-Q) CF0000064593 ^k^ ^^'- IN THE HIGH COURT OF JVDICATURE AT JABALPUR (^ CRIMINAL APPEAL N0.\1-^^ of 2000 APPELLANTi ^ ^',/'' t^^ ^^^* &"•- ^\^' ^'"'^ '^^* ^•^ ^•^ r- ^" ^g^ONDENT: Chandra Kutiiar Dhohi, S/o §.adanand Dhobi, aged 22 years, R/o Barapeepal, Police Station Dabhara, District Janjgir Champa, Madhya Pradesh. Versus State of Madhya Pradesh, Tbmigh: District Magistrate, Raigarh. MEMORANDUM QF CMMINAL APPEAL UNDER SECTION 20fMm OF N.D.P.S. ACT 1985 161 THE HIGH COURT OF JUDICAIURE CHHATTISGARH ; BILASPUR CRIMINAL APPEAL N0.1743 OF 2000 Chandra Kumar Dhofai Versus The State of Madhya Pradesh (now Chhattisgarh), ORAL JUDGMEHT Per R.S. Garg, J !- t-s. w By this appealy the appellant seeks to impugn the correctness^ validity iimd propriety of the judgment dated 13/06/2000 passed in Special Case No.11 of 1999 by the learned Special Judge (I\TDPS) Raigarh convicting the appellant uuder Section 20 (b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to. undergo rigore^sas imprisormient for two years and six months and pay fine o£ Rs^00/-9 in default of paymeut of fine to undergo rigorous imprisonment for three months, (2) The prosecution case in brief is that on 28/08/1999 D.K. Musharif (PW-7) the Town Inspector posted at Police Station Raigarh, received an informgtion £rom the infonaer that the present appellant was standit3g at the Bus Stand and was tryiQg to sell Garga^ After reoeivirig the information said D^Ke Musharif pr^ared a Panchanama of the informationy sexrfc a a>py of' the same to his superior officer? amde the entries, in Rojnatiicha and proceeded towards the ^)0t. After giving notice under Sectton 50 o£ the Act the search of the accused was taken^ The accused appellant was found i^jpossession of (2) two Mlogram Ganja<» Samples were drawn^ the accused^ the cont'rabands and the wituesses were brought to the police station where Defaati Nalish already registered^was converted into the first inzormation report, the articles were given for the safe custody and under the directions of the Supe rint end ent of Police the articles were sent tor their chemical analysis/ After receiviiig the FSL report the police 'agency filed the challan against the appellant, As the accused abjured his guilt, he was put to trial. After recording the evidence and hearing the parties, the learned trxal Court convicted and sentenced the accused as referred to above. r^ (3) Shri Vivek Ranjan Tiwari, learned counsel for the appellant^ submits that as the mandatopy provisions of the Act were not complied with the couviction of the appellant and award o£ the sentence are bad. (4) On the other hand, Shri Ranveer Singh, leamied Govt. Advocate, for the State, submits that from the statements o£ D«K. Musharif (P¥-7) it would clearly appear that every manfiatory provision was scrupulously follov^ed and there is no scope for interference in the findings recorded by the trial Court^ (5) I have heard the parties» (6) From the statements o£ D.K. Musharif (PW-7) it would clearly appear that after receiving the information he recorded the sanie in the Rojnamcha (Ex»P/8)y sent the iriCQnnation to the Superintendent o£ Police under EK<iP/9 and started tov^ards the spot/ TMs fact is again recorded in the Rojnajncha Sanha produced in the Court as £x«P/10, After reaching the spot PW-7 D.K. Mushary_gave_&»P/6 to the ^^ -f.—i (3) . I accused under Section 50 of the Act. His consent was obtained dndep Ex^P/12 and the search was effected under Ex^P/3<» After recovery o£ Ganja it was weighed on the spot under Ex<P/5» Ttoe^amples of 25 gram eachwere drawn and were sealed under /Ex<P/2e After seizure the seal were affixed and on the seizure memo itself the impression of thel seal was affixede Ex<»P/15 Dehati Nalish was recorded on the11 spot. After return fpom the spot the entries were again made in the Rojnamcha Sanha (Ex.P/11). Tbe FIR was registered at Ex^P/14 and the required informatiorBunder Section 52/57 o£ the Act were sent to theofficial superior ^c so also to the Court under &C.P/7. s- (7) True? it is that the independent witnesses Raju (PW-2) and Tilakram (P¥-4) did not support the prosecution case but from the statanents of the other witnesses it would clearly appear ttoat PW-7 D.K. Musharif proceeded to the spoty effeeted the search, made the sei^ure and brought the accused with the contraband to the police station. From the FSL report (Ex.P/17) the correctness o£ whidi was neither challenged before the trial Court nor before this Court, it would clearly appear that the article^ seized from the accused was Qanjae After going through the entire evidence especially the statemen-ts o£ PW-7 D.K. Musharif I am unable to hold that the Court below was unjustified in recordi^g the findings against the accused appellant^ I confirm^ the said findings. ^ (8) At this stage? Shri Tiwari, learned cour»l for the appellant^ subm^ts that the appellant is in jailsince ^CJl^-frv^-C 29/08/1999/ the oail sentence be reduced to the perlod already undergone. Shri Ranveer Singh, learned counsel -for the ^) ^;—/ (4) State, on the other hand, submits that lookiisg to the quantity of Qanjait cannot be held that the jail sentence suffers with the vice of excessiveness, (10) The appellant remained in oail with effect from 29/08/1S99 as an under-trial prisoner up to 50th June 2000. Since thereafter he is in jail as a convict. Dari33g last 15 months the appellant must have earned the remission of almost about three months or little more, By now he must have undergone about two years and three months op little more^ (11) Taking into consideration the period already anaergone by the sppellant, I consider present to be a fit case for reducing the jail sentence from 2i years R.I. to the period already undergone^ (12) While affirming the fine'ajnount;BEjEBjEd and the default sentence I reduce the substantive jail sentence to the period already undergone, If the appellant has already | deposited the fine amouirt then he be immediately released,if ! not required in any other case and if he has not deposited the fine amount he be required to undergo the default sentence, 1+2 (13) '.Che appeal to the extent indieated above is allowed. Records of the Court below be immediately sent back with a ' copy of thxs order enabling the trial Court to take immediate steps in accordance with the directions of this Court< Sd/- R.S. Garg Judge 10/09/2001. ^ ^-s ^SS-"^