E N T H E H I G H C O U R T O F J U D I C A ‘ I ‘ U R E O F C H H A T T I S G A R H A T B I L A S P U R . 2 0 0 3 . ' C R I M I N A L A P P E A L N O . c w A P P E L L A N r 7 m J A I L c u s ? 0 D Y ) » G a n e s h Y a d a v S o n o f M o h a n Y a d a v , a g e d a b o u t 2 5 y e a r s ; O c c u p a t i o n - T a x i D r i v e r . r e s i d e n t o f - V i l l a g e - G a n j p a r a . B a n d h a T a l a b , D u r g , b . s . - D u r g , D i s t t . ¢ D u r g ( c . G . ) ‘ n V E R S U S S t a t e o f C h h a t t i s g a r h , t h r o u g h : P . S . D u r g , D i s t t . . . D u x g ( c . G . ) Q § I M I N A L A P P E A L U N D E R S E C T I O N 3 7 4 $ ) ? 2 ) C r . P . C . R E A D W I T H S E C T I O N g s K K h a ) N . D . P . s . A C T 1 9 8 5 . >•' HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKARJ. J Criminal Appeal No. 604 of 2003 @ Appellant Ganesh Yadav Reseondent Vs. TheState ofChhattisgarh. And Cnminal Appeal No. 125 of 2003 Appellant Respondent Hanshu Chandrakar. Vs. The State of Chhattisgarh. i:i- -!!1:1:! i^ss\ HS i!:IBI i 11 POSTFORPRONOUNCEMENTOF JUDGMEKO— fi*» Sd/- R.N.Chandrakar Judge Sd/- JUDGE -9-2009 '^ 881 11,1 iW;^i;tl:S'^;?rTT~i l^ff KK Apoeltant: HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 604 of 2003 Ganesh Yadav son of Mohan Yadav, aged about 25 years, occupation - Taxi Driver, resident of village Ganjpara, Bandha Talab, Durg, P.S. Durg, Dist. Durg (CG). Versus Respondent: State of Chhattisgarh, through P.S. Durg, Distt. Durg (CG). Present: Shri V.P.Gupta, counsel for the appellant. Shri Rakesh Jha, Dy. Govt. Advocate for the State. & Criminal Appeal No. 125 of 2003 Appellant: Versus Respondent: Hanshu Chandrakar, S/o. Shivnandan Chandrakar, aged about 38 years, occupatipn - Labour, r/o. Nayapara, Durg, District Durg (CG). State of Chhattisgarh, through P.S. Durg, Distt. Durg (CG). (Criminal appeal U/s 374 (2) ofthe Code of Criminal Procedure 1973) SB: Hon'ble Shri R.N. Chandrakar, J. Present: Mr. R.K. Jain and Ms. Kiran Jain, counsel for the appellant. Mr. Rakesh Jha, Dy. Govt. Advocate for the State. JUDGMENT (Delivered on this \c>^- dayof September, 2009) 1. Since both the appeals arise out of Special Case No. 22/2002, these are taken up for hearing together and are being disposed of by a common judgment. 2. Both the appeals are directed against the judgment of conviction and order of sentence dated 9-1-2003 passed by Special Judge (constituted under NDPS Act), Durg, in Special Case No.22 of 2002, whereby the accused/appellants have been convicted under Section 8 (c) read with Section 20 (B)(1) of the Nareotic Drugs and Psychotropic Substances Act, 1985 (for short, "the Act, 1985") and sentenced to undergo R.l. for three years and to pay fine of Rs.7000/- each, in default of payment of fine to undergo Rl for further period of one year. 3. According to the prosecution case, Sub Inspector Crime Branch Durg, Shri K.L. Tandon received secret information at about 7.30 p.m., on 7-9-2002 from the informer that the accused/appellants were coming from Khursipar Bhilai with Ganja. The Sub Inspector intimated this information to witnesses vide (Ex.P/6), reached the spot along with staff and waited for accused/appellants. After some time, the accused/appellants reached the ptace of incident by Hero Puch bearing No. 24 E.F/8131 which was driven by Hanshu Chandrakar whereas Ganesh was pillion rider. The Sub Inspector stopped them and following the due procedure, police party searched the accused/appellants and seized 6kg Ganja from their possession vide Ex.P/11 & Ex.P/15. During the course of investigation Police lodged "Dehati Nalish" vide Ex.P/17, lodged FIR vide Ex.P/18 and prepared spot map vide Ex.P/19. 4. After completing the investigation, charge sheet was filed against the accused/appellants in the court of Special Judge, Durg. The Special Judge franned the charges under Section 8 (c) read with Section 20 (B)(1) of the Act against the accused/appellants for having been found in illegal possession of 6 kgs Ganja. The accused/appellants abjured the guilt. After due trial, the leamed Special Judge, convicted and // / • .-••! '•i^ J. (^0. SNaSe sentenced the accused/appellants as mentioned in para 2m of the judgment. 5. After recording the evidence of witnesses, the statements of the accused/appellants were recorded under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and pleaded their innocence and false implication. ' 6. Learned counsel appearing for the appellants submit that the judgment of conviction and order of sentence passed by the Special Court are bad in law and facts. The prosecution has not produced any independent witness and has not complied with the mandatory provisions of Sections 42 and 50 of the Act, 1985. The Special Judge erred in holding the appellants guilty for offence under Section 20(B)(1) of the Act. Learned counsel further submit that FIR was lodged belatedly. The prosecution also failed to prove the story beyond all reasonable doubt against the accused/appellants. The defence version ought to have been accepted by the Special Judge. Learned counsel lastly submit that considering all the facts and circumstances of the case, the judgment of conviction and order of sentence passed by the Special Court be set aside and the accused/appellant be acquitted of the charges. 7. Per contra, learned counsel appearing for the respondent/State argued the matter in support ofthe impygned judgment ofthe Special Court. 8. Having heard learned counsel for the parties, 1 have perused the records of the trial Court and also the impugned judgment. 9. In order to prove the guilt against the accused/appellants, the prosecution examined four witnesses. 10. PW/2-K.L. Tandon, Sub Inspector, Crime Squad, Durg stated in his deposition that on 7-9-2002 during patrolling he received secret information that accused/appellants namely Hansu Chandrakarand Ganesh were coming from Khursipara, Bhilai with Ganja. He prepared the panchnama of the said information vide Ex.P/6 and sent the same to City Superintendent of Police, Durg. Thereafter, he left for the spot along with police party and after following the due procedure under the Act searched the accused/appellants and seized 6 kgs of Ganja vide Ex.P/15 from the possession of Ganesh Yadav (appellant in Criminal Appeal No. 604 of 2003) who was a pillion rider of Hero Puch bearing No. MP 24 E.F/8131. The offending vehicte was being driven by Hansu Chandrakar (appellant in Criminal Appeal No. 125 of 2003). The seized Ganja was kept in two polythene packets in a bag. Thereafter, the seized Ganja was weighed on the spot vide weighing panchnama Ex.P/12 before the witnesses and two samples of 50 grams each were taken out from the seized Ganja vide Ex.P/14. The accused/appellants were issued notices under Section 91 ofthe Act, vide Ex.P/16 regarding the possession of Ganja to which they failed to explain and stated the offending vehicle to be taken from Dinesh Tiwari, Ganjpara Durg. Dehati Nalsi Ex.P/17 was prepared on the spot. Constable Yuvraj was sent along with Ex.P/17 to Police Station Duig for registration of crime and depositing the seized article in the Malkhana. He further stated that the further proceedings were done by the Station House Officer, Durg. This witness was cross examined at length but he remained consistent and unrebutted. 11. PW/1- Shankar Prasad, the Head Constable, Police Station Durg, produced Mal Entry Register No. 322 before the court and stated that on 7-9-2002 he deposited the article and one Hero Puch bearing No. MP ti-lll—,....,j^.(., Wtt 24-EF/8131 seized from the accused/apptellants. He further stated that the seized properties were sent to Forensic Science Laboratory, Raipur, on 10-9-2002 for chemical examination which was received by FSL on 12-9-2002 as mentioned in Ex.P/1 from "A to A" part. Both the samples were received back with report on 20-9-2002 which was mentioned in Ex.P/1 from "B to B" part. He further stated that the report of FSL is Ex.P/2. Thus, he has corroborated the testimony of PW/2, Sub Inspector, Crime Squad, Durg, who seized the Ganja from illegal possession of the accused/appellants. 12. PW/3 Parasu Ram Tripathi, Assistant Sub Inspector, Police Station, Durg, stated in his deposition that on 7-9-2002 he registered the FIR (Ex.P/18) on the basis of Dehati Nalsi (Ex.P/17) brought by constable Yuvraj Singh and admitted his signatures from "A to A" part and proved the signatures of constable Yuvraj Singh from "B to B" part of the same. He further stated that he prepared spot map (Ex.P/19), recorded the statements of witnesses Amrit Lal (PW/4) Manoj, K.L. Tandon (PW/2) and Head Constable Ramavtar. He sent a copy FIR to the court and obtained the receipt Ex.P/20. He also admitted that to send the sampte of seized article (Ganja) to FSL through Superintendent of Police, Durg vide Ex.P/21 and received the FSL report (Ex.P/2), In cross examination of this witness, he remained consistent and unrebutted. Nothing was pointed out by defence which goes to show that the proceedings against the accused/appellants were illegal which vitiates the trial. On the contrary, he has clearly corroborated the version of PW/1 and PW/2 regarding registration of FIR (Ex.P/18) and sending the seized article to FSL and obtaining its report. 13. PW/4 Amrit Lal is the independent witness of search and seizure who has supported the case of fhe prosecution and stated that the accused/appellants were searched in his presence and they were found J^ ^ h '!--l:'=^..i.--iL>it, f. . . -"—-lini.i -«rrii..Tiiir—"aEii-J-"j ^, in illegal possession of 6 kgs of Ganja. The ganja was weighed and seized in his presence. He admitted his signatures on Ex.P/6, Ex.P/9, Ex.P/11, Ex.P/12. Ex.P/13, Ex.P/14, Ex.P/15, Ex.P/24 and Ex.P/25. 14. After re-appraisal pf the evidence as mentioned above, it is found that on the date of incident the accused/appellants were found in illegal possession of Ganja. From the testimonies of the aforesaid witnesses, it is clear that no illegality was committed by the Investigating Officer in following the procedure provided under the Act. 15. Learned counsel appearing forthe appellants on the aspect of seizure of contraband articles have relied upon the judgment rendered by Hon'ble the Supreme Court in the matter of State of Gujarat vs. Ismail U. Haji Patel and another, reported in 2004 SCC (Cri) Supp. 395, where it has been observed as under: "We find that there was really no material brought on record to show as towhere the seized articles were kept. The High Court after analyzing the evidence on record came to hold that the identity of the articles sent for analysis was not established and it was not established that the seized articles were in fact sent for chemical examination" 16. In the instant case, the search and seizure are well established by the prosecution with cogent evidence. The incrimiriating article was duly sent to FSL for chemical examination and a report thereof was positive. Therefore, the case law relied upon by the accused/appellants is not applicable to the present case. Section 42 of the Act relates to the Power of entry, search, seizure and arrest without warrant or authorisation and Section 50 of the Act relates to conditions under which search of persons shall be conducted. On perusal of the record, it is clear that the provisions under Section 42 and 50 of the Act have been fully complied with. Raju 17. Considering all the facts and circumstances of the case, l am of the opinion that no interference is called for in the impugned judgment of the Special Court. 18. Accordingly, these appeals being devoid of merit deserve to be dismissed and are hereby dismissed. -—-^^ R.N. Chandrakar Judge