49, Details. of proceedings were recorded in Ex. P-20, Detaiisof entire proceedings were senttoAdditionai Superintendent of Poiicevide Ext P—21. Arrest memo, FIR and thetseizure memo were sentrto Judicial Magistrate First Class, Sukma vide Ex. R22. 4. After recording the statements of the witnesses under section 161 of the Coder of Criminal Procedure and completion of investigation, charger sheet was tiled against the accused/appellants in the Court of Special Judge. Dantewada. wheretrial commenced-f 5. ln order to establish the guilt of the" accused/appellants the prosecution has examined five witnesses. Statements of the. accused persons were also recorded under section 313 of the Code of Criminal Procedure in which theyvdenied the material appearing against them in the prosecution case and pleadedtheir innocence and false implication in the caSe. (,— éi 6. After afiording apportunity of heating tethe parties, learned Spegial’ Judge convicted and sentenced theraccusedfappeilantsas mentioned above by thewimpugned judgment. 7. Heard} counsel far the, patties and perused the materia! available. on record including therjudgment imDuuned. 8. It is argued on‘ behaif of the accused/appeuants that the offence aneged to have been committed. by the accusedlappeliants is an offence under special Act for which different punishments are provided: but at the same‘time legislature has made certain mandatory provisions to safeguard theaccused from frivolous prosecution; In the insmntcasePanch Witnesses have not supported the case of the. prosecution. Oniy the police ofhcer has supported the» case of the. prosecution who has not compiied with the mandatory provisions OF theAct which aremeant, to safeduard the valuable right of the accused persons. investigating Ofticer did not send any information received from theinformant and Panchnama for not preparinu the search warrant: to his superior ofticer. According to the counselfor the accused/appellants the investigating officer has obtained the signature of the witnesses on a plain paper and thereafter he had prepared this documentwith a View to make, outwa case against the accused/appellants He placed reliance on thedecisionof Orissa, HiqhCourt in the matter of Mayadhar Rout v. State 1 in which it has been hekt that if the materiai is deflcient as regards custody of seized articles, accused is entitled for : acquittal‘ He also placed. reliance on yet another decision of Orissa High Court in the matiar‘hf Trineth Geude v; State 2 in which 't has been held that’in the absence of evidence regarding sealing and custody of the contraband article: accused is entitled for acuuittat. Further reliance is placed on thedecision of Madhya Pradesh Hiuh Court in the matter of State nun-v. v ’u uyyo) cck 4225 2 1996 (1) Crimes 607 I @ of MP. v. Amarsingh 3 in"%im"§‘MS~ been hem that‘in a sase wheze name of the immediate superior omeerv of inspector is not availabie and the accused is not apprised of his right to seatch in the presence of Gazettedr Officer or Magistrate: hewisr entitled for acquittai. Reliance is placed on vet another decision of the; Madhya Pradeshr High Court in the matter of Dachrath‘ Sinqh‘ and others vc State‘of Mediaa Preéeeh ‘ in which Ithae been held. that if the prosecution faiis in producethercont'rabandarticie before the triai‘ Court at the timevvo'f statement of Seizing Officer, mere prese‘n‘cg of the accused in me room from where contraband articier was seized, it cannot be said to be in his consciouspossession. Further reiiance is piacedéon the dee‘ision‘ of Patnt High Court in the matter of Lal Babu Sah v. Eta” of Eihar5 iii which it has been he'd that lf the sempies are taken aher 40 days: chances of tampering cannot be ruled out and in this circumstance the conviction of accused is liable to be set aside. um.» uvnu u 9. On the other hand the judgment- of the trial Court is supported bv the counsel for the respondendState and it is submitted that the Panch witnesses are not the. stock witnesses. It is further argued. that the investigating officer has followed the: procedure prescribed under the-Act. and also complied with the-mandatory provisions thereof. Detence has not been able to elicit anything thatpolice officer {PW-4) was having any enmity or interestedness against the accused/appellants and for this reason thev have been implicated in a false case. Accused/aooellants were found in possession of Maruti van in which huge quantity of Ganja was kept. They‘ have not offered any explanation as to how such a hugequantity of Ganja » was found with them. it isargued that the accused/apoellan$ are’notzthe- residents of Dantewada district and they have not explained their presence within that district. Reliance-is placedon the decision ¢ Apex, Court in the i 11 (2007) CUR 265 q I (2007) CCR 105 5 I (2003)CCR 476 (on) matter of Madan 1,3! am! anether v; state efHi:ga¢ha! Padgsh ‘6 in which it has been held thatprovisions of section 50 of the Act have no apmimtion for search of the vehicle. agd. it is applicable only to the petsonal search of the person. In the, absenceof explanation that two persons wele traveling in the car knowing eachriother, how they traveled together from the same destination in a vehicle which was not- e public vehicle; it will be presumed ' that the contraband found in the case was in oonscious possession of the, accused/appeiiants. ‘ 10. "t EN; Singhr (PW-4)wwho at the relevant time was posted as Sub inspector, Tongpalg Distriot Dantewada: hasstated in his evidence that on 14:10.2b04- received an information from some informant that two {persons carrying Ganja with them Were coming in Maruti Van” bearing registration No. CG—04IZP 1167 from the side of Konta, to go towards Raiuur: He recorded Rojnemcha Ex. P—15. He-communicated the said information to his superior officer on wireless and telephone Atter caning witnesses Sukumar Chaudharyand- Swaminath‘he prepared the information memo vide Ex. P—2. Her went outside the police station along with the police people and the witnesses at 11 am. Meanwhile: said Maruti van oame'there. he. stooped it and on inquiry. the driver of the vehicle disclosed his name as Lalji alias Lalu- Prasad Gupta and theother person disclosed, his/name as Deshraj. He gave notice Ex. P-3 to-the accused persons to the effect that according to his information there was Ganja‘in the vehicle and asked them whether thev ' would get their vehicle» searched by some Gazetted Officer or bv this witness: upon which they‘agreed to search bv this witness itself. Thereaiter. this witness, police staff and the Pancho witnesses were searched. by the accused/appellants vide-Ex. P-4 Then he searched the said Maruti van and found 7 iute bags kept in it, containing Ganja He also found Rs, 11:559‘00 with accused Lalji aliasLalu Prasad Gupta vide Ex. P-5. After tasting, and 1,... t " 2003 CliLJ 3868 sniffing the same it was identmed to be Ganja vide Ex. P—6. Weighing instruments wererveriiied vide Ex. P-7. The contraband articlencontained in seven bans marked-as A to G seized from vehicle in passession cf the accused persons was weighed vide Ex. P—8 which came out to be, 21 Kg, 21 Ku. 20 Kg. 21 Kg, 22 Kg;’21 Kg. and 20kg. (total 146 Kg). 2 samples of 25 urams each were prepared from each bag. Spot maps Ex. P-24 was prepared. Samples were sent to Forensic Science Laboratory for chemical examinatien videExv P—25. Amount bf-Rs. 11550.00, registration book of the vehiglewhich was in, theiname of Ramashankar Gupta driving licence in the name of accused Lalji alias Lalu Prasad Gupta were seized vide Ex. P— 10. Conuaband fougd in possession of the accusedlappellants was seized vide Ex. P-11. Accused/appellants were arrested vide Ex. P—12 and P—1 3. First information Report was registeredvide EXV P—1 8. Seized contraband was kept inV the Malkhana. Notice Ex. P-17 was given to the accusedlapoellants to produce the} licence, if any, for transporting the contraband information regarding arrest was sent to Superintendent of Police. Jallon- vide Ex. P—19; Details of proceedings were recorded in Ex. P—20. Details of entire proceedings were sent to Additional Superintendent of Police vide Ex. P—21r. Arrestmemo, FIR and the seizure memo were sent to Judicial Magistrate First Class: Sukma vide Ex. P-22. Panchnama for not preparing the search warrant was drawn vide Ex. P—23. 11. Swami Nath (PW-1) has not supported the case of the prosecution and has been declared hostile However, her admitted. his signature over Ex. P—2 to P—13. Sukumat Chaudhary (MN-2) has stated in his evidence that on coming to know that the police, had: seized a Maruti, Van containing Gania; he himself went to the. police station where. he saw that a white colour Maruti was standing in which 7 bags of Gania wete kept. in his presence, police people-took out the Ganja} out of the Matuti andgot the same weighed, teak samples and he signed the documents Ex‘ P—2 to P43. Lament Tigga (PW-3)- smted in his evidence that on 14.10.2004 Station HouserOfiicer had given him 7 sealed bags of Ganja, 7 seaied samples of Ganja, money and papers ofthe vehicle. He‘kept an therarticles given to him in Malkhana and made/entry of the same in the register vide Ex. P-14. Tungnath Yadav (PW-5) has stated in his evidence that on 8.11.2004 a letter Ext P-25 for appointing him as investigating Officer was sent to him ‘ from Police Station Tongaal. 12. “Wde order sheet dated 4.5.2005 learned trial Court marked the chemical examination report as Ex. P—25 bv which article marked as A to G was corffirmed as“ Ganja. Report of Forensic, Science Laboratory is t admissible in evidence under section 293 of the Code of Criminal Procedure. 13. As regards production of the property before the Court, order sheet dated 11.1.2005 reveals that the prosecution produced the documents relating to vehicle, amount of Rs. 11,550.00, 146 Kg. of Ganja contained in seven bags, and seven sampies before the Court and the Court ordered the same to be kept in Najarat. Defence has tried to establish that Sukumar, v Chaudhary (PW-2) is. a stock witness though he has denied to be so. lt appears that the defence has tried to show that this witness is an, interested witness and has wronglv supported the case of the prosecution. This witness has brieflv stated that on coming to know about the seizure of a Maruti van. he himself went to police station and saw that a white colour Maruti van was standing there. He has admitted in paragraph 10 of his cross examination that the police did not seize the vehicle carrying Ganja in his presence. This witness was Up Sarpanch of the village. Swami Nath (PW—1) is also the resident’of the same villaoe. Poiice cailedboth of them beina resident of the same locatitvv as Panch witness but thev did not support the case of thelprosecution. Police have tried its level best to comply with the reqremen of la by callin Panc witnesse-fro the ocality Thes two uit w g h sm l. e witnesses hav not explained a o ho the signe over documents. e s t w y d 12 They havevalso not state hether they wer nde threa or ressure of th d w e ur t p e police whic shows tha hey ar coneein th trut Lemen igg (PW-3 h t t e alg e h. t Ta ) ha dmitte in is cros xanatio tha rme num wae avaable fter s ad h s emin t ci ber il a lodging of th First Information Ror. G.. Singh W- ha also admitd e ept N (P5) s te t sam. All document bear m crim number. ln t case entire he e s, e e his proceding hav been onduce y Statio Hous fticer jus utside th e polic station along wit polic taff. He is competent person t lodge e h the e s a o e t tion t n o 154 te-Ce th Firs informa Repor i terms, f section of hod of Criminal Procedure Therefor the rim umber entioned in th document is of ; e. ce n m e s n0 consequence. ».4 14. s rs n o e s r h . A egard sending of informatio t th uperior office, GN. Sing (P-4 ha state ha he sen th information Ex - received or th W) s d tt t e . P2 fm e inormant vid Ex. —1 Copy of th same is availabl on record having , f e P6. e e, recet of th oncemed wirel i charg Ex. -21 i h copy of detae io e c ess n e. P s te ild repor ent t he erior fficer hic hows tha it wa very muc st t s o t sup o wh s t s h. en ugh i- e 4. ‘ d y thro Tejpa constabl No. 85 Receipthas not been tile b the prosecutio but th same i mentione i th Rojnamch his dooumen n e s d n e. a. T t can not be reate as concocte documen articularl hen, ther was no td a d t py w e enmitv or interestedness of the police ofhcer against the accused/appellants Driving licence has been seized. from accused/appellant Lalji alias Lalu Prasad Gupta. GN. Singh (PW—4.) has categorically stated that after receiving information. he stopped the Maruti van, searched the vehicle. .v seized Ganj from it, arrested the accusedlappellants and produced them before the Court. Accusedlappellant Lalii alias Lalu Prasad Gupta has admitted thetfact that. .onlv the money was seized from him in the police es e ctd b n e O t o e a siation and he denied the rest ofihe-allegations made against him‘ Likewise, accusedlappeuant Deshraj has also denied all the cimumstances appearing against him inciuding his arrest. 15. From the statement recorded under. section 313 of the Code of Criminal procedure it appears that they were not present on the spot nor were they arrested. Butthe. fact remains undisputed that they werefound in possession of the contraband, they were tried and uttimateiy convicted and sentenced by the judgment impugned. This is not a case that police arrested them all of a sudden. G.N~. Singh (PW-4) is a police ofhcer and his statement i. f cannot be discarded only on the ground that he is a police officer and £ t , ' interested in the outcome of the case unless there is any illegality in the \ imrestigation. Defence has notbeen able‘to bring any material showing that the said police ofhcer was having enmity against the accused/appellants and that they are not the owners of the vehicle in question. Order sheet dated 5.42005 of the trial Court reveals that the vehicle has been given on Supurdginama to its owner Ramashankar Gupta who has, stated on oath that vehicle was taken by the accused/appellants on the pretext that the same was required for treatment purpose; The accused/appellants have not: produced any material to show as to what was that mental or physical ailment which could not be treated at Jallon (UP) but was possible at Dantewada (Chhattisgarm in the absence of any such sugestion, there is no reason to disbelieve the statement of G.N. Singh (PW-4) who has categoricalty supportedthecase of the prosecution. It is sufficient to draw an inference that the accused/appellants were in possession of 146 Kg. of Ganja beingrcarried in a Mamti van. 16. After appreciating the evidence available, on record: the trial Court has convicted and sentenced the accusediappeilants as mentioned above by the impugned judgment. éQ ,H' 17. In the 1iuht of aforesaid analytical discussion and keeping in View the huge quantity of contraband seized from the possession of the accused/appellants: I am of the opinion that the tindings recorded by the trial A Courtrdo not suffer from anyillegality or infirmity. 18. Consequentiv. therappeal" being without substance is liable to be dismissed and it is hereby dismissed. Judgment impugned is maintained. Sdl- ’ T. P. Sharma Judge