IN THE ON'BLE HIGH COURT OF JUDICATURE AT BILASPUR C.G Criminal Appeal N‘s. . ‘é&\9. . . ./2002 APPELLANT {In Jail} . Sapan Mandal s/o Upen'dré Mandal. Aged abaut 26 yrs. Blisifiessman, RAD Mathurapur, ,P . s. Sagardigi Dist. Murshidabaa (w.B;) Presentlyv R/@. Village Papada-handi District Navrgngpur (Orissa) . VE RSUS ESPONDENT State $f Chhattisgarh Thmugh 2.3;. Dmmapal Distt. DanteWada (Bastarx c.G.) CRIMINAL APPEAL U/s..374(2) 6i EH3 CODE OF CRIMINAL pRocwDURE AGAiNsT THE JUDGENENT & I 7‘” FINDINGS DATED 29 01 200?§§”§5ED BY‘SHRI R L sHARMA PRE3IDING JUDGE COURT OF SPECIAL JUDGE (N D P.C.; ‘ ACT) BAsTAR, JAGDALPUR IN SPECIAL CASE No.’ , VC ‘ 49/200I,pf"” H . R H APPELLANT Sapan Mandal V VEISHS RESPONDENT State of Chhattisgarh Ms. Sangita Misha, counsel for the appellant. Shri Vaibhav Goverdhan, P.L. for the State. APPLICATION U13 3’74- !2) OF THE CR.P.C. JUDGMENT (0&042010; The present appeal is djmcted against the judgment dated 29.1.2002 passed by the Special Judge (NDPS Act) Bastar, Jagdalpur in Speciai Case No. 49/2001 convicn‘ng the accused] appellant for the offence punishable under Sccxion 20 {b} (1) of the Nammics Drugs and Psychohnpic Substances Act and sentencing him to undergo n‘gorous imprisonmant for ve yeaxs and to pay me of Rs. 15,000 in default of he to undergo RI for one year and six months. 2. Brief facts of the case are that on 4.9.01 upon receiving secret information, the police party leached near Dubba Tota Dhaba and found one basket containing 40 kgs. of ganja in possession of the appellant 8r. oo~accused Santosh.. On seeing the poliée party, the appellant and co—accused Santosh tried to nee away from the spot however the present appellant was caught red handed whereas the other co—accused person could escape iiom the police. After issuance of notice under Section 50 of the NDPS Act (Ex.P[ 1) when the appellant failed to give any reasonable explanation, 4O kgs. of the contraband (ganja) was seized vide EXP/7 from the possession ofthe appellant which he was carrying in a basket vide seizure memo {EXP/ 7). The appellant was arrested vide anest memo Ex.P/8 on the same day (ie 4.9.01). Spot map was prepamd vide EXP/9 and after returning to the police station entries were made in the sanhtz vide EXP] 14. FIR (ExPl 15)’ was @ registered on the same day at about 4. 10 pm. After invest'gau'on, on 22.10.2001 challan was 013d against the appellant and the co- accused, they were prosecuted by the special Court. 3. In support of its case, the prosecution has examined four witnesses. Statement of the accused/appe11ant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges leveiled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the tlial Court has acquitted the co-accused by giving him beneht of doubt whereas the present appellant has been convicted and sentenced for the oh‘ence as mentioned above. 5. Heaid counsel for .the parties and perused the material available on record including the judgment impugned. 6. Contention of the counsel for the appellant is that as per the case of the prosecution itself both the accused. persons were selling the said contraband and therefore the appellant alone cannot be convicted for the offence under Section 2O (b) (1) of the NDPS Act. She further submits that the alleged contraband (ganja) was not in conscious possession of the accused] appellant but the same was kept in a basket near the Dhaba and therefore the conscious possession of the conuaband has not been proved by the prosecution. She also submits that the compliance of the mandatory provisions of the Act has not been done. 0 7. On the other hand, it has been argued by the State counsel that all the mandatory provisions of the Act has been duly compelled with by the prosecution and the contraband has been found in exclusive conscious possession of the accused] appellant, seizure witnesses have supported the prosecuu'on case and likewise the investigating omcer has in a very categorical term, had supported the entire case. He thither submits that the FSL report (EXP/20) is posin've and therefore the conviction. of the accused] appellant is strictly in accordance with law. @ 8. Surya Pal Singh (P.W.—1) the seizme witness has stated that the ganja was seized from the accused] appellant and at the time of se1zure he was all alone He has further stated that befme the selzure, the nonce was given to the accused/appellant under Section 50 of the Act Vlde Ex P/ 1 He has also supported EXP/2 P/3 P/4 PIS P/6 8r. P/7 In the cross examinatlon, thJs wltness stood vely mm and the appellant cannot get any beneht of statement of thls w1tness. Badn Pxasad Tlwan (P W -2) has stated that the alleged conuaband was sent for chemical exmnination on 8.9.2001 and the entries to this eh‘ect is at Sl. No.8. Though he has stated that in the entry it was not mentioned that the packets were not sealed but he also states that these packets wexe seized. He further states that the weighment of ganja was again done by him in the police, station and he has also described as to in what manner the weighment was done. D.N.Nagwanshi (PAM—3) the investigating ofhcer has supported the entire prosecution case and f has submitted that as to in what manner the investigation was done and all the necessary formalities in respect of NDPS Act were complied with. Yashkaran Deep Dhruv (P.W.-4) has done the part of investigation and had recorded the case diary statement of some NJ of the witnesses From the record it is apparent that the ‘ " compliance of Section 42 and Section 50 of the Narcotics Drugs and Psy otropic Substances Act have been done by the prosecution and th1s has also been proved by aMucmg proper ev1dence m particular the ewdence of D N Nagwanshi (P W —3) and Sanha Ex.P/ ll—C 6n EXP] 12. This Witness has oategoncally stated that for the compliance of Section 50 of the said Act due information was given to the accused/appellant and all the necessary formalities were complied. Record also shows that there is compliance of Section 5O of the Act. 9. Considering the minute examination of these witnesses it is clear that 4O kgs of ganja was found in conscious possession of the accused/appellant and prosecution has established its case beyond all reasonable doubts Accordingly, the appeal being Without substance 1s hable to be dismissed and 1t 1s dismissed as such. / Sd/_ g E Pntmker Diwaker‘ Judge 7:“: ‘1