HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: RESPONDENT: Criminal Appeal No.362 of2008 Amit Jayaswal Versus State of ChhattisgaFh Postfor Drbnouncementofiudament on 24l" Julv. 2009 th Sd/- T.P. Sharma Judge u 13 j^ ^ ^. HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.362 of2008 Amit Jayaswal, aged about 22 years, S/o Shri Pradeep Prasad, R/o Village Sattidayee Mohalla Maszid Gully, Garhwa, Distt. Garhwa (Jharkhand) Versus State of Chhattisgarh, through the Station House Officer, Ambikapur, Distt. Sarguja (CG) {Criminail appeal under Sectioh 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mr. V.K. Pandey, counsel forthe appellant. Mr. Sanjeev KumarAgrawal, Panel Lawyer for the State/respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J JUDGIVIENT (Delivered on 24th July, 2009) 1. This criminal appeal is directed against the judgment of conviction & order of sentence dated 28-3-2008 passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (forshort 'the Act'), Ambikapur in Special Criminal Case No.30/2007, whereby & whereunder learned Special Judgeafter holding the accused/appellant guilty for possession of illicit contraband article brown sugar, convicted him under Section 21 (b) of the Act and sentenced to undergo R.l. for five years & pay fine of Rs.50,000/-,in default of payment of fine to further undergo R.l. for one year. 2. Judgment is challenged on the ground that the prosecution has not complied the mandatory provisionsof the special Act madeto safeguard the accused from frivolous accusation.and without any corroboration from independent sources, the Court below has convicted & sentenced the appellant and therebycommitted illegality. 3. Case of the prosecution, in brief, is that Nasar Siddiqui (PW-7), Station House Officer, Police Station Ambikapur, received information on 11-10- 2007 at about 6.10 p.m.that some person is standing near Maya Lodge, Ambikapur having brown sugar and he is in search of customers. Panch witnesses were called, the information was recorded in writing vide Ex.P- 1 and Sanha No.39 was also recorded. Procurement of searchwarrant ^ "was not possible. Another Panchnama Ex.P-2 was prepared. Copies of both the documents Exs.P-1 & P-2 were sent to the superior officer. After recording Roznamcha Ex.P-22, Nasar Siddiqui (PW-7) proceeded for spot along with other officials. The present accused was present near thje place of incident. After informing him about the information received, right ofsearchof the accused by superior officerwas informed to him vide Ex.P-7 and after obtaining his consent, the Police Officers & witnesses gave search to the accused vide Exs.P-8 & P-9 and thereafter, Nasar ,Siddiqui (PW-7) made search of the accused. One packet containing brown sugar was found in the pocket of the accused vide search Panchnama Ex.P-10. Article was identified as brown sugar by thewitnesses vide Ex.P-11. The powder was made homogenous vide Ex.P-12. Gopendra Soni (PW-2) was called with weighing apparatus vide Ex.P-4. Weighing apparatuswas verifled vide Ex.P-5 and thearticle was weighed vide Ex.P-6. 120 gms. of brown sugar was found and same was seized from the accused vide Ex.P-13. Article was sealed and seal Panchnama was prepared vide Ex.P-14. The accused was arrested vide Ex.P-15. Nasar Siddiqui (PW-7) came back to the Police Station along with the article & the accused. Dehati Nalishi was recorded vide Ex.P-27and the F.I.R. was registered vide Ex.P-19. Article was deposited in the Police store room. Copy of the F.I.R. was sent to the Magistrate vide Ex.P-13. Detailed reportwas sent to the superior officer vide Ex.P-3. Statements ofthe witnesses were recorded under Section 161 of the Cr.P.C.andseized articles were sent for chemical analysis to the State Legal Forensic Science Laboratory, Rajpur and the article was found consisting of diacetylmorphine vide Ex.P-31. After completionof investigation, charge sheet was filed before the Special Judge, Ambikapur. 4. In order to prove the guilt of the accused, the prosecution has examined as many as eight witnesses. Statement of the accused wasrecorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication. The accused has specifically taken the ground that at the timeof incident he came to Ambikapur where his Mousa Mousi were residing and while he was getting down from the bus, he wasenquired and finally arrested. 5. After affording opportunity of hearing to the parties, learned Special Judge has convicted & sentenced the appellant in the aforesaid manner. ^- 6; 1 have Ijieard learned counsel for the parties and perused the impugned judgmeht as also the recordofthe trial Court. 7. Learned counsel for the appellant argued that the prosecution has not complied the mandatory provisions made to save the accused from false & frivolous accusation. Before searchof the accused, the prosecution has not informed his right to search by the Gazetted Officer or by the Magjstrate. Thealleged intimation Ex.P-7 doesnot bearname of the accused and name of the accused in Ex.P-7 is recorded as Anil Jayaswal, however, the present accused/appellant is not Anil Jayaswal he is Amit Jayaswal. Ex.P-2 was prepared at about 6.28 p.m., but its receipt shows that it has been received at 6.20 p.m. which shows CQncpction of the documents. Factum of weighmentof the article has not been supported by Gopendra Soni (PW-2). Panch witness Sunil Sahu (PW-3) has not supported the case of the prosecution and the prosecution has not examined any other independent witness. Only on the basis of evidence of the Police Officer, conviction of the appellant is npt safe. Lastly, learned counsel argued that the appellant is in custody since 11-10-2007 and has completed one year nine months of jail sentence, quantity found in possession ofthe accused was above small quantity and below commercial quantity. .Sentences imposed upon the appellant are excessive. 8. On the other hand, learned counsel appearing on behalf of the State/ respondent supported the judgment and submitted that the prosecution has proved this case beyond all reasonable doubts. Theprosecution hascomplied the mandatory provisions of the special Act. Although independent witnesses have notsupported the case ofthe prosecution, evidence of the Police Officer inspires confidence, it is trustworthy and safe to rely upon. The Court below has rightly convicted & sentenced the appellant. Contraband article brown sugar was found in possession offhe appellant who is notresident ofAmbikapur. The appellant has not offered anyexplanation for his presence at Ambikapur. The appellant is involved in antisocial activities and sentence awarded to him isalso not excessiveor unjust. 9. In orderto appreciate the contentions of the parties, 1 haveexamined the evidence adduced on behalfofthe parties. lO.Theappellant isnot resident of Ambikapur where the alleged offence is said to have been committed. According to the statement of the appellant recorded under Section 313 of the Cr.P.C; when hegot down from the bus forgoing to the house of his relative (Mousa Mousi), he was caught by the Police. But the appellant has not adduced any material to show that his Mousa Mousi are residing atAmbikapur. 11.1n the present c9se,admittedly, Gopendra Soni (PW-2) the alleged person who has weighed the eontraband article & Sunil Sahu (PW-3) Panch witness have not supported the case of the prosecution. The prosecution has declared Sunil Sahu (PW-3) as hostile witness and even in his cross-examination also he has not supported the case of the prosecution. In his cross-examination, this witness has admitted his presence in the Potice Station at the time of signing on the papers. Gopendra Soni (PW-2) has specifically deposed that he has weighedthe article in his shop and notweighed at the spot. However, Panchnama Ex.P-5 for verification of weighing instrument and Ex.P-6 weighing Panchnama, signedby this witness, reveal that he has weighed the article in front of Maya Lodge, Ambikapur. This witness has not stated anything that why he has put his signatuFe over Exs.P-5 & P-6 which werenot true in his knowledge. Likewise, Sunil Sahu (PW-3) has also not deposed that why he has put his signature over eleven documents when they have not been executed before him. These facts are suggestive of the fact that these witnesses are concealing the truth. The prosecution has not examined anyother independent Panch witness but non-examination of Panch witness itself is not fatal to the prosecution. l2.The prosecution has examined Sanjay Pandey (PW-1) - Constable, Ram Avtar Singh (PW-4) - Constable, Ramdas Ram (PW-5) - Head Constable, Manoj Kumar (PW-6) - Constable, Nasar Siddiqui (PW-7) - lnspector& Investigating Officerofthe case and Sapan Choudhary (PW- 8) - Inspector & another Investigating Officer of the case. All these witnesses are police officials, but their evidence cannot be discarded ohly on the ground that these witnesses are police officials and interested in the outcome of the case. While dealing with the same question i.e. evidentiary value of the statements of Police Officers, the Apex Court has held in the case of Anil alias Andya Sadashiv ^ b>N; ^ ^' Nandoskar v. State ot Maharashtra , that testimony of police officials are not liable to be discarded merely because they are police officials. However, their evidence should be carefully scrutinized and independently appreciated. The Apex Court further held that witnesses being police officers do not by itself create a doubtabout their creditworthiness if non-examination of Panch witnesses is explained safisfactorily. Para 5 ofthe said judgment reads as under:- "Indeed all the 5 prosecution witness who have been examined in support of search and seizure were members of the raiding party. They are all police pfficials. There is, however, no ruleof law that the evidence of police officials has to be discarded orthat it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcomeof the result of the case, needs to be carefully scrutinised and independently appreciated. The police officials do not suffer from any disabiiity to give evidence and the mere fact thatthey are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and criticallyanalysed the evidence of all the 5 police officials. There is nothing on the record toshow that any one of them was hostile to be appellant and despite lengthy cross-examination their evidence has remained unshaken throughout, These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which . he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country-made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. Theexplanation given by the prosecution, for the non-examination of the two panch witnesses, which is supported by the report Ext.24 filed by PW 4 Pl Gaikwad is satisfactory. The evidence on the record shows that the raiding party madesincere efforts to join with them two independent panchas at the time of search and seizure and they were so joined. They were . also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them.they could not be located or traced and therefore they could not be examined at the trial. In the face of the factsstated in report Ext. 24, the correctness of which has remained virtually unchallenged during the cross-examination of PW 4, the non-examination of the two panchas cannot (1996)2SCC589 t 1 be said to be on account of any oblique reason. Their non-production at the trail thus has notcreated any dent in the prosecution case. The prosecution cannot be accused of withholding these witnessessince it made every effort to trace and produce them at the trial but failed on accQunt of the fact that they had leftthe 1 addressesfurnished by them at the time of search and [ their whereabouts could not be traced despite diligent efforts made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country-made revolver and cartridges for which he could produce no licence or authority because of the non-examination of the panch witnesses. We find that the evidence of PW 1 to PW 5 is reliable, cogentand trustworthy." 13. Further, in the matter of P.P.Beeran v. State of Kerala2 it has been held by the Apex Court that reliance can be placed on the uncorroborated evidenee ofthe Sub Inspector of Police. 14. In the light of the aforesaid legal propositions, l have examined the evidence of the Police Officers. Most of the Police Officersare members of the raid party. Sanjay Pandey (PW-1) has deposed that he has transmitted Exs.P-1 & P-2 to the Office of superior authority. Receipt of Ex.P-2reveals that itwas received on 11-10-2007 at 6.20 p.m. although the documentreveals that it has been prepared at 6.28 p.m. Learned counsel for the appellant has submitted that these discrepancies made the document inadmissible and supports the case of concoction. Admittedly, difference between preparation & receiptofdocumentEx.P-2 is of only 8 minutes and receipt has been endorsed on the same documentin which time of preparationwas recorded as 18.28 hours (6.28 p.m.) and time of receiptwas recorded as 18.20 hours (6.20 p.m.) which shows that the said discrepancy is nothing but difference inthe time ofwatches. l5.Nasar Siddiqui (PW-7) is Investigating Officer of the casewho has categorically deposed thaton 11-10-2007 he received information from the informant, he recorded the same in Ex. P-1 before thewitnesses, prepared memo for non-procurement of search warrant due to paucity of time and recorded the Roznamcha. He has also stated that he proceeded for the spot along with police force where he found that the accused was present there, he informed the accused about his right of l^*e search by superior officer vide Ex.P-7, aftertaking his oral consent and after giving searchof raid party vide Ex.P-8, they searched the accused whereupon the alleged contraband article was found in his possession vide Ex.P-10, same was identified vide Ex.P-11. The said article was made homogenous vide Ex.P-12. The article was seized & sealed vide Ex.P-13. The accused was arrested vide Ex.P-15. He recorded Dehati Nalishi vlde Ex.P-27, intimated about the arrest of the accosed to his relatives and came back to the Police Station where he recorded F.1. R. vide Ex.P-29 and written Roznamcha vide Ex.P-25. He has also produced the seized & sealecl contraband article to Head Constable Ramdas Ram who keptthesame in Malkhana. The article was sentfor chemical analysis and same found diacetylmorphine vide Ex.P-31. 16. In his cross-examination, Nasar Siddiqui (PW-7) has deposed that the documents were prepared at his instance, but he has not prepared the documents in his own writing. Preparation of documents by his own writing is not necessary. In his detailed examination & cross- examination, thiswitness has specifically deposed about the procedure which he has followed and possession of contraband article with the accused. Nothing has been asked to this witness relating any interestedness or enmity with the accused, even the accused was not known to him. Factum of deposit of the contraband article in Malkhana\s supported by theevidence of Ramdas Ram (PW-5). In absence of any departure from procedure and fact of interestedness or enmity with the accused, evidenceof Nasar Siddiqui (PW-7) inspiresconfidence and jt is trustworthy. l7.Afterappreciating theevidence available on record, learned Special Judge has convicted & sentenced theappellant in the aforesaid manner. Conviction of the appellant is based on clinching & reliable evidence sustainable underthe law. l8.As regards the question ofsentence of theappellant, the appellantwas found in possession of 120 gms. of brown sugarwhich is above minimum quantity & below commercial quantity (250 gms.). The appellant was sentenced to undergo R.l. for five years & pay fine of Rs.50,000/-, in default of payment of fine to further undergo R.l. for one year. Taking into consideration the quantity of brown sugar found in 7 8 ^ssession of the appellant, sentences imposed upon him requires reconsideration. 19. Forthe foregoing reasons, the appeal is partly allowed. Conviction ofthe appellant under Section 21 (b) of the Act is maintajned, however sentences of R.l. for five years & fine of Rs.50,000/- are reduced to sentence of R.l. for three years & fine of Rs.20,000/-, in default additional R.l. for six months. Sd/- T.P. Sharma Judge IT*1 »u it 3U '^ ) ,^.