^ ~v<' ^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANT (in Jaii) RESPONDENT APPELLANT (in Jaii) RESPONDENT CRIMSNAL APPEAL N0. 902 OF 2005 Vishwajeet Versys State of Chhattisgarh And CRIIVSINAL APPEAL N0. 903 OF 200S Pradeep Kumar Versus State of Chhattisgarh JUDGMENT ar^ POSTON H MARCH2008 Sd/- Dhirendra Mishra Judge 10/3/2008 '^- ^ t. c- ^) HIGH COURT OF CHHATTISGARH AT BtLASPUR CRtlVSINAL APPEAL N0. 902 OF 2005 APPELLANT (in Jail) RESPONDENT APPELLANT (tnJaii) RESPONDENT Vishwajeet, S/o Jitendra Rai, Aged about 26-27 years; Occupation - Driver, R/o Domapal, P.S. Dornapal, Distt. Dantewada (CG) V@rs£/s State of Chhattisgarh; Through Police Station Kukanar, Distt. Dantewada. And CRIMINAL APPEAL N0. 963 OF 2005 Pradeep Kumar, S/o Shiv Kumar, Aged about 21 -22 years, Occupation - Conductor, R/oM.V.31 Korkunda, Maikangiri (Orissa) Versiis State of Chhattisgarh, Through Police Station Kukanar, Distt. Dantewada. Present: Mr. Ravindra Agrawal, counse! forthe appellant inCr.A.No.902/05. Mrs. Kiran Jain, counsei forthe appeiiant in Cr.A.No.903/05. Mr. S. Dubey, Govt. Advocate for the State/respondent. JUDGMENT (Deiivered onl^vlarch 2008) Dhirendra iVIishra, J Criminal Appeat No. 902 of 2005 preferred by appetiant Vishwajeet and Criminal Appeal No. 903 of 2005 preferred by appeiiant Pradeep Kumar, are being disposed of by this common judgment as both the appeate are directed against the judgment of conviction and order of sentence datsd 28th Juiy 2005 passed sn Speciai C-ase NQ. 47/04 whersby ^' (\ learned Specia! Court under N.D.P.S. Act Bastar, Jagdalpur, has convicted each of them under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (for brevity 'the Act') and sentenced them to undergo R.l. for 10 years, pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo additionai R.l. for five years. (2) Case ofthe prosecution, in brief, is that Station House Officer; Potice Station Kukanar received a secret information at about 7.00 p.m. on 11.9.2004 on telephone that cannabis is to be transported through vehicte No. C.G. 07/C-2006 from Sukuma to Raipur. After registering the above information and informing the superior officer and further recording the satisfaction for not obtaining search warrant, S.H.O. Pradip Shouri proceeded towards octroi post. Some time after reaching there, the vehicie in question was spotted and the same was stopped, in which the appeilants and third accused Sakharam were present. They were informed about the nature of information received by them and further informed about thsir right that if they so desire, they can be searched in presence of a Gazetted Officer or Magistrate and after obtaining their written consent the vehicie was saarched. Before searching the vehicle; the police party also gave their personal search. On search from the especialiy made compartment in the cabin of the vehicle, 72 packets of cannabis were dlscovered. On preliminary examination, the artids was found to be cannabis, homogeneous mix of a!! the 72 packets were prepared and on weighment it was found to be 349 kg. Two samples of 25 gm. each were prepared and the contraband was seized from the accused persons. The accused persons were arrested and they were taken to poiice station aiong with the seized contraband. The selzed articles were handed over to Maikhana Muharrir for safe custody and report was iodged by Pradip ShourE, S.H.O. (3) During tria! the prosecution examined seven witnesses in alt. Thereafter, statements of the accused persons were recorded, in which they denied the evidence appearing against them in the prosecution case and pleaded innocence and false implication. Appeilant Vishwajeet in rep!y to question No. 18 admitted that the vehscle invotved in the offence fe*...-. along with registration certificate and other papers were seized from his custody on 11,9.2004 and further stated that he is driver of one Seema Soi. On the date of incident he was engaged by the owner of the vehide temporariiy and at his instruction he was proceeding towards Bhanpuri, Raipur in the said vehicte along with conductor Pradesp of that vehicle. He met accused Sakharam on way and took him in the vehicle after charging fare of Rs.40/-. He was not aware of the presence of cannabis in the vehicie. Appeilant Pradeep has also taken the similar defence. (4) Learned tria! Court after hearing counsei for the respective parties, convicted and sentenced the accused/appetiants as mentioned in paragraph one of this judgment. (5) Learned counse! for the appeliants argued that there is no evidence that the sample was sealed by the offScer-in-charge of the police station, there is also no evidence that the sample recejved by the chemical analyzer v^as with proper intact seal and there js non-compliance of Sections 55 & 57 of the Act. Reiiance is placed on the judgment in the matter of Gurbax Si'nah Vs. State ofHarvana . (6) Further relying upon the judgment in the matter of AvSar Sinah and others Vs. State of Punlab2 it was contended that at the time of incident appe!!ant Vishwajeet was driving the matador whereas appellant Pradeep was conductor of the said vehicfe. However, there is no charge that the appei'ants were transportlng the offensive goods without permit or authorization, there is no evidence that the contraband was seizsd from the exciusive possession of the appetlants as the same has besn seized from the vehscle and therefore, in the absence of alternative charge under Section 8 of the Act, the driver and the conductor of the said vehicie cannot be convicted for ths offence of transporting the narcotic drugs. (7) On the other hand, learned counse! for the State supported impugned judgment ofthe tria! Court. ' 2001 SAR(Crtminal) 310 22002SAR(Crmmal)781 ^ (8) I have heard learned counsel for the respective parties and have perused the materia! avajlable on record as also the impugned judgment. (9) PW-6 Pradeep Shori has proved the secret information of Ex.P/18 as also the memo of Ex.P/19 whereby he has recorded satisfaction for proceeding to effect search and sejzure without obtainjng warrant. He has forwarded the nature of information received by him vlde Ex.P/17. Ths trial Court considering the anomatiss present jn relation to weighment of 349 kg of the contraband that it took only 30 minutes to weigh 349 kg contained in 72 packets and further considering the fact that all the documents bear the crime number, even though the offence was registered subsequentiy at 22.40 hours after completion of the investigation, has observed that that there is error in recording timing. However, the above errors have been ignored in view of the fact that the appeilants have admitted in their statements that their vehicle was intercepted by the poiice before PoSice Station Kukanar and the same was searched. They have also admitted that Vishwajeet was driverand Pradeep was conductor of the vehicie at the time of inddent whereas Sakhanath was a passenger, who paid fare of Rs.40/-. It has bsen further he!d that the contraband was duiy sealed and the same was entrusted to Malkhana Muharrir for safe custody. (10) Malkhana IVIuharrir Balram Prasad Patel (PW-7) has a!so proved the above fact and stated that after receiving the contraband and th.e samples, he had stored them in the Maikhana for safe custody and made entries in the Goods Register of Ex. P/28 at S!. No. 21 & 22. He hasalso stated that the samplesof 25 gm each weresent to Forenslc Sdence, Laboratory, Rajpur and entries were made in the register in this regard. The articles were sent on 13.9.2004 and the report of F.S.L. (Ex. P/1) mentions that the articles were brought in a sealed condition and it does not mention that the seals were tampered with. There is cogent evidence of recovery of the contraband from the appelfants,v^hich was found to be 349 kg on weighment. RA/-4 Natthan Singh has also stated that on weighment of 72 packets 349 kg of cannabis was found in it. F-tl (11) Thus, from the evidence available on record it is estabtished that 349 kg of cannabis was seized from the matador No. C.G. 07/C-2006, which was being driven by appellant Vishwajeet whereas appellant Pradeep was conductor of the said vehicle. (12) !n the matter of Gurbaxs Ssngh^ in paragraph 9 the Hon'ble Supreme Court has held that the provisions under Sections 52, 55 & 57 of the Act are directory, their vlolation woutd not fpso facto vio'ate the tria! or conviction, however, the above provisions are required to be duly comptied with and faiture woutd have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the articles. (13) in the matter of fi^iar Singh2 in paragraph 6 of the judgment it has been held that possession is the core ingredient to be established before the accused in the instant case are subjected to the punishment under Section 15. Ifthe accused are found to be in possession of narcotic drugs, it is for them to account for such possession satisfactoriiy; if not, the presumption under Section 54 comes into play. However, in the present case, the defence taken by the accused persons that they were not aware of the presence of contraband in their vehicle, cannot be accepted as they have not examined anywitness toestablish their defence and therefore, knowledge to the appellants may be attributed that they were aware of the presence of contraband in the especially designed secret compartment of the vehicle. .(14) !n the instant case, as has already been observed, there is evidence availabte on record of the investigatlng officer Pradeep Shori (RA/-6) as also that of Malkhana Muharrir Balram Prasad Patel (PW-7) that the contraband was sealed after seizure, the same was stored in Malkhana for safe custody, some samples of the contraband were received by the F.S.L. in a sealed condition and there is no evidence that there was any tampering with the sea! and after anaiyzing the F.S.L. report of Ex.P/1 confirms the pressnce of ganja in the samples. 'r ^^^i •^-. taft' (15) On the basis of aforssaid analysis, l am of the considered opinion that the trial Court after meticulously appredating the evidence availabie on record and duiy considering the defence of the appellants, has recorded a finding that at the time of incident appeiiant Vishwajeet was driving the vehicle whereas appeilsnt Pradeep was conductor of the vehicie, on search pf the vehicle 349 kg of contraband contatned in 72 packets, was seized from secret compartment in the cabin ofthe said vehicle, the same was sent for chemical examination to F.S.L., which establishes that the contraband seized was cannabis. The findings recorded by learned triai Couri: is based on proper appreciatlon of the evidence availabie on record and there is no illegaiity or inllrmity In the impugned judgment, v/hich calls forinterference. (16) !n the result, both the appeate being devoid of substance faii and are accordjngly, dismissed. Dhirendra Mishra Judge 7)73/2008