I IN 1HE HX®COBRT^ OF SVDK.VSUKE AT J&BALPUR .^. cr.uaj.nal Appeal No.. Appellants?- \!-.^'-^ .\^<"u>>. ^^ v>- ^ \t>^'~^sl' .'-_ , ?y^' ^,** -•'"c^'' ..^.^" y vv ry ./ 1^>" ^' ^' r 5^.. .Bisspoaiaea.tst— S.tate of Madhya gradesh Ihroagh tha PAUce Sfcation •i'agdalp.ir, Blstacicfe JagdalpdE' M«P« |S?-ipR^pppI ^E, GRIMISAL APEEa.L UKISK SfiCTIC^ ?*»4(^JL. p£ THE CBIMIHAX._PgQCBSQ'RS CODS 1.9^3,., I. .Ashok. Singb a/o Balwant Slngh ,, j aged Aout 20 years, ItedAdent. ,! of Bucihar^ i?.3«AmlajL oistta ShahdQl M.?.; 2«,,Sa2.asa Kban S/o Anwar Klian aged " II ^>oufe 29 yeacs* aesident of Ihanpurl, '^ 1 Collisry S0f3f P,S.*nlaJ. 23istricfc l' " t ®tahdQlM.lP« 81 IN THE HIGH COURT, OF CHHATTISGARH AT BIIASPUR CRIMINALAPffiAL N0.2576/2000 ^ Ashok Singh and another vs. State Qf M.B. (C.G.) f,- A N.B • . CRIKINAL APIEAt, N0.11/2001 Asholt Singh vs« . State- o£ Chhattisgarh J UDG ME PT HON.R.S.GARG.J s The appellants being aggrieved by the judgraent dated 30-9-2000 passed in Special Case No.11/2000 by the learned Special Judge(N.D.P«S.).Jagdalpur convicting the appellants under Sectlon20(fa)(i) of theNarcotic Drugs and psychotr.opicSubstances Act sentencing the appellant Ashok Singh to undergo R.I. for three years and pay fine of Rs.7500/-, in default or payment of fine to undergo further R.I» for one year and sentencing accused Salam Khan to undergo R.I. £or '^{1 years and pay £ine of Rs.5000/-, in default of payroent of fine to undergo R.I. for six months, have filed Cr.AoNo.2576/2000. 2. It appears that on behalf of accused Ashok: Singh, Criminal Appeal No.11/2001 was also filed. •3.' This judgment shall finally dispose of Cr.Aa [' Nos.2576/2000 and 11/2001. ^ ,/• i -\ Tl f Lf » Sl^3^.S*^^SSK^£=t3fay IBJt. - 2 • ~ 4. The prosecution case in brief is that on 13-1'" 2000 at about 10.35-p.m., Assistant Sub Insoector Tilu Singh (P.W.l) received an inforaation from the informer that some persons have gone towards village Borgaon, Orissa £or bringing contraband ganja and they were f!- likely to proceed towarfls Raipur, The said Tllu Singh recorded the infonnatlon an3 sent a aessage to bis City Suoerintendent of Police (C.S.P.). Finding shortage of time, he orepared another oanchnama and recorded his belief that if the warrants are awaited, then the miscreants or wrong doers were likely to fl6e away from his jurisdictlon. A copyof this panchnama was also sent to C.S.P.. On night intervening 13th and 14th of January,2000, at about 2.00 q..m.«said Tilu Slngh in aresence of the witnesses stopped Mahindra Utility Armada bearing registration no«MP'-l8/7849. Said Tilu Singh Informed the said two cersons that he had the inforication that the accupants of the vehicle were carrying contraband ganja. Notlce under Section 50 of the Act was given to them. In the personal search, nothing incriminating was recovered but in the search of the vehicle. two bags containing 15kg. and 25kg. ganja were recovered. Eight samples o£ 25 gms. each were prepared, the property was seized, the accused and the contrabands were brought to the police station. It would be note- worthy that according to the A.S.I., Tilu Singh, after affixing his seal on the contrabands, etc., he had.- preparedrt<-seal«a panchaama. After coming back to the police s tation, the first information report was registered. the contrabands were kept in tbe Malkhana •and a further inforraation as required under Section 57 of tlae Act Was sent to theOfricers. Thesamoles were A-&^-^-—— y @) sent to the F.S»L.,wh9 under their report informed that the samples were of ganja. 5. Being armed with the seizure memo, statements of the wltnesses and the FoS.L.report, the prbsecution agency filed the challan'.'against the accused. The accused persons denied cpmm'ission of offence.therefore, they were put to trial. After recording the evidence and hearing the .parties, the trial court convicted and sentenced the accused. persons as re'ferred to above. 6. Shri pandey, learned counsel for ths apgellants submits that as there was absolute non-comTOliance of Sectlons 42 and 50 of the Act, the apcellants deserve to be acquitted. According ty him, the prosecution has failed tn proving that the report in relation to information.oanchnama and the belief panchanama were a>*<A sent to the C.S.P«,therefore/ as there was non-» compliance of Section 50 of the Act. the accused be acquitted. 7. Shri. Ranveer Singh, learned counsel for the State, submits that from the statements of P.W.l A.3.1., Tilu Singh, it would clearly appear that he scrupulously followed the provisions containea under Sections 42,50 and 57 of the Act and as there are no violations of the mandatory legal provisions, the accused cannot be• acquitted. 3. - I have 'hsard the parties at length and hav6 gone through tiie records. 9; ' P.W.l Tilu Singh has clearly stated ±nhis statements<that after receiving the information he recorded the same. and prepared the panchnama Ex.P/l. :-^ He-has'^roved the said panchanama. He ha^s,further proveS i-^—-- r / —i .8 that he had sent the information to the C.S.p. nnder Ex.°/2. He h.a.s further certified that Ex.P/2 contains the receipt signatures of the office of the C.S O lE' • • 10. In paragraph 2 of his statements, he bas further stated that looktng to the iirgency AQ the j matter he thought .that if warrants were awaited, the | accused could run away, therefore, he again prepaced a oanchanama. He had prepared the panchnama under Ex.P/3« He has further proved that inforraation o£ this panchnama was also sent to the C.S.P.. .;, 11. In the cross-examination of this witness, nothing has been ask'ed about the preparation of the panchnama or sending of the information to the C.S.P.. The only question asked in the. cross-'examination was that the witness did not mention the time in the said oanchanama orepared under Ssction 42 of the Act. In paragraph 22, he had further stated that he had sent the information to the C.S.Pa. (il: 12, Fcom the statements o£ this witness, it would. clearly appear that he had prepared ttie two panchnamas an<3 sent the information to the Sunsrior Officers. 13. Shri Pandey, learned counsel £or the appellants,. submits that as the Offlcer or Clerk from the office of C.S.P. have not been examined to prove the recelpt, it must be held that no information was sent. 14. Unfortunately, this'argument loses sight o£ the ract that in the cross-examinatioii not even a single suggestion was given to the witness that the signatures ^lf"-, .. ' • . the receipt were.forged or wers not of the Officer ,who had rece-ived the information. In my Qpinion, the prosecution was successful iri proving coigpllance o£ Sec. 42 o£ th~e Act. . ! • -- -^5 '*• 15. So far as the question of non-compliance of Section 50 of the Act is corcerned, from the notices Ex.P/4 issued to the accused Salam Khan and ExoP/6 issued to Ashok Singh, it would clearly appear that notices £or personal searchwere given to these two fl- accused persons and they •'were given the option that i£ they so wanted, their search could be taken by the Magistrate or a Gazetted Officer. On these two notices, the accused ±n their own hand.'writ-Lng have clearly mentioned that they were ready and willing to give their search to the sai<3 Officer. - .- 16. After going through the statemeats of the witnesses and the docuraents. I aro unable to hold that / provisions of Section 50 a£ the Act were not canplied with. . 17. No other point was pressed into service in relation to the merits of the raatter. On the merits. I am unable to hold that the prosecution has failed in proving the guilt of.the accused. 18. At this stage, Shri Pandey.learned counsel for the appellants, submits that the appellants are in jail f since 14-1-2000,therefore, the sentence be reduced to the| i . 1 oeriod a-lready undergone. ; 19. tiearned counsel for tbe State on the other hand,'- submits that looking to the quantity of ganja, the quantum of sentence is propfir and does not call for any | interference. (. 2CX. -From the records, it would appear that the two | accused persons were carrying about 40 kg.ganja. The ;|;- submission o£ the learned coynsel for the appellant^^to •§?'; '!/1 t. ife' that thS prosecution bas failed in proviRg that they weffi a 6 - drug~peddle»,should not. detaln this Court unnecessarlly because £rcm the facts it would clearly a.pye ar that they were carrying 40 kg. ganja in a vehicle which In itself would be sufficient to presume that they were consciousry engaged in the business of contrabands. The court below ift its dlscretion has awarded ^ legal and proper sentences'to the aooellants. 21« Even on the question of sentence, I ara unable to interfere in the matter. ) 22. Both the aooeals are dismissed. Sd/- R.S. Garg Judge 25-7-2001. H/- Bi