iP ^ ^ ^ 1 "'-l 3). W^KiffSW^S^'S'Se ^ IN THE HIGH COURI OF CHHATTISGARH ATBILASPUR CRIi'lINAL_._APPEAL_N0^2031/2000 Uma Shankar vs. Sta-te o£M.P.(C.G.) JUCGMENF Per Hon_.R.S.Garg,J s The appellant being aggrieved by the judgment dated 14-7-2000 passed in Special Case No.14/2000 by the learned Special Judge (N.D.P.S.), Bastar (Jagdalpur) convicting the appellant under Section 20B(1) of K.D.P.S. Act, senteucing him to undergo rigorous imprisonment £or two years and pay fine of fis.1000/-, in default of payment o.f fine to further undergo rigorous imprisonmeBt for one month, has filed this appeal. 2. Ihe prosecution case in brief is that on 18-1-2000 P.W.4 C.L. Sirdar, Sub Inspector Police of Police Station, Charama, received an in.Eormation from the informer that the accused was carrying some contraband ganja. After receiving the information, said C.L. Sirdar recorded the in.formation and sent a wireless message to his superior officers. AloBgwith the witnesses, he went to the spot, stopped the accused, issued him a notice underSection 50 o£ the Act and a.fter obtaining his consent took search o£ the poly bag whicti was in pogsession o.f tbe applicant. In tbe search, 4 kilo 500 grams contraband ganja was recovered. That was -welghed on the $iot, samples were drawn, those were properly sealed, tbe accused and the -7 \ w 2 contrabands were broLigbt back to the police station. At the police station, the first information report was recorded, the contrabands> etc. were kept in the malkhana. After some time, -the samples were sent to tbe F.S.L.. The F.3.L. vide its report informed the police that ttae samplss' were o£ ganja. Armed with the F.S.L. report, stateiaents o£ the wi-tnesses, the panchnamas, etc. the police agency filed the challan against tbe appellant. As the accused abjured the guilt, he was put .to trial. After recordii'ig the evidence and hearing the parties; the court below convicted and sentenced tbe accused as referred to above. 3. Learned counsel fortbe appellant submits ttoat P.W.1 Ghansbyani and P.W.2 Latkbor have not supported the prosecution case, therefore, the court is le£t with the statements of P.W.3 Bhunesfawar Das and P.W.4 C.L. Sirdar. It is contended that there are material contradictions in tbe statanents of these two witnesses and as the statements cannot be conai.^fe', • the bene-Cit must go to the accused. It is contecded that from the statements of P.w.5 Bhuneshwar Das» it would appear that tbere was absolute non-compliance of Section 50 o£the Act and as the time of the seizure is shown to be different»then what it actually was, the court below was absolutely unjustified In recording, •' the findings against the appellant. • 4. Dr.N.K. Shukla, learned Dy.A.G. £orthe State, on the other hand submits tbat from Ex.P/5 and P/6, wl'iicb contained the signatures of tbe accused, it would clearly appear that notice was given to the accused and his consent was taken. Hg submits that tbg notice is to be proved by ISSttc.S, ^ the authority which had *akAa it and not by the person who happens to be present on the spot by^chance. He further ,c ^\, submits that the different statements relating to the time of the seizure would not make much difference because from tbe written documents whicti contain the signatures oi the accused and others, it would clearly appear that the seizure was effected under Ex.P/8, he has prayed for dismissal o.f the appeal. 1 5. I have gone through the statements o£ the witness.es. Irue it is that P.W.3 Bhuneshwar Das did not say that notice was givea in his presence but in the opinion of this Court,this would not provide any de-fence in favour of ttie appellant in view of tfae statements o£ P.W.4 C.L. Sirdar. Said C.L. Sirdar has clearly stated in his statements that he issued a notice under Ex.P/5 to the accused and obtained his consent under Ex.P/6. The documents contain the signatures of the accused. Instead of explaining the signatures, tbe accused simply said under Section 315 Cr.P.C. tbat this all was wrong. From the statements o£ P.W.3 Bhunesbwar it would certainly appear that the contraband was recovered from the possession of the appellant. In a case where certain documents contain the signatures o£ tbe accused and he is not ready and willing to give his explanation, then ,K- . , . .. . . the Court would toawe ,3ustified in recording a finding against him. 6. Bhuneshwar's statements that the seizure was made at about 6.50 would not provide any defence in favour oi the appellant because the seizure memo Ex.P/8 clearly sbov/s that the seizure was made at about 4.50. I find no reason to disbelieve the statements of the P.W.4 C.L. Sirdar. The quantity of ganja recovered from the :--" 1 "' 'isa^;w-s»EK?^:» e'i3p?isann possession o£the appellant must rule out every possibilily of his false iaplication. The argument that a woman was sitting on the said auto-bike as a pillion rider.therefore, •the contraband belonged to her sbould not detain this Court unnecessarily. From the statanents o£the witnesses; it would clearly appear that the said contraband was kept on tbe leg-space o£ the said auto-bike. Truc it is tb.at Bhuneshwar had admitted that a woman was sitting as a pillion rider but the accused in his own s'fcatements did not say that some woman was sitting with him arid the contraband belong^to her. 7< A-fter hearing the learned counsel for the parties and going through the entire record, I am unable to hold that the court below was unjustilied in convicting the appellant. 8. At thls stage, learned counsel forthe appellant aibmits that the appellant appears to be in jail sirce 18-1-2000 and till date he has undergone alomost about 1^ years jail sentence and after 14-7-2000 i.e. the date of convic'fcion,he must have earned about three months remission, therefore, the jail sentence be reduced to the period already undergone. 9. I have heard the parties. 10. Taking into consideration that •the appellant is in jail since 18-1-2000 and since after b^is conv.i.ction aayv-"! t- and lodgement in jail be must have^some remissions and further taking into consideration that no useful purpose would be served by keeping the accused in jail for few months, I am of. the opinion that the jail sentence must be reduced to tbe period already under£0jae. 11. Wiile maintaining tiae J'lne amount aad de.faul-fc sentence, I reduce the jail sentence to the period already undergone. I£ the appellant has already deposlted the fine amount, then he be immediately released if not required in any other case but if be has not depogited the fine amount, he be required to undergo the default sentence. The appeal to tbe efceB^wafela^ttiS indicated abo-v-e; < is allowed Sd/- R.S. Garg 17-7-2001 \