EEGH CQURT 9F G§HANE$G&&¥!3 BJLASPUR Cgimiaal Aggea! N9. 845 a! 29a5 A9PELLAET about Smt. Rukshana 32f 33 years, Bga wife @ of Durga Shri Nasir aged Nagar, Khan, Rajnandgaon residsnt of iChhaitisgarh) Mohara Bajlmlg Vgsug RESPQEDEET 8mt€ {3f Chhatfggafh §A£§a§ maée: §ectien 3?4{2i cf smitaa gaggeamace: 81m A‘Iz‘nash Misllra, counsel fQr tha appellant. Shri Arun Sao, Govt. Advocate, for tha State. ‘mneMEm (e§.07.2ao7j N §am§§ Kama: $inha J. (1% Baiag aggrieved with the judgmant of Coavictz'on am! order Qf ssntama dated 09.3.2005 guassmi in Spa by {ha Spacial Judge {NDPS Ad), Bagtsy a: dagéalgraa‘, i§?h€:‘§hy thé amwllant was cogvécteii ui’g 20(b}(i1){B} cf the. Naa‘cctic Bragg and PSychatmpic Substaaces Act, E85 {fay 33d s€nt€nced t0 undergo RI. far 5 RS,10,00G/ -, ii: d€fault Sf paym€m 9f fmé, t0 furihgr undagg RJ. for 2 37cm, she has filed fhis Ciimilml appeal. {2§ The brief {33$ ara that 031 an infamaatiaxl recaived by the mgarding bzinging 6f {Ea'iija ciai sage. No. 19/9304 ighar: The ND?S Ami) years Emd to {my a £11m Gf Sub~h1spector M. B. Patel (P, W, 4} , fkbm Grissa thmugh a passalger Bus by a lady, he want to / Dhaupuaji Chmk Past after zuakiag mkvallt entries in V‘V7" ’I‘Wrl‘Fzy-[ww ~ *7 93 CiaA. N0. 345 0f 288*5 Résymmcm Samha, He. was aecomigamed by Hgad Constabla Pazlchumm 33K! constables No.208, 210, 328 éa 392. Whey: the. said Bus cama aver thew, the. lady was idantiiied W116 tsld 1E! Eagla 51;» Ruksama Baa @ Durga {preSEnt ap}1ell€mt). She was carrying a jate hag m wlzich the. celltraband, Ganja in quantity 0f 4.506 Kgs. was thaw. Aftar compiiance Sf ElaCaSsazgr igro‘iisiens 9f NDPS Act, it was Egaized in pawesence of two Panda £1J1§3$5$ 11am5§3r Shyamlal (P.W.2) ($3 Bal Singh {P.W.3}. Tha articls was Sgalad and twa. S€i3a1ate pack€t3 cmltainiag 30 ~ ’30 gixms 6.93331 wags alga aegkd fer the pariwsa 9f sam13ling. The. accusasd aleng-with i116 materiai wag bmught to $11.3 Poh'ce. Staiiml and a. F315? lilfermation Repart (EXP, 19} waa ragigtafd ’& 20-{b} Qf the. NDPS Act Vida Slims: Ne.45;’2G04 Ga 5303,2804. Thareaftétr, the saized Gallja waw kapt 1’11 th€ Ma§§amg for which 331 egtry was llaacie thmugh Ex.P.1(C-}. 'Fmfhis" mia pavst of samFEE. wag 35114; for its chemical ahalgiiaatien to Pomnsic Scienca Laboratary, Raipur, thmugh mane 9f Su§€1int€ndant 0f Policg (Qated 21.3.2004 (EX,P.25) frem where a mpoyt datad 10.5.2G04 (ExP—E) was receivad, accm"di31g ta which a139, the. matei'ial sent far €Xa311inati0a was Gagja, ‘l §3% Tha accusediap13€Ha3I was chargad with sactioa 2G(b)(ii}{B) 9f the NDPS Act, which was dcmed by hen Aftar examiila‘tien 0f the. pmsacutian Witgesses, her statement uls 313 CIRC. was recm‘dad, £11 which, Vida qasstian 1193,15, 16, 3 Cné. No. 345 of 2005 17, 33 65 34, she admittcd the saizme of Ganja from her possessica m qualitity of 4500 Kgs. {4% The Special Csm't convictad. the appamt 011 the basis 0f tesstimsny of Invastigat'mg OiEcai‘ i.s., Sub—Ingyector MB. Patel (RWA), taking suppart'fwm thase partimm 9f widence 0f Ranch wimssses, m which, they have statad. abeut S€arch am! saizute af Gallja fmm the {msaessicra 0f the apgellant as also her admi$signs :nadg ix; the examixxation uls 313 Cr.P.C. mgarding mcovexy of Ganja from her posggssiml, Lealued coxmssl for tha appellant raised the gmunés that the. Panch Witxmsses hava tm'imd hostile a11d 11m varsian of Su¥3~haspect0r MB. Patel {P.W,4} is not fully re1iab1€ and the conviction basézd upen his t€stin1ony taking aid and support fmm tha admissious made by the apyaHant in her accusal statemcnt is not ixl accauialxce with law. On the basis {)f entxy in Ma!kha£a mgieter, he also submitted. mat the sample sent for exammaticn dees xmt ap’iaear t0 be one which was seized from the iaossession of the appeEIant, themfore, eepoxt of the chemical examiaer is of no use. to the pmsecution. {6} On the other heed, Eeaxned Siate Counsel ogngosed these arguments agd supilorted the judgment of conviction arid order of Semence gassed by the Special Court, {7} MB. ?ate1 (P.W.4} has degosed. regardiog the mformation received by him aad also regaxdiag making entry in Rosmmsha hefore degaxtm‘e to the place of seizure. According to his vexsioxl {5} a w... 7’“V’\TK”T"VNVI'“’ // CLA. Ne. 345 of 2005 when the. lady was searched in prassilc'e of PaHch witnesgss, it was fmmd that 51w was holdiiug the possassien of Ganja in quantity of 4.500 Kgs. £11 a jut€ bag, which was possessed by her. The seizure memo (EX.P.9) was prepared in pmoence of two oanch witnesses namely Shyamlal (PM/’2) emd Bel Singh (P.W.3) and two separate packets of 30-30 grams were also prepared from the said article and the remainillg article alongwith the samples were sealed vide EXP. 13. §8§ Though Shyamlal and Ba} Singh have been declared hostile by the prosecution, but they have suppexted the version 9f the investigating Gainer to the extent that gaaja was seized frem the possessioa of the appellant aild they had signed the ‘deeameat to this eifect, Shyamlal (RWQ) has depesed that whee he was sittiiig at lJhaiipunji Naka alongwith his friend Bal Singh {PAVE} who was the Nakedar, Sub-Inspector MB, Patel came ever there alongwith police staii‘ arid remained there for about half an hour. Thereafter, he checked the Bus comiiig from Orissa aad caught the accused who was holdihg a hag. When the hag was checked by the Police, they fouiid Ganja in it. He deposed that some document to this effect was also prepared by the Police on which he had put his signature. He has heeu declared hostile by die prosecution on the ground as he Stated that other documents were not prepared at the place of occurieiice as they were signed iii the police station. Almost, similar evidence has been given by Bal Sirigh (P.W.3), who was the Nakedar of the said check post Where the passeager bus was i ”7.. a...“a..”imamMartha», in rrvxrrv vrlll - CLA. N0. 345 9f 2005 sttmpad axld checked. He also degesed $81 the accusad was got down by the. palica from the said Bus aad wh€n her bag was chmkad by them, caztain articla was faund it; it which was mid to b€ Gama by the. Palicg. T115 police has yre13a1€d certain docammlt at the place. Qf checkmg 0n which he had yut hi3 signature. (9% Firstly, learned. counsel for the appellant had argued mat the centents 0f decument EX.P,13 would shew that total 3 packeis were prepared by the police, cut of which two packets weye ooniaioing 30-3Q grams of seized material and accoyding to the said memo, last packet should have contained 4.440 Kgs. of ganja whexeas the emry of Maikhcmc: register, proved as EXP. Ho}, would Show that the 3rd packei was containmg 4.599 Kgs, of ganja. His argumeiit waa that if the total quantity of 4.500 Kgs. of gaaja was kept in gm third packet m Malkhana then from where the 1W0 aackeis of 30-30 grams (total 60 gyms) were brought by the. police, out of which one was seat for Chemical examination According to lllm, this entry of Malkham register creates doubt on the testimony of investigating cake! and 11o convictioa caa be based Lawn it. (w: legister. The entry has been made in the said register that 3 eackets were deposited there, out of which, one packet was containing 4.500 Kga. of ganja aild 2 other packets were containing 30-30 grams of garija and 4th packet was contaiiaing 7 cunency notes of RS.10/- deaominatioh. About conti‘ahahd, have carefully examiaed the contents of Malkham 4 r r VVW"T‘””WT["’L f— C1'.A. N9. 345 0f 2005 RW has d€pos€d in para 1 1 that he had prapared 3 packg of Garija, cng them, twa packets wag containir 30- grams am lg 30 and the remaining matsrial was kept 1'11 the 3rd packet. In € th cmss axamiiaaticn vide para 33 av, 34, he has deposed that i was t net that 4.560 Kgs, 0f gema was kept in Maikhana but it; fact, j tatal 4.500 Kgs. of ganja was kspt them and samFles 0f 30-3Q g were pl‘eparad from the. total quanity 0f Ganja i.e., 4.50G mms t Kgs‘ seized fmm the. possessicn of the appellax1t. e, fmm Henc tbs €vidce of s investigating afiice, it can not e aaid that en m r b either the packet sent for chemical examination was net larepared from the article seized from the posseesien of the aepellant or it was brought from somewhere else and deposited in Mazlcha, hecenae, thete is a clear entry in the memo EXPJS that 3 packets wei‘e prepared from the contraband seized from e gosession of the anoellant. T enny of m s he Malkhana Iegister ppeas to be a istaken entry Which cannot ar m e made hasia to destroy the testimony of the nvestigating onieer, which apnears to be mistworthy in light of other evidenc on record. e (11) The eeeond argument advanced by learned counsel'for the appellant was about the support taken by the Special Court from the admissions made by the aneellant in her statement u/ s 313 Cr.P.C, His contendon was that the statement of the accused recorded nis 313 Cr.P,C‘ is not an evidence and no convietion can he based on it. He referred to the two decisions of the. Apex Court rendered in the matter of Ehalinder Sing}: a u u r T VVW‘”!“""W7T"I ' 'f A et an h i 7 $5 Cr.A. N0. 345 9f 2305 gs- swig 43 Pugab 1994 MRWeekl Noses 43 S.C. & geyenger Kumar Sin la —~as- £a€dev Krishna Si 2004 {:2} Egaspar Law Jaamal 213 {SC}. In Bhalinder Singh’s case {Sign-a}, ths Apex Ceurt said 1'11 contaxt sf sech'on 313 Cr,P.C., thm the prosecution 113$ to establish its cass and stand 0n its 0W3 legs. Weakness of the. defence cannot be. used as a ch‘cumstance in favour of the erogecutien. Further in case sf Beveader Kumar Singla {supra} it was eaid by the Apex Ceurt that the statement 0f $e accused u/s 313 is not evidence, it is steed 91‘ versien of accused by way of explanaticn, when incrcmnating materials appearmg against him are broughé to his cotéce‘ {12) These are the old settled principles of law about which, there is 11o dispute. But it cannot be said that the admissions made by the accused regarding incn'minat'ng circumstances aepeazing in evidence against him, that means inculpatcry admissions, shall altogether be ignored. The Apex Coutt held in the mattet of State sf 02?. 4:3“ Lakhtni 1993 Cri.L.J.1411 § that “The need of law fcr examining the accused with reference tj to incriminating circumstances appealing against him in nrosecution evidence is not for observance of a ritual in a trial, nor is it a mere formality. It has a salutary purpose. It enables the Ccurt to be apprised of what the indicated persons has to say about the circumstances pitted against him by the prosecution Answers to the questions may sometimes be ilat .x" ‘ denial or outright recudiation of those circumstances. In certain t r! VVK'‘T “VHVV‘F' f C1'.A. No. 345 9f 20G5 cases accusad would ($‘ar same explanations t0 incriminativa circumstanws. In very mm instancss accused may even admit or owg merimmatiug circumstemces adduced agaillst him, imrhaps, fag}? the puxposa of adoptigg kgally recognizaad defences. ix; all such cases the Cpurt gets the advaatage of knowing his versien abeui those aspects and. it helps the Court to effectively apgreeiate and evaluate the evidence in the ease. If an accused admits emy ina'iminatiag circumstallces appearing in evidence againsi him there. is n0 walrant tha$ these admissioris should altogether be ignored merely on the ground that such admissions wet‘e advanced as a defence strategy”. (13% Therefore it is clear that a conviction of the accused camlot be based solely on the statement recorded u/s 313 Cr.P.C., as it is not a1} evidence, but the same cannot be brushed aside out rightly by ignon’ng it and it has to he considered in conjunction with the other evidence on record. {1% Learned counsel for the appellant had tried to argue that if ti the admissions are to be considered, diet; they can be considered as a whole and not as a part so as to prejudice the case of the accused. This argument can also not be accepted in View of the decision of the Apex Court in the matter of Mohan La! wad another -¥s— Ajit Siagh and another Am 1978 5.5., 1133 in which apnroving the earlier judgment recorded in the matter of Nistii Kaat Jha —ys- $tate of Bihar A£R 1Q59 422 sC it held that if the evidence on the record disproires the exculpatory part of the statement of accused in the trial Court, it w .t I' r VVF’T"\7T[”’( 'A" ’f" ‘ CliA. No. 345 9f 2005 is clgarly pgrmissible to accept that part of th€ statemsnt which accords with the evidence 011 thc mcord, axld to act upcn it. (15} Thcrcfcrc, it is furtlgey clear that exammaticxn cf the accused u/s 313 CERC. is not a mare fermah’ty and answcrs givcn by the accused duyiug such examination aye. mportalat and. uscful 1‘11 criminal trial as apart from aEording a3} opportunity ta the. accused to explain incrimiaating cigcumstances agajast him, tha result 0f such cxaminaticn is halpfal t0 the Coui’t in app‘eciahbag thc evidence adduccd in the. cam‘t during the. trial and t0 come. t0 a particular conclusic‘a Regarding the guilt of the. accused, It is also cermiasible to {he Court ts take intc account even the. inculpatory statements igncm'ng the exculpatogy statements if it accords with the evidence on record aild to preas it to the. areaa of acpreciation, {1&3 in the present case, the Special Coui't has taken into acconnt the statement made by the accused u/s 313 Cr.P.C. in which ahe admitted die. factual of seizuxe of ganja from hey nosaession. Not only in one question she has made admission, but in anawers to many questions she has made various admissions regarding her such possession. On question no. 15, 16, 17, 33 65 34 her answers are as follows: ms Wim%%§mwm@$ aenmaawwama‘amfhm WEST mummwmwa idisia‘gxiige IWWW e? u Gd%l w CLA. No. 345 nfmni 11.16 W1§W%%Wqg$mém m¥a§rm,§amw€réwmw WET§im€r3a§W§ iwu'ammmii 10%:WWW;%? a @%i i17w1#.&w%1%wma%r$wa¢ WW%W€IWW4W5OO ‘WWWWWWWWH%WW WW%? xi W§I E33 WWW¢LW11WWW wmw a £rirwévmwgmani n34 WWWWw tram WHISTNWMWWWW 3. 1§irwx£wmwgwwi {1?} Q11 a§3preciati0n, the Spacial Court haé cogsidered the: varsion 9f tha invesa'gatjng oiiicm‘ t0 be awie‘and Even an the facs of agtry 3'11 the Malkhana régistm‘, hig tésmnony has not bseu disbeliavsd considaring the inculpatory admission5 made hy the accused in her examination uis 313 Cr.P.C., as above, {18; Thare appaars to ha 11a i11§n;1ity in tha finding xecorded by the €011.11 belgw 911 the. above material on record 331d the sama cannot be faulted with. There is no substajlce in the arguments advajlced by learned counsel for the appellant. The appeal has 11o merits and fhe same is dismissed. Sm. Ran 7" sUNILKUMAR SINHA \ ' Judge