^ HIGH COURT OFCHHATTISGARH AT BILASPUR (Division Bench) Coram : Hon'ble Shri T.P. Sharma & Hon'ble Shri Rangnath Chandrakar, JJ, Criminal Appeal No. 578 of 2004 f Appellants Respondent Vs. Kailash Chand Das and another State of Chhg'ttisgarh JUDGMENTFOR CONSIDERATION Hon'ble Shri T.P. Sharma. J. 3 - o^^v^- Sd/- R.N. Chandrakar Judge Sd/- T.P. Sharma Judge POST FQR JUDGMENT ON -2-2> -9-2011 Sd/- T.P. Sharma Judge .© HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE Mr.T.P.SHARMA & HON'BLE Mr.R.N. CHANDRAKAR, JJ. Criminal Appeal No. 578 of 2004 Appellants (In Jail) Respondent 1. Kailash Chand Das S/o Sudarshan Das aged about 30 years. 2. Shri Niwash Rao S/o Appa Rao aged about 30 years. Both R/o village Umarkota Dist. Navrangpur (Orisa) Versus The State of Chhattisgarh (Criminal Appeal u/S. 374(2) ofthe Code of Criminal Procedure) Present:- Smt. Renu Kochar, counsel for the appellants. Shri. Neeraj Mehta, Panel Lawyerforthe State. JUDGMENT (Deliveredon 2-5-9-2011) PerR.N. Chandrakar. J.:- 1. The appellants have preferred this appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction & order of sentence dated 19.06.2004 passed by the Special Judge constituted under Narcotic Drugs and Psychotropic Substances Act, Raipur in NDPS Special Case No.8/2003, whereby the appellants have been convicted under Section 20 (b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herernafter referred to as 'the Act, 1985') and sentenced to undergo R.l. for 20 years and to pay fine of Rs. 2,00,000/- each, in default of payment of fine to further undergo rigorous imprisonment for one year each. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on 28.12.2002 Sub Inspector, Sohan Singh Dhruw (PW/5), Police Station, Khamtarai received information regarding loot of Rs.62 lakh near Mana railway crossing and proceeded to Rawabhata barrier and putting blockade started searching the vehicles passing thereby. In the process one Marshal Jeep bearing No. M.P.25/B-2132 coming from Raipur to Bilaspur, was searched in which eight bagswere kept atthe back seat ofthe vehicle and smelling like Ganja. On apprehension the witnesses were summoned vide Ex.P/2 and in their presence the appellants were served with the notice under Section 50 of the Act, 1985 vide Ex.P/3 wherein they stated to be searched by the Investigating Officer. The Investigating Officer along with the staff was searched by the appellants vide Ex.P/4 and no incriminating article was found. Thereafter, the jeep was searched vide Ex.P/5 and identification panchnama of Psychotropic Substances vide Ex.P/6, weighment panchnama vide Ex.P/7, seizure panchnama vide Ex.P/8 after taking out the samples, spot maps vide Ex.P/9 & P/10 were prepared. Finding the appellants in possession of 118.400 kgs of contraband article 'Ganja' (eight bags), they were arrested vide Ex.P/11 & P/12. After completion of the proceedings, Sohan Singh Dhruw (PW/5), Investigating Officer prepared a report of the entire proceedings under Section 57 of the Act, 1985 vide Ex.P/1 and sent the same to the City Superintendent of Police, Urla, Raipur. The appellants were brought to the Police Station along with articles. F.1.R. was lodged vide Ex.P/18 and intimation thereof was sent to Judicial Magistrate First Class, Raipur, vide Ex.P/20. The samples of seized articles and seal were sent for chemical examination to FSL, Raipur vide Ex.P/16 and report thereof was received vide Ex.P/19 wherein the seized articles were found to be Ganja. 4. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code') and after completion of investigation, charge sheet was filed before the Special Judge, Raipur against the appellants who abjured their guilt. 5. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 7 witnesses. The appellants were examined under Section 313 ofthe Cr.P.C., in which they have denied the circumstances appearing against them and claimed innocence and false implication in the crime in question. 6. After providing opportunity of hearing to the parties, learned Special Judge, Raipur has convicted & sentenced the appellants as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appellants vehemently argued that the present appellants have been tried and convicted for the offence punishable under Special Act i.e., N.D.P.S. Act. Considering the deterrent punishment, legislature has provided specific procedure for investigation and trial. Investigating Officer was under obligation to follow the special procedure ^-^ prescribed for investigation, but in the present case Investigating Officer has not followed the procedure prescribed under the Act, 1985. Learned counsel further submits that the independent witnesses PW/2 and PW/3 have not supported the case of the prosecution. He further submits that the prosecution has not proved the possession of contraband articles by produdng the same before the Court during trial. In support of his arguments, learned counsel for the appellant has placed reliance in the matter of Thandiram vs. State of Haryana . 9. Percontra, learned counsel for the State supporting the judgment impugned submits that the Investigating Officer has followed the procedure prescribed. The present appellants were in possession of huge quantity of contraband article and after following the procedure prescribed charge sheet has been filed before the Special Judge. On the basis of evidence adduced on behalf of the prosecution, the trial Court has rightly convicted and sentenced the appellants as aforementioned. 10. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe parties. 11. In the present case, conviction of the appellants is based on the evidence of Sohan Singh Dhruw (PW/5), Investigating Officer. The evidence of this witness reveals that on the date of incident receiving the information regarding loot of Rs.62 lakh near Mana railway crossing he proceeded to Rawabhata barrier and putting blockade started searching the vehicles passing thereby. In the process one Marshal Jeep bearing No. M.P.-25/B-2132 coming from Raipur to Bilaspur was stopped. The appellant No.1 was driving the said vehicle whereas appellant No.2 was sitting beside him. On search, eight bags were found kept at the ^ '1999 STPL (LE) 26210 SC. 4 back seat ofthe vehicle and smelling like Ganja. On the apprehension of Ganja, he summoned the witnesses Guddu @ Sonsai (PW/2) and Beni Ram (PW/3), served the appellants with the notice under Section 50 of the Act, 1985 informing them about their right to be searched before a Magistrate or a Gazetted officer or by Police and obtaining their consent searched them and the Jeep in possession of the appellants. The Ganja like substance was kept in eight bags at the back seat of the vehicle which was identified as Ganja by the Police and the witnesses. The R.C. book and driving licence were also seized from the jeep. The contraband article was weighed by witness Ghasu Ram in Mavani Timber Mart and found 118 kg and 400 grams in total. Two samples of 50 gms from each bag were prepared and sealed and spot map was prepared. The appellants were brought to the police station with the seized articles, FIR was registered against the appellants and they were arrested. The seized articles and samples Ihereof were deposited in 'malkhana' for safe custody. Thereafter, a report of the entire proceeding was prepared and sent to City Superintendent of Police, Urla and the samples taken out from seized artictes as also the sample of seal were sent to FSL for chemical examination from where Ganja was confirmed in the samples. The witness was cross-examined at length but remained unrebutted and unshaken. The defence was unable to elicit anything in his cross-examination to discredit his testimony. 12. The testimony of the Investigating Officer (PW/5)is corroborated by Guddu @ Sonsai (PW/2). Initially he denied that any search proceeding was done before him. Later on, he himself stated that one marshal jeep was stopped in which Ganja was kept in bags. He admitted his signature on Ex.P/2 to r ,.^?- - '^ K^\ j 6 ^^•^^- Ex.P/12. He denied to identify the persons found in the Marshal Jeep. At this stage, he was declared hostile and put to leading questions wherein also he stated that the Ganja might have been seized from the appellants but he was unable to narrate today as it was an old incident. He further admitted that Ganja was weighed in a company near the place of incident. That apart, in the cross-examination also he admitted that the bags were opened by Police in his presence in which Ganja was found and there is Plywood Company near the barrier where Ganja was weighed. In para 7 of his cross examination, he denied all the suggestions given by the defence that no Marshal Jeep was stopped by Police in his presence, no person found in Marshal Jeep was stopped by Police, no Ganja was seized in his presence from any Marshal Jeep by Police in his presence. If the testimony of this witness is evaluated in its entirety, it is clear that he was present at the time of entire proceeding of search and seizure in view of his statements in para 7 as mentioned above. 13. PW/3 Beniram, the other witness of search and seizure turned hostile but he admitted his signatures on Ex.P/2 to P/12. On going through his testimony it is found that the entire proceeding was in his knowledge and his presence during the proceeding is corroborated by PW/2 Guddu @ Sonsai. 14. So far as the submissions made by learned counsel for the appellants regarding compliance with the provisions under sections 41, 42, 50 and 57 ofthe Act, 1985 are concerned, on reappraisal ofthe evidence as discussed above, it is clear that all these provisions have been duly complied with by the Investigating Officer as is evident from the documents Ex.P/1, P/3, P/4, P/5, P/6, P/7, P/8, P/11 & P/12 which go to show that the Investigating Officer has cautiously complied with the aforesaid provisions issuing summoned to the witnesses, notice tothe appellants under Section 50 ofthe Act, 1985 and after obtaining their consent to be searched by Police, the Marshal Jeep in possession of appellants was searched in presence of the witnesses and contraband article Ganja was recovered at their instance from eight bags kept inside the Marshal Jeep. The total quantity of Ganja was 118.400 kgs. After completion of proceeding a report was also sent to the City Superintendent of Police under Section 50 of the Act. In this regard it is pertinent to mention here that the search was not made on the basis of prior information about illegal traffic or smuggling of Ganja but the appellants were apprehended during the blockade put in search of the culprits of loot. That apart, there are signatures of the appellants on Ex.P/3 notice under Section 50 of the Act, Ex.P/4 search panchnama of the Police officials, Ex.P/5 search panchanama ofthe vehicle, Ex.P/6 identification panchnama of Ganja, Ex/P/7 weighment panchnama, Ex.P/8 seizure and the appellants have not taken the defence that their signatures were obtained by putting them into fear. The appellants have not offered any satisfactory explanation about recovery of huge quantity of Ganja, R.C. book and driving licence of appellant No.1 from the jeep which was in their exclusive possession. The appellants were residents of the same place and their destination was also same but they did not adduce any evidence in this regard and they have tried to shift the guilt on the owner of the vehicle who has not been examined in their defence. Moreover, they were coming from Orissa to Bilaspur and it can not be presumed that the eight bags would have been put either by the owner or by anybody else without the consent and knowledge of appellant No.1 (driver). Thus, in the instant case, the search and seizure are well established by the prosecution with cogent evidence. The incriminating article was duly sent to FSL for chemical examination and a report thereof was positive. The provisions under sections 40, 41, 42, 50 and 57 of the Act, 1985 have been fully complied with by the prosecution and the appellants were found in exclusive possession of 118 kg 400 grams of Ganja. •^ 15. As regards the non-production of entire quantity of seized Ganja before the court at the time of trial, neither it was practically possible to produce 118 kg 400 grams of Ganja every now and then during trial nor there is any mandatory provision for it in the Act, specially when the FSL report is positive and the seizure is proved by the cogent evidence. It is pertinent to mention here that the Ganja cannot be treated like a weapon of offence which necessarily requires to be produced before the court to put specific questions to the experts regarding injuriescaused or sustained. That apart, the seized articles and samples were in safe custody as proved by Indrabahadur Singh (PW/6) and Brijbahadur Singh (PW/7) and their evidence remained unshaken. 16. After appreciating the evidence available on record, learned Special Judge, Raipur, has convicted and sentenced the appellants as aforementioned. Conviction of the appellants is based on clinching, credible and reliable evidence sustainable under the law. Considering the huge quantity of Ganja, sentence of the appellants is not excessive. The case law cited by learned counsel for the appellant is distinct from the facts of the present case. 17. On analysisof the entire evidence available on record, we do not find any illegality or infirmity in the judgment impugned warranting any interference. 18. Accordingly, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Raju