—^^ !N THEJHIGILCOT>RT OF JUDICATURE AT BILASPUR CHHATTISGARH Cr. A. No. -^63 /2004 CRIMINAL APPEAL^U7S^J374 (21 OF Cr.P.C. APPELLAJLT (IN JAIL) RESPONDENT ;; Kartik, S/o. Ghunghuti Panara Aged 45 Years, occupation Agriculturist, R/o. Vfllage Tarapur P.S. Nagarnar, District Middle Bastar (C.G.) VERSUS The State of Chhattisgarh Through P.S. Parasgaon District Middle Bastar (C.G.) AGAINST THE JUJtGEMENT^AND CONVICTIQN DATED J,3^.P2.20p4_PASSED^IN^ SPECIAL^ASE N0, ^ 46/2003 BY THESPECIAL JUDGE N.D.P.S. ACT. BASTAR. AT JAGDALPUR, (C.G1 ^ /^- Y' ^- <,,> fe.^ ,k' '^ .....sW-SsMSf HI6H COURT OF CHHATTISfiARH AT BILASPUR Cc. ApDeal No.263/2004 Single Bench: Hon'ble Shri Dilip Raosaheb Deshmukh Kaptik ^ Vs. State of Chhatt-i^arh PRESENT: - Ms. Somgita Mishra, counsel for the accused-cppellant. Shri U.K.S.Chondel, Panel Lawyer for the State. ORAL JUD6MENT (Delivered on 09-03-2006) This appeal is direet'ed against Ihe judgment dated 13-02-2004 delivered in Specud Cass No.46/2003 by Shri R.S.5harma, leamed Sessions Judge, N.D.P.5. Act., Bostar, Headquarter at Ja9dalpur whereby the appellant was convicted under 5ection-20(b)(ii)(B) of the Narcotic Drugs oaid Psychotropic Substances Act. 1985 (hereinafter referred to as the "Act") and was sentenced to R.I. for 4 years <md a fine of Rs.15,000/- and in defautt of payment of fine to undergo additional R.I. for 1 year. 2. Briefly stated the prosecution story is that on 17-10-2003 Sub Inspector Arvind Owivedi, Station House Officer of Police Station-Pharasgaon upon reeeiving secret information about the possession of illicit ganja by a person, reached Badedon9ar Tridngle along with staff ^- <:"-J-^ ^ ^L^-^^^s?^ 6» and witnesses ond opprehended the appellant who was carrying a red & blue coloured ragzine bag. After servin9 the oppellant with a notice under Section-50 of the Act and also after obtaining the consent of the appellant to be searched by him, Sub In^ector Arvind bwivedi PW-5 searched the rwgzffie bag carried by the appellant and found goaija like substomce therem. The aibstonce was weighed by TeJ ram Sahu PW-3 at the place of occurrence and was found to weigh 8 kilogrom. Two samples of 50 g.m. each were separated and packed and marked as Article A-l 4 A-2 ond were sealed. Specimen impression of seat used by the Sub Inspector Arvind Dwivedi Station House Officer was also prepotf-ed Vide Ex.P-15. The sealed pocket containin9 7 kilo9ram & 900 gram Sonja and also the two sealed sample packets marked as Article A-l & A-2 were entrusted by Station House Officer Arvind Dwivedi PW-5 to 1-tead Constable Jaideo Bhoi PW-2 on 17-10-2003. On 19-10-20)3 vide memo Ex.P-24 of the Superintendent of Police, Bastar, one sample packet Article A-l along with specimen impression of the seal was sent to •the Forensic Science Laboratory, Raipur through Constable 6enda fal Sahu. The sample pocket A-l was received in the Forensic Science Laiboratory, Raipur on 21-10-2003. Vide report dated 13-01-2004 Ex.P-26 it was opined by -the Forensic Science Labonxtory that the sample packet contained ganja. ^Sr *:'!:j :-..:. •iV^W^S^. B @t^ l^ ^ B GE lli si^ 3. After completion of investi9ation, the appellant herem was prosecuted under Section-20(b)(ii)(B) of •the Act. The oppellant abjured the guilt, pleaded fotse implicatton <md led no evidence in defence. The prosecution examined as many as 5 witnesses. Retying upon the evidence led by the prosecution, the tpial Court convicted & sentenced the appellant as orforesaid in para-1. 4. Leamed counsel for the oppellant has assailed the conviction of the appellant on •the ground that there is non-complionce of Section-50 of the Act, since the notice Ex.P-10 does not record as to which of the options were exercised by the appellant. It is contended that since the appellant js an illiterate person, his thumb impression was taken on Sahamati Pativi^x.S'-V) at a kxter point of time. It was thus contended that non-compliance of Section-50 of the Act vitiates the prosecution. It was atso argued that there is varkmce between the Weighment pcuichnamo Ex.P-7 and the testimony of Tejram 5ahu PW-3. ExP-7 showed that weighment was done at the Badedongar Triangle, Pharasgaon whereos the testimony of Tejram 5ahu PW-3 revealed that the weighment was done in his shop in his absence. Lostly, it was conteded that Baliram PW-4 on independent wi-tness did not depose against -the dppellant in para-1 of his testimony and was unable to identify the cypelknt as -the person from whom the ganja was seized. It was also argued that non-examination of im independent witness Chamra Ram by the prosecution creates a serious dent in the prosecution cose. It was also submitted that both the samples Article A-l & A-2 were not sent for chemical analysis to the Forensic Science Laborotory. On these grounds, teomed counsel for the appetlont proyed that.jfconviction and sentence imposed on the appellant be set aside. >:--^y's^iE;t- 5. On the other hand, Shri U.K.S.Chandel, learned Paaiel Lawyer argued in support' of the impugned jud9ment while contending that Section-50 of the Act has no application to the facts of the case as the person of the appelhnt had not been searched. He placed reliance on Sun^ax Siiwh Vs. State of Haryana reported in200l(Volume-l) - Cr.L.J.-1166 in support of •the above contention. Having heard rival contentions, I have perused the record of Special Case No.46/2003. So far as the arguments advonced by the learned counsel for the appellant relating to non-complionce of Section-50 of the Act is concerned, it has to be considered only to be rejected, because in the present case it was not the person of 1+ie appellant that had been searched but it was the ragzine bog carried by the oppellcnit which had been searched. In view of Gwvbwe Sin^h Vs. State of Harytvia (Suppa), Section-50 of the Act hos no application to the present case. ^y ^D 7. ^^.^ ^^?l^^i^^ P!: T~" 'lssito ^ Sub Inspector Arvind bwivedi who is the 5tation House Officer of the Police Station-Pharas9aon has deposed that upon receiving sscrst information he prepared panchnama thereof vide Ex.P-1 and also aft'er recording reasons for not obtnining a search warrant, he proceeded to the Badedongar Triongle, Pharosgaon along with staff and witnesses Chamra Ram & Bali Ram and found that the appellant was carrying a ragzine bag. After allowing the appellont to search him as also the witnesses Sub Jn^pector Arvind bwivedi searched the bdg carried by the appellant and found it to contain ganja like substance. Tejram Sahu PW-3 wos called for weighment of the substance found inside the ragzine bag carried by the nppellant. It was categorically stated by Sub Inspector Arv'md Dwivedi that weighment panchnoma was prepared at the pktce where the search was affected and it wsss found that the substance in possession of the appellant <& was 8 kilogram. This 4uw fur-ther corroborated by weighment panchnama Ex.P-7. He has further testified •Hiat two samples of 50 g.m. each were taken from the contents of the bag and were sealed <ind marked as Article A-i A A-2. This ctearly finds mention in the Panchnama Ex.P-7. Specimen impression of the seal used to seal the articles was also prepared vide Ex.P-15. Sub Inspector Arvind Dwivedi PW-5 being the Station House Officer himself has furttier stated in paro-4 that on fp, returning to the Police Station-Pharasgaon, the sealed sample packets as also the ragzine bag containing gonja tike substcmce was handed over to -the Moharrir of Malkhona. This part of the testimony of Sub Inqaector Arvind Dwivedi is wholly unrebutt'ed in cross-examination ond also finds corroBjbration from Head Constnble Jaidev Bhoi PW-2 who hds deposed that the Station 1-louse Officer had entrusted the ragzine bag containing ganja like substaaice and two sealed packets and one Rs.100/- note for safe custody. The entry in the Malkhona Register Ex.P-4 and the acknowledgment Ex.P-3 has also been proved by this witness. In cross-examination, this witness has stated that he had kept Ihe art'icles inside the Atolkhana in the same condition in which they were entrusted to him. 8. hjSW ^^ Sub Inspector Arvind Dwivedi PW-5 further proved Ex.P-24 being memo of Superintendent of Police, faistar for sending sample Article A-i for chemical analysis to the Forensic Science Laboratory, Raipur. It has been clearly mentioned therein That the specimen impression of the seal used by -the Station House Officer to seal the sample had also been sent along with. The report of Forensic Science Laboratory Ex.P-26 also bears the drowing of the specimen impression of the seal fourid on the sealed sample packet A-l which fully tallies with the specimen impression of seal Ex.P-15. It is thus clear that -7- Section-55 of the Act had also been complied with, since sample packets. were sealed by Station House Officer before they were entrusted for safe custody in AAalkhona. There is absolutety nothin9 on record which would be aiggestive of even the remotest possibility of tampering with the somples. y 9. .^9 gl^Al^s'atSSa ':"\-"~--^-^^':'y It is true that independent witness Chamra Ram has not been examined by the prosecution. HotBever, Baliram PW-4 supported the prosecution case in toto on being cross-examined by the Additional Public Prosecutor.In his exumination in chief, he had aipported the entire proceedin9S by Sub Inspector Arvind Dwivedi PW-5 but had only stated that he could not identify the person from whose possession ganja had been seized. Tejram Sohu PW-3 witness of weighment panchnama also admitted the signatures on weighment panchnama Ex.P-7. The testimony of Sub Inspector Arvind Dwivedi PW-5 is wholly unrebutted, trufftworthy and inspires confidence. On the basis of the report' of Forensic Science Laboratory, Raipur Ex.P-26, it is fully establidied that the substance seized from the possession of the appellant was gcnja. 10. Hwing thus considered the evidence led by the prosecution in its entire-ty, I am of the considered opinion ^- 11. that the conviction and sentence imposed on the qipethnt by the trial Judge does not call for any interference. In -Hie reailt, •the appeat is devoid of merit cnd is accordingly dismissed. -/ Judge .........rirfp'