'.f'"a*;. H<GH COURT OFCHHATTISSdWI^AT BjLASPUR fSB: Hen'bleWF.T.P.Sharma.J.I CrimfnalAi>peatN<>.S7.of2005: -^s^) B«, APPELLANT Sulfumar Sartear, Aged about 28 years son of Labhpad Sarkar, residsnt of Dhasbpur 32 number Polk» StErtien Rantanagar Llmarkot, fMawarangpur (uriss^. VERSUS RESPONDENT State of Chhatfegarlt" thKough S-HO Poiics Sfstior. Cit/ Kot..a!i, District f Dhamtari(C.G.)S Shri Y-C- SharmacounsetfoftheaoDellant Ms. Sangite Mishra P.L. fortherespondsnyStete. lUZ ll It CriminalAppealNo. 148 of20^ APPELLANT VERSUS RESPONDENT Suchencfra. SaricaF son of ;Shri Niiai Sarkar, 3gsdabou{25yasrs,resic!ent of Dashpur. 32 numheF Poito Siaiion Ramnagar, Umarkot, Djstrict Navrangpur (Orisss) Stata of Chhrtisgarh thrauqb SHO. Polics StaScn Ciiy K&twaii, District Dha»nta(i<e.Q.) ;R) ShfiAtok Nigam counsel-for theappettant. Ms. Sangsta "."shra PL for the respondant'Stets. CRIM(NALAPPEALSUNDER^S6CTION374<2tC^THECODE^^O^ CR!M!NAL PROeEDURE JUDGM6NT ( 3 :9.2QO^ Since both the aforesaid appeate SFJS®out of a common Judgment dated 3 9-2004 passed by the Speciat Judge, (NDPS) Raipur, in Speciat CaseNo. 10/2003. thev aredisDosed of bv tno common iudament. V -2- 2- By the judg»ne»rtimpugned ttie accHsed/appeHants.^ have been convicted urider section 20(b)(ii)(B) ofthe Nwcotie Drug&and Psychotropic Substances Act ffor short the "Act") and sentenced to underoo riaorous imprisonment for 7 vears and oav fine of Rs. 25.000.00 eaeh. in default of payment of fine to further undergo rigorous imprisonment for six months t each. 3. The judgment is chaltenged or»the ground that wtthout appreciating/ the fact that the prosecution hqs not complied with ttie proGedure prescrit under the Act, tearned-Spe<(jal Judge has committed an iltegality convicting andsentencing the aecused<appetlants as mentioned above. 4. Th& Drosecution cas»in brief is that- Ashok Dwivedi <PW-3) who at the retevant time was posted as Assistant Siri> Inspeeter in. Gity Kotwati, Dhamtari. receivedasecretfrinformationor) 115-2003 totheeftect that two Dersons were comino on Suzuki metorcvcte bearina reaistration No. CG 05/ ZE/1044 from Sinhawa Road carryinga grnen colow canvass bag whfeh contained Ganja. H®preDared the information Panch/'ewEx. P-12 in presence of the witnesses and sent the same.to th&superior o^ier. He als prepared search Pane<OTam»Ex.P-ISthougfrwitheutsearehwan-ant- Aftei. recording Rojnamcha Ex P-'t5 he proceeded for ttie spot at about 1 p.m Two oersons came there on Suzuki motorevGle. Accused/appellant Suchendra Sarkar was drivjng the motorcycte and aceused/appetlant Sukumar was th& pillion rider cari'ying one green colour canvass bag containing Gstnja. Ntottee Ex- P-1 informing them ef tiieir righttoi search the poliee people and the witnesses. Accused seacched the poticftpaopleand the witnesses vide Ex. P-2. Th bea carrieei bv the accused was searohed and Ganfa was found in it- Onweighment bemgdonfritcameouttobe17 kiloarams; TwosamDles oflOOaramseaebwere^DreDaFeAThesamDlesas well a& the remainina auantitv of Gan/s was sealed vid& Ex. P-3. T" ^ijii.-,-'h- ffr J— Confraband was seteed vide Ex. P-4 Motorcycle was seized from accused Suchendra vid& Ex. P-5. Panchnam» of the entire Droceedinas was prepared viete-Ex. P-6. NoSce Ex. P-7 w^ gnwn tothe accusad/qspeUante regaKting theif presence ttM coropMioR of the proeeedings. Accused/appeUant^ were. afresteel vkte- Ex; P-8 and P-tO; The»this witness »,. » came to the Dolice station atona with th®accused/apDellants as well as the property seized and lodged the Firet InfoFinatten ReportEx. P-8. Contraband Ganj»waskept in the Ata/frhana which was entered in the RqjnamcAa vide Ex. P-17-C. Copy of the- seizure Psnchna<n»proceeding Panchnama and the First tnfonwatten Report wa&setjt to his supenor otficer vkte recewt Ex- P-'t8. Samotes wttli seal impression wer& sent to the- Forensic Science Laboratorv for chemieat examination. On chemiGal examinrtion it was confirmed that the content of the sample was Gsflfe vid& report Ex. P-11 . 5. After recordingthestatementsofthewitn^is^andcomplettonofthe investigation charge-sheet was filed in the- Court of Spectel Judge, Raipur, where trial co»nmenced; 6 tn order to prove the auMt of the accused/aDDellants the Drosecution has examined 4 witnesses. Statements of tt»eaccused pwsws wer®ateo reeorded undersection 313 of the Code ofCriroinal Procedure in whk;h thev denied the materiat appearing againstthem In thecasfr oftha prosecLrtion and oteaded their iiinecenee andfalse-imDlicatkift inthecase, 7. After affording opportunity of hearing to the parties leamed Special Judge convteted and sentenced the accused/appellants as mantioned above. 8. l-1eard counset for the parties and peFused the materiat svailable on recordjncludiriatheiudgmentimDuaned; ^; ur It s.) 9- It is submitted on behatf of the- accused/appdlants that according to the prosecution storv one accused' vws driving the m<rtorcvcl®while the othef onewasthepiltion rider canyitig a bag, butthe prosecution has not Droved theconscious possession of th&contraband with amwne of ttiem- It is further argued that ttie proseeution has notcomplied witftthe mandatory provisions of Section 50 of the Act. tt is argued that the property altegedty seized was not kept inthesafecustodyofthePoliGeandthftsanii&wa&not « produced before the Court. Lastty it is argue^ that thfr accusecyappetlants are in custody for about five-years and thfr sentenca already undergone b) them would meet the ends of juslice 10. On the other hand the iudament of the triat Court Is suDDerted on behalf of th& respondent/State and it is submitted that the prosecution has proved its case beyondshadowofdoubtbyadducingFelJabte.atricHnching evidence-. Both the accused/appeltants werefound ir> conscioi»possession of the hugequantity of contraband and therefore, thejudgmert impugned is not liable to be disturbed- 11. In order to prove tbe guitt of th& accused/appeHanis th®prosecution •s- reauired to estabtish the foltowing mgredieHts: (i) accused/appellante were m conseious possessien of Vne contraband; (ii) compliance of mandatory provisions of the Act has been made. 12. Asholc Dwivedi (PW-3) who at the retevaflt tim& was ppsted as Assistant Sub Inspector in City Kohwali, Dha»ntari. He has stated In his evidence that on 11-2.2003 he reeeived a secrete infonnatlon that Iwo persons were coming from Sinhawa Road on Sui'uki nwtorcycte bearing reaistration No CG 05/ZE/1044 carrving a green cotour bag contatning Gama. He Dreoared information Panchnama Ex- P-12 and seareh I .it"'l;. Kf^:-y^^^ls!? -s~- Panchnams Ex. P-13 though wifliout searcb wan-ant- He sent co&v of the sarnft to his superior oflicer. He calted Psncfe witnesses nareelv Rustam Gond and Umashankar Raiak bv aivma notfefr Ex- P-7- After recordina Rojnamcha Ex. P-14 and P-15 he proceeded for the spA White-they were waiting for the accused pefsoris, they eame on a notomycte earrying a qreeh colour baa contaimna GsMw; He gavettmm notic®Ex, P-1 infermina about their riaht to search the Doltee DSODI®and the witnesses. Both the accused/appellants toolfsearch of the police people andthe witnesses vicie Ex- P-2. Then this witness took search of the bag carried by the accused/appetlants and found tt-iat it was containing Ga»yatike leaves and on burning and sniffing it was confirmed to be Gan^a- On weighnient being done it cam»out to be 17 kiloeirams. Two samDtes o( 100 q»amseach were prepared, samples and th& remaining contraband was sealed vide Ex- P-3. The contraband was seized vide seizure memo Ex. P-4and a copv of the same was given to accused/appellant Sulcumar- McAorcycte wassei2»dvide Ex P-5. Thereafter, he along with theaccused persons and fte property so seized from them cam&to the policestation and todaed FIR Ex. P-8. EnUre proceedings were entared into th& R<ynsmcAs wde Ex. P-16 and the contraband was kept ir»the Ate/Aha<»avicteEx. P-17- Samples were sent to the Forensic Science Laboratory and on examination of the same it was confirmed that it was Ganja vide report Ex- P-11 . 13. Rustam Gond (PW-1) has substantially supported the case of the prosecution. He has admitted his signatur»overEx. P-2 to P-7- B.R. Sinha (PW-2) has stated that hehad registered the FIR Ex P-8 and arrested the accused/appellants vide Ex- P-9 and P-1i0. He sent the samples to the Forensic Science Laboratorv from where reoort Ex. P-11 was received. Ashok Pipre (PW-4) who was posted as Oy. Superintendent of Potice, Dhamtari has stated in his evkience that on 12.2.2003 hereceived thecopv >u; '..5 w: ;!t -6- of seizure Panchnama proceedlng Panchnama and the FIR from A.K. Dwivedi(PW-3). Rustam Gond (PW-1) hasadmitted in htecr<®sexamination that &n being calted by the potiee offieer Shri Dwwedt to the spot, he went there whereRajak was also present. He ate& admitted that Polics officer were not havingtheweighin&instfumeRtsand thfrcontraband was ^yeighed in a nearby General Stores Ashek Dwivedi ffW-3) h^ ctenied that witness Rustam Gond is a oocket witness. He has denied that theweiahment was done in some other place: He admitted that he dtel nat arrest accused/appeUants durihg thffcouree of proceedings. We has deni6>. Li« suggestion that he did'yiot seize- any articte or motorcycte from the accused/appellants. This wttness is a poltefr offieer and his statement is supported by Ru^am Gond (PUV-1). Defence has not been able to eliGit anything against these witnesses that tbey were having any enmity wjth them or that th& police office has not foltowed the procetiur)& prescribed under the Act- 14. After appreciating the evidence avaitabte on record leamed Special Judgeconvicted and sentenced th»accused/appellantsas mentioned at by the judgment impugned. 0 15. Closfr examination of the mateiia! available on record shows that a huge quantity of Ganfa- i-e. 17 fcilograms, was seized from the accused/appettants and they hav®not stated anyttwng in their statements recorded under sectton 313 of the Cocte of Criminal Procedure that they were not having the knowledge that the materiat carried bythem was Ganja ThRrr'ire. I do not find anv illeaatitv in the findinq of conviction recorded bv the fria) Court. 1@. As regards sentence, it is argued by the eounsei for the accused/appellants that each of the ai»a<lants hav®been awarded tha wa^K'f&SSSsw- ^g's^^s'iag?"1 i:iti!^ »•--. :*^> A 9 ^^. rigorous imprisonment for saven years wid pay fine of Rs. 25,000/- in defeult <rf payment of flne to further undiargo, rigorous imprisonment for six months out of whieh they have atready suffefed about 5 years of jait sentence. ThereTore, taking into consideTation the age ofthe appellants and the quantity of contraband allegedty seized from their possession, the jail •''' ' > sentence underaone bv them would meet the ends of iusttee- 17. Thus keeping in view the quanfity of conteaband and the ag®of tha accused/appeltants, instead of sentence of rigorousimptisonment for seven years awarded by the trial Co^rt, they are sentenced to undergo rigorous imprisonment for five years- They shall pay fine of Rs. 25,000-00 as directed bv the trial Court. In defaultof oavment offinethev shall underaoadditional rigorous imprisonmeitt for six montbs each. 18- ConsequenUy, the^appeals pattty succeed- Sd/- T.P.Sharma Judge >ur