€. H8GH COURT OF CHHATTiSGARH AT B8LASPUR DiViSiONBENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.LJHANWAR, JJ. Crimmal Appeai No.382 of 2007 Smt.K.Bhanu Versus State of Chhattisgarh JUDGwlENT FOR CONSIDERATiOM Sd/- T.P. Sharma Judge Hon'ble ^lr.R.L.Jhanwar, .J. .// ra^ Sd/- p,.L. Jban^ar 3udge Post for pronouncement of the Judgnnent on : 7/2/2011 Sd/- T.P. Sharma Judge A HIGH COURT OF CHHATT|SGARH,.ATBjLASPyR Crsminal Aprseal No.362 of 2007 Olvlsion Be'nch: Aopeilant (in JaH) Respondent CGRASVS: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.LJHAMWAR, JJ. Smt.K.Bhanu, wife of K.Raju aged about 25 years, Occupation : House wjfe, resident of Camp-i, Steel Nagar; near Andhra Schooj, Bhlial, Poilce Station-Chhaoni, DJstrict-Durg (C.G.) Versus State of Chhattisgarh, through Dlstnct MagistraSe, Durg, Dlstrict-Durg (C.G.) (APPEAL UNDER SECTSON 374 (2) OF THE Cr.P.C.) Present:- , Mr.T.K.Tiwari, counsei for the appeliant. Mr.Ravindra Agrawai, Pane! Lawyer for the State. iiyDGMEjiT (Passed on 7th February, 201 1) The foiiowing judgment ot the Court was deiiverecl by T.P.Sharma, J.:- 1. ChaiSenge in this appeal is tp the judgment of convlctton and order of sentence dated 19.4.2007 passed by the Speciai Judge constituted under Narcotic Drugs and Psychotroplc Substances Act, Durg in NDPS Speciai Case No.13/2006, whereby leamed Speciai Judge after hoiding the appeiiant gulity for commjsslon of offence punishabie under Section 20 (b) (i!) (C) of the Narcotic Drugs and Psychotropsc Substances Act, 1985 (hereinafter refereed to as ithe Act, 1985') sentenced hjm to undergo rigorous imprisonment for 15 years and to pay fine of Rs.1,00,000/-, in defauit of payment of fine to further undergo rigorous Imprisorsment for 2 years. 2. Conviction is jmpugned on ths ground that Vi/ithout there betng any iota of evidence, the triai Court has convlcted and sentenced the appelisnt as aforemsntioneci and thereby commltted sliegailty. f€l^\ § ^ !----r 3. As per case of the prosecution, on 2.6.2006 at about 2.05 p.m. present appeliant was in possesslon of 50 kg. of contraband articie ganjs In her house situate at Camp-i; Steel Nagar, ShHal. Investigatlng offlcer M.K.Dhruv (PW-10) received informatlon of such possessjon whjle tle was in patroiilng duty at Jatebl Chowk, Camp. He prepared panchnama vlde Ex.P/19 and sent copy of the same 'to the supersor oft'icer vide Ex.P/1, he aiso prepared panchnama Ex.P/7 retating to non-avallabjiity of time for search warrant. He procesded aiong wlth panch 'A'itnesses and poiice force to the house of the appeliant whsre shs was present. Notice reiating to search was served upon her vSde Ex.P/'-S. After obtaintng consent from the appeiiant for ssarch vide Ex.P/20, Investlgatlng officer, rald party and witnesses gave search to the appeiiant vide Ex.P/9, thereafter, iRvestigating offlcer entered snto the house of the appeilant aiong Vv'ith the appestant and witnesses where they found ganja in three piastlc bags and one tin drum. Recovery panchnama was prepared vide Ex.P/10. Ganja was weighed vide weighlng panchnama Ex.P/5 and 13 kg., 12 Rg., 4 Rg. and 21 kg. gsnja was found. Artlcies were identifjed as ganja by the wjtnesses and investjgating officer vide Ex.P/11. Panchnama of seal was prepared vsde Ex.P/12. ArticSes were seized from the appeliant vlde Ex.P/13. Sampies were taken out vide Ex.P/6. Same v^ere seaied. The appeiiant was arrested vlde Ex.P/14. Spot map was prepared by investlgsting offlcer vide Ex.P/15. The appellant was brought to the Poiice Station aiong with articles. Articles were kept in maSRhana vtde Ex.P/17. F.i.R. was todged vlde Ex.P/22. Samptes were sent for chemlcai examination vide Memo Ex.P/2 atter Its entry vlde Ex.P/18. Same were examined by the Forensic Science Laboratory vlde Ex.P/23 and sampies were found ganja. 4. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after compietion of investigatlon, charge sheet was fiSed before the Specja! Judge, Durg. 5. in order to prove the guiSt of the accused/appeiiant, the prosecution has examined as many ss 10 witnesses. The appeliant was examineti under Section 313 of the Cr.P.C. jn ^vhich she has denled the - ~1~. ^y clrcumstances appearing against her and ciasmed innocence and false implscatton in the crime in question. She has specificaljy tsken the defence that Investigating offlcer has commltted robbery of mobiie, golden ring and money from her husband, when she demanded the same from him, then investsgatjng otflcer has falsely impilc^ted her, she has not committed any offence. On 2.6.2006 she went to jaii for msetsng with her husband and she met there. in her defence she has examined A.K.Shukla (DVV-1), Smt.Aioriya Toppo (DW-2), G.Kasu (DW-3) and Simadri Jaina (DVV-4). 6. After providing an opportunity of hearing t.o the parties, learned Speciai Judge, Durg has convlcted and sentenced the appellant as aforementioned. 7. We nave heard iearned counsei for the partlss, perused the judgment Smpugned and record of the tnai Court. 8. Learned counsel for the appeilant vehementiy argued thst the present appellant has been tried and convlcted for the offence punishabje under Speclal Act i.e.,N.D.P.S. Act. Considering the deterrent punjshment, iegisiature has provtded speciflc procedure for investlgstion and triai. investigatjng offlcer Vv'as under obilgation to foliow the speclai procedure prescribed for investlgation, but jn the present case investlgatlng offtcer has not foiiowed the procedure prescrlbed under the Act, 1985, especiaijy provlssons contasned In Section 55 of the Act, 1985. Learned counsel further argued that Independent wltnesses have not supported the case of the prosecutton. Investigating offteer in the present case i.e. Sub-inspector M.K-Dhruv (PVV-10) Is in habit of not investigatsng the offence in accordance wlth the provislons of Special Act and Is in habit to provide benefit to the crimlnajs. This Court has directed for initiation of dlsctplinary enqulry in connectlon with the simiiar offence In CriminaS Appeal Ho.56 of 2006 vide judgment dated 22.8.2006. Learned counsei aiso argued that the prosecution has not proved the possession of contraband articies by producmg the same before the Court during triai. Learned counsej contended that on 2.6.2006 the appeiiant vv'as present in jaji premsses for meeting with her husband G.Kasu who was in custody and sarne j'P" i &s.-l \ I "^^i^ 1 41 -f^ c has bsen proved by the evldence of A.K.ShuRla (DW-1), Smt.ASoriya Toppo (DW-2), G.Kssu (DW-3) and Simadri Jalna (DW-4). 9. Leamed counse! piaced reliance in ths matter Jltendra and another v. SSate of SVi.P. reported In 2003 (4) R4.P.H.T. 338 (SC) in which the Supreme Court has acqultted the appeiiant on the ground of faise accusatlon at the instance of iandiord with a vlew to evlct the accused from house who v/as tenant, non-examination of Investlgatlng officer and non-productlon of seized articies before the Court. 10. OR the other hand, learned State counsel supported the judgment impugned and argued that Investlgating offscer has foliowed the procedure prescribed. The present appeilant was in possession of huge quantlty of contraband artlcle and after followlng the procedure prescribed charge sheet has been fsied before the Speeial Judge, Durg. On the basls of evidence adduced on behalf of the prosecutson, the trial Court has rightiy convicted and sentenced the appellant as aforementioned. Leaned counsei further argued thst In case of Criminsl Appeal No.55 of 2005 this Court has dlrected for iRltiation of disciplinary enquiry against investjgatlng officer of this case in another case on the ground that he has shseid the owner of the vehlcie but not for the prosecutlon of the acciised without any material. Learned counsei aiso srgued that evldence of defencs wltnesses reveals that one Bano has vlsited the jail premises on 2.6.2006 and the present appellant Is Smt.K.Bhanu. The aHeged Bano had met in jaii wlth some G. Kasu and not wlth K.Raju. G.Kasu (DW-3) has deposed in his evidence thst K.Bano te his wife who met him In jaji on 2.6.2006. Name ofthe present appellant Is K.Bhanu, wlfe of K.Raju and not K.Bano, wife of G.Kasu. In her statemsnt under Section 313 of the Cr.P.C., the present appeiSant has stated her name as Smt.K-Bhanu and not as K.Bano. She has stated the nams of her husband K.Raju and not G.Kasu. This evsdence ciearly reveals that present appeltant K.Bhanu has not visited jail to mset wlth her husband K.Raju but one Bano has visitedjall on 2.6.2006 to meet with one G.Kssu. Evldence adduced on behalf of defence witnesses are not related v/ith the defence of present appetlant, ^r":'-::~::^- fil\ 5 ^-A 1 'IJ •s' ^; t 11. in order to appreciate the arguments advanced on behalf of the parties, we have examined the evldence adduced on behalf of the parties. 12. In the present case, the present appellant has been convscted and sentenced under the Speciai Act. Considering the deterrent punishment, Speciai procedure has been provided In Speciai Act. Envestjgating officsr v/as under obSigation to comply wlth the procedure prescnbed to ensure the fair investjgation In prosecution. As per evldence of investigating officer M.K.Dhruv (PVV-10), he was in patroiiing duty along with other constables, during the course of patrolllng he received snformation from the snformant that the appellant is in possession of ganja in huge quantity, he prepared panchnama vsde Ex.P/19 and sent the same to his superior offteer vlde Ex.P/1. in paucity of tlme for obtaining search Vv'arrant he prepared panchnama and immedlately raid the house of the appeiiant ajong with poiioe officials and witnesses, the appeilant was present in her house, she was served notjce Ex.P/8 reiating to information and was also informed about her right of search before gazetted officer or Magsstrate vlde Ex.P/20, aithough in the present case Snvestigatlng officer has not made search of the person and has made search of house, therefore, provisions of Section 50 of the Act, 1935 was not appSicabie and Issuance of such Intimation is redundant in the present case. As per his evldence after personai search of trap psrty and wltnesses by the appeliant vide Ex.P/9, he made search of house of the appeSSant where he found ganja in three bags and one tin drum vlde Ex.P/10. Same was identlfled vide Ex.P/11. Arttcies were weighed vide Ex.P/5, sampSes were taken vide Ex.P/6, seaS panchnama was prepared vide Ex.P/12 and artlcies were seized vide Ex.P/13. The appedant, was arrested vjde Ex.P/14. He also prepared spot map vids Ex.P/15. He has further deposed that intimation of arrest of the appeilant has been sent to her reiatives vide Ex.P/21, he cams to the Poilce Station and lodged the F.i.R. vide Ex.P/22. He has aiso deposed that he has recorded the statements and samples were sent for examinatlon vlde Ex.P/23 and same were found ganja vide Ex.P/24. I! '^ % '^. :.^ ^ss-:'"; .i 13. Constable Sohrab Khan (PVV-1) has deposed that he has submitted Ex.P/1 to Reader of Cjty Superintendent of Poijce. Gulab Chand Gupta (PW-4), who has weighed the articies, has not supported the case of the prosecution, but has admltted signatures over Exs.P/4 and P/S relating to weighment of the article. Prosecutlon has deciared h?m hostile. He has admltted the signatures but has not offered any expianatlon thst why he has slgned over three papers when he has not welghed the artsdes. Shekh Rahman (PW-8) has substantiaily supported the case of the prosecution. Defence has cross-examlned this witness In detail. in his detall cross-examlnatlon he has substantlajiy supported the case of the prosecution and has deposed that he has visited the house of the appeSlant along wrth poiice authorities where ganja v/as found In bags and tin drum, same was seized & weighed and documents were prepared. Head Constable Manharan Yadav (PW-7) has deposed in nls evidencs that he has entered sntry relating to property In malkhana register vsde Ex.P/17 and also sent entered entry reiatlng to sendlng of samples t.o FSL for examlRation. in his detali cross-examlnatlon, he has deposed that he "nas made entry on the basis of seizure memo snd he has not seen the articles, even he dld not know seai of articjes. He has admitted in paras 4 and 5 of cross-examination that he has made entry in Ex.P/18 at the time of sending the articies to FSL. His evldence clearSy reveais that he has received the articies but he has not seen the same. As per entry, articles were seaied, therefore, it was not posslble for him to see the contents of the packets. 14. Defence has cross-examined M.K-Dhruv (PW-10) in detail. Sn his detaii cross-examinatjon he has categoricaiiy supported the case of the prosecution snd has denied the adverss suggestson that without foliowing the procedure prescribed he has prepared faise documents. He has admitted that he has not handed over the property to Station Officer, he himself was posted as Sub inspector In Poljce Statlon Chhaonl and he himssif has produced the seized artlcies for Reeping the same in maikhana. He was Sub inspector of sald Poiice Station. Nothing has been asked to this witness by the defence that whether at the time of production of such articies before Pollce Statson he wss not ^ Station Officer of the aforesaid PoSlce Station as per deflnition of clause (o) of Section 2 ofthe Cr.P.C. 15. in these circumstances, if the property sealed by Investigating offlcer haskept in malkhana by himseif, then it cannot be said that he has not compiied with the provisions of Section 55 of the Act, 1985. jn the present case, property has not been produced before the Court during triai, but nothing has been asked by the defence to investigatlng officer. 16. In the matter of Jltendra and another (supra), the Supreme Court has acquitted the accused/appeiiant not only on the ground of non-production of articie but on the ground of non-examinatiQn of investigating offscer, hostile evldence of panch wltness and specific defence of the appeiiant reiating to his eviction at the Instancs of Sandlord from his house. The facts of the case of Jltendra and anofher are distinguishabie to that of the present case. 17. Evldence of A.K.Shukla (DW-1), Smt.Aionya Toppo (DW-2), G.Kasu (DW-3) and Simadri Jaina (DW-4) is not sufficient for drawlng definjte conciusion that the present appeiiant has visited jail on 2.6.2006 to meet her husband and was present at the tlme of commisslon of such offence. in her cross-examination und6r Section 313 of the Cr.P.C., she has not stated thatshe has not signed on the documents or investlgatlng officer has obtained her signatures at piace other than her house. She has aiso not denied the sjgnatures over the documents. Evidence of M.K.Dhruv (R/V-10) supported by evidence of Sheikh Rahman (PW-8) inspires confidence and trustworthy and investigatlng offScer has complied with the procedure prescribed under the Special Act. Samples were examined by the FSL vide Ex.P/23 and same was found ganja. 18. After appreciatjng the evidence avaliable on record, iearned Speciaj Judge, Durg has convlcted and sentenced the appeliant as aforementioned. Convictson of the appeSSant is based on cilnching, credible and reiiabie evidence sustainabSe under the law. Considenng the huge quantity of ganja, sentence of the appeiiant is aiso not excessfve. %.'%^—'!-/ '^-sss^"' B/- 19. On ciose scrutlny of ths evidence, we do not fsnd any iiiegaiity in the judgment impugned warranting any interference. 20. Consequentiy, the appeal being devold of merit is iiable to be dismlssed and it is accordingiy dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge