APPELLANT: (!n Jai!) RESPONDENT: Present: HIGH COURT OF CHHATTISQARH, BILASPUR Cnminat Appeai No.S10of2006 \^ Bharat Kumar Rajak, S/o Prabhulat Rajak, aged about25 years, Occupation Driver, R/o Ramkundpara, P.S. Saraswati Nagar, Distt. Raipur (C.G.) Versus * State of Chhattisgarh, Through Station House Qfficer, Polics Statfon Darbha, Distt. Bastar (C.G.) "^" .3? ^" Mr. M. Hashim Khan, counsel ferttie appellant. Miss Sahgeeta MishFa, Panel Lawyer for Ae State/respondent. (Criminat appeal under Section 36B of the N.D.P.S. Act read with Section 374 (2) oftheCodeofCriminal Procsdure, 1973) Sinale Beneh: Hon'bte Mr. T.P. Sharma, J JUDGMENT ^Q-'^SS) 1. This appeat is directed against the judgment of conviction and order of sentence dated 16-6-2006 passed by the Special Judge, N.D.P.S. Act, Bastar at Jagdaipur in Special Case No.31/2005, whereby leamed Special Judge after holding the accused/appellant guilty forpossession ofthe contraband arfcle of coromereiat quantity convicted him under Section 20 (b) (ii) (C) ofthe Nareotic Drugs and Psychotrapic Substances Act,1985 (for short 'the AGt')and sentenced Mim to undergo rigorous imprisonment for ten years &pay a flne of Rs.1,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for four years. 2. Thejudgmentis challenged on the groundthat Investigating Officer VishalSom (FW-4) was the complainant inthis case, he has also investigatedthe offence, same is not sustainable in law and the Panch witnesses have not supported thecaseoftheprosecution. , ^ ' c f ! 3 I have heard ieamed counsei for the parties and perused the impugned judgment as atsothe record ofthetrialCourt. 4. Caseofthe prosecution, in brief.is ftaton 7-7-2005atabout5.15a.m. Vishsit $om (PW-4). 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It is argued on behalf of the appellant that the Panch witnesses have not supported thecase of fte pitosecutionand the Potice Officer who investigated the case has not foilowed the procedure prescribed. Vishal Som (PW-4) is tfte comptainant in this case and 4ie himself has investigated ttie case which is against the crimlnal justice system, as such, the entire proceeding is wOated. Learned counsel for the appellant placed reHance in the mattef of Megha Singh v. State ofHaryana in which it was held by the Apex Court that the Head Constable, who has arrest^d the accused and recovered pistol & cartridges from him, being comp^inant shouki not have proceeded with investigation of the case. He has ftirther ptaced reliance in the matter of Naushad v. State of Kerala2 in whieh after referring to the matter of Megha tsupra),the Kerala High Court has hetd that investigation by the compiainant is not proper. Leamed counset also piaced retiance in the matter of Mahendra Singh v. State of M.P.3 in which white refemng to the cases of Megha & Naushad (supra), the M.P. High Court has held that convicbon ofttie appetlant based on the evidence ofthe Potice Officer who was complainant and who had investigated the case is not proper. Leamedcounset for e appellant further placed reliance in the matter of Parmeshwar Das v. State of M.P. in which it was hefd by the M.P. High Courtthat "case rests sotety on evidenceof ASt - panch witnesses not supporting the case - evidence on seareh, seizure appears highly ctoubtful - no evidence on sealing - article not produced in Court- accused entitled to acquittai". 8. On the other hand? learned Panet Lawyer has supported the Judgment ofthe trial Court and submiflsd that the prosecution has proved the case beyond all reasonable doubts and the tnvestigating Officer has complied with all the necessary provisions prescnbed underthe Aet. 9. In order to estabtish the guilt of the accused, fte prosecution is required to establish the fotlcwing essential ingredientsthat, (i) the appeilantwas found in possession ofthe contraband article; & (ii) the prosecution hag comptied with ffiy! necessary procedure meant to safeguardthe valitabte rightofthe ace'used pereons. 10 In order to appreciate the contentions of the parties and in order to establish complicity of the accused in the cn'me in question, 1 have examined the ;-1 AtR1995.Se 2339 -22000CrlLJ.2870. , •'2008 (1) MFW.N 61 ' 42008(!l) MPWN 38 W-— ,L-«"g9t.:a ;>—•!-•'•t^.""^;^ ^ s •^^^' -^ '^l?-' •-f-'L^S-??'*'' 4 '•->'' material avaiiable on reeord. Vishal Som (PW-4) has stated in his evldenCe that on 7-7-2005 when he was posted as Sub Ihspector, PoHce Statfon Dartiha, he received informationat 5.15 a.m. that one car bearing No.CG-04/ZD-5225 is coming from Sukma wlth G^inja and going towards Raipur, he recorded the Roznamcha vide Ex.P-20, summoned the witnesses and prepared the Mukhbir Panchanama (Ex.P-1A). He sent the copy of information to the superior offlcer vide Ex.P-2. At about 7.30 a.m, on the same day, he wentto the forest Naka Darbha along w'rth police force & witnesses. At about 11 a.m.the accused came in white car bearing No.CG-04/ZD-5225, he was atone in the car and driving the car, he was stopped aR.d informed about the Information received 8:1 from the informant, he was atso ioNrmed vide Ex.P-3 that they wilt seareh the car. The accused was informed-abput his right to search by the Gazetted Officer or Magistrate vide Ex.P-4. The accused consented for seareh by the Police Offlcer (this withess). First the Investigating Officer made seareh of himself, thereafter, he made search of ttie police officials vide P-5 and finally he made the search of the white Cielo Car vtde Ex.P-6 on which the contraband articie Ganja was found in ttie car, same was recovered vide Ex.P- 7. Identification Panchanama ofthe contrary band article was prepared vide Ex.P-8. Panchanama of weighing apparatus was prepared vide Ex.P-9. The contraband ardcle was weighed and same was found to be about 1 quintal Kgs. vide Ex.P-10. Seai impression was prepared vide Ex.P-11. The contraband article was weighed and two samples of 25 Kgs. each & 30 Kgs. each were prepared and same were marked as A-1, A-2, B-1, B-2, C-1, C-2, D- 1, D-2 vide sample Panchanama Ex.P-13. Seized artictes were recovered vide Exs.P-14 & P-15. Vishal Som <PW-4) has further stated that he had arrested the accused on the spot vide Ex.P-16, hecame back to the Police Station along with the accused & She seized property. He deposited ttie seized property in the Police Station, lodged the F.I.R. Ex.P-23 and preparedthe spot map Ex.P-24. He has also sent the intimation of arrest to his superior offlcer vide Ex.P-2 and detailed report of the same vide Ex.P-26. The samples were sent for chemicat analysis through the Superintendent of Police vide Ex.P-27 to the F.S.L. Raipur from where the repQrt Ex.P-1 was reeeived. ^ II.Shankar Singh (RA/-1);& Hira Singh (PW^2) are the Panch witnesses, they have not supported the case of the prosecution and the prosecution has dsclared them hostile. They have admitted their signatures from Exs.P-1A to P-17. 12. Ramakant Thvari (PW-3), Head Constable, has stated in his evidence Ihat He receh/ed the contraband articie and it was kept in Matkhana of the;:F'ct[iee Steition. He has also stated that the sarhptes were sent for ehemieatai^lysis. T "slsy '%.a£s^' n" )•! ii !M Dhanraj Chandak (PW-5) has not supported the case of the prosecution, but he has stated that he has provided the weighing apparatus for the purpose of weighing the contraband articte. \ 13 In this case. Shankar Singh (FW-1) & Hira Singh (PW-2) are the Panch witnesses who have not supponed the prosecution case, but they have admitted their signatures on ttie documents E)®.P-1Ato P-17. In the present case, the Panch witnesses havQ not stated tMat they have stgned the papers under threat or pressure of the Potice. As has been hetd by the Apex Court in the case of State of Rajasthan v. Udai Lal unless it is stated by the witnesses that they have put their sigjnature on the documents after being put under terror or pressure or without tBgir ftee consent, their e^dencecannot be discarded. Their non-corroboration is notfatal to the prosecution. 14.1n the case of Megha <supra), the Apex Court has held that the Head Constabte, being comptainant, arresting accused and recovering pistol and cartridges from him, should not proceed for investigation. Para 4 of the said judgment reads as under: - "After considering the facts and cireumstances of the case, it appears to us that there is discrepancy sn the depositions of the PWs 2 & 3and in the absence of any independent corroboration suchdjsorepancy does not inspire confidence about the reiiabilify of the prosecution case. Vrfe have aiso notedanotherctisturbingfeafaire ihthis case.. PW-3, Shri Chand, Hsad Constabte arrssted the accused and on ssarch being conducted by him a pistoiand the cartridges were recovered from the accysed. tt was on his comptaint a formai first information report was lodged and the case was initiated. He being complainant should not have proceeded with the inyestigation of the case. But it appears to us that he was notonly the complainant in the case but he camed with the investigation and oamined witnesses under Section 161 Cr.P.C. Such praetice, tosay the least, should not be resorted to so that there may not be any occasion to suspect fair and impartia! investigation." /•'' 15.1n the present case, after reeeMng the information from the informant, and after recording fte informaUon in Roznamcha, Vishal Som (PW-4) proceed for the spot aiong with the witnesses & poli&e force. He made searoh, seizure and necessary inquiry,. thereafter, he came back tQ.the Police Station and lodged the F.I.R. anct also deposited the seized prop$rty in the Potice Station. Sample ofthe contraband article was sent to the F.S.L., Raipur bythe Superintendent of Poiice for chemlcat analysis. In this case, the Investigating Offlcer has not inves^igated the crime after lodging the F.t.R. but he has conductedlessentlal investigation at the spot and thereafter, lodged the F.I.R. This is noljthe casie - where.Vishal Som (PW-4) has not inyestigated the ease after todgingithe FI.I.R. - 52006AIRSCW3495 \u9 :;.^ .i-.nniiiilhS£iSS»»^^wl ,,-i.3'.'?!??'3:'; .^ ^./ ^ Before lodging the F.I.R. necessary inquiry has been conducted by ^ishal Som (RW-4) at the spot. Thus the case of Megha (supra) is distinguishabie on facts to that of the Instant case. \ 16. Vishal Som (PW-4) is a Police Officer and his evidence cannot be discarded merely on the ground that he is the Police Officer and interested in the outeome ofthe case. tn this case, the tnvestigating Officer namely, VishalSom (PW-4), who Is the complainant, receh/ed information and after^complying with the procedure prescribed, he reached to the spot, made search & seizure of the contraband articte, recorded the statements of the witnesses and ultimately, after arresting the applicatjji, he came to the Police Station and ;3? lodged the F.1.R. Statement of the pQllce officiats cannot be rejected only on the ground that they are interested in outcome of the case untess interestedness or departure from the procedyre is speciflcally shown. In the caseof Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra ; the Apex Court has held that testimony of poltee officiais are not tiable to be discarded merely because they are potice officials. However, their evidence should be carefully scrufinizedand independentty appreciated. Para 5 of the said judgment reads as under:- "Indeed ati the 5 prosecution witness who have been examined in supportofsearch and seizure were members of fte raiding party. They are ail police ofnciais. There is, however, no rule of law that the evidence of poltoe officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of thepolice officials, who are interested in the outeome of the result of the case, needs to be carefully scrutinised and independently apprecsated. The police officiais do not suffer from any disability to give evidence and the mere fact thai they' are police offlcials does not by itself give rise to any doubt about their creditworthiness. We have carsfuily and criticaily analysed the evkience of aii the 5 poiice ofncials. There 's noth'ng on the record to show that any one ofthem was hostile to be appellant and despite tengthy cross- examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms Uie detsiis of the trap that was laid io apprehend the appeilaht and the manner in which he was apprehended. Their evidence regardihg seareh andseizure of the weapons from the appeiiant is straightforward, yinsistent and specific. It inspires confldence and leamed c^iunsel for the appeltant has not been able to pointout an^'serkius, Ist alone fata!, infirmity in their evidence. in our opinion, ihe factum of search and seizure of the country-made revolver from the conscious possession of the appeliant has been estabiished by the prosecution beyond any reasonabie doubt. The •explanation givsn by the prosecution, for the non- i ;i examination orthe two panch wibiesses, which is supported ; Kl ) 2 SCC 589 w N1y' IHl:l';?';:'i-' •aBS&tamKiBiSSB! .,.,....».,.m 7 by the report Ext. 24 fiied by PW 4 Pl Gaikwad is i satisfactory. Ths ewdence on the record shows that the raiding party made sincere efforts to join with them two independent panchasat the time of search and seizure and they were so joiried. They were aiso cited as prosecution witnesses and summoned to gh/e evidence. However, despte diligent efforts made by the prosecuting agency to serve them, they couid not be located or traced and therefore they could not be examined at the trial. !n the face of the faets stated in report Ext. 24, the correctness of which has remained virtiialty unchalten.ged during the cross- examination of P\N 4, the non-examinaton of the two panchas cannot be said to be on account of any oblique reason. Their non-production at the trail ttius has not created any dent in the prosecutiteh case. The prosecution cannot be accused of withholding .trt'ese witnesses since it made every effort to trace and prod_uce them at the trial but faited on aecount of the fact that theybad left the addresses ftirnished -~ by them at the t'me of search and theirwhereabouts could not be traced-despite diligent efforts made in that behalf. We, therefbre, do notflnd ahy reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellantofthe counfry-made revolver and cartridges for which he couid produce no jicenee or authority because of the non-examination of the panch witnesses. We find that the svidsncs of PW 1 to PW 5 is reliabie, cogent and trustworthy." 17. tn this case, defence has not been able to eticit anything that this witness VishalSom (PW-4) is interested witness or has not followed the prescribed procedure. Vishat Som (PW-4) has been cross-examined by defence in detail. But defence has not been able to eiicit any thing in the evidence of this witness. 18 Ramakant Tiwari (PW-3) has specifically stated in his evidence that he has received the property in the Police Stadonand sent the sample for chemical analysis. In the absence of any suggestion on behalf of defence regarding confravention of the procedure prescribed for proceeding with the case, it cannot be presumed that prejudice has been eaused to the appellant. 19. Evidence of Vishal Som (PW-4) inspires confidence and it is trustworthy. Reliance can be safely placed on his evidence. The trial Court after appreciating the evidence available on recrf-d, convicted and sentenced the appellant as afbrementioned. Convicttoh of the appellant is based on substantiat and credibtee\ridence. The trial Court has not committed any illegality orinfirm'rty in thejudgment. 20,As regards the question of sentence, the appeliant was found in possessionof about 1 quintal 10 Kgs. of Garya, same is of commereial quantity. After|akingi into consideration the possesston of huge quantity of Ganja seczeid fi'ontj|t|i& Soma apcused, leamed Special Judge has sentenced the ac'cused/appellant to undergo R.l. for ten years & pay a fine of Rs.1,00,000/-. Sentence awarded to the appellant is neither excessive nor unjust. \. . . . . 21. In the result, l do not flnd any merit in the appeal, same is liable to be dismissed and it is hereby dismissed. Sd/- T^P.Sha^na Judge d1M