.!?~ " -i- Sln£*l%y€":"~' ^t"-- " 'n^. - IN THE HIGH COURT OF JUDICATURE AT BII-ASPUR CHHATTISGARH Cr.A. No. APPELLANT Accused in iail ^%" ^"^T^^ \sl-, ^•^^ ,s®w^ ^w ^a RESPONDENT A"-^'-" .^Tfr'2— / 2008 • S--G P^ur^o^ucM^- : Raju Saw S/o. Shri .^aw^ Saw, aged about 32 years, R/o. Vill. New Diliya, Post & P.S. -Dihri, Distt.- Rohtash, Bihar. VERSUS State of Chhattisgarh through P.S. - Ambikapur, Distt. Surguja (C.G.) CRIMINAL APPEAL UNDER SECTION 374 OF CRIMINAL PROCEDURE -\y ty CONVICTION U/S-@2lf(B) (^" ^ of Narcotics Drugs and Psychotopic Substances Act. 1985 SENTENCE R:l. for 3vyear with fine of Rs. 20,000/- in default of payment of fine further R.l. for 6 'moths. ^ ';;'<IIi;s'>. '-,.^^ ;,'\b ^5 f^^ yiGH COURT OFCHHATTISGARH. BILASPUR Criminal Appeal No.582 of 2008 APPELLANT: Raju Saw Versus RESPONDENT: State of Chhattisgarh ISI! Post for Dronouncement of iudament on28 Julv, 2009 Sd/- T.P. Sharma Judge !:Sllteiit», HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT/: (Accused in jail) RESPONDENT: Criminal Appeal No.582 of 2008 Raju Saw, S/o Shri Pursawan Saw, aged about 32 years, R/o Vill. New Diliya, Post & P.S. Dihri, Distt. Rohtash, Bihar. Versus . Stateof Chhattisgarh, through P.S. Ambikapur, Distt. Surguja (CG) {Criminal appeal under Section 374 of the Code of Criminal Procedure, 1973} Presen?? Mr. Vivek Kumar Pandey, counsel for the appellant. Mr, Sushil Dubey, Govt. Advocate for the State/respondent. Sinale Bench; Hon'ble Mr. T.P. Sharma, 3 JUDGMENT (Delivered on 28th July, 2009) 1. This criminal appeal is directed against the judgment of conviction & order of sentence dated 28-3-2008 passed by the Special Judge under the Narcotic Drugs and PsychotropicSubstances Act, 1985 (for shor-t 'the Act'), Ambikapur in Special Criminai CaseNo.16/2007, whereby & whereunder learned Special Judge after holding the accused/appellant guilty for possession of illicit contraband article brownsugar, convicted himunder Section 21 (b) of the Act and sentenced to undergo R.I. for three years & pay fine of R.s.20,OQO/-, in default of payment offine to further undergo R.I. for six months, 2. Judgment is challenged on the ground that without any credible & clinching evidence and without compliance of the mandatory provisions of the Act meant to safeguard the accused from frivolous accusation, the Court be!ow has convicted & sentenced the appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that the present accused/ appellant is not resident ofAmbikapur and he is resident of District Rohtas, State of Bihar. The accused was in front of Ghadi Chowk, -Ambikapur. Investigating Officer Nasar Siddiqui (PW-7) received information on 19-2-2007 at about 5.10 p.m. that the present appellant is in possession of brown sugar and he was searching for customers. He recorded Roznamcha Bx.P-18 and after calling Panch liiirt11 w witnesses, recorded the informationin Ex.P-1. Copy was sent to the superior officer. The Investigating Officer along with raid party, left for the spot after mentioning the fact in Roznamcha Ex.P-21 that due to paucity of time procurement of search warrant could not be possible. The appellant was present near Ghadi Chowk, he was informed about the information and also about his right of search before the Magistrate or Gazetted Officer vide Ex.P-2. The accused consented forsearch by the Investigating Offieer. Firstly the accused made search of raid party and witnesses vide Exs.P-3 & P-4, thereafter, the Investigating Officer made search of the accused, one pouch containing brown sugar was found in the pocket of the accused vide Ex.P-5, same was identified by the witnesses vide Ex.P- 6 as brown sugar. Notice was issued to Suresh Soni (PW-3) vide Ex.P-7, weighing apparatus was called & verified vide Ex.P-8 and the article was made homogenous vide Ex.P-9. The article was weighed by Suresh Soni (PW-3) and found that the article was 55.100 gms. vide Ex.P-10, same was seized vide Ex.P-11 and sealed. Seal Panchnama was also prepared vide Ex.P-12. The accused was arrested vide Ex.P-13. The Investigating Officer came back to the Police Station along with the accused & article. F.I.R. was lodged vide Ex.P-29. Special reportwas sent to the superiorofficervide Ex.P-28. Written Roznamcha was recorded vide Ex.P-22. The property was produced in the Police Station and same was kept in Malkhana, Roznamcha ofthe same was recorded vide Ex.P-23. After recording Roznamcha Ex.P-24, seized article was sent for analysis vide Ex.P-25. Intimation of the F.I.R, was sent to the Magistrate vide Ex.P-30. Seized article was examined and found consisting of diacetylmorphine (brown sugar) by the State F.S.L., Raipur, vide Ex.P-31. Statements of the witnesses were recorded and after completion of investigation, charge sheet was filed before the Special Judge, Ambikapur. 4.1n order to prove the guilt of the accused, the prosecution has examined as many as seven witnesses. Statement of the accused was'recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & '"false implication. •^s^ 5. After affording opportunity of hearing to the parties,learned Special Judge has convicted & sentenced the appellant in the aforesaid manner. 6.1 have heard learned counsel for the parties and perused the impugned judgment as also the record of the trial Court. 7. Learned counsel for the appellant argued that independent witnesses inctOtling the witness who has weighed the article have not supported the case of the prosecution. In the present case, the Investigating Officer has not followed the procedure prescribed. Statements of the Police Officers are not safe to rely upon for warranting conviction under the special Act. The Pplice Officer has proceeded to spot, but tias not complied the provisions of Section 42 of the Act. The Investigating Officer has not recorded the grounds for not obtaining the search warrant and also has not submitted such report to his superior officer. Learned counsel further submits that this is a case of 55.100 gms. of brown sugar which is above small quaHtity and below commercial quantity. In case of brown sugar, commercial quantity is more than 250 gms. The present appellant is in custody since 19-2-2007 and has completed 2 years 5 months in jail. In case of sentence of three years, the period already undergone would be sufficient sentence. 8. On the other hand,learned counsel appearing on behalf of the State/ respondent supported the j.udgment and argued that in th's case, the prosecution has complied the mandatory provisions of thespecial Act. Ex.P-21 Roznamcha copy of which has been sent to the suparior officer reveals that due to paucity oftime, the Investigating Officer has not obtained search warrant, same is sufficient CQmpliance of the provisions of Section 42 of the Act. This is a special case of possession of brown sugar and heavy punishment is provided for such offence. Normally, the Panch witnesses do not support the'case of the prosecution and in absence of corroboration from Panch witnesses, the statements of ttie police officers who are also independent witnesses cannot be discarded. The present accused is resident of District Rohtas, State of Bihar, he is not known to any of the police officers and he has notoffered any explanation as to why he was present at Ambikapur at the time of such '>•' ^ commission of the offence, or any enmity or interestedness with the police officer. 9. In order to appredate the contentions of the parties, I have examined the statements of the witnesses. 10.In this case, Arjun Kumar Sonkar (PW-1), the alleged Panch witness & Suresh Soni (PW-3), who according to the case of the prosecution weighed the article, have not supported the case of the prosecution and the prosecution has declared them hostile. In his detailed examination & cross-examination, Suresh Soni (PW-3) has not said anyt.bing to show that why he has signed over Ex.P-10, the document for weighment. Arjun Kumar Sonkar (PW-1) has deposed in para 6 of his cross-examination that on the fear of Police Officer, he has signed and on refusal he was booked by the Police Officer under Section ISlof theCr.P.C. According td his statementhe is running a hotel. ll.Ramdas Ram (PW-2) - Head Constable, Dharmendra Shrivastava (PW-4) - Constable,Arun Dubey (PW-5) - Head Constable, Sangram Singh (PW-6) - Head Constable & Nasar Siddiqui (PW-7), who has conducted investigation, are police officers. Their evidence cannot be discarded only on the ground that these witnesses are police officials and interested in the outcome of the case. While dealing witt] the same question i.e. evidentiary value of the statements of Police Officers, the Apex Court has held in the case of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra , that testimony of police officials are not liable to be discarded merely because they are police officials. However, their evidence should be carefully scrutinized and independently appreciated. The Apex Court further held that witnesses being police officers do not byitself create a doubt about their creditworthiness if non-examination of Panch witnesses is explained satisfactorily. Para 5 of the said judgment readsas under:- "Indeed all the 5 prosecution witness who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or . that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the L/l 1(1996) 2SCC 589 police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinised and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefulty and critically analysed t.he evidence of all the 5 police officials. There is nothing on the record to show that any one of them was hostile to be appellant and despite lengthy cross-examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country-made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non-examination of the two panch witnesses, which is supported by the report Ext. 24 filed by PW 4 PI Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent panchas at the time of search 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 located or traced and therefore they could not be examinedat thetrial. In the face ofthe facts stated in report Ext. 24, the correctness of which has remained virtually unchallenged during the cross-examination of PW 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 prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to traceand produce them at the trial but failed on account of the fact that they had left the addresses furnished by them at the time of search and their whereabouts could not be traced despite diligent efforts made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellantof the country-made revoiver and cartridges for which he could produce no licence or authority because of the non-examination ofthe panch witnesses. We find % that the evidence of PW 1 to PW 5 is reliable, cogent and trustworthy." l2.Further,in the matter of P.P. Beeran v. State of Kerala it has been held by the Apex Court that reliance can be placed on the uncorroborated evidence of the Sub Inspector of Police. l3.In the light of the aforesaid legal propositions, I have gone through the evidence of these Police Officers. :"»£' . • • 14.Nasar Siddiqui (PW-7), Investigating Officer of the case, has stated in his evidence that on 19-2-2007 he received information from the informant, he recorded Roznamcha, called witnesses and prepared information Panchanama Ex.P-1. After recording Roznamcha he proceeded for spot along with the Police force, the accused was present there, he informed the accused about his right of search underSection 50 of the Act vide Ex.P-2. The accused made search of the Police Officers and witnesses vide Exs.P-3 & P-4, thereafter, he made search of the accused vide Ex.P-5 andfound brown sugar whiGti was identified vide Ex.P-6. Notice was given to Suresh Soni (PW-3) vide Ex.P-7, weighing article was verified vide Ex.P-8and after making the article homogenous vide Ex.P-9, the article was weighed and found to be 55.100 gms. vide Ex.P-10, same was seized & sealed vide Ex.P-11, and seal Panchnama was prepared vide Ex.P-12. Statements of the witnesses were recorded. Due to paucity of time, Nasar Siddiqui (PW-7) has not procured the search warrant which he has intimated vide Ex.P-27 to the superior officer. This witness has also deposed that he has lodged the F.I.R. vide Ex.P-29. The property was deposited to Malkhana vide Ex.P-16. Detailed report was sent yide Ex.P-28. Copy of the F.I.R. was sent to the Special Judge vide Ex.P-30. The property was sent for analysis vide Ex.P-25 and report ofthe analysis is Ex.P-31. iS.Ramdas Ram (PW-2), Head Constable, has deposed that he has received the property, he kept the same in Malkhana and procured the property in Ma//?/?ana vide Ex.P-15, He has provided the Roznamchas Exs. P-20 to P-24. le.Dharmendra Shrivastava (PW-4), Head Constable, has deposited the property to the State F.S.L., Raipur. In his cross-examination he has explained as to why he has not deposited the property before the AIR 2001 SC 2420 Soma 7 F.S.L., Raipur on 21-2-2007 and why he has deposited the property on 25-2-2007. l7.Arun Dubey (PW-5), Head Constable, has deposed that he has transmitted the note Panchnamas Exs.P-1 & P-27 to the superior Police Officer and the same is admitted by Sangram Singh (PW-6), Head Constable-cum-Reader tp the City Police Superintendent. is.Main witness Nasar Siddiqui (PW-7), Inspector, has admitted in para 24 of his cross-examination that he has conducted another investigation also. Defence has cross-examined this witness in detail but it has not been able to elicit anything to discredit his testimony, or inimical terms with the accused or interestedness in the outcome of the case. In absence of such material his evidence cannot be disbelieved only on the ground that he is Police Officer. His evidence Ts supported by the promptly lodged F.I.R., the documents and evidence of other Police Officers which inspire confidence, and the same is trustworthy. l9.After appreciating the evidence available on record, learned Special Judge has convicted &sentenced the appellant in the aforesaid manner. Conviction of the appellant is based on clinching & reliable evidence sustainable under the law. 20.As regards the question of sentence, the appellant is incustody since 19-2-2007 and he has completed 2 years 5 months of jail sentence. Taking into consideration the quantity of brown sugar found in possession of the appellant, Sentences imposed upon him require reconsideration and sentence of imprisonment already undergone & finewould served the purpBse. 21.Consequently, the appeal is partly allowed. Conviction of the appellant under Section 21 (b) of the Act is maintained, however senfences of R.I. for three years & fine of Rs.20,000/- are reduced to the period already undergone (from 19-2-2007 till today i.e. approximately more than 2 years 5 months) & fine of Rs.20,000/-,in default additional R.I. for six months. SdA T.P. Sharma Judge