^PPEUANT (In Jaii) HI6H COURT OF CHKATHS&ARH ^T BILASPUR Crimwd ^p»@6S No. 487 of 2009 Kuber Tiwari @ Vicky Tii^ari S/o Kaiiash Tiwari, aaed about 22 years, Occupation Driver, .R/o Shiv Chowk RQm^agar'para Dhamtarl, Po!ice Station Dhamtari, District Dhamtari C-S, RESPOND6NT Versus State of Chhatt'isgarh, Through Potice Chowki Borai, Police Station Sihawa, Distrsct DhamtQri (C.^) (APPEAL UNOER SECTEON 374(2) OF CO&E OF CRIMINAL PROCEDURE) (SinQJe Bench: Hon'ble Mr, T,P. Sharma. JJ Pre^ent: AAr. Rakesh Pandey, counsel for the appellant. Mr^Sanjeev K-AgrawaJ, Pqniei iawyer for the State/respondent, ORAL JUD@MENT (Passed on 12th Auqust, 2009) This appea! is directed against the Judgment of conyiction and order of sentence dated 8.6.2009 passed by the Specia! Judge (N &P.SO, bhamtQri, in Specia! Crirninai Case No.01/2008 whereby and whereunder.the appedant has been conyicted for the offence punishabte under Section 20 (b) ({0 (B) of the Narcotlc Drug and Psychotroplc Substance Act, t985 (hereinafter refereed to as %the Act, 1985') and sentenced him to undergo rigoroys Imprisonment for 5 years and to pay fine of Rs*50,000/-n, in defauit of payment of fine to further undergoSlmple ir^prjsonment for l year. 2. The Judgment of conviction and order of sentence is challenged on the ground that without there. being any corroboration from independent sources and Ignoring the fact that the prosecutio^ has not complied with the mandatory provjsjons of the Act which ss meant for proyjdlng the safeguard ,,^^^^. '/ •:%.; f^?.i '® "•^ ^.,. ^ vi^^'' '^^^' 1 to the accused, le^rned court betow has committ'ed an {llegoiity m convictlng and sentencing the appellant as aforementioned, 3. Case of the pro^acution, in brief, is "1+iat Assistant Sub Inspector KPradhan (PW-3) WQS posted as StQtion Incharge at Outpost-Borai, Poljce Station-Sihawa receiyed information from the informant 1+iat the oppeilant is in possesslon of contraband artlc!es. He preparcd panchnama (ExP/i) and copy c?f the same has been sent to the superior officer. He left for llie scene of occurrence abng with witnesses and abo prepared memorandlum for procuring search warrant due to paucit/ of the time yide ExP/2. After recorded Rojnamacha Sanha, he teft for the scene of occurrence abng with witnesses where he found the accused, He served notke Ex<P/ll to the dccused/appeHant under Section 50 of the Act making him aware of his valuabJe right to search before the Magistrate or the gazett-ed officer. The appetJQnt .conse.nted for se-arching- by the po!ice. officer^ vide Ex.P/12. He prepared panchnama yide Ex.P/14. He searched l^he appeKant where he was found @o.nja in one white bag. Same was weighed by Vjrandra Bais (PW-1) in the presenc^ of Sonadhar Sahu and Deepak Kumar1 vide ExP/3 csnd found 5 K9. <3anja. Two 50 grams samples were taken out from bag. Same were seized vjde Ex-P/13. Accused was arrested on the spot vide ExP/17, Unregistered F.I.R. of the ye<?r 2007 wos registered under Sectlon 20 (B) of the Act, 1985 vjde Ex.P/16 at outpost Borai, therefore the FXR was registered »n Crime No,212/2007 agajnst theappeltant at police stotion Shihawa yjde Ex.P/23. Property WQS handed over to malkhana incharge, police stQtlon Shihawa- Samples were sent for chewjc<?J a>ia!ysls vjde Ex^. P/4 and P/5. The property was found 6anja vide ExP/22. 4. Statements of the witnesses were recorded under Section 161 of the Code of Crimsnal Procedure, 1973 and after completion of jnyestigatjon, charge sheet was filed in the Courtof the Speciai Judge (N<D.P.SQ/Dhamtarl 5< In order to prove the guilt of the oppellant/accused, the prosecutson has exQmined as many as 9 witnesses. Statement of the accused/c^peUant was t~ ~"r~r=?''- T.; •";"'"'L^^-^ ^S:3^-<" ..*. '"•^. ^: L CF' recorded under Section 313 of the Code of CrimlnaJ Procedure, 1973, in which he denied the circumstances c^pearing agasn.st him and pleaded innocence and false implication m the case.. He has taken specific defence that 19<11<2006 the po!ice forcefully took him m Police Outpost Borai and calted witnesses Sonadhar Sahu ond Deepak Kumar and prepared forged pc^ers- 6. Learned Special Judge after dffording an opportunity of hearing to the parties, conyjcted and sentenced the appellant as aforementioned. 7< I have heard Mrt« ftakesh Pandey, counsel for the appellant and Mr. SQnjeev K,A9rtawal, Panel law^/er for the State and perused the Judgment ^mpuQ^ed arsd record of the tria! court. 8. Learned counsel for 1+ie oppel!ant submits that the case of ttie prosecution has not been supported by independent witness Sonadhar Chandan (PW-5). The prosecution has not e^amined independent wstness t)eep<xk Kumar. Keason best known to the prosecution. Learned counsel furltier submits that the statements of 1+ie police officers arc not sufficient to convlct the Qippe!lant . Leafned counsel also submsts that this is a ca% of possesslon of 5 kg. ganja, The present appellant is ir> custody since 18JL2007 and hcis completed about 2 years- Commercial quontity of ganja is 20 kg- and minJmum quantity of ganja is 1 kg. Taking into consideration the pos^ssion of 5 k9.9anja <wd no other crJminal antecedent of the ^pellant, ^ntence impo^^d upon the appellant js excessiye. 9< ' On the ol+ier hand, learned cc^unsel for the- State/respondent supported the Judgment impugned and submits that the statements of the police officers are sufficlent for drawlng inference against the pr'esent appellont. Police officers ore also natura! witnes^es and on!y on 1^e 9round that they are police officers and interested In the outcome of the case, their statements cannot be discarded unless interestness or departure frorp t^e procedure prescribed is proyed. ./ .^* 4 10. ln order to appreciate the contentbns'of the parties, I.have ex<inlined the evsdence adduced on beha!f of the prosecution. Assistant Sub Inspector KPradhan (PW-3) has categorically deposed that he has received informatsQn from the informant. He went to the spot, made search and ses^ed the artic'es from the appelbnt. F-I^. has been registered, accused was arrested and conducted the investtgatlon. He has proyed documents ExsP/l to P/18< Statement of KPrQdhan (PW-3) is supported by Constable Vjrendra Bdis (PW-1), RadheshyGm Dhmv (PW-2), Chandrapat Dohare (PW-4) and Sonadhar Chandan (PW-5). Sonadhar Chandan (PW-S) has also supported the case of the prosecution. He has admitted his sjgnoture in different documents, He has also admi+ted that he was present at the time of inyestigation and rasd. Acciised was in possession of one bag but he has again made departure from his statement. He has admstted the presenc^ of the accused and preparation of the docyrnents. V/irtually he has tried to shrink from his examinQtJon-in- chief and execution of the docurnents. 11- ^Fhe police offjcfoJs ar^ atso natura! witnesses and their statements cannot be discarded only on the ground that they are interested in the outcome of the ca^- While dealing wsth the question i.e. eyldentiary va!ue of the statements of PoHce Offic€?rs, the Apex Court has held in the case of Ani! aSias ^nslya Sadsshsv NGndGskar v. Stat©©fMshQrfishtra1, that testimony of polic^ officials are not liable to be discarded merely because they are police officia!s, However, their evidence should be carefuHy scrutinlzed and independently Gppreciated- The Apex Court further held that witnesses being police offscers do not by itself create a doubt about their credltworthiness if non-examination of Panch witnesses is expbined satisfQctorHy. Para 5 of the ^xid judgment reads as under:- 'Tndeed al! the 5 prosecution witness who have been examined in support of search and seizure were members of the raiding party< They are aSi poiiee officiais. The is, however, no rule of bw that the evidence of polic^ officials has to be discarded or that it suffers from some jnherent infirmit/. Prudence, howeyer, requires that 1 (1996) 2 SCC 589 /'€"^\ fefe. 1"^•^ 'l-4wa<9"" the evidence of the poiice officials, who are interested in the outcome of the result of the case, needs to be carefully scrutjnised and independently Gppreciated, The police officials do not suffer from any disabiiity to give evidence and the inere fact that they are police officiaS^ does not by itsetf giye rise to any doubt about thejr creditworthiness, We have carefuily and crittcally analysed the evidence of al! the 5 poiice officiais. There is nothing on the record to show that any one of them was hostiie to be cppellant and despite iengthy cross- examination their evidence has remained unshaken l^roughout. These witnesses have deposed in clear terms the detaiis of 1+ie trap that was laid to apprehend the appellant and the moinner in which he was apprehended, Thelr evidence reaarciino search and seizure of. the weopons from the oppeliant is straiohtforward, consistent and specific. It inspires confidence and leorned counsel for the appellant has not been abie to point out any serious, iet abne fatai, infir'mity in their evidence. In our opsnion, the factum of search and seizure of the country-.made reyolyer from the conscious possession of the oppellant has been established by the prosecution beyond any reasonabie doubt. Jhe expjanation gh/en by the prosecutlon, for the non- examination of 1+ie two panch witnesses, which is supported by the report Ext. 24 fiSed by PW 4 PI SoJI<wad is satisfactory. The evidepce on l4ie record shows that the raidsng party made sincere efforts to jorn with them two irsdependent panchas at the time of ^arch and seizure and they were so joined. They were also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be iocated or traced and therefore they couid not be examinea at the; trial^ In the face of the facts stated in report Ext. 24/ the correctness of which has remalned virtuoily unchallenged during the cross-examination of PVv 4, the non-examination of the two panchas cannot be said to be on account of any oblique reason, Their non- production at the trail thus has not created any dent in the pro^ecution aise. The prosecution cannot be accused of wlthholding "rtiese witnesses since it made eyery effort to trace and produce them at the trial but failed on account of the fact that they had Seft the addresses furnished by them at the time of search and their whereabouts could not be traced despite diiigent efforts rnade In that behaif, VVe, therefore, do not find any /^- reason to doubt the correctness of the prosecution versjon reiatin9 to the opprehension of the cppeilant, the search and seizure by the raiding party and l+se recovery from the appeJlant of the country-made reyolyer and cartridges for which he could produce no iicence or aulfiority because of tlie non-examination of the panch witnesses. W@ fmd that the evidence of PW 1 to PW 5 is reiiabie, cogent and trustworthy^ 12. Furthsr, in ths matS-s" of P.P. Bssrsn v. Stcts of KsraSs it hcs besn he!d by the Apex Court that reliance c<xn be placed on the uncorroborated evldence of the Sub Inspector of Po!ice. 13- Statement of KPradhan (PW-3) inspires confidence and trustworthy and Is suffici^nt for drawing inference that the appelhnt was In possession of 5 Rg. contraband artscle which WQS found 6'anja in the chemical Qnalysis report yide Ex.P/2^. Convjction of the appeifont is sustalnable under the faw. 14. As regards the quest»on of ^ntence is concerned, admittedly, the appellant was found m posse^sjon of 5 kg. ganja Commerclal qyantity of gonja is 20 kg< and minimum quantsty of ganja is 1 kg. Toking into conslderation 1+ie quanti^ of 90jija and m the absence of previous crimina! antecedent of the oppe!!ant, the senten'ce requlres reconsldera.t$on< 15. Consequenth/, the appeal is partiy allowed/Conviction of ^ie appeHant js maintdned and sentenc^ of rsgorous stnp'r'isonrpent for 5 years and fine of Rs.50,000/- Is modlfied and instead thereof the appellant is ^ntenced to undergo rigorous imprisonment for 2 years ond pay fine of fts.25,000/-, in defau!t of poyment of fine to further undergo ssmple Imprisonment for one year. Sd/- T.P. Sharma Judge B/- 2 AIR 2001 SC 2420