XI-HC—78 sn^v ^sv R-<i«b '?TeTT STI^T'giTTW I.' (!l I- 1 «6. S^q' '^n\<s<<, vs-^wie, Riwi'yy til*<dl sb*ll* "^ 200 an^?r lira; (^fy^?) TOITW ^itor sii^r Cr.A. No. 36 [.Sira?l®Bsnch; i^on'ble Kr. Justiee Dhirendro Mjshro] APPELLAN' Amos^ Raika, S/o Ismile Raika, Aged about 26 ye(irs, ft/o. bokarpoka, P.S. Podagaon, Distri4t Sajpati (Orissa) Vs State Statio .12. Advocht Lb Miss Varsha Tiwari, Advocti' M.r. Neeroj Atehta, Pane! Heard. This crin'>inal appeal is conviction and order of sentent' Specia! Criminat Case. No.28/200|4 (Narcotics), Bitaspur has convict^t (ii) (B) of the Narcotics Drug (for short- Ithe Act') and pcy a fine of Rs.50,000/- payment of fine to undergo addi' Case of the prosecution, Officer, Police Station 6.R.P., B) 22.5.2004 at about 7:40 evenin (ite for the appel!a"t. )2"yer for +he State. senten<ted <*t<)i<rt-(i1i *ii*i<:if 'Pf^Fs^ (f^l-^l^ i?3fRna]i^r of Chhattisgarh, through- Police 6.R.P., Bitaspur (C.6.) directed against the judghiCTt of ;e dated 16 March 2005 passed in 4, whereby the Isarned Speciat Judge id the appellant under Ssction 20 (b) Psychotropic Substances Act, 1985 ed to undergo R.I. for 5 years and to ?ees Fifty Thousand), in default of •onal R.I. for 6 months. in brief, 's that the Station House / s hspur r-eceived secret information on lat a person is coming in the general sn^v ^v fc(-fi<* 'cTSTT STI^T sb-4i+ <• TCTT'^T'n^pr, ®Tfl<i'is,(si<?>i<f^< tll^dl sb^leb Wj^ 200 ant?r •V^SK (ipf^a^ti) TOIIW ^lfel 31I^T ah-< compartment by Hee cannabis in a bag wi1+i the procedure prescrf inforrnation he reachetl Biiaspur and interroga^-t the information and vide seizure memo of Information Report d^ contraband was sent Raipur and the FSL contraband was cannaUis After comp!etir(( Section 20 (b) (ii) (B)| examined by the accused was recordeU aaainst him in the impiication. It wois apprehended for tra( Rs.1,000/- was dema»|id' amount he has been irrbl IITC chi*iT<n141i <flH<?ii' '^\fs%^ •(.P'K^K ^'aiRlTsiT^i :xpress train from Orissti carrying a purpose of seHing the same. After following |bed under the Act and after- recording the to the Platforori No.3 of the Railway Station, ]dfed the perso" whose description was given in ti^ereafter effected seizure of 15 kg of connabis Ex.P-10 and after effecting seizure, the First df Ex.P.-14 was registered. Sampie of seized for analysis to Forensic Science Laborato^, vide its report of Ex.P-17 confirmed that investigation, charge s'neet was filed under |6f the Act. During triai 6 witnesses in al! were and thereafter statement of the in which he denied 1+ie evidence wailable pr^osecutioh case and pleaded innocence & false specifica'ly pleaded that in fact he was /eling without ticket, thereafter, a bribe of jed and when he did not pay th.e demanded licated in the false case. ):11 sn^i ?n ft-) WT 3^3?T'grqf^i' TEei "'•iww^, ^wi6, Rlrilti^- ^Wvtl *MI* •WI. 200 an^yr wv Cpfgiggsi) TOITW ^lfTO 3)I^T aftelr Railvtay The trial Cour!- respective parties has mentioned in Parograph 1 of Learned counsel for the appellant is based on Invsstigating Officer. The Singh (PW-6) peon of :ven the Investigating Offi' that separate weighment m< prepared of the seized mentioned in the seizure obtain search warrant bel because of non compl'nnce 01 is vitiated cnd therefore On the other hand, •the impugned judgment. I have heard learnedl •riie record as also the impug Shri R.L. Bada $PW-4^ deposed that he rece'wed a person aged 25-26 years •t+ie said person was coming the ^irf?^'T _flM^f '^,'f^^t' Xt^T^R ^aiRiqaii^r hearing the learned counsel for- the and sentenced the oppellant as fhisjudgmBnt. flppeilfluit argued that the conviction of If+ie statement of Shri R.L. Bada(PW-4) (>nly independent witness nameiy Santosh ailvtays, has not suppopted the proM'cution. iter has admitted in his cross-examination |mo and recoyery panchnama has not been c^ntraband and the same has been only rife.mo. The Investiga+ing Officer di<j not fore effecting ^crch and seizure and the mandatory pro'/isions •Hie whole tria! cortviction can not be sustained. counsel for the State has supported counsels for the parties. I have perused !|ied judgment. who has conducted the '"vestioation. has '7F Isecret information on 22.5.2004' aBout a jscribed in the informatson of Ex.P-3 that ^y Heerakund Express train in the general ..^:".^' ;^'i?:^l-l?i.1^ il ua afitei ^sf R(-I w sir^r stiii* 3wT ^ww^, (STfly'16, Rfrtiyy W^v\\ *41cb Wi, 200 an^?r 'q^ro (4,<iitl°)'fsT) TCiiw^feraii^T ^- llll compart'ment and is carryi^ bringing from Orissa side fe| arrivat of the train was near assigning the recisons for thereafter proceeded towa( where he found the accusedl information recei'/ed by hi^ after apprising him about t( ©azett-edOfficer or Vwys} personal sear-ch as also the ^ of appellant was opened in +1^' cannabis tike substQnce wit' preliminar/ examination vid^ On weighment vide Ex.P-9, of which 100 gram was sepa^ Rest of the cannabis was eyewitnesses vide seizure second Class was also seized amount ofRs.160/-. Seized sampte were given to thereafter the appe!lant registered. The information| < ^r4H ^ffi^* '^1^^ ^Fal^R ^r srfiiH a?i^?r -jg cannabis in the air bag, which he is (r the puryose of sate. Since the time of ^ie prepared another panchnama of Ex.P-' not obtaining warrant for search and i|'ds Platform No.3 for effecting search He gave notice to 1+ie accused regarding i, obtained his consent for search and lis right to be searchsd in pr'esence of rrote */ide notice of Ex.P-6. He gave his ^arch of his staff and thereafter the bag je presence of eyewilnesses in which some ^apped in poiythene was recovered. On Ex. P-8, he found that it was cannabis. (otal 15 kg of cannabis was recovered out ^ated as sample and the same was seized. sealed and seized in the presence of tnemo of Ex. P-10. .4 roilway ticket of 'from 1+ie appe!lant on 25.1.2004 anc) cash sealed contraband including the seaied ^lkhana Moharrir for safe custody and as arrested and report' of Ex.P-14 was about the seizure was forwarded to the aiso WflS SII^I ?iT R(-fi<* ^TSTT 3^?T sft+liqi 3'ScT ^ww-ii, vi-^w'w, Kwvy. VWv\\ Sb^leb 'V^ 200 OT^T ''^SK (Tpl^KSSI) 'TOI1W?te 311^1 ^ Special Court vide Ex.P-16. Forensic Science Laborator^ in which the sample as bee(i about the secret informal Superintendent of Police (R(^ 16 he has admitted that exbct weighment memd of Ex.P-9. Santosh Singh (PW-6] Station on being ca!!ed by Police that cannabis has bl inside the lockup, and he^ whereupon he singed on Ex.| & Ex.P-25. However he doej So far as the argun^ before effecting search been effected from the roil hois clearly recorded in the search without obtaining sei( reasonable and the investig| obtaining search warrant. cbi'LfT<n<^i ^l*i^f ^f.'fe^t' Tf^I^K "^ <9fd^ 3TT^?T The sample was sent for anatysis to the , Raipur and report- of the F.5.L is Ex.P-17 found to be cannabis. The information jion was aiso forwapded to the Deput/ ^iiwcys), Raipur vide Ex.P-18. In Paragraph weight has not been mentioned in the [ has deposed that he went to ©.R.P.Po!ice ^he police where he was informed by the ^en seized from the appe!lant, who was was asked to sign on certain pgpers P-RtnP-11 Fv P-1 ^ C-A'F—'^;(—Aitr—u, (..:A*!~—Uiu r—i±^ ^^E,tr*" not know as to what has written in these cuhd snt advinced by leamed counsel for the appellant that the In'/estigoft'ing Officer did not obtain search warront seizure is concemed, +he seizure has woiy station and the Investigating Officer |memo of Ex.P-5 the reasons for effecting irch warrant, which appears to be.jurft and ition shall not be affected because of not .iy,i an^r ?il R-ii* ^aff 37I^?f ^tfl^) 'Sv^ '^WW'ii, VirS)w'{6, [sfvftWy, KWdl **11* 'V^ 200 3ll^?T ^ra; (ipf^g^tr) TOWR'dfOTSfl^ ( frojn arU So for as the other Ex.P-9 weight of seized is true that memo of E^ contraband which was seii mentions the quantity of leamed counsel for the'eyp^ was caused to the cippeilant^ contraband in the seizure i| that nothing was seized traveling without ticket foisted on him on the basis recording the weight of may not be a reason tc^ investigating pfficer. The third ground supported the version of though Santosh Singh (PW-( and has stated thnt he wa^ police station and nothing he has admit^ed all his sl investigation ond there is Investigating Officer aboi( aboilt ct)raf^i<ftTi 'RFi^ff Tf fs^ <P>i^i< ^? siRn sn^r ^rgument that in the weighment memo of is not msntioned is concerned. it (-P-9 does not mention the weight of ijsed, however seizure rnemo of Ex.P-10 c^ntraband ^ized fr-om the appellant cind llantcouid not show as to what prejudice because of non-mention of the weight of i^emo, particuiarly in view of his defence him and he was in fact apprehended for a false case under fne .4ct has been ^f fake seizure. Irregular'lt'/, if any, in nof irtt'nsband i" •the weighment memo of Ex.P-9 discard the whole testimony of +he ^hat the independent witness has not the investigating officer is concemed, ^) has not supported the prosecution case made to sign in some blcnk pflipers in the done before him by the police, however, gnatures m the papers prepared'.clyring reason cs to why the testimony of the the seizure of contruband shouy_be WfcS rto y tUutet U c W^T ?iT ('W* '?fsH STT^T ?h<Hlch 3:EST^n3n^sT, (ST{)y'i<s, fsi<?iK-<y KWcll **<1<* WI. 200 3II^?T T3R? (1pf;5^?W) 'CTawofcian^T •I disbetieved, particutarly, vj defence that the investiga^ appellant or that he had any in this case. So far as tt traveting without ticket, a h| and he could not pay the' impticated in the case is c ^iprf^il^ ^It^ tf,1^1^ <^^R ^3Tfil*T3II^I ^ien there is no aiggestion from the "ing officer had any animus townrds the idefinite reason for falsety impticating him :e of the appellant that becau% he was •ibe was demanded by the police personnet bribe, therefore, h.e has been falsely mcerned, the above defence is faisified from the seizure of the ^ailway ticket from the appeiioint by the poiice at the time of investi^ation. At this stage, tearne^l counsei for the appeliant submlts -t4iat- -the quantity' of contraband quontity, the oppeilant is in atready compteted more tha in these circumstances, tti should be modified and hj is 1S kg, which is !ess than commercial" jai! since 22.5.2004 and as such, he has |i 3 years & 6 months of jail sentence and |e sentence imposed upon •rtie appeHant i be sentenced for the period already undergone by him. Taking into considerap-ion the fact that the oppellant has been convicted for possessing ^5 kg of connabis, which is less tha" commercial quantity, the ap^etlant is aged about 26 years, he'c^es not have ony pnst criminal reco^rd and he is in jail since 22.5.2CK54, •tiiis Cour-t is of the considered ^ipinion that ends of justice wil! be served ffF'"T'"TTT ~F53i "Ml'41^, @TTI'M'16, fq^lUy ^ sfi^v w Rt-fi* ^TSff 3n^?T ai+iiq) ^Wv\\ shNleb "^ 200 ai^?r inra; (1pf^?t>) waiw ^ifw sn^i -?-^ if the sentence imps^ sentenced to the period In the result, the| sentence imoosed upon <ftN[<n<i1*i +iM<:if Tf^^ <Pn-^i< ^sffipTaii^r d upon the appellarrt is modified and he is nlready undergone by him. appeal is partly a!!owed nnd whilemaintainim the conviction of appeH^it under Sect'on 20 (b) (ii) (B) of the Act. the the appeilant under this section is hereby modified and he is sent^nced to the period alrendy undergone by him. The appeliant be set at |iberty forthwith, if not required in.any other Certified copy as per ru!es, SdA' . ,; DfflRENDRA MBHRA ie / t'