IN THE HIGH COURT OF CHHATTISGARH ATBILASPUR (C.G.) ^ CRIMINAL APPEAL N0. ^4 /2004 APPELLANT ^ <3' ..."•' /"\'nVl^f .-••'" (''«i*"-,^.''p*^''.^^te by^ v::',.:. ..--' •••"""" . .. o.^o\ x ^ •"• •(^y VERSUS RESPONDENT Swami, aged about "^"" 26 years, son of Shri Jagatlal, '^'.. „ • occupation - Band Master, -^-'-- ^-""' Resident of Bhramhapara, Police Station - Ambikapur, Distt. Surguja (Chhattisgarh) /Thle State of Chhattisgarh Through : Police Station - Ramanujganj, Distt. Surguja (CG) CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE READ WITH SECTION 36(B) OF THE N.D.P.S. ACT @w%gi»gji%w|jir %^ ^^.^f^s^ b*nr ^ HIGH COUfn- OF CHHATTISGARH : BILASPUR Slnale Bench: Hon'ble Shri Manlndra Mohan Shrivastava. J. Apoellant (In Jail) Respondent Criminal Appeal hto.514^004 Gajanand Swami TheStateofCWNttisgarh read with Section 38(B> of the N.D.P.S. Act) Rresenfc Snrt. Hamida Sjddk|ui, counsel for the appeBant. Shri Safeh Gupta, Gowt Advocate ft>r the Sfarte/respondent ORDERfOrall (Passed on 18thOctDber. 2010) "niis appeal is directed against the juc^roent of conviction and order of sentence dated 1&^)3-2004 passed by the Special Juc^e. N.D.P.S. Act, Ambikapur in Speciat Criminal Case No.41/2002 whereby the appeMant has been hefcl guilfy for commfesjon of oflence ynder Swtkm 21 ofthe Nare<^jc Drugs and Psychotropfc Substances Act. 1985 ftiereinafter referred to as "the Act") and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs.1 Lakh, Jn default of payment of fine, liirther rigorous imprisonment for two years. (2) TTie case of the prosecution is that on 19-11-2002, information was received from the informant that the appellant is engaged in selUng contraband. Upon recejpt of in<wmation, Vhe same was recorded in writing and paro^inama was prepared. Information was sent to the S.D.O. (PoBce), and thereafter, <he InvestigaMng QfBcef preiceeded to the scene of occurrence. It is ttie case of the prosecutk)n tliat in prosence ofwfto^ses,a notfce under Sectton 80 of the Act was gwen to the appeUant. hte consent was obtained, and thereafter, he was searehed whereupon fteffiffm wgs^^eized from his possession. The same was weighed m th<8 pr^eiM^Mthe^^^^^N^^ weighment, 10.5 Granw of Hefwne was found. The Inve^igattig Officer thereafter seized the quantity of contraband and the appellant was arrested. After comptetion of investlgation, charge sheet was filed alteging commjssion of ofFence under Section 21 of the Act. (3) Learned counsel fior the appeHant assails the correctness and valktity of judgmentoyconvictiQn and order pfsentence on two-fold submfesfons. The firsl submissfon of toamed counsel for the appeBant is that as the two independent wftnesses nam^y MQhd, Aldwr Ansari. P.W.2 and Suresh Kashyap, P.W.4 have tumed hostite and not supported the case of the prosecutfon, the very seBeure of Hwoine from the possessfon pf the appeNant is not prowed by the prosecution and the appellant is entitted to benefit of doubt. The other submission of teamed counselfor the appeUant is that the punishment is excessive as the Court betow has imposed extreme punishment provkled under the taw without there betng any cjrcutnstance oftho (E^^e wafranting punishment of 10 yeara of R.I. and fine ofRs.1 Lakh. (4) Though, Mobd, AMwrAnsari, P.W.2 and Suresh Kashyap, P.W.4 have not sypported the cas^ ^ th& pfoseicution. neverthet^, they have admftted their signatures on varioys documents saicl tp b®prepared bythe Inviestigating Officer white efiectjng search and seizure. From the testimony of Investigating Offieer, Suresh Kumar Sen, P.W.11, jt is prowd that upon receipt of jnfwmatfon. the same was recorded and panchnama Ex.P-2 was prepared. An information vide Ex.P-14 was sent to the S.D.O. (Pplfce) in compHance of mandatory requirement ofSection 42(2) ofthe Act. Upon reaching the spot, a nottee hi Ex.P-3 wasgwen to the appedant as required under Section 50 of the Act and v^ien the af^eltent gave his consent, he wa$ bod8y searched and three smaN pactcets Gontaming contraband were recovered whereafter they were weighed in presence of witnesses and then were seized vftle Ex.P-6. The seized contraband was w^sa^^^^.i.as,^ L., thereafter taken to the pdfce station atong vwth the appeltant and other documents relatng to search, seizure ete and F.I.R. was todged. The Investigating Officer has also deposed that the seized quantity was handed over to the safe custody in the Malkhana by deposithig the same wfth Moharrir of the Polfce Statfon. The Investigating Qfficer has ftirther cteposed that the quantity of contraband seized from the poss®ssK>nof ttie •ppeMant and thereatter, was sent to the Forenste Scfenc®Laboratory. From tfie report of the Forensfc Science Laboratory. tt was foynd to contam hemme. Even in the cross-examffiation, the Investigating Officer has stated that he had compTied wtth the mandatory requirement QfSection 42 oftheAct and seizure was made from the appellarrt. Testimpny of Investigating Officer. Syresh Kumar Sen, P.W.11 is supported from the evklence of Nandfal Soni, P.W.1, Surajan Rajwade, P.W.5. Ramnath Ram. P.W.6, KunwarSinoh, P.W.7. Sandeep Shukta. P.W.9 and J.P.N. Singh, P.W.10. (5) In the<»seofP.P.Fathinna vs. StateofKerala. (2003) 8 SCC 726, the Suprem^ Coyrt examinecl the entire casepftbe prosecution and having come to the conclusion that seizure was genumely made bythe seizing auttiorly, hetel that convictton can be founded on the baste of such seizure. It was held as under: "7. The tearned counsel then contended that in vfew of the fact that the panch wjtness to the seizure has not supported the prosecution case, tbe sejzure cannot be accepted. We have repeate^ly hc^ th^.tha m^re f^^^^t^ panch witness does not support the proseenition case by ttseff would not make the pro^ecution case any tess acceptabte, if otherwise the court is satisfied from the materiat on record and from th® ewdence of the seizwKii authortty that such seizure ws® genuinely (nad?. In the instant easealso we are satisfied that from the evklence of FWs 1 and 2 the seteure has been proved by the prosecytwn, "nierefore, thfe argument ateo fajls." illSftliSj^llil'^SIW^ >:^^^^;^;^'.s;^;':^;.;'.^^ •?@®i.^.:'.^.a^l:';!^.l-^.:<;-^' ^^.i:%;^'-;.^^-^,::l ^;'1%@W88N yssssss ..-^ Tymane ^^^^^^^^ ^ nothing hi tietestimon^lhe lnv®stjgating^^^^(^^ to doubt his verelon v^ segaid to seatich and seizure parttcutariy^^w all material s^poctwBft reg^ird to compfenice of inanclatcN^ quir®mentretalif^ to sen^ng WtemwSim, s^^^^ saSe cw^ody, the te^imony of Invest^iding Oflfcer is supportBd by ottiet^ prosecyW^^ w^ |nv@stJgaUn8<3flicw1hw8fi^ amunal^toaw^^tlistcQnte^ conviclhm coutel nol beassaited^^^^o^^^^ sulwrission <rf teamed counsel for the appeNant has foroe. The appeUant was found irip<)^^on Na^fl*^^^^^ nearer to 1he up|^ Ijrnit^^ sm^j^^ The saKt ciianUty is far toss than the commereial quan^ T^ toamect Court bek^ stated any other cireumstances warranting extreme puni^ <rf 10 years of R.I. and fine of Rs.1 Lakh.Therefoi^,l8rfdno^irita>c%n^^ inthft^n^^th^<>>iwfc,|»i^^^ unclergone. The appeBsmtte mJaU!?ince 19-11-2002 andhasoomplrtBdatmost 8 yeai^ofimprisKiRtnenfc^^^^tt th®sentence cf ifnpnsonment awanted to jfte ai^eNant to the pwod dreacly undergone. SytyectAo dep<^tun jlh®fif»amount, ttw appeMant shatt b6 roteased Iwttiwtth, V not required in any ottier case. (7) Inth^resuU.theappe^jspart^altow^Mthewdertjndjcatedabwe. Sd/- Manindra Mohan Shrivastava Judge