';. i^-.\''/;.^ ^A.-iKS's^^i'^'Xt CF0000060724 S£^£»itjt ..---•:'s,;- IN T-1S HIGH CC.URT OP .rUDICATURE A:-' JABM.PUR MADHYA PRftDESH ' • ".: CRIMINAL APPEA& No. r! r" /l 9 96'. Appellant: -</<^< Responcient; Para-Hraffi S/o Das ManikgH-Ei, age<3 about L.9 years. Resioen't of Maga rc'naba./pahs i 1-Ba loda Ba'zar , l-'istrict, Raipur (M..P.). -Vs- State of Mad'nya Prades.h Through - Police Station' Baloda Bazar. District,Raipur (M.P.) CRIMINAL APPEAL I«in.lE.R SECTIOM 374 (2) OF TH3 CRIMINAL PROCEDURE CODE.1973 iiS^M- ^ /'!s.^<p '.^s HIGH COURT OF CHHATTISGARH: BILASPUR Crimmal Appeal No. 1780 of 1996 APPELLANT: RESPONDENT: -Versus- Parauram State of Madhya Pradesh (now Chhattisgarh) POST FQR JUDGMENT ON_9 AUGUST, 2011 l»^is !t5!ti,id»;SSI% ;j-]E'R£T-au;..-:w— Sd/- Prashant Kumar Mishra Judge ^ ^ !" '^ HIGH COURT OF CHHATTISGARH: BILASPUR Criminai Appeal No. 1780 of 1996 APPELLANT: -Versus- RESPONDENT: Parauram State of Madhya Pradesh (now Chhattisgarh) Present: Shri Basant Kaiwartya, counsel for the appellant. Shri Pradeep Singh, Panel Lawyerforthe State.. &>^K.^^^:a*§SS?&S% W TsSSsSS-gS JUDGMENT (Delivered on_eS^August, 2011) Prashant Kumar Mishra. J. 1. The appellant has challenged his convicfionand sentence under Section 20 of the Narcotic Drugs and Psychotropic SubstancesAct, 1985 (for short 'the Act'). The appellant was found to possess 13 kg of Ganja which was kept in his house at the time of search on 2-6-1993. 2. Case of the prosecution, in short, is that PW-3 S.L. Patle, ASI, received secret information that the appellant is in illegal possession of Ganja and is involved in extraction of money by selling Ganja. His house was searched wherein it was found that the appellant has concealed Ganja inside one block of Jaggery (Gud), which was packed in a white cloth baggage. When the white cloth baggage was opened, it was found to carry within it one green polythene in which contraband Ganja was concealed. After completing seizure Vide Ex.-P/1 and writing Dehati Nalishi (Ex.-P/3) and registration of the FIR (Ex.-P/4), the contraband was sent for chemical examination vide Ex.-P/5, report thereof was received vide Ex.-P/6 and after completing investigation charge sheet ^' was filed. TW-»-T^^ T:-^=i.^---:ai^-^^r- ;^£^s:^^^3;|^ ^^-fv y^:<^.^3^-'-» 3. The appellant abjured his guilt and pleaded innocence. However, he has examined one defence witness namely Malikram (DW-1). 4. To bring home the charges, the prosecution examined Pancharam (PW- 1), Firatram Verma (PW-2), S.L. Patle, ASI, (PW-3) and B.S. Aujala (PW-4). Pancharam (PW-1) and Firatram Verma (PW-2) are witnesses to the seizure (Ex.-P/1). 5. To prove seizure of contraband, evidence of PW-1 Pancharam and PW- 2 Firatram Verma is required to be appreciated. 6. PW-1 Pancharam admits his signature on Ex.-P/1 and also says that he was called in the house of the accused and he had seen the contraband which was kept in his house. He further says in his cross-examination that the police had not conducted any weighment and theseal was also not affixed. However, in the same paragraph, he says that he has seen Ganja and identified the same and that the seized ari:icle was Ganja. 7. PW-2 Firatram Verma has also admitted his signature on the seizure memo Ex.-P/1 and has proved the seizure of the contraband in the presence of the accused in his house. He has also admitted his signature in Ex.-P/3 which is the arrest memo of the accused. According to this witness, when theseizure was made, sister and sister- in-law (Bhabhi) of the appellant were also present in the house. The accused himself has stated that lady members may not be implicated and the proceedings may be drawn in his name. however, this witness also says that no weighment was done and further that he cannot say as 'r^/ to what was the quantity of Ganja and the quantity of Jaggery (Gud). 8. PW-3 S.L. Patle, is the ASI, who has conducted the entire search and seizure operation. This witness has narrated in detail as to how he received information and thereafter proceeded to conduct search of the house of the appellant. Thus, from the evidence of these 3 witnesses, it is fully established that the appellant was found to possess 13 kg of Ganja which was concealed inside the block of Jaggery (Gud) and was wrapped inside a white cloth. 9. Learned counsel for the appellant argued that mandatory provisions contained in Sections 42 and 50 of the Act have not been complied with and that in the absence of weighment Panchanama and proof of seized article in the presence of witnesses, theconviction cannot be sustained. 10. In the present case, the contraband has not been seized from the possession of the appellant himself, but it has been seized from his house, therefore, the provision of Section 50 of the Act has no application, as has been laid down by the Supreme Court in the matter of State of Punjab Vs. Balbir Singh, {Cr.L.R. (SC) 1994 241}. With $3iag:istgj*ss®^^ regard to non-compliance of the provision contained in Section 42 of the Act, it is to be seen that PW-3 S.L. Patle received information while he was on patrolling, therefore, it was not necessary for him to record information in the Rojnamcha Sanha, as has been laid down by the Supreme Court in the matter of Kuldeep Singh Vs. State of Punjab {(2010) 10 Supreme Court Cases 219}. The prosecution has proved that the contraband was Ganja by proving the report of chemical analysis vide Ex.-P/S. Therefore, the finding of guilt recorded by the trial Court is in accordance with law and the prosecution case doesnot "suffer from any illegality. ^ ^^iS^ ;^sS® 11. This Court shall now consider the quantum of sentence awarded to the appeilant and its sufficiency in the facts and circumstances of the case. When the seizure was made on 2-6-1993, unamended Section 20(b)(i) of the Act was in force under which the sentence amended was R.l. for a term which may extend to 5 years and the fine which may extend to Rs.50,000/-. The said provision has been amended by the Act No.9 of 2001 w.e.f. 2-10-2001 and from the said date punishment for small quantity i.e. up to 1000 grams is rigorous imprisonment which may extend to 6 months or with fine which may extend to Rs.10,0007- or with both. However, when the seizedquantity of contraband is lesser than the commercial quantity but greater than small quantity (more than 1000 grams and less than 20 kg), the punishment is R.l. for a term which may extend to 10 years and with a fine which.may extend to Rs.1 lakh and for commercial quantity i.e. when the contraband is more than 20 kg, the minimum sentence is R.l. for 10 years which may extend to 20 years and the fine which shall not be less than Rs.1 lakh, which may extend to Rs.2 lakh. Thus, on the date ofoffence the maximum sentence was R.l. for 5 years 12. In the present case, the seized article is said to weigh about 13 kg. The article was kept inside a block of Jaggery (Gud) and it is not clear from the evidence as to whether the quantity of 13 kg was along with block of Jaggery or was the quantity of Ganja exclusively, Weighment Panchanama is also not availableon record. According to the witnesses i.e. PW-1 Pancharam and PW-2 Firatram Verma, the contraband was kept in two separate polythene bags, however, seizure memo does not specify as to whether there was only one packet or two packets of polythene. 13. Keeping in view the discrepancy in the actual quantity of Ganja seized from the accused and also keeping in view the fact that on the date of offence the maximum sentence was R.l. for 5 years and the offence has taken place on 2-6-93 i.e. about 18 years back and the appellant has already remained in jail initially during trial from 2-6-93 to 25-2-94 (approximately 9 months) and after his conviction from 23-9-96 till 4-3- 97 (approximately 5 months) when his prayer for suspension of sentence was allowed. Thus, the appellant has already remained in jail for about 14 months. In the opinion ofthis Court, ends of justice would be served if thesentence awarded to the appellant is reduced to the sentence already undergone by him. 14. In the result, the appeal is allowed in part. While upholding the conviction, the sentence awarded to the appellant is reduced to the period already undergone by him. The appellant is on bail. His bail bonds are discharged and he need not surrender. __- Barve prasba„£».."•"•" Judge