1 ^o'So'o'^1 •^.wU.:.. K n;.c,h Lourt E Sinjle Bencli (Irirai.tal) iN-^-HI2H-CSlS^-OF-^S^9&TIBE-A:l-^S^PSS-^i£ili CRIMIN&L APPBAL N0, ^\\\^> OF 2000» c.5I^S.i;-&SFE^i:-E!£BS-SB^S2N-^Zfti^l-£F^SE^S-9I CRIffiN&L PROCEDUKB. APPELL&HT >; HSSPONBE ?S i$ KAM&L KUMR gAH^, ^ soa of Bjaaklu Sahu, aged aboiit 50 years Resideiat of gelibandha, Raipur, DJ-stt. Baipur, (M.P.). / (Ye r s us ) THE ST^SS OF FADHYA PRA-IpSH . ,/• y CRIMINAL APPEAL N0.2145 OF 2000 Kamai Kumar Sahu Versus The State of caahattisgarh. Y." JUDGMENT ^^ '^?i^! ^ '^ ^ Post it for: A<?/08/2001 Sd/- R.S. Garg 1 Judge ~yyj uo/ ^uu i • ~ IN IHS HICm COURT OF JVDICATURE CE3HATTISSAKH t BIIASPUR CRININAL APPEAL N©.2145OF 20©0 ^. K.amal Kumar Sahu Ver^Ls The State o£ Oahattisgarh. J U E)G M E MT Per R.S. Garg, J :- The app ellaxrt beii^g aggrieved by the judgment dated 28/06/2000 passed in Special Case Nb.80 of 1999 by the learned S^pecial Judge (N@PS), Raipur Gonyictizig the appellant under Section 20 (b)(i) o£ the Narcotic Drugs and Psydhiotropic Substances Act, 1985 and senfceiiciiig him to yndergo it.I. for two ^^©fe^,and pay fine o£ Rs.2,000/-, in defaMlt of payment o£ fiiie to undergo fmrther B»I»for two months^ Iias filed this appeale J^- (2) The prose^Ation case in brief is that on 03/10/1999 Assistant Sub Inspector o£ Police Station Dhatatari, Shri Ashok Dwivedi received an infor®ationat about 3.50 in the night that in a bus* two persons were brioging Gaoja* After pa'fomiHg the foreaalities the said Sub Inspector o£ Police proceeded towards the spot, On arrival ©£the bus it was stopped, the driver and condtictor of the bus were given the information and thereafter •Uae searda. o£ persons sitting in -the bus were taken. The .-:^y:-:-, (2) occupant of seat Ko«29 beca®enon-plus. The two persons were boarded down from the tous. Notice tind®"Seetion 50 was given to the present appellaat and with his consent his searda. was taken, la the seareh of the air-bag belonging to the aecused 5.500 kg Ganja was recovered. Two samples of 100 gra® each were taken out and thereafter the balance contraband aaad the saaiples were sealed. Panchanamas were made on the spoty the tous ticket was | seized and thereafter the accused was brought to the police 1 station wfaere the F.I.R* was registered, the accused was a arrested and the sealed articles were deposited in the Malkhana. Copies o£ the documents alongwith the infonaation i were sent to the Sub Divisional Officer (Police) Dhamtari. The seized articles were sent to the Forensic Science Laboratory who undertheir report (Sx.P/20) inforaed the poliee that the saeaples were o£Ganja. On completion of the investigation challan was filed against tbe accused who haviog deoied, the charges was put to trial* Aft^n recording the evtdence and hearing the parties learned Coiart below eonvicted and sentenced the accused as referred to above^ (3) Learned counsel £or the appellaQtsubaits that as PW-7 Ashok Dwivedi has failed in proving the compliance o£ Seetions 42, 50 and 57 of the Act the aceused deserves to be acquitted. (4) Shri Jaoodiya, learned counsel £or the State, on the other hand, submitted that from a perusal o£ the stat^ients o£ the witnesses exajained during the course of the trial it would elearly appear that every mandatory provision o£ law was otoserved* He further sutoits that the Gtuantity of Qanoa would rule out every possibility of (3) false implication. c (5) PW-7 Ashok Dwivedi after receiving the ixiformation recorded the same in ^ritixig and thereafter prepared a Panchanama. Findiiag that i£he awaited the search warrant tfae accased persons could run away or could cause disappearance o£ the contrabands he prepared yet aaother Panchaiaama and seQt the inforaation to the Sub Divisional Officer (Poliee). The infonHations were reoorded tn the Ronjoamdbta Saiaha and thereafter he proceeded towards spot* After stoppj.Bg the on-oomixig bus he required the accused to board dowa from the same and gave him a notice under Section 5©» As the accused after receiving Ex.P/6 gave his consent under Ex.P/7 his searefa was taken. In the search, acc©rdiogto the witness, 5.500 Kg Gan^a was recovered, GaEga was weighed on the spot under Ex«P/1. l Accordii^g to Mim the samples were drawn and thereafter the remainiBg Ganja and tbe sawples were properly sealed. AccordjLBg to him, from another persoii Kangalram also Ganoa was recovered. He submits that he broaght the acc^sed persoas aad the contrabands along with the samples to the L police station where he made the entry in R©3BamchaSaaha Ho«172 and also registered the first informatioa r^ort. | From the stateneats of this witness it does aot appear that he conuaitted any violation of Seetioos42, 50 or 57. PV-1 Kaahaiyalal supporticg PW-7 Ashok Dwivedi Mad clearly stated 1 that he had weighed the Ganja on the spot. PW-2 Nano^ i Sharma had also aipported the case o£ the prosecution and 1 had clearly stated that he was iiiiformed about the infor®ationreceived from the iiiformer^ Accordiiag to him, after stopp&i^g the ©11comiiig bus the accuseci were required to board down and thereafter the notices under Section 50 were givea to the®and their consent was. obtained. w According to him in the seardi Ganja wasrecovered from eaeh a6ct1sed and froa the present appellant 5«50©Kg Gaoga was reGOvered. He has also testified that the bus ticket was also recovered and seized from the appellant. In his cross-examination nothiisg important has been broiaght on record. PV-3 Ramesh is Malkhaaa iacharge. He has clearly stated tha-fc the sealed packets containiog the samplesand G'anoa were given to faim which were kept by Mm in the Malkhana. In support o£his contention he had produced the original register in the Court<i It is note worthy that not even a sixsgle guestion was put to this witnesso PW-4 Sfaiv Prasad was the conductor o£ the bus in ^ich the accused persoas were comizag^ He has sapportedthe statements o£ PW-7 Ashok Dwivedi. PW-5 Vinod Kiaaar Tiwari was Station House Incharge o£ the Police Station at the relevaiat time. He had clearly stated that after registra- tion o£ the £irst infonnation reporfc the articles were given to the Halkhana incharge and thereafter copies of Panchanamasy seizure moao, arrest m^oao etc* were sent to the Sub Divisional Offieer (Police). He taas also proved the receipt which is submitted in ttae Court at Ex«P/15. He had further stated that a copy o£ the first inforaatioa report was seirfc to the St>ecial Jiidge. Accordiiig to him the samples were sent to the Fore2?isic Science Laboratoxy ^ho in their tum under Ex»P/2©cerbified that the sa^les were of Ganja. PW-6 C.P. Shukla was Sab Bivisional O.fficer Qf. Police. He had certified that he receivea the infonaations relatiug to the informer*s information and the subsequent informations abouf the search, seizure anrest etc*. From his stat^aeats it elearly appears that Sections ^-2 and 57 were eomplied with in their true spirit. After going through the entire records I affi unable (5) to bold that the prosecution failed in proviag its case. The Court below was justified in convicting the appella^t, (6) It was lastly coBtended that the acciised who has been awarded tw©years R<I» appears to be in oail since 04/10/1999t therefore, the sezrtence be redueed to fhe period already undergone^ I have considered the said argument also. From the records it appears that by now the aceused has undergone one year,ten months and twenty three days oail sentenee. Iii absence of any evidence on record that the aceused is actively eagaged in business of narcotics^ I consider ppesexit to be a fit case where the oail sentence should be reduced to the period already undergone^ (i- ^ (7) ile maintaiQiog the fine affiount and the default sentence I reduce the sabstantive jail senfcence to the period already undergoiie* (8) The appeal to the extent indicated above is allowed. (9) Let a copy of this oudgment be sent inuaediately to the trial Court whichi in its turn shall ioform the jail authorities that i£ tfae accused Mas already deposited the fxne amount thexi he be immediately released i£ not required in axy other case. Sd/- R.S. Garg Judge -2-3 /08/2001. 1+2 Q^-V^