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Crime Sentenced ReSldenceTrRg No------.-..-..-.. to — ir—QQ {Voilce W s - gs ge “Trial — «r No n * - L4? yaw 3W7 258 Under section1§g2@W —w%girmwz )C’? 2$3 \Kgwmwcum I , ' Wrtorwzna ‘wmmmwgf it is expalned to the pnsoner that if he states cWér Qprw$ lega! practltloner the Appellate Court Wm not proceed with Wm bage for <ev~x dayg unless the legal practltlaner appears lf the legal practmoner does not Wlsh to be represented by leagle practitioner the cour may proceed at once wvth the case and . wHl not be obllged to glve a heerlng to any legal prectmoner who should appear ”‘WDale of Applicatron for copy of Judgement ------.-.---..--oLtQq I Date on wmh copy reeleyed-v--------s----—-----—-——----0-?=3-Q5»=-Q3I-.-.---.-.--.---..---..- 3~ Date on Wtoh Appeal sentu~m----------v---‘--.-....-.-@g-nQi—Qg.-....-..--.-..----..-... 4 Whether the prlsoner Wtshes to be represented or not Yes / No 5- Whether The Judgement Copy and Progress Report of The case has grven to appellant / Couneelor of the appellant we No eete,1ee-..--- -- Name.......... Confrned tn .....- ‘r .------Jall---..---.------..-..------ No “J ¥é a ed. .-.~--.®&-..® - Forward to the H EF JUDlClAL MAGISTRATE ..----..-.- to ether to the Appellate Court ate of reoerpt m Appellate Court-.-.--....... ....-..-.-..-.-..-. v......-- Vt P T e ) ‘ a C m - W ‘2 . -. b . D $gaa fir Wk Qwg‘gr?r% ‘ en-etatt‘amge ‘5 No’''.''..'.'.'''.''.''..'..'..'''.'.Dated............................200_______'___...._... V_ Forwarded to the _......_._........._......... HIGH COURT OF CHHATTISGARH: BILASPUR V Criminal AQQeal No.418 of 2009 APPELLANT: Nagesh Yadav Versus State of Chhattisgarh POST FOR JUDGMENT ON I )z’h‘ AUGUST 2011 S RESPONDENT: " dl— » rashant Kumar Mishra V Judge Mir, M N P g9 \x‘ HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.418 of 2009 PPELLANT: Nagesh Yadav Versus SPONDENT: State of Chhattisgarh Present: Miss Sarina Khan, counsel for the appellant. Shri Pradeep Singh,’ Panel Lawyer for the State/respondent. JUDGMENT (Delivered on hWtugust, 201 1} N Prashant Kumar Mishra J. 1. In this criminal appeal, the appellant has challenged the legality and validity of his conviction under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) and imposition of sentence of R.l. for 10 years and fine of Rs.l lakh, in default, additional RI. for 3 years. 2. Caseof the prosecution, in short, is that PW~3 S.L. Sinha was posted as ASI in the Police Outpost Bastar. On 13-6—2006 at about 8.30 am he received information that one person is having one black coloured bag under a culvert and is trying to transport it to Raipur in a motorcycle. The information was taken down on Rajna"m%ha Sanha No.256 and two independent witnesses namely, PWvS Karunakaran and PW—6 Baso were summoned. Mukhbir Suchna Panchnama (EX.- P/7) was prepared and a separate Panchnama (Ex.~P/8) was also prepared to the effect that obtainment of search warrant is not possible. Both Panchnamas were sent to the S.P., Jagd‘alpur and the poliCe officer proceeded to the spot at 9.10 am after registering his movement in the Rojnamcha Sanha No.261. The appellant was caught red handed on the spot along with bag containing 22 kg of Ganja and Kawasaki motorcycle. The appellant was informed about «MMMe—ej his right to be searched by a Magistrate or any Gazetted Officer on t which he accorded his consent to be searched by the police officer and in that search, 4 packets of Ganja kept inside the cement bag /was seized. One packet contained 7 kg and 8 other packets J l l l I l . ~ A RE contained 5 kg each, total quantity of Ganja was 22 kg. 2 packets of 50 grams from each of the bags were taken and were marked as A—l, A—2, B—l, B—2, C—l, C-2 and D-l, D—2. The contraband and the separated quantities were sealed on the spot and seal Panchnama (EX.~P/ 18) was prepared. Seizure memo was prepared Vide EX.—P/2O and the appellant was arrested. . After returning back to the police station at 17.30 hours, PW—3 S.L. Sinha registered FIR vide EX.—P/2 at ‘0’ and sent it for affording FIR number to the Police Station, Jagdalpur. FIR (Ex.-P/2A) was registered in the Police Station Jagdalpur and the seized contraband was deposited in the Malkhana. One 50 grams packet from each bag marked as A—l, B—l, C—l and D-l were sent for chemical examination on 15—6-2006 vide EX.—P/28 and after receiving positiite report and completing investigation, charge sheet was filed. . The appellant abjured his guilt and stated that he has been falsely implicated. . The prosecution examined 5 witnesses to prove the charges. The trial Court, after finding that the prosecution has proved its ease, has convicted and sentenced the appellant as mentioned above. . Learned counsel for the appellant argued that mandatory provisions of Sections 42, 50 and 55 have not been complied with and, therefore, the appellant is entitled to be acquitted. She‘has relied on decision in the matters of Narendra Bhusan Dubey Vs. State of M.P. (now C.G.)1, Hirma Markami Vs. State of CG2 and Kuleshwar Dhruw Vs. State of 0G3 in support of her argument. . PW-l K.D. Singh is the ASI in City Kotwali, Jagdalpur, who has proved registration of FIR vide'Ex.~P/2A. . PW—2 Sevadas is the Malkhana In-charge of the police outpost Bastar. He has proved deposit of Ganja kept in 4 plastic bags, total quantity 22 kg and 8 samples packets A—l, A-2, B—l, B—2, C-l, C_2 & D—l, D—2 and motorcycle. He has proved the said deposit by V submitting register (Ex.—P/3) in which entries have been made. He \ (1) cow 259 (u cam 233 (3) CGLJ 257 has also proved removal of packs A—l, B-l, C-l 85 D—l each containing 50 gram Ganja which was taken out and handed over to constable arshel Minj No81 for tang it to th FSL for chcal examination. . PW—3 S.L. Sinha has proved the entire operation rit from taking down information on Rojnamcha Saha No.256 to is coming bac after making seizure. He as als proved informati sent o his surior officer vide EX.—P/26 and he inforation sent to the City Superintendent of Police, Jagdalpur vide Ex.—P/27 an sending of pacets for chemical examiation through constable No.481, who had taken samples t FSL, Raipur. According to this winess, the entire searc oration was conducted under culvert where the appell was found along with motorcycle in which Gaja was t in a cement ba. 10.PW-5 Karunakaran and PW-6 Baso have turned hostile and have stated that th were called to the police station where th seizure was mad. 1.From the abe et of evidence, it proved that the pllant was found to be in possession of Ganja weighig 22 kg, which is a commercial quantity being more than 20 kg. 12.Th main argumen raised by learne Counsel for t appellant is about nn—compliance of the provisis contained in Secon 42, 50 a o 13.Admitted1y, PW~3 S. Sinha was in the Police Outpst, Bastar when he received informatio tat one perso is i ossession of Ganj under a culvert nea Ektaguda. This police fficer has prepared Panchma of receiving iformatio which has been proved vide Ex.- P a n w e provisions contained in ction 42 (2} vide EX.—P/8 the effect that delay in obtaining search warrant may'provide sufficient time o the accused o escape, herefore, he is peding to condt search and seire operation witou obtning search warrant. Anoer nformation was sent to the same effect to the CSP, Jagdalpur vide .~P9 which was received in the office of the said superior officer at 9.3 am. Thus, the provisions of Section 2 stan complied with by e t d he o on tis nd 55 f the Act. n h n n p a r o na nn /7 and separate Pachnama ith regard to compliance of th Se to t I t t roce uc 1 zu ht ai th i i x/ 5 4 d '1 rm et s M .4 ki e emi gh n h k h o on t pe t m d k n o t h pe ant n kep g ey e e 1 ov s is ape n .L o the prosecution. Even otherwise, in the case of Karnail Singh Vs. State of Haryana {(2009) 8 SCC 539}, theHon’ble Supreme Court has held that non-compliance With Section 42 may not vitiate the trial if it does not cause any prejudice to the accused. In the present case, nothing has been put forth by the accused as to how because of the alleged non—compliance of Section 42, he has been prejudiced in his defence. Thus, in any case, there is no substance in the argument that provision of Section 42 has not been complied With or that it has prejudiced the defence of the appellant. _14.Coming to the argument about violation of the provision of Section 50 of the Act. It is to be seen that the concerned police officer has prepared a consent Panchnama Vide EX.—P/ 11 in which it'is clearly written that the accused has a legal right to be searched before any Magistrate or any GaZetted Officer and it is for him to decide Whether he consents to be searched by the police officer or by Magistrate or Gazetted Officer. The appellant consented to be searched by the police officer and has put his signature to this effect on EX.—P/ 11. Thus, there is total compliance of the provisions contained in Section 50 of the Act. 15.Next argument is about non—compliance of the provisions contained in Section 55 to the effect that the samples were not taken out at the place of occurrence and the contraband was not seized and sealed at the place of occurrence and further that the samples were sent for chemical examination with inordinate delay. 16.1n this regard, the documents Ex.-P/ 15 to EX.-P/ 19 are required to be perused. EX.—P/ 15 is the mixing Panchnama which was prepared when the contraband was taken out from all the 4 packets and mixed. Next document is EX.—P/ 16 which is weighment Panchnama. This document has been prepared under the culvert near Ektaguda on National Highway No.43. On weighing, one packet was found to contain 7 kg and remaining 3 packets were found to.c0ntain 5 kg each, total quantity of Ganja was found to be 22 kg. EX.-P/ 17 is the sample Panchnama by which 50-50 grams from each of the packet were taken out and similar packets of 5O grams each numbered as A- 1, A—2, B—1, B42, c-1, c—2 and D—1, D-2 were prepared on the spot. anchnama of the seal used for sealing the seized contraband and i the sample packets was also prepared Vide EX.—P/ 18 and the sample of seal itself was taken down in EX.—P/ 19. From these documents which have been proved by PW-3 S.L. Sinha, it is clearly established that the entire search and seizure operation including weighrnent and sealing of the packets were done at the place of occurrence. The appellant’s argument regarding non—compliance of the provisions contained in Section 55 is thus not substantiated in View of the documents referred above. 17.Learned counsel for the appellant further argued that seized samples were not sent for chemical examination immediately. 18.The samples of the seized Ganja were deposited in the Malkhana for which certificate EX.—P/24 signed by Malkhana In—Charge Sevadas Manikpuri (PW—2) has been proved. The articles/samples were sent for chemical examination on 1576—2006 itself vide Ex.—P/28 which was received in the FSL, Raipur on 16—6-2006 vide EX..—P/29. Thus, the seized articles were firstly deposited in the Malkhana and thereafter it was sent to the FSL only after a day i.e. on 15-6—2006 which cannot be said to be an inordinate delay. In fact, in View of the fact that search and seizure operation continued till evening and PW— 3 S.L. Sinha reported back to the Police Outpost at 17.30’hours and the day was almost over and sending of the samples for chemical examination only after a day cannot be considered to be delay in dispatch of the seized articles. 19.Thus, all the arguments regarding non-compliance of the provisions contained in Sections 42, 50 and 55 of the Act are not substantiated from the record and this Court has found that the prosecution has fully complied with the said provisions. In View of the above, the judgments relied by learned counsel for the appellant have no application in the facts of the present case. 20.1n the result, there is no substance in this appeal, which fails and is Sd/- Prashant Kumar Mishra Judge i 148/2011 hereby dismissed. Barve rm