k I? ,f^l fcisijyis Bencti IN THE HIGH COURT OFJUDICATURE OF CHHATTISGARH AT BILASPUR Cr.A. N0. ^-2-2-/2005 PLICANT :- -JAIL) •J) ^.yC.V' n ?.. ^ T.Appa Rao S/o Surya Rao Naidu, Aged about 31 years R/o Village Kadiappalauka, PO - Rajinundari, Appa Rao Street, Distt- East godawari (ANDHRA PRADESH) ^ VERSUS NON- APPLICANT ,^ State of Chhattisgarh Police Station : Station House Officer, Raipur (C.G.) G.R.P. Raipur MEMO OF APPEAL UNDER SECTIQN 374(2) OF THE CODE OF -CEIMJNAL PROCEDURE ii-i .I.LJ.IU- \ ^ 1~&' '-l^\-v HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 722 of 2005 APPELLANT T. Appa Rao VERSUS RESPONDENT State of Chhattisgarh Postfor pronouncement of the judgment on,SS'4.2011 Sd/- Pritinker Diwaker Judge .._- ^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 722 of 2005 APPELLANT RESPONDENT VERSUS T. Appa Rao State of Chhattisgarh s?-,^? Shri Yogeshwar Sharma counset for the appellant. Shri Vaibhav Goverdhan PL for the respondent/State. CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (^\:04.2011) This appeal is directed against the judgment and order dated 24.8.2005 passed by Special Judge (NDPS) Raipur, in Special Case No. 27/2004 convicting the accused/appellant under Section 20 (b) (II) (C) of the Narcotic Drugs and Psychotropic Substance Act (for short the "Act") and sentencing him to undergo rigorous imprisonment for ten yearsand pay fine of Rs. 2,00,000, in default of payment of fine to further undergo rigorous imprisonment for two years. 2. Case of the prosecution in brief is that on 26.1.2004 one S.N. Akhtar, Sub Inspector, GRP (PW-4) received a secrete information that the accused/appellant wearing army uniform and one lady aged about 50 years wearing white sari were carrying ganja in ttie Link Express contained in a black colour tin boxand an air bag were sitting near the railway over bridge beside car parking. This information was reduced to writing in Rojnamcha Ex. P-15. Mukbir panchnama Ex. P-16-C was prepared and after completing the formalities as required under Section 42 of the Act i.e. preparing panchnamas Ex. P-12, Ex. P-13 and Ex. P-14 and after sending information to the superiorofficer, police party including the lady constable proceeded towards the place of incident and entry in this respect wasalso recorded in Rojnamcha Ex. P-17 and on the way ^ Jtl r?J! independent witnesses namely Deen Bandhu (PW-3) and Rishi (PW-5) were also picked up and taken by them to the spot. After seeing the police party, accused persons tried to flee away but were intercepted by the police. Notice Ex. P-4 was given to them as required under Section 50 of the Act and consent for search vide Ex. P-18 was obtained. During search the keys ofthe box were obtained and on opening the lock 100 kg. of ganja was found from it. Weighment panchnama and seizure panchnama were prepared by which 100 kg. of ganja was seized. 14 samples'of 50 gm. each were prepared from each packet and sent for chemical examination. After getting back to the police station, entry to this effect was also made in the Rojnamcha Ex. P-23 and thereafter FIR Ex. P-24 was recorded on the same day at about 11.40 a.m. for the offence under section 20 (b) (II) (C) of the Act. After obtaining the positive FSL report Ex. P-22 on 1 1.3.2004, challan was filed on 18.3.2004 for the said offence. 3. So as to hold the accused/appellant guilty, prosecution has examined 05 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant as mentioned above. 5. Heard counsel for the parties and perused the ma.terial available on record including thejudgment impugned. 6. Counsel for the appellant submits that information required under Section 42 of the Act was not sent to the higher officers. He submits that even the formalities in respect of Section 50 of the Act have not been completed. He submits that Deen Bandhu (PW-3) is a permanent/pocket witness of the prosecution which has been admitted by him. He submits that there is apparent discrepancy in respect of date of the offence as at some places like in Ex. P-14 date of the offence has been mentioned as 26.2.2004 whereas it ../-^ should have been 26.1.2004. It is argued that in the seizure memo Ex. P-8 crime number has been shown which makes it clear that on the spot no seizure was made. He submits that similar is the position in the physical verification memo Ex. P-6 and Weighment memo P-7. He submits that as per the statement of Malkhana Mohorir namely Bhagwan Das (PW-2), the seized article was deposited with him at 10 a.m. whereas the seizure memo was also'made at 10 a.m. which shows that all the formalities have been completed in the police station and the accused/appellant has been implicated in a false case. He submits that sample of the seal has been affixed only in the seizure memo Ex. P-8 and no separate sample has been taken by the police over the said sample which was sent to the Forensic Science Laboratory for chemical examination. He submits that while sending the information to the higher officers a crime number has been shown in the documents Ex. P-19 and P-20 which makes it clear that a false and fabricated case has been registered against the accused/appellant. He submits that the contraband article seized by the police was not produced before the Court. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that there is strict compliance of the provision of Section 42 of the Act as the information was sent to the higher officers vide Ex. P-14. He submits that Section 50 ofthe Act would not be applicable in the present case as it is not a case of personal search and rather it is a case where the accused/appellant was carrying the contraband in two tin boxes and one air bag. He submits that even for making personal search of' 'the accused/appellant notice under Section 50 of the Act was given vide Ex. P-4 and he was apprised of his legal rights. He submits that even in the absence of statement of Deen Bandhu (PW-3) who is a permanent/pocket witness of the prosecution, the accused/appellant is liable to be convicted in view of the evidence available on record. In respect of not mentioning .the correct date of offence it has been argued by the State counsel that in the document Ex. P-14 date has been mentioned as 26.2.2004 whereas it should have been 26.1.2004. He submits that this is merely a clerical error and has no ISBS s li'K>® -c/- bearing in the case in view of the material available on record. In respect of mentioning the crime number in the documents Ex. P-5 to P-10, it has been argued by the State counsel that initially an unnumbered offence was registered on the spot and after registering the FIR Ex. P-24 crime number has been mentioned in all the documents. He submits that the minor -discrepancies in the statement of Malkhana Mohorir namely Bhagwan Das (PW-2) in respect of depositing the contraband article at 10 a.m. has no significance even assuming that it should be 11 a.m. He submits that when all the mandatory provisions have been complied with by the prosecution, accused/appellant can not take any advantage of any insignificant lacuna. In respect of sending the sample of seal to the Forensic Science Laboratory it has been argued by the State counsel that vide Ex. P-10 seizure memo 14 samples were prepared and sent to Forensic Science Laboratory after putting the seal on every item and even the specimen seal was also sent which is fortified by FSL report Ex. P-22 where it has been specifically mentioned about the specimen seal. It is argued that the contraband was found in the exclusive possession of the appellant because it is he who was having the keys of two tin boxes and an air bag and vide Ex. P-10 six keys were seized from his possession, boxes and the air bag were opened in his presence and contraband was seized from his possession. Thus it can safely be said that the contraband was in exclusive possession of the accused/appellant. He submits that there is no such provision in the Act that entire contraband should be produced before the Court. He submits thal the contraband has been duly exhibited vide seizure memo Ex. P-8 and merely non production of the same in the Court will not vitiate the entire trial. 8. Suresh Kumar Mishra (PW-1) is the head constable who had sent 14 samples of the contraband to the Forensic Science Laboratory vide Ex. P-1 and Ex. P-2. Bhagwan Das (PW-2) is the Malkhana Mohorir who has stated in his evidence that on the date of incident i.e. 26.1.2004 the seized contraband was brought to the police station and after completing all the formalities the same was Bi^^iff. ssgg-: deposited by him. Though this witness has not made any statement in categorical term and has even deposed those facts which are not required to be deposed but taking the overall statement of this witness it becomes clear that the contraband was deposited by him and the entry to this effect was made vide Ex. P-3. Deen Bandhu (PW-3) is the witness to the seizure of contraband vide Ex. P-4 to Ex. P-11 who has not supported the case of the prosecution and has been declared hostile. He however has admitted his signature on all these documents. He has further admitted that on the date of incident when he was sitting in his auto rickshaw, accused/appellant came to him carrying a bag and then he was arrested. He has stated that from the tin boxes and the air bag being carried by the accused/appellant the ganja was seized. He has further admitted that Weighment was done in his presence and he had signed the documents. S.N. Akhtar (PW-4) is the investigating officer who has fully supported the case of the prosecution and proved the seizure made under Ex. P-8 and other documents. He has stated as to in what manner the accused/appellant was arrested and all the formalities including the requirements of Sections 42 and 50 of the Act were completed. Rishi Kumar (PW-5) is another seizure witness who has though been declared hostile, he has admitted his signature in the documents. 9. A careful perusal of the material available on record and the evidence of the witnesses goes to show that after receiving the secrete information regarding the accused/appellant clad in army uniform and carrying ganja, all the formalities as required under Section 42 of the Act were completed and the same was brought to the notice of superior officer. Record further shows that though it is not acase of personal search yet notice under Section 50 of the Act was given to theaccused/appellant and he was apprised of his legal rights. Argument of the counsel for the appellant that Deen Bandhu (PW-3) is a permanent/pocket witness is not very appealing because even if this witness is ignored for the sake of argument, there is ample material available on record to show that six keys were seized from the possession of the accused/appellant and on opening the IB@S sS8aI- Isiw -6- two tin boxes and the air bag being carried by the accused/appellant, 100 Kg of ganja was seized which leads to an irresistible conclusion that the accused/appellant was in exclusive possession of the same. FSL report Ex. P-22 is also positive which specifically mentions about the specimen seal being sent to it. The other argument regarding Ex. P-5 to Ex. P-10 bearing crime number is also not very convincing because the material available on record clearly goes to show that initially an unnumbered offence was registered on the spot and after registration ofthe FIR crime number was mentioned thereon. Yet another argument that the contraband seized by the prosecution was not produced before the court also does not impress this Court for the reason that production of such a huge quantity before the Court being impractical would not vitiate the whole trial particularly in view of the fact that the said contraband has been duly exhibited vide seizure memo Ex. P-8. Moreover, the defence has not been able to substantiate as to what prejudice has been caused to the accused/appellant due to non-production of the ganja so seized, in the Court. Further, the contraband was deposited in the Malkhana after making entry in the Malkhana register Ex. P- 3C, the samples were drawn on 26.1.2004 vide Ex. P-7 from the seized contraband and were sent to Forensic Science Laboratory after following due procedure of law and therefore mere non production of the seized contraband before the Court cannot be taken in isolation especially when there is clinching evidence against the accused/appellant regarding his involvement in the crime in question. Thus the prosecution has succeeded in proving its case beyond reasonable doubt and therefore the findings recorded by the Court below convicting and sentencing the accused/appellant under Section 20 (b) (II) (C) of the Narcotic Drugs and Psychotropic Substance Act, by the judgment impugned are fully justified. 10. Consequently, the appeal has no substance at all and accordingly it is liable to be dismissed. Appeal is thus dismissed. He is already in jail and therefore no order regarding his surrender etc. is necessary. | Pritinker Diwaker Judge