APPELL4NT (Injaii) HI@H COURT OF CHHATTIS@ARH AT BIL4.SPUR Criminai AGWQJ No. 594 of 2005 Bhagat Ram S/o Gamuram Aged about 21-22 Years, Occupation Worker of circus R/o Korenga, Navrangpur (Orjssa) temporary R/o' Bejangbara P.0, Kaiimela (Oris^) RESPON&ENT Versus Th©State. of Chhattisgarh Through P,S Bhodhgath, Jagdalpur District Bastar (C.6.) (APPEAL UNDER -SECTEON 374(2) OF CODE OF CP.IMIN.AL PROCE&URE) (SinQl®Bench: Hon'ble Mr. T.P. Shorma. J.) Present^ ^s ^eenu Benerjee, coun^J for the appelbnt. Shri N, Naha ftoy, Panei lawyer for the State< ORAL JUb^ENT (Passed on 8th September, 2008) Thjs appeaf is djrected against the judgment of conviction and order of senten.ee dated 23.6.2005 passed by the Speclat Judge, Bastar at JagdaJpur, in Sessions Trtal No. 44/04 whereby the appeJlant has been'convlcted for'the offence punlshabSe under Se.ctlon 20 (B) (il) (B) of the Narcotic Grug ctnd Psychotropic Substonce Act, 1985 (hereinaftar refereed to as "the Act') and .sentenced'hjm to undergo RJ, for 5 years and to pay fine' of Rs. 10,000/-, in default of pcsyment of fine to further undergo RJ. for 2 years. 2. The judgment js chaltenged on the Qround that wthout there belng any evidence refating to possession of eliclt Sanja and ignoring the fact that the prosecutson has not complied with the mdndatory proyislons of the Act whlch is m.e-ant for providlng the safeguard to tiie accused, learned.trlal court has committed an iljeg.alsty m convlcting and sentencing the cypetlant as aforementioned, 1- ^& ^- .i--. ^ ^ 3, Case of the prosecution, in brief, is that on 1.9.2004 at about 8<30 p.m. Sub-Inspector Rajendra Singh Parihar (PW-4) was on patroiling duty he received an information through wire.les.s that one constable whose dyty was at new bus stand/Jagdatpur has cought raid handed one person. wsth Sanja. He immediately proceeded for the spot along wsth 1+ie staff where he found l+se appellant w:lth one hand bag o.f Patsan and one black cobur alr bag. Panch witnesses gave notice ExP/3~to the accysed/appettent under Se-ctlon 50 of -ri^e Act making him aware of h Is valuable right to • search before the ^agistrate or the gazetted. officer, .Accused consented :for SBarc-h by PW-4 Rajendra Parihar^ Accused made a search of the po'ice offlcers vide ExP/4, no contraband articSe was found in possesslon of the police officers, 'The ac.cuse.d/appellant a!so • se.arched witnesses bsggrc^a! Sharma and Raju Thakur* vicJe Ex-P/5, but no contraband article was found in'rtieir possession, PV^-4 Rajendra Sirsgh Porihar ^arched the appe.llant he .was found in possesslon of one hand bag of Patsan and one biack colour air bag vicle Ex.P/6 hav»n9article like Sanja. Article wos examined by 1+ie witnesses by test, burn and rub vide Ex?/7 and 1+5ey found thot 1ti@ same was ©anja.Artjctes of both the bagswere made homogenous se-parately vlde Ex.P/8, Same.was weighed by Kamaldutta yjde Ex.P/9, 4,800'.Xg. ^anja was. foyncl in patsan bag and 6.600 |<9. ^nja was found In bteck coJour air. bag. The welghment was certified by Kamaldutta vide ExP/10, 25 grams samptes wer^ taken from each bag. The sald contraband articjes were selzed vicSe seizure memo Exs, P/ll and P/12. Sample panchnama was recorded vlde ExP/13, Sea! impresslon was taken vide Ex.P/14, The appelto.nt was arrested vide Exs. P/1.5 and P/16, PWan4 Rajendra Pariharcame to the Police Statjon abng;wth o1+$er potjce officersand locjged First Information Repor't Ex- P/17. Seized property were. hande.d over to 1+ie head constable V,P. Joshi to be kept safely In Malkhana ylde recelpt ExP/18 and same was registered in ^Malkhana register vlde Ex-P/2. Spot mcsp was prepared yjde-•Ex.P/19. &adio rn^ssage relegating. to arrest of the appelbnt was sent to the Superjntendent of Police, Navrangpur (Orissa) vide Ex.P/20. Notice reteting to aythorit^ for the possession of ©anja-wasissued to 1+ie i- '"€:;. ^'•'®'»^^ •:?t7 ••• " l'"1 •;;^ •.'/''^,- ,-.^1 '") ^ <. J7 -^ appeltentyide Ex.P/21. Rojnamcha Sanha wa^ recorded vide Exs, P/22 and P/23. Detd! report was sent to 1+ie superior officer yjde Ex.P/24.. Seized artic.Ie was sent to Forensic Science'Laboratory, Raipur vide Exs. P/25 and P/26. After recording Rojnamcha Sanha ExP/27/^imples were examined by Forensic Sdence Laboratory, Ralpur vide Ex.P/1 Qnd on chemica! examination, substanc^ was found to be known as ^anja. 4, After recording the statement yrsder Section 161 of the Cod@ of Crwinal Procedure, 1973 and after completion of investjgation, charge sheet was filed in the Court of the Special Judge, Jagddpur. 5. In order to prove the guslt of the appellant/accused, the prosecution has examjned as many as 4 witnesses. Stateme.nt of 1+ie accused/^pellantwas recorded under Section 313 of the Code of Crimina! Procedure, 1973, m which he denied -H^e clrcumstances appearing.against h$m and pleaded innocence and fa!se implication in the case. He has also taken defence that he was pre^ent in wasting hall of new bus stand, Jagdalpur and was walting for bus for Korenga. He was forcibly caught hold by the police and police has taken signatures sn so many papers and falsely impiicated sn the crime in question. 6. I have heard Ms Meenu Benerjee, counse! for the c^pellant and Mr. N. Noha Koy, Panel bwyer for the State and perused 1+ie judgment Smpugned and record of the trlal court. 7. Learned counsel for tiie appell.an.t submits 1tiat the prosecution has not .proyed "rtie exciu^ive possession of the appeliant oyer the alleged Sanjo.. Cci.se of the prosecution has not been supported by any independent panch witnesses,, Property was not ^ized or sealed at the p!ace of incident, but the same was not kept irs Malkhana, Property was not seated by specific seal Tlie prosecution has not adduced any eyidersce to the- effect that who had taken 1+ie somples from Malkhana for chemscal examination. /?'-^ 8.. Le.arned counse! for the <ypeltant pjaced relsance sn the- cases of Sopal v. Stat®of M.P. . loxmjdhar Pradhan v. Stat®of Orissa, Kyleshwar Dhruw v. Stat©®fChhstM^arh , Nathiys & Gnother v.Ths Stats ond SCariduri Sohs®v. Stats ©fOrissa8 in whsch th©Apsx Court ond olher High Courts has he!d 1+(at the prosecution is required'to establssh that the contraband orticie was In conscious possession of the ap'pet!ant and the prosecution has complied with the imandatory provisions of l^e N,.D?,S~ Act which Is meant for safeguard to the accused especia!ty under Section 42 of the Act. 9. . In order to establish the guslt of.the appeljant, tl^e prosecution is required to establish the folbs^ing essentia! ingredients of the offence, (0 That the appeltont was found in possession of 1+se contraband article at 1+ietime of incident. (is) . The. prosecution has complied ^ wl-rii the mandatory proyssjons of the Act. (iil) Prejudice has been caused to the appellant as a resu!t of non-.compliance. of the mandatory provisions of the Act. 10. The prosecution has adduced-oroJ and expert evsdence. PW-4 Rajendra Parlhar, Sub Inspector has stated in his evldence that on 1.9.2004 at about 2030 p.m. he receiyed jnformatiors that one constable posted ot new bus stand, Jagdalpur has caught hold one person with Sanja, At that tsme, he was on patroJling duty. He teft for the place of inciderst along with other poisce staff< When he reached to bus stand he saw the accused with ^o bags. On being ^^ked, he told his name as Bhagatram S/o Late Damuram, R/o ViJjage Korenga, PoSlce Station-Korenga, District Navran9pur. Belng asked he sald that he Is m posse.ssion of €kmjaPanch wllnesses 9ave notice Ex,P/3 to the accused/appe!lant under Sectson 50 of 1+ie Act making him aware of his 1(2002)95<;C595 22000(4)Crimes273 3 2006 (2) Acquittai 152 4 1992 (1) 537 sl997(l)Crimes331 .7; yaluable right to search before the Moglstrate or fhe gazett-ed offjcer. Accused -consented for search by P¥/~4 ftajendra Parihar, Accused made a se^rch of the poJice offscers'vide Ex»P/4,no contraband artic'e was found in possession of the police officers. The accuse-d/appellant abo searched witnesses Djggrapal SKarma ond Raju Thakur vide Ex?/5, but no contraband articte wos found in'their possession. When PW-4 Rajendra Singh Parihar searched the appellant he was found $n possession of one hand bag of Patsan and one bbck cobur air bag having substance like Sanja which was recovered vide Ex.P/6. Article was exomined by the wltnesses by test/burn and rub vjde Ex,P/7 and they found that the same appe-ars to be. 6anja, Artjcles of both the bags we-re made homogenous separately vide Ex?/8. Same was weighed by wstness KarnaSdutta vlde ExP/9< 4.800 KQ. ^anja was found in patson bag and 6.600 Kg. ^anja was found in black cobur alr bag, The wejghme.nt was cect'fied by Kamaldutta ytde ExP/10. 25 grams samples were taRen from each bag. The said contrabond articles were seized y.idSe. seizure memo Exs, P/ll- and P/12. Sample panchnama was recorded yide ExP/13. Sea! wpressjon was prepared vsde Ex.P/t4. The appelbnt was arrested vide Ex. p/16< PW-4 Rajendra Parihar1 came to the Police Statlon abng with other po!ice officers and lodged Firstlnformation Report Ex;P/17, 11. Seized property wera hande-d over to the head constable V-P. Joshl to be. kept safely in Malkhana. vjde recejpt Ex-P/18 and same was registered in Malkhana register y$de Ey.P/2. Spot map was prepared vsde ExP/19. ftadio massage relegating to arrest of the appellant was sent to the Superintendent of Po!ice, Nayrangpur (Orissa) vide ExP/20. Notice retating to aulfiority for the possession of Sonja was issued to the appellant vsde ExP/21. Rojnamcha .Sanha was recorded vide Exs. P/22. and P/23. &etail repor+ was sent t©the superior office.r yide ExP/24. Specia! re-port reb.t^ to the incident was sent to If^e Superintende-nt of Polic^, Jagddpur vide ExP/25, Sampleswere sent +o Forensic Scienc® Laboratory, Raipur yidie Ex. P/26. After recording Rojnamcha Sanha ExP/27, samples were ex.amined by Forensjc Sdence \ ^<^ ^ Laboratory, Raipur vjde Ex.P/1 and on chemica! examlnation/substance was found to be known as Sanja. 12. PW-1 VP. JoshJ, head constabte, has stated m his evidence that he has rece-iyed 1^e articles and, recorded in Mdkhana register yide Ex, P/2 on 1,9.2004 and on 3,9.2004. He sent the samples •riirough constab!e Nawa! Kodopj to the Forensic Science Laboratory, ftajpur. PW-2 Panch wjtness Raju Thakur has state-d in h Is evidence that he wa^ present at new bus stand, at that time poljce came.there. and caught hotd. the appetlant. PoHce.was told hlm that 8 kg. ^anja was seteed from the possesslors of the accused/appeJiant. P\4/-3 Dsggaopal Sharma has a!so stated m his eyidence that he heard that one man coming down from the bus who was having ^inja and pojjce was caught the accused. When he reached near police he saw 1+ie police havin9 two bags. Sc?nja was'found inside the bags and it was weight and same z^as found ne-ar about 10 k.9- He hojs sjgned on Exs. P/3 to P/16. Bolfi the witnesses h.ave not supported the case of the prosecution and later on prosecution has dedared them hostite. PW-2 Raju Thakur has admifted that when pollce has asked the name of the accused, he to!d his name a^ Bhagatram, Police has searched his bags and 4.800 kg- and 6.600 kg. ^anja was found inside l+ie two bags. He ha$ supported the details of the prosecutlon. PW-3 Diggrapal Sharma has ateo supported 1^e case and also admitted in para-5 of his cross-examinatiors 1+iat pollce toid h Im that both the bags were recovered from the possesslon of 1+i.e accused/oppclJant and he has admitS-ed that he has signed on Q,il the papers before the police station-Bodhghat, PW-2 Raju Thakur has also admitted in his cross-examinatjon that articles were made homogenous. Seiie-d artic!e was weighed jn one vegetabfe shop, Police has not taken signature of the appelbnt o.n any paper before him, but he denied that nothing has happened before him, DeflniteJy, these two wltnesses have not supported the case of the prosecutbn, but they have subsequently supported the case thot they heard that the accused Is hwing Banja and some was found jn't^o bags.'Presence of the accused/appeltanf at-the tlme- of incjdent has supported by the.se two witnesses. Accused himself hos also admitt'ed his presence at the time of as -^-s Incldent. PW-4 Rojendra Parihar has conducted the Inyestigation and has c<xtegorica!ly stated that after receiyjng information he came to the spot and found the accused with two hags and when he informed his valuable right/ made. a search to the appellant. He recoyered 1+ie articte whjch was weight by Ka^alduK'o. Samptes were taken and articles were .seized- PW-1 V,P. Joshl, head constable has stated in his evjdence .that 4.800 kg, and. 6.600 kg. 0Qnja WQS found In possession of the appelbnt and same was ke-pt m Maikhana, but nothing has been asked by the defence that ofter taking sampfe.s of 25 grams from each bag as to how the weight of the <&anja was 4.800 kg, and 6.600 kg. Defence has cross-examined by PW-4 Rajendra Parihar, but he has denjed the- suggestion that he has prepared the document in police station arsd he has not made the property homogeneous and denied the suggestion that he has giyen a notice to the appellant. 13. This is a case of seizure of contraband artlcle. This case Is not retetjng to search of a person, therefore, section 50 of the Act has no. applicatlon, In this case, accordlng to FIR and evidence of PW-4 Rajendra Parlhar he was informed that one constable who was posted at new bus stand, Jagdalpyr has caught hold'the appellant with contraband article and -Aereafter, he reached to the spot. This is not a case in which he received information that 1+se appellant is having contraband article and he is come from the place, but actually he was caught hoid by the constabte Lokesh Nag and was informed by the constable through wireless to PW-4 Rajendro Parihar, therefore, Itiere was no occasion or proprjet^/ to record informatjorr as required under .Section 42 of 1+»eAct. 14. Incident took place on l.9-2004 and detaiJs of report Ex.P/24 was se.nt to the superior officer on 2-9.2004 within 48 hours of the incldent as requjred under Section 57 of^the Act. As regards the compliance of Section 55 of the Act is concerned, PW-4 Rajendra Parihar has taken .the seized articJe and produced before Malkhana Pollce Station and same was taken in Malkhayia vsde ExsP/2 and P/18 which was-supported by PW-1 V.P. Joshl PVI/-4 Rajendra Parihar has stated that ^xmptes were sent to ForensJc h \ s^ Science taboratory, Rdpur yide Ex.P/26 and entry was made in Roznarncho Sanha yide Ex.P/27 whlch show that samples were sent on 3.9.2004 through constable Nawa! Kodopi to the FSL, Raipur which also reflects from the entry of Malkhana register vjde ExP/2 and evjdence of PW-1 V/P, Joshi, Propert/ sent for chemical examsnation to Forensic Science Laboratory, Roipur was found fxxnja vide ExP/1, Tt shows that iaboratory ha^ received the intact samples which was tocked with sea! impression on 4,9.2004. 15. In thls case, the police officer PW.-4 ftajendra Parshar has seized the artlcle from 1+le posse-ssion of the appellant and conduGted the inyestigation, but he conducted l4ie investigation on tiie same day up to lod9in3 of FIR after coming fr'om the spot. Hss statement is briefly supported by PW-2 Raju Thakur1 and PW-3 Diggrapal Verma especially on the point thot the appelbnt was pre-sent and he was told that the appellant was haying • ^anja, PW-4 Rajendra Parihar is police officer^ Statcment of the police officers cannot be discarded only on the ground that they are snterested in outcome of 1+ie case, untess interestedness or departure from the procedure ss specificaily shown. In the present case, the defence has failed to elicit any ground that tiiese police officers are. Interested or having intmical terms wi1^ the accused/appeltant or not acted in accordance with the procedure pr^scrlbed under the law. He came to Rnow by another po!ice that the appellant was found m possession of Sanja, thereafter, he reached to the spot and conducted. inyestigation. Statement of PW-4 Rajendra Parihar Insplre confidence and trustworthy sufflcient for conviction. 16. After apprecsating the eyidence c?.vaj{ab!e on record the learned tria! court has convicted the. appelJant for commission of offence punisho,b!e. under Section 20 (B) (ii) (B) of 1+ie Act. I do not find any illegality or mfirmsty in the Judgment mpugned. 17. As. regards the question of sentence Is concerned, the appeltant was found in possession of 11.400 kg. 6wtja without any e-xpionatio". He is not resident of Jagdalpur- He has not offered o.ny explanation as to why he was '±^ visjfed ot .JagdoJpur especioliy when he is residing at Korenga, District Navran9Pur (Orissa). Sentence RJ.for 5 years and pay fineof Rs. 10,000/- imposed upon 1+se appelbnt is neither excessiye nor unjust,, Looking t©1+ie. aforesaid facts, the appellant deserves no sympathy^ 18. Consequentty, the appea! bejng devoid of merit is liabie'to be. dismissed and it is hereby disin.issed. \w- Sd/- T.P. Sharma Judge ./^' k l^