CF0000063206 IN THE HIGH COURT OF Jumcmuaa AT JgBALPUR criminal Appeal No.3 T7 /2ooo 1o Khomla Sahu S/o Trilochah Sahu aged about 37 years, Occupation- cultiVator; 2. suig/kumar s/o Trilocn'an sahu, aged about 24 years, Occupation— Cultivator; Both residents of Mandhar Basti, P.S. Dharsavan, District Raipur, M.P. gPPELLANTs ( IN JAIL) VS a The State of M.Po through Excise Dgpartment, Raipur, WP. RESPDNDENT MEMO OE CRIMINAL APPEAL umDER SECTIQN 374 (2} OP THE CODE OF CRIMINAL PROCEDURE \ / 577[200q& Crimina l Agppeal No . l ) . Khomlal Sahu 2)‘, Shiv Kumar VS. . . . Appellants The State of M'aahya Pradesh (Now Chhattisgarh) a . . Respondent *i:*****§tw* Judgment pwtitfw ¢ anmnc A .Sd/- R.S. Carg Judge 3! -O7—2001. \6Vw ‘2— “km— Officer, Raipuru forming an opinion that if awaited warrant that Narcotics could be removed, he proceeded towards the place° After reaching 1 the said house, he called the in—mates to come out; on Which, appellant,Khom1al sahu came out and in£ormed said Emil Sachan that Trilochan sahu had gone asome-where outo He, however, informed that Shivkumar (Co-acctsed) was present in the house. They also informed the WM ofticer that the house was jointly‘owned and occupied by’Trilochan sahu and the present appellants-sons . Anil sachan gave them the inf omation about. his suspicion and also informed them that i£ they wanted, the house could. be searched in presence o£ the gazetted o£ficer or a Magistrateo The accused persons called Nand Kumar and Mithlesh Kumaro After arrieal of thOSe persons, Anil \ sachan issued them a notice for search of the houseo The accused persons consented for the search and there— a£ter the search’was taken. when they reached 1n the last room situate in the‘Court-yard and the doors were oeened: to the surprise of all '7 bags' containing contraband ganja and 24 Small paper packets each containing» 10 gms. ganja were foumi. Four samples of 5O gms. each were 'drawn and were properly sealed. Seizure memo was also prepared on the spot“ A spot-map in the presence of the accused persons weré prepared ., The accused persons and the contra- bands were brought to the office of the District Excise Officer° The sealed goods were kept in‘ the Malkhana and thereafter with the help and assistance of Patwari; yet another spot map was pre§areda One J -3— ‘ 4)., sealed sample was sent to the 3.8.1”, Neemach. The report received irom F¢SaLo informed that the ;\ sample was of ganja. On completion of the investi-l gation, thehhallan was filed. As the accused “V persons denied the commission o_£ the o£fenoe, the prosecution agency produced the evidence in the Court and proper opportunity to lead evidence was also given to the accxs ed persons. The accused in t‘heir defence examined D.w.l Ashwani Kumar. 3). After recording the evidence and hearing the parties; the learned trial Court convicted and sentenced the appellants as re£erred to above,and the appellants being aggrieved by the said judgment, conviction and sentence, have tiled this appeal. smt. Kiran Jain,learned counsel fdrr the appellants submits that from the evidence available on the record it would clearly appear that the house was in exclusive possession of Trilochan Sahu, father of the appellants, and as the appellants were living separately, they could not be held liable in connection with possession of the contrabands. It is also submitted by her that from the statements 20f the defence witnesses it is clearly proved that the prosecution has feiled to prove the exclusive passession and control over the house,therefore1, also, the appellants deserve to be aCquitted° shri Ranhir singh,learned counsel for the state taking an exception to the argument submitted that from the statements of the witnesses it would clear appear that: the accusedppersons Sh: -4- were in joint and conscious possession OE the house and as they were living jointly and the contrabands were £ound in the residential premises of the accuseé persons, they have been rightly convicted by the Court below. He has prayed for dismissal of the appeal. .6)o ”‘ I have heare thezparties at lengthancl have perused the recordso e 7)“, The prosecution agency examined as many as six witnesses in support o£ its case. P.W.1 Jeev Rakhan is the village Kotwar, P.W.2 Mithlesh Kumar, P°W¢3 Nand Kumar, as narrated above were called by the accused persons; Powaé Anil sachan is the Excise Sub-Inspector and the Seizure Officer, P.w.4 B.L. Mandavi. is thé‘ District §¢cise Officer, While P.w.5 Neé‘lkant Verma was the Fatwari of the village at the material time° PaW.2 Mithlesh and P.Wo3 Nand Kumar though admitted their signatures on Ex.P/‘1 to ExaP/7, but did not support the prosecution caseo They,h0wever, stated that they were called by the Officer of the Excise Department anci were required to affix their signatures on the documents which were kept prepared. POWJ Mithlesh Kumar,however, stated before the Court that‘the Excise peOple asked him to affix his signatures,therefore, he had affixed the same. I-Ie,however, admitted that he was informed by the Excise peoPle that they had seized ganja and the witness could affix his signatures as seizure witnesso P.W.3 Nand Kumar is the village sarpanch. Despite admitting the V k'‘xu. Fa...“ -5... fact that the documents should not be signed without reading the same, he stated that as he was in kjurry, he, has signed the saie doeumentso In crass-examination- paragraph 10, the de£ence asked him aboht the Ownership. but P.W°3 Nand Kumar clearly stated that he did not know as‘ to who wae the owner o£ the house. He,however, also stated that he did not know since when the accused persons ere living with their tather Trilochan Sahu. W . 8) o , Powal aeev Rakhan stated before the Court that after receiving the information about the z' arrival of the police peeple, he went to the house of Triloohan Sahu. He was informed by the Excise people that they had seized the Narcotics and the were makingLseizure.:~ He stated before. the Court that on mere asking or those officers he had affixed his signaturesg In the leadirig question submitted to him by the presecution he denied‘ the material suggestion of the presecution, but however, in paragraph 4 stated that since after being appointed as Kotwar he had seen the present appellants living in the same house with their father Trilochan sahu. However, immediately after making this statement he tried to wriggle out of the same by saying that the house belonged to Trilochan sahu and since after the marriage of the appellants they were living separately in ta different rooms of the same house. He also radmit— ted his signatures on Ex.P/1 to EbnP/7, 9)., P.W.6 Anil Sachan stated befor the -6- Court that he received the in£ormation at Galap— siltara which was immediately recorded by him. The saié record has been producea by him at EX. P/15o He has also proved the £act that he sent a c0py o£ the infomation to the District Excise Officer under Ex.-P/9. Supporting the proeecution case, he stated that when they reached the house in questicn, he called the in-mates to come out, on which Khomlal came out and therea£ter he alsc £ound Shiv Kumax: in the, house, They were in£6rmed then: the hOuse was to be searched as the Excise Sub—inspector was k3£ the opinion that the contra-— bands were stored in the s aid house, thereatter Nand Kmar,‘ Mithlesh and Kotwar o£ the villageVha/e gy/K. called, at the instance of. the accused persons. &iotice Ex P/16 to comply the prOViSLQns o£ the Act, was given to them, on which consent of the accuseé was obtained uncier Ex.P/1° After obtaining the consent of in—mates oi the house, they entered in the house after giving their personal search; when the raiding party reached a pakka room situate in the Court—yard o£ the said residential premises, he f ound’that a latch was put on the same and on his enquiry he was intormed by the accused persons that it—was used for the purpoees of Nistar ( Lavatory/Bath-roomh The said room was Opened and he found that seven bags each containing ganja were kept there. Just next tov the said. badge, 24 small paper packets each containing ganja were also tound, a big and small -7- balance waaaalso found. A small packet was opened and it was found that these packets m also contained ganja. The articles were weighed at Fuel Wood Depot o£ the accused persons; Four samples of. 50 gms. each were ‘drawn on the ‘spot, the same was sealed anc‘i Panchnama ExoP/t} was prepared. On uthe said panchnama signatures of the accused and witnesses were obtained.m Weighment panchnama E§<.P/6 was prepared and the seizure memo Ex.P/9 was also prepared in 9resence o£ the accused persons and witnesses and their signatures were also obtained on these documents. Under Ex.P/7 he “prepared the Spot mapo , After putting therproper seal on the seized articles he proceeded towards the head-quarters. After coming to the Head—quarters he gave the information to, the District Excise Otfioer and submitted the sealed articles and other articles to the District Excise Officer} With the permission of the District Eb<cise Ofticer, the articles were kept in Malkhana and one o£ the sample was sent to the FvsoLo the Malkhana register containing the said entryo The First Intormation Report was recorded at ExaP/lo. After some time he required the village Patwari to prepare spot map which was accordingly prepared by the Patwari under Ex.P/llo The sample was sent to the F.s.L. along with the letter Ex.PA9. The report received from Neemach laboratory was produced by him at ExoP/Zlo In the croes-examinatigr he stated that ’in Ex.P/15 he had recorded the name o£ Trilochan Sahu and further recorded that his O He als o produced él‘ia. / i) \ _8.. sons were also engaged in the said business. He, hawever, admitted that as the names o£ the sons ‘ were not in£ormed to him he did not record the 'names o£ the sonso He also admitted that he é'id not in£orm the'village Kotwar before entering ir$he village nor did he take any person with him to reach the house in disputec In paragraph 15 he admitted that the £ine details such as reaching to the house, calling out the in-mates etc.. were not (ietailed by him in the F.I.R° as according to him all'was not 'requiredyto be mentioned in the x R9 In oaragraph 17 he denied the suggestion that synatures of the accused person.) were obtained on Ex P/l, P/3 and P/16 without telling them the contents or the said documents° He also \ deniec the sucgestion that when he reached the house, the accused were not available, but the accused persons were called from another hghall’a, Bhatapara. It would be worth noting that not even a single suggestion was given to him that the house did not belonc: to the accused persons and was owned and exclusively possessed by Trilo- chan sahu. From the statements of Pwi 6 Amil sachan it would clearly appear that the accused persons were tound in the house. Accused Khomlal came out on the call o£ Anil Sachan and thereafter another accused was also £ound in the very same house. From the/statements of. Kotwar, it would again appear that all the three persons were living in the same houseo From the documents it would appear that about 46 kgo ganja was fou’nd kept ro _9- in seven bags ana 240 gms. ganja was found kept in 24 small paper packets and a big balance and small balance for the purpOses o£ weighing the articles were also Eeund in the rOOm. From these dcmuments ano" the recoveries, it would clearly appear that small packets of 10 gms.each after weighing the contrabands were prepared and were storea far the purpoee of sellingo It would be necessary to note at this stage that the quantity o£ ganja would rule out every poesibility of liaise implicationa The quantity is not so small that it could be planted by the raiding party without notice o;E the same to any—bodyo > 10V). PaWae-BJnMandavi, the District Excise \ Ofti‘cer haéi prove<a the inrormation which was received by him and had also proved other doeuments. in the cross—examination heradmitted that as he was not present on the spot he could not say anything about the seizure etc“ P.W.*5 Neelkant 01’: Verma- Patwari,AHalka No.30 stated before the Court that he had prepared the spot mapr The same was prepared by him atter receiving the infor— mation trom the witnesses’ Sarpahch and others. He also admitted that the room from which contra- bands were recovered belonged to Khomlal and shivkumaro In the cross—examination, he,however, admittedthat in absence of records he was unable to say that the house stood recorded in the name of Trilochan sahuo He W denied the suggestion that the accused shivkumar and Khomlal‘ were living -10... separately in Mohalla— Bhatapara° It would,however, be note—warthy that the accused persons diid not produce any document to this witness to show that they were living in Mohalla—Bhatapara. He oienied the suggestion of the defience that he was not informed by Sarpanch,Kaliram,mm Jeevanlal and Gokaran that the house belonged to the accused personso He also 61enieo“. the suggestion that these four persons had informed that the house belongeo to Trilochan Sahuo 11h Down 1 Ashwani Kumar is the Panchayat Secretary. He stated in the Court that the accused persons were living in Mohalla—Bhatapara. He, however, admitted his signatures on ExeP/13— the report submitted byIPatwari along with the spot map. Though, he is Panchayat Secretary, but the accused persons did not require him to produce thedocu- ments which could Show that the house stood in the name of Triloghan sahu alone or the accused persons owned and pessessed some other house in Mohalla—Bhataparao Contrary to his signatures at Ex.P/13 and P/l4, he stated that When he arrived on the spot the documents were kept ready and he simply signed the same‘, He also admitted that Trilochan sahu had lea‘ft the village since last £ive years, but, however, in the next breath stated that on the date o£ incident Trilochenw Sam). was available in the villagea He also admitted the tact that when Trilochan sahu was not in the village, one of the accuse—Gr was 5 ‘ . Var; -12... on his first call the accused Khomlal came out o£ the house and thereafter the accused Shivkumar carne‘out of the hcuseo The signatures of the accused persons are available on each of the accumentsa Their signatures, in view of the statements o£ Anil Sachan and even the hoetile— witnesses wouhi shew that the seanch and seizure were e£fectec1 inr presence of the accused §ersdnso a 13% ‘ , . A£ter going through the complete recorde, I am unable t0 hold that the accused persons were notvresidihg in the house and they did not know about storing of contrabands,’ availability of. small and big balance would also fortify the allegations o:E the grosecution that the accused persons were actively enéaged in the business o£ contraband ganja” I: am unable to hold that the house simply belonged to Trilochan sahu and the present appellants have been falsely implicatecl. The learned Court below was justifieo in recording the conviction oi the appellantso 14). at this stage,learned counsel tor the appellants submits that the appellants are in jail since 18a4.99 and as they have unéLergone the suhstantial sentence of two years and three months, the jail sentence be reduced to the perio& already undergone a 15)‘, a Taking into consideration the quantity of the ganja and the fact that maximum awardable punishment £orrdealing in ganja is riEe years and l;m rx