HIGH COURT OFCHHATT156ARH AT BILASPUR [83¢ Hen'ble' Mr.T.PrSharma-.JJ Criminal Armed-No. 3'1 of 2005a ;u Shn' Y.CV Sharma counse¥ for the anneuant Ms. Séagita Mishm PIL. f r . 3pc eut’qmte Stiminai-‘Anneal- No. 14S of'2007 APPELLANT Suchendra Samar-son of Shri Nitai- Earkar, aged abcnt 25 yaats, resident af Dashpur, '32 number Paiice Sia‘t‘mm Ramnaaar Umavkot. District .w wa'iapar (O'xes VERSUS‘ State; oi Chhmisgam threuah ‘SJHO. __ Paiice $‘aiicn‘ City %twali, Sisirict Dhamt'ari('C.G.') ShriAlek Niaam asunseiv‘for the appeliant. Ms. 52mg“ i‘.‘.:sh.'a PL fer :he regpcndant’State; CRIMINALAPPEALS UNQER SECTION 374(2IOF THE GODE OF CRIM' “L . “vvE JR: JUDGMENT ( 3 3.2008} Since both the. aforesaid appeals arise‘out of a common judgment» datedr3.9.2004. passed by the Speaial- Judge, (NDPS) Raipur: in Special Case-No. 103003, thev are-dimesed of by this commonjudgment. APPELLANT haUk’JQd sa'kal, .5; numoer Poune Smiuon District (Onssa). VERSUS a? #2’ 2. By the» §udgment impugned the accusedlappellants have been convicted under section 20(b)(ii)(B)rof the Namath; Drugs and Psychotropic Substances Act (for short the “Act”) and sentenced to undergo riacrous imprisonment for 7 years and pay nne of Rs. 25.00000 eaeh; in default of payment of fine to further undergo rigorous imprisonment for six months each. 3. The. judgment is challenged, on, theground that without appreciating the fact that theprosecution; has notucompiiedvwith the procedure-prescribed underhh‘e Act learned Special. Judge has committed, an illegality in convicting and‘sentencing the accusedlanbellants as mentioned above. k 4. The prosecuticn case in brief is that» Asholc Dwivedi (PW-3) who at the relevant time was posted as AssisBnt Sub-Inspector in City Kotwali, Dhamtari, receiveda secrete intonnation on 1 17.2.2003 tenthe effect that two personswere comingron Suzuki motorcycle bearing registration No CG 05/ ZE/1044- from Sinhawa. Road carrying a green colour canvass bag which contained-Ganja. Hecpreparedx theinformation Panchnemo- Ex_ P42. in presenceof theawitnessesand sentthe sameto thesuperior other. He also prepared search PanebnamevExx P43 thoughvwithout searchvwarrant. After ‘ recording RojnamcheEx. P45 he proceeded for the spot at about 1 pm. Two persons came. there one Suzuki motorcycle; Accused/appellant Suchendra Sarkar was driving the motorcycle and accused/appellant Sukumar was the. pillionv rider» carrying: one green coiour canvass bag containing Ganja: Notice Ex. P--1 informing them oftheir right-to search the- police peopleandthewitnessesyAccused searched the police peopieand titer witnesses-woe, Ex. P—2. Th bee carried: bv theaccused was searched and Ganjawas found in it. On-weighment beino'done. it came out to be 17 kilograms: Two «samples of 100 grams each wereoreoared, The samnlesas well as they remaining quantity of Genie was sealed vider Ex. P-3. ;__ Contraband was- seized vide Ex. P—4. Motorcyciewas. seizedfrom accused Suchendm. vide Ex. P-5. Panchnama of me entire proceedings was prepared videwEx. P—6; Notice Ex. P—7 was given torlthe accused/appellants i ‘ regarding their presence tiii compietion_ of the. proceedings; Accusedtappeiiarm werevarrested. videv Ex. P-9 and P40. Then this witness came-to the police station aiong with theaccusedlaapeiiants as: weil as the property seized and lodged the Firstinformation Report Ex. P~8. Contraband Gary'awas- kept in thevMalkhana which‘was entered-in the Rojnamcha vide Ex. P—r1Z—tg3‘ Copy of the seizure Panchnama‘ proceeding Panchnama and the First informationReport was sent- to his supetior ofhcer vide receipt Exp P—18. Sanlpies- with seal impression were sent to the Forensic Science Laboratorv for- chemicalr examination; On chemical examination it was confirmed that the content of the samplewas- Ganja vide report Ex. P4 1 . w 5. After recording the statements of the witnesses and completion ofrthe investigation chargesheetwas tiledein the Court otSpec‘al Judge. Ralpur. where-trial commenced: ~ 6. In order» to provethe guilt of the accused/appellants the prosecution has examinedv4 witnesses. Statements of the accused. persons were aiso - recorded undersection. 313 of the Code of Criminal Procedure in which thev denied the material appearing against them in the case ot the prosecution and pieaded, their innocence and faiseimpiication in the-case 7. Atter affording opportunity of heating to the parties learned Speciat r Judge» convioted and, sentenced the accused/appellants as mentioned above. 1‘) \ 8. . Heard counsei for the parties, and perused-the materiai availableon reoord includino the iudomentu imauoned; *q’_ 9, It is submitted on behali of theraocusedJappeuants that acaordina to the prosecution story one accused. was driving the» motorcycie while the other one was the pinion rider carrying a bagi but the prosecution hasrnatr proved the conscious possession of the contraband‘ with ahvone of hem. It is further argued thatvthe- prosecution has not compiied withrthe mandatory _ provisions of Section 50 of the Act it is argued that the-property allegedly . seized was not kept in the safe custody- of the Police and the same was not produced before the Court. Lastly it is argued that the accusedlappellants are in gugxtodv for about five years and the sentence already undergone by them would meetthe ends of iustice; s 10. on the other hand the judgment of the trial Court ls supported on behalf of the respondent/State and it is submitted that the prosecution has proved its case beyond shadow of doubt by adducing reliabte and clinching evidence. Both the accusedlappellants were-found in conscious oossession of the hugequantityof contraband and therefore: thejudgrnent impugned ls: not Iiableto be disturbed. 1 1. lnr order to prove the guitt of the accusedlappellants the prosecution is required to establish the followinoinoredients: ‘ (i) accusediappellam were in conscious possession of the contraband: (ii) compliance. of mandatory provisions of theAct has been made. 12. Ashok Dwivedi (PW-3) who at the relevant time» was posted as Assistant Sub Inspector In CitvKoMali. Dhamtari. He- has stated in his eiiidence that on 11.2.2003 he received a secrete information that two persons were coming from Sinhawa Road on Suzuki motorcvcle bearino reorstratron No CG O5IZE/1o44 carrvrno a oreen colour baa contatnrnn Gama He prepared Information Panchnama Ex P-12 and search Panchnama Ex. P43 though without search warrant. He sent coay of the same to his superior ofticer, He caned Pancb witnesses nameiy Rusmm Gond and Umashankar Ragak by giving netice Ex. P-7‘ After tecovdina Rojnamcha. Ex; P—14. and P-15 he proceeded-fort the spot, White they were waiting for the accused persons. thev samenon a motorwcie carrving a greeh-rcolour bag containing. Gania; He-uave them netice Ext P—1 infbrminu about their rightto search. the poiice peopleand the witnesses Both the accusedlappeilants took search of the’poiice neonie and the witnesses vide Ex. P3? Then this witness took. search of the bag carried by the accusewappeilan$ and found that it was containing Ganjeiike leaves and on burning and snifting it was conhrmed to be Ganja. On weighment being done-it came» out to be 1 7 kilograms. Two sampies oi 1G0 grams each were prepared, sampies and the remaining contmband was sealed. vide Ex. P—3. The contraband was seized vide seizure memo Ex. P-4 and. a coov of the same was given to accusedlappeliantr Sukumar. Motorcycie was seized vide Ex. P-5. Thereafter. he along-with theraccused personsand the property-so seized from them cameto theooiice-station and lodged FIR Ex. P‘s. Entire proceedings were entered into the Rojnamcba vide Ex. P—16 and the contraband was keotr in the Matkbana videaEx. P-1 7. Samples were sent to ~ the. Forensic Science Laboratory and on examination of the same it was confirmed that it was Ganievide report Ex. P41. w 13. Rustam Gond (PW-1) has substantially supported the case of the prosecution. He has admitted. his signature over Ex. P-2 to P-7. BR. Sinha w (PW-2) has stated that he had registeredthe FIR Ex. P—8 and arrested the accusedlappellans vide Ex. P-9 and. P-10t He sent the samples to the Forensic Science Laboratorv from where. report Ex. P-11 was received. Ashok Pipre (PW-4) who was posted as. Dy. Superintendent of. Police, Dhamtari has-stated in his evidencethat-on 12.2.2903he received the copy 'of seizure Panchnama proceeding Panchnama and the FIR fmm AK Dwivedi(PW-3). Rusmm Gond‘ (PW4) has admitted in his cross examination that on being called by the police officer Shri Dwivedi to the spot. he, went there where Raiak was also nresent. He else admitted ihat Poiiee- omeer were not having the‘weighing instruments and the contraband was weiohed., in a nearby General stores. Ashok Dwivedi (PW-3) has denied-that witness. Rusiam Gond is a pocket witness.- He has denied that the weighment was done in some ether mace. He admitted that her did net arrest the accusewappeuants during the course oi proceedings. Hehas denied the a . suggestion that he did not seizeu any artiste or- motorcvcie ftom the accused/agpellants. This witness is a police ofhcer and his statement is supported by Rusmm‘ Gond (PW-1). Defence has not been able to elicit; anything against these witnesses that they were having any enmity-with them or that the: police office has not followed, the, procedure prescribed under the Act. w; 14. After aooreciatino the evidence available on record learned Soeciai Judgeconvicted and sentenced the accusedlappellants as mentioned above by the judgment impugned. v15. Close examination-.ot the» material available-on record shows that a huge uuantitv of Gertie i.e. 17 kilograms, was seized from the accused/aooellants and they haverlnot stated, anything in their statements recorded under section 313, of the Code of Criminal Procedure that they were not having the knowledge that the material carried by them was Ganjat g Theret‘oregl do/not tind any illegality in the finding of conviction recorded by tiie’ mat Court. 16. As regards sentence, it is argued by the, counsel tor the accusedlappellants that each) of the appellants have been awarded the rigorous imprisonment for seven yeavs and pay fme of Rs. 25,000!- in dehult of payment of nner to further undergo rigorous imprisonment for six months out» of which they have already suffered about 5 years of jail sentence. Therefore, taking into consideration the age of theanoeiiants and the quantih! of contraband allegedly seized from their possession. the jail sentence undergone by them would meet the ends of justicea 17, Thus keeping in View the quandty of contraband and the age of the accusedlappellantsi instead- of sentence of rigorous imprisonment for seven years awarded by the trial. Court: they are sentenced to undergo rigorous imprisonment for nveuyears. They shall pay tine of Rs. 25900.00 as directed - by the trial Court. ln default of payment of nne thev shall undemo additional rigorous imprisonment for six months each. 4 18. Consequentlv, theapbeals partly succeed. Sdl- T. P. Sharma Judge