HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL NO.366 of 2006 +6 PosT FOR JUDeMENT ON 1” , MARCH 2008 Sdl- Dhirendra Mj‘shm Judge ’\’§."3‘.oo @ f éa APPELLANT (In Jail) SHESH KUMAR PANDEY Vs RESPONDENT ‘ STATE OF CHHATTISGARH Pagelof5 HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPEAL NO.366 OF 200$ APPELLANT ' Shesh Kumar Pandey. son of Gokulram (In Jain Pandey. aged abwt 24 years, Occupai’oiwLabour, residonf of Khodri. P.5. Bijri, Dis‘l‘ric'r Anuppur' (M.P.) Vs S‘tm'e of Chhoffisgnrh, i'hrough P.5. Jagdalpur, D§s1rlcf Boston Jogdolpur. RESPONDENT _-._._————-- v P‘resen'r: ‘ 5 Mr. 6.5¢.&A9arwa!, 5r. Advoca1'e with Mr. Dilman Minj, Advocafe for appeHont‘ g Mr. Ajay Dwivédi, Dy.‘&ovémmen¥ AdvomTe for The STofe. 1% i ‘ J u D e M e N T (beamed an £32008) “T7! A a”; ‘ A” Dhir'endro Mishro, J ; 1. This appeal is dire¢1ed ogoinsf ‘rhe judgmenf do‘red 25*“ ApriL‘ 2006 passed by learned Special Judge under N.D.P.5. Act Basiar of Jugdulpur in Sessions Trio! No.40/O5 whereby the appellant has been convicfed under Section 20 (b) (ii) (B) of fhe Narco'ric Drugs and Subsfences Acf, 1985 (for shori ”the Ac‘l’) and sen'ienced to undergo RI. for 5 years and 1'0 pay a fine of Rs.25,000/-, in defaulf of paymen'l' of fine to undergo additional RI. for one year. 2. Case of fhe prosecution, in brief, is that on 1.9.2005 around 14.10 hrs ~ 5.L. 5mm, A.5'1., Iii-charge Ponce cut-Pm ausmr received seam i H information thaf a person is standing in front of Barani Chetno Kendra carrying cannabis in the airbag. After recording the above information and performing necessary formalities under [the Act, he proceeded towards the place of incident with two witnesses where he found the appellant waiting for the bus. The appellant was informed about the nature of information and after giving due notice and after obtaining his consent, his personal search was effected, however, nothing incriminating was found. Thereafter, bags were searched? \__7/7 rv/ii t \\ @ ; Page 2 of5 like bS'l'anc was found. For fh weighmen'r of cannabis, Kailn§1 Pafel k ! A of cannais obofh the bogs, f samples each fr bo'l'h the bogs we dr d some were smled. Cannis recovered from the apeant was also seized vid seizure mem of EXP-1. Sezed confraband and 1h appellan‘i were'faken To police ou1' pos‘l Bas‘l’ar where reorf of E —19 wa registere Arficles seize during nvflgfio a arri ) s y we chca ysis f0 Forensic 5Clence Laborafory, Raipur on 3 9 2005 and The report of FSL [Ex P-30] confirms that samples were of cannabis 3. After completing investigation, charge sheet was filed against the appellanf in the Court of Special Judge Jagdalpur. Duringltrial, the prosecution in order to establish the charge against the appellant examined 6 Witnesses m all and thereafter the statement of appellant”: was recorded under Section 313 of the Cr.P.C. in which he denied the . circumstances appearing against him and pleaded that he had gone to Jagdalpur with his friend and while hewas returning to home by bus, he was apprehended by the police and falsely implicated in the case. He is innocence l earned Special Judge, after hearing leamed counsel for the respective parties, convicted and sentenced the appellant as mentioned in Para-1 of this judgment. 4. Learned counsel for the appellant submits that independent witnesses l of search, seizure and other documents prepared during investigation have not supported the ease of the prosecution and the conviction is based on the Solitary testimony of the investigating officer 5.L'. Sinha (PW-6). There is total non-compliance of Section 50 of the Act, as before effecting search and seizure provisions of Section 50 (5) read .with Section 100 of the Code of Criminal Procedure 1973 has not been followed as no independent witness from the Vicinity was called during search and seizure There is no eVIdence that seals by which sue e (PW-1), (1 shopkeeper, was culled and oh weighmenf of bags, 8kg 61 5g s’w mm 13 kg of cannabis was found. ffer making homogenous mix‘ture b f wo om er own an ab pll e o 3 i iesan were hnded over ‘lo Maalkhana Mohr (PW-5 for i afe custod Samples of con’rraband er sen‘i for emil anal e p x P s d d Page 3 of 5 fhe confmband and samples. were sealed were deposi‘red in fhe Maalkhana. The bags in which 'rhe con'l'r-aband was allegedly kept have also no‘l’ been seized. Taking info considera‘l’ion the above infirmi‘l’ies in The investigation, fhe 1’r'ial courf was not jush'fied in convicfing 1he appellan'r solely on 'rhe basis of uncorrobora‘red fes'l'imony of fhe invesfigafing officer. 5. On The o+her hand, leamed‘bepufy Governmen'r Advocafe for ’rhe S'rafe has supported fhe judgmenf of jl‘rial court 6. lfl'lave heard learned counsel for fhe par'ties. I have perused fhe record of fhe trial cour'l' as also fhe impugned judgment If s is setfled o flaw . fhaf conviction under 1'he Acl' can be based on The soliTary TesTimony of The lnvesTigaTing officer provided ThaT The invesTigafing officer has duly complied wiTh The mandaTory requiremenTs of The AcT and his evidence inspires confidence of The CourT. J. ., In The presenT case Baso (PW—2) di Karunakaran Panigrahi (PW-3) are The wiTnesses of search, seizure and oTher invesTigaTion. BoTh of Them have resiled from Their diary staTemenT of EXP—17 6i P-18 and They have sTaTed ThaT They do noT recognize The appellant However, They have admiTTed Their signaTures in The documenTs of Ex.P-1 To EXP—16. Kunjbihari (PW-5), who is Head ConsTable of Police OuT-PosT BasTar and was in-charge of Maalkhana, has produced The Maalkhana regis‘l'er and proved ThaT cannabis kepT in Two packeTs weighing abouT 13 kg and four samples of The arTicles in The sealed condiTion were handed over To him for safe cusTody. He made e'nTries in The Maalkhana regisTer of The above arTicle and senT The samples A-1 & 8-1 Through ConsTable Girdhari Lal Eandre ' on 39.2005 To F5L, Raipur for examinaTion. Though he has admiTTed ThaT The facT ThaT conTraband was broughT in The sealed condiTion has noT been menTioned in original regisTer and There is overwriTing in The original regisTer. . Page 4 of5 9. PW-1 Kaihsh Pa'rel has deposed 'thaf he was oalled by The police in 1'he police sfafion where he measured fhe cannabis kep? in 'rwo packets and affer measuremem he found fhuf i1' was 8kg 6: 5kg respectively. 50-50 grams of samples were drawn from each packet 10.5.L Sinha (PW—6) Investigahng Officer, has meficulcusly detailed various sfeps token by him during investigafion righf from receiving The secref informo'rion abouf fhe cppellanf's carrying cannabis, recording informafion and forwarding the same 1'0 The superior offigers, documents of EXP-2 meniioning fhe reasons for proceeding fo effeczr search and seizure wi‘rhou‘r obfaining’ search warrant no'l‘ice undefr Secfion 5O of'the Ad (EXP-3), personal search memo of Ex?- 4, recovery memo of EXP-5, preliminary examination memo of Ex.P-6, weighmenf memo of EXP-8, specimen seized memo of EXP-11‘ seizure memo of EXP-13, FIR of Ex.P«55, reporf of FSL of EXP-30. However, The defence in cross—examinaTion of This wiTness has noT been able To eliciT anyThing which makes his version unTrusTworThy or unreliable. $ " :‘ ; 11. So far as The argumenT of learned Senior Counsel for The appellan'l' argued ThaT as per SecTion 100 of Cr.P.C. search could be effecTed only in The presence of Two or more independenT and responsible inhabiTanTs of The localiTy is concerned, from The sTaTemenT of The invesTigaTing officer as also from The documenTs available on record iT is clear ThaT before effecTing search of The appellanT, he «was given opTion To be searched in The presence of a GazeTTed Officer or MagisTraTe and only afTer obTaining his consenT, personal search as also The search of bags, which he was carrying wiTh him, were made. There is no cross-examinaTion of The invesTigaTing officer (PW-6) by The defence ThaT The independenT wiTnesses were Though available buT were noT called. 12.50 far as The ‘oTher argumenT ThaT specimen seals by which The ‘ samples and The conTraband were sealed, were noT placed in The ’Maalkhana for safe cusTody is concerned, There is unconTroverTed f Page 5 of5 evidence of Mnalkhana Moharrir (PW-5) thuf fhe confrahand and specimen were brought in The Maalkhana in The sealed condi'rions. The investiga+ing officer ha's also sm’red The above fuc'r and the defence has no‘f chullenged his version during his cross-examina‘rion. 13.Thus, from 'rhe evidence of invesfigafing officer, which aiso finds corrobomfion from Kunjbihari (PW-5) & Kuilash Pafel (PW-1) The prosecuTion has been able To esTablish The charge ugamsT The i1 appellanf beyond aii reasonable doubTs and m The considered opinion of ghls Cour? The iearned Specmi Judge has noT commiTTed any illegaliTv or -infirmiTy in convicTing The appellanT in The aforesaid offeg'ice. 14.In The resuiT, The appeal of The appellanT has no subsTance, The same is liable To be dismissed and iT is accordingly dismissed. sdl‘ Mash‘“ 3 Dhifwdf wage l i751”