:i;?^\. "-'I -^ HI6H COURT GF CHHAmS6AftH, BILASPW Crjmmoi Appea! No.759 of 2007 (In Jai!) RE5PONDENT: Margiyo, S/o Sukaiu Rom Halba, aged obout 35 year-s, Occupution Aqricultur-e, R/o Village Narrctola, P.S. Soui-idi, Sistt. Durg (C.S.) Versus Stats of Chhattisgarh, Tbr'ough Poiice Station Charama, &i3tt. Kariker (C.S.) (Cr'iminal appeoi ui-der Section 374 (2) of the Code of Criminsl Procedure, 1973} Prsserit: - Mr.s. Swita Tiwsri. counsej *.' ' '^ AAiss .Sangesta Mishrc, Pane the appetldrit. Lowyer for- th®5tate/respondent. (24-11-2008) ;. This appeol is dlrected against the judgment of conviction & order of sentence doted 19til July, 2007 passed by the Special Judge (NDP5 Act, 1985), North iastcr'. Kanker- in Special Case No.4/2006, wher-sby ieorned Soeda'i Judae <rfter hoiding ths accussd/sppellarst quilty for cornfflission of offence under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic 5ubstances Act, 1985 (for short 'the Act'), sentenced hiro to undei'^o R.I. for ten yeors <& pay a fine of Rs.l lakh, in defsuit of poyment of fine to further undsrqo R.I. for one yeca*. 2. Judgmsnt of ccnvjction is shaiienged on the ground that without any credibte <S ciir-.chinq evidsnce. the Court below has convieted & sentenced the appeilant ss cfoi'ementioned. 3. Case of the pfosecution, in brief, is thct on 7-7-2005 Vidyanand Kumar (PW-4), A.5.1,, was ,posted st Poiice Ststion Charama, he r'eceived informction from ttie infor-mant and the same wcs recorded in Roznamcha Ex.P-13. Pfflich witnesses were ealled and informct'ion memo was recorded vide Ex.P-l. Due to shortaqe of ts.s'se, pi-ocurement of search loar'riait 'IMCS not possibie and ths scme u'ss recorded irs Roznsmcha fcx.P-15. Copies of the Roznsmchs e"e sent to the superior o-fficsr. The Invastigotin^-OffiCsr proceeded tor the spot i.e. Bus 5tcnd, Ch.3"aiTiQ. The accused was sittinq insids the bus. Notice informinq his riQht for ^ISt:. 1 2 search vsas qivsn to the aceused vida Ex.P-2. 5ear'ch of the Police por'ty wos made oy' the accussd vids Ex.P-3. Vidysnand Kumcr (PW-4) made search of Ihe su.it cases & bas, which were in possession of the occused vide Ex.P-4 and 6anio •aas found in sSl ths thr-ee containers. Weighing instrument was called vlde Ex.P- 5, the ssms WQS verified and Panchanarao wcs prepcsr'ed vide Ex.P-6. Contraband articles irere examined vide Ex.P-7. The articles were weighed vide Ex.P-8 ond 12 Kgs. + 8 Kgs. + 7 i^s. totat 27 Kqs. of 6onija was found in two suitcoses & one bag. 5crnpies were tcken vide Ex.P-9 and the or'ticies were seized from the accused vide Ex.P-10. The occused vms arr-ested vide Ex.P-11. The Investigating Officer conie bcck to the Police 5tation aiorg with the accused S, Qrticles ond detciis were recor-dsd in Roznamcbs vide Ex.P-17. The F.I.R. was todged vide Ex.P-18. 5pot niap was preporsd by the Investi9atmg Officer vsde Ex.P-19. Speciai report <! WSQS sent to the suoarior' offiesr vide Ex.P-20. Arrest of the accused wss intimcted vids Ex.P-21. Ssmpies were sent for chemical cnaiysis to the Forensic Seience Lcboi'etor'/, Raipur' vide Ex.P-22 CTid the samples were found to be 6an]a vide Ex.P-24. 5eized artidss were kept in the Malkhaia vlde Ex.P-12. 4. After corBpletion of investiaction, chcrge sheet was fiSed before the 5pecici Judae, Jaadaiour. In ordef to prove the quiit of the accused, the prosecution has examined ss mcny as fiye witnesses. 5totement of the accused was recorded under Section 313 of the Cr.P.C. in ishich the accused denied the circumstQnces GpDearing i^ainst him, he plsoded innocence and faise implication. g to ths parties, Court beiow has corwicted -oresaid manner and acquitted co-occused 5. After erffordirig oppor'tunity of hearing S. sentenced the appeltsnt in the AAadhusudan @ Shiva @ Shivram. 6. I have heard lecrried counsel for the parties ond perused the irapugned jud9raent as atso the record of the tria! Court. 7. Leorned ce'unsel for the appeiiant iSubmits that the accused/appellant was Sittirig insids ths bus, the olleqed oa-ticle.was founc! in the bus, the articie was not found in the possession of the Qppeilant ond ths independent witnesses hove not supported the case of the prosecution. Without any evidence of possesslon of the contraband csrticie, the Court below has convicted and ssntenced the appelicnt in the aforescid manner. Learned counse! plcced reliance in the matter of Bhoia Ram Kushwaha v. State of Modhya Pnsdesh in which it hns been he!d - AIft 2001 SC 229 ^ SSSSW !;iSI»>» •^ by the Apex Court that "Slaring discrepancies in statements of prosecution witnesses - In c!i materisl par'ticutor's Investigating Officer contradicted panch witnesses - Failur-e of prosecution to tissociate three constables who accompanied Investiaa+inq Officer ss witnesses - Jhus prosecution failed to prove offence beyond atl ressonabie doubts - Accused entitled to acqulttal". Leorned counsel further placed raiiance in the-matter of Ayub v. Stote of Rqjcsthan in which it hos been hsld by ths Rajcsthan High Court that absence of exominotion of independent witness and non-examination of passenqers sitting in the bus to prove the possession of the accused is fotsi To the prosecution. Leorned counsei GISO relied upon -fne judament of the Madhya Pr-adesh High Court in the mctter of Kishore v. SlBte sf W.P. i.n whic.h it has been he!d thot in obsencs of conscious pcssession of the contr-iaband or-tieie with the qspeilant, conviction under 5ection \ 8/18 of the Act is not.sustaintebie. 8. On the other hand, the judgment is supported on behalf of the 5tote/respondent and it 's submitted that the prosecutio?? has proyed the case beyond ai recsonabis doybtS. Vidy<3na?!d Kufflffl" (PW-4) has categorically supported the CQSe of the prosecutiors which is auffjcient for drawing inference against the aDDelEa-nt. 5. In or-der to oppreciate the eontsntions of the pcrties, I hwe exaiTiined ttie evidence Qdduced on behatf of the prosecution. Vidyanond i&imai" (PW-4) who waa Dosted at Police Stotion Charama has stated in his evidence that on 7-7-2005 at sbout 7.45 s.rn. he received informstion from the infor'mcnt thst one per"son is sitting 'm the minibus beQring NO.C&-G7/ZA-0362 carrying G<s\]a, he r-ecorded the scme in Roznamcha yide Ex.P-13 cnd cfter calling the Panch ui'rtnssses he recorded the Panchonama vide Ex.P-14. He atso sent the copy of Pcnchnama Ex.P- 14 to the superior potice officer. At about 8 c.m. he proceeded for the spot aiong with poiice for-ce. After- recor-ding Roznamcha vide Ex.P-19 Qnd aftar reaching Bus Stand, Charama, he prepwed verification Panchcnama Ex.P-l <md iWukhbir Panchnarna Ex.P-15. He mgde the search of bus, the accused was sitting inside ths bus having suit ccses & bq. Ori interro9ation, he stated that he is having one suit csse, other su<t case & bag belong to Shivram & Rajesh. Jhe Poiics party secr'ehsd for Shivram & Rajedh, but ttiey were not found. Ri9ht of ths potice officer for search wos informed to the accusad vids Ex.P-2. After '2002 Cri.!_,J. 1619 s I997(2)Cri-"es81 ;;" ,;»tj ^itBSSigii. B -c^ ^' giving consent, the accused nsode search of the poiice party vide Ex.P-3. Vidyanand Kumar (PW-4) hcs further stcted that he made the sear'ch of suit cases &. bcg wfhich were in possession of the accused vlde Ex.P-4 and 6anja wss found In oi! the three eontainers. Weiqhing apparctus was called vide Ex.P-5, the same wos ver-ified and Panchanaffla wus prepared vide Ex.P-6. Contrabcnd wticies iwere idsntified vide Ex.P-7. The crticies wsre weighed vide Ex.P-8 snd total 27 Kgs. of Sonjc wos found in the possession of the cccused. 5amples were td<en vide Ex.P-9 and the crticles wer's recovered vide Ex.P-10. The accused was ar-rested vide Ex.P-ll. This witness has atsc stated that he come back to ^ne Pollce Station clong ii'ith the seized property and the cccused. The seized proper-ty' was deposited in the MaikhanG vide Ex.P-12. DetisiSs of identification were fecor-dsd vide Ex.P-17, F.I.R. wcs iodged vide Ex.P-18. He prepcred the l; spot map vide Ex.P-l%, Specjal repor-t •isos sent to the superior officer' vide Ex.P- 20. Arrest of the accused iwas intimated vide Ex.P-Zl. Sampies were serit for chaniicai anoiysis to the Forensic Science Loboratory, Rcipur viae Ex.P-22 and the SQfflpies veeve found to be &anja vide Ex.P-24. 10. Soku! (PW-1), drivsr, hos stated in his evidence thot at the time of incident he was drivin9 the bus which vsos seafched by the Police Offlcer. The accussd was hsving two suit cases & one baq which were secsr'ched ond Sanja was found in the suit ccses iS bsg. The articles have been weighed and he has si9ned on Exs.P-1 to p-11. This witness hss not supiwr-ted the case of the prosecution in detail. The prosecution has exammed this witness at lenqth and dectored him hostiie. 11. Jeevr-iij (PW-2) hos stoted in his evidence that he is c scrcp dealer-, he was calied by the Police with •iieighingapporatus, he has iweighed the artictes and put his signatures on Exs.P-6 to P-8. 5ukhdevram (PW-3), Haad Constabie, hos stated thot the property was kept in Mofkhans vide Ex.P-12 ond the scmpies were sent for chemical analvsis. i2. RciTibctou (PW-B), Bus Conductor', hos not supported the case of the prosecution snd he hdS been declcired hostile. In his cross-examination he hos admitted his si9notur-es On Exs.P-1 to P-10. He has admitted that his bus wias stationed at bus stand. In his cross-examination he has admitted that he has si9ned on Exs.P-1 to P-11 in the Poiice 5tction, at the time of putting signature, the accused was not "Dpesent in the Poiice 5tation. ;.liiiaiiMi! S'^^-^i^i.iSSSf 13. 6oku! (PW-1) was cross-examined on behalf of the defence that whether after interroga+ion suit cases & bcg were taken from the bus or not. In para 3 of his cr'oss-exaniination he has admitted the suggestion made on behclf of the cccused that the Potice Officer took the cccused aiong with the bus to the Police Station and preoared documents in tha Poiice Stotion. 14. Jeevrsj (PW-2) who has weighed the contrcband articie has stateci 'm psra 3 of his evidence that st the time of weighing the article, he was havin9 the weighing stones of S Kqs., 1 Kq. & 200 qms. !5. Vidyanand Kumor' (PW-4) has admitted in para 9 of his cross-examinotion that at the time of sedrch 4-5 passengers were sitting inside the bus, bus conductor <& driver u'ere a!so present, the: accused was sitting in the second iast row of ttie v bus, the property was-keptoA the luggcge rack, 1tiey were locked and he could not remember as to how he hos opened the suit cases. He hois admitted in para 11 that he has compieted aii the proceedin9S at the bus stand. He has categoricaily s+cted the case of the prosecution in detciled. Defence has cross-excnined him at length, but it has not been abie to elicit anything in his cr'oss-examination to discredit his testimony. 16. Sokul (PW-1), whom the prosecution has deciar-ed hostile, has supported thot the accused was present in the bus, after search the Police took the suit cases & bag ond aiso the accused to the Police 5tation. 6okul (PW-l) & Jeevraj (PW-2) have briefiy corroborcted the evidence of Vidyanand Kumar (PW-4). Vidyanand Kumar (PW-4) is a Police Officer and he has cate9orically stated about the incident. Hls evidence cannot be discarded on the ground that he is a police officer and inter'ested in the outcome of the case, unless interestedness or departure from the procedure prescribed has been shown. In this case, defence has not been obie to show interestedness of this witness or otherwise departure from tiie procedure prescr'ibed. 17. In the case of, Kishore (supra), the property wos found at Raiiway Station and the prosecutton was not obie to prove conscious possession of the accused. But in the pr-esent case, Vidyanond Kumar (PW-4) hos stated that the articies were found in possession of the appellant and ofter" makin9 necessary search he has seized the contraband wticle. The cose of Kishore (supro) is distinguishabis on fscts to that of-the csse in 18. In the case of A^ib (supra), the evidence of the poiice officer was not corroborated by ony independent witness. But in this case independent witness Sokul (PW-1) has substontialiy corroborated the evidence of police officer- Vidyonand Kumar- (PW-4). Ttierefore, the case of Ayub (suprc) is oiso distinguishabie on facts to that of the present case. 19. In the case of Bhoia (supro), the accused was acquitted on 1+ie ground of giarin9 discrepancies in stctements of prosecution witnesses. But in this case Vidyanand Kurnor (PW-4) has categoricaily stated about the incident. The ccse of Bhola (supr'a) is siso distinguishabie on facts to thct of the present case. 20. After sppr-eciating the evidence svtsilabie on record, the Court below has convicted the appetlant under Section 20 (b) (ii) (C) of the Act. Convietion of the v appellant is based on cilnchi!^ & r'elisble eyidence snd the same is sustaindbie under the !dt». :: 2!. As regcyds the question of sentence, commer'cial quantity of 6anja is found in possassion of the appeilant and the Court below has imposed minimum sentence of R.I. for- ten yecrs & fine of Rs.l lakh pr-escribed under- the Act. I do not find any jtlegatity or infir'niity in thejudgment of the tr-ial Court. 22. For the foregoinq reasons, ther-e is no merit in the appeai, scme is liabie to be dismissed ond it is hereby dismissed. , T.P. Sharsna wiiglig ^ms