1N THE HIGH COURT QF JUDICATERE AT BILASPLE (C.G.) CRIMINAL APPEAL N0. j— é':l 12003 ‘- AP?ELLANT: Rambaii Gupta , 5/0 shri ‘ Dashrath Prasad Gupta , Aged about 26 Years _, Occupation Agricultura, R/o Village Rampur, RSSAnuppun District —Sahadol (My) VERSUS ,4 State of Chhattisgarh, Through PS. Jagdalppr, District Bastar (CG) Q / $93! r 9f\ VM‘ . / _ ‘ CRIMINAL AP?EAL UNDER SECTIGN 3'74 2 OF THE $33!; , {Av@‘ - @6DE , OF ,7 A CRIMINAL PRQCEDURE ' 1973. fa 7 g“. ;‘ Q @ HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench : Hon’ble Shri Manindra Mohan Shrivastava, J. u wriminal Appeal under Section 374 (2) of the Cr.P.C) Appearfnce: Shri Alok Dewangan, counsel for the appellant. Shri Avinash K. Mishra, Panel Lawyer for the State. ORAL- JUDGMENT (Delivered on 29th November, 2010) 1. This appeal is directed against the judgment of conviction and order of sentence dated 25m July, 2003 passed by learned Special Judge (NDPS), Bastar at Jagdalpur in Special Case No.15/O3, whereby the learned trial Court, after holding the appellant guilty of commission of offence under Section 2O (b) (ii) B of the Narcotics Drugs and Psychotropic Substances Act, 1985, (in short “the NDPS Act”) has sentenced him to undergo R.I. for 2 years 85 6 1 months with fine of Rs.7,000/— and in default of payment of fine, additional R.I. for 9 months. : Case of the prosecution, in brief, is that at the time of patrolling, A.S.I — Tillu Singh Thakur found two persons standing underthe tree carrying bags and finding them in suspicious circumstances, t n . ‘ " Criminal Appeal No.961 of 2003 APPELLANT Rambali Gupta Versus RESPONDENT: ‘ ' State of Chhatti§garh w they were intercepted in the presence of two persons Deenbandhu & Chamru Ram (P.W.2), who were present at the spot. The proceedings of search and seizure were drawn. Information under Section 42 (2) of the NDPS Act was prepared and sent to the City Superintendent of Police, Jagdalpur vide EXP-2. The reasons for npt taking search warrant were also separately recorded vide EXP—3. Notice under Section 50 of the NDPS Act was given to the r appellant in EXP—4 in the presence of witnesses! informing the acé’u’sed that he may get himself searched by a Magistrate or gazetted officer, upon which, the appellant gave his consent for a being searchedlby ASI— Tillu Singh. Tillu Singh Thakur '(P.W.1} gave his own search and a Panchnarna in EXP-5 was prepared, wherein, no objectionable material was found in his possession. Upon search made, a bag was found in possession of the appellant, which was recovered vide EXP-6. By visual appearance and smell the Contents of that bag were found to be ganja and a panchnarna to that effect was prepared vide EXP—7. The seized ganja was weighed and panchnama to this effect was prepared vide EXP—8. Vide EXP—9, a certificate of weighment was also given ‘by Chamru (P.W.2). Dehati nalishi was recorded Vide EXP—15 and ;the accused, along with seized articles and dehati nalishi were :taken to police station and FIR was registered against the iappellant. Details of search 85 seizure proceedings drawn were isent to the Superintendent of Police, Jagdalpur vide EXP—18. The gseized quantity of ganja along with the sample drawn was handed lover to the Malkahana Moham'r. The samples were sent to the lF.S.L. for testing vide memorandum dated 8.4.2003 (EXP-20) of Superintendent of Police, Bastar. The same was received Vide 9 i ririr nan,“ 7 m .....n t, 7 Wmi, i @ EXP-22 by the FSL, Raipur, along With seal. Upon analysis, the FSL gave its report in EXP—22, which was found positive, After usual investigation, recording statement and completing the proceeding, charge sheet was filed in the Court of Special Judge, NDPS, Jagdalpur. The special Judge framed charges for commission of offence under Section 20 (b) (ii) (B) of the NDPS Act against the appellant. The appellant abjured his guilt. v 3. In order to prove its case, the prosecution examined as many as 4 u f witnesses namely Tillu Singh Thaur (B.W.1), Chamru Ram (P.W.2), Vivek §harma (P.W.3) 8a Shant Kumar Denial (P.W.4). The appellant in his“ examination under Section 313 of Cr.P.C., denied the evidence and circumstances appearing against him and pleaded innocence and false implication. No defence Witness was led by the appellant. Vide impugned judgment of conviction and sentence, the learned trial Court held that the appellant guily for commission of offence under Section 20 (b) (ii) (B) of the NDPS Act and sentenced him as mentioned in paragraph 1 of the judgment. ‘ 4. Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argued that the conviction of the appellant is ‘unsustainable in law as the prosecution has failed to prove beyond reasonable doubt that the alleged quantity of ganja was seized from the possession of the appellant. Learned counsel for the appellant submitted that Chamru (P.W.2) has not supported the case of the prosecution in so far as seizure is concerned. He Submitted that in such a case, the conviction could not be sustained only on the testimony of the police witnesses, who are j )7 @ interested in prosecuting the appellant. He also submits thatr another witness Deenbandhu has not been examined by the prosecution, Who was an independent witness and therefore, this raises doubt against the story of the prosecution and adverse inference is liable to be drawn against the prosecution. He submits that, it would not be safe to convict the appellant on the testimony of departmental witnesses, particularly when one of panch witnesses, Who has been produced, has not fully supported the‘dase of the prosecution and other panch witness has not been examined. He further submits that according to the case of the A ‘ r prosecution itself, in addition to the appellant, there was another person present, from whom also ganja is alleged to have been seized. . Learned counsel for the appellant further submits that manner in which the samples have been drawn and seizure has been made, serious doubt is cast upon the case of the prosecution and in such circumstances, the appellant is entitled to benefit of doubt. He also argued that the case of the prosecution being that two persons having proceeded on patrolling and on way catching hold’ of certain persons, false implication of the applicant could not be ruled out. Last submission of learned counsel for the appellant is that looking to the quantity of ganja Which is alleged to be seized .from the appellant, imposition of sentence of 2 years 85 6 months “‘ R.I. is liable to be reduced to the period already undergone by the appellant. i l l l 6. lOn the other hand, learned counsel for the State supported the 1mpugned judgment of conviction and order of sentence and I J I l l argued that the panch Witness Chamru Ram (P.W.2) has supported the case of the prosecution and he has stated in his evidence that the appellant was found and caught hold by the police after he was chased. He submits that the non—examination of the other independent witness namely Deenbandhu would not Vitiate nor would render the case of the prosecution doubtful as __ the testimony of Tillu Singh Thakur (P.W.1) and Vivek Sharma r (P.W.3) are trustworthy and nothing has come out in their evi‘dénce so as to disbelieve the same. He submits that the evidence of Tillu Singh Thakur (P.W. 1) and Vivek Sharma (P.W.3) ~$ being reliable, the seizure has been genuinely made and therefore, only on the ground that Deenbandhu was not the examined, the seizure cannot be said to be doubtful. He also submitted that there is no material contradiction in the statement of Vivek Sharma (P.W.3) and it cannot be said to be so discrepant as to disbelieve the case of'the prosecution. He submits that looking to the menace of drug trafficking as also quantity of ganja recovered from the possession of the appellant, no case for interference with quantum of the punishment under the impugned judgment of conviction is made out. .l have heard learned counsel for‘ the parties and perused the j records of the Court below. i In order to prove its case, the prosecutiOn has heavily relied upon the testimony of Tillu Singh Thakur (P.W.1), Vivek Sharma (P.W.3) 8a Shant Kumar Denial (P.W.4). A.S.l. — Tillu Singh Thakur (P.W.1) in his evidence, has deposed that while he was on patrolling and was returning in the morning, he found the appellant standing " .r ‘ i ‘29 under the tree along with a bag in suspicious eonditibn and upon enquiry, he informed that he had come from Orissa. At that stage, two persons namely Deenbandu & Chamru, resident of village Kudalgaon came at the spot and in their presence, the appellant was given a notice under Section 50 of the NDPS Act and upon search, ganja was found in his possession. 9. He has deposed that notice‘under Section 50 0t: the NDPS Act wasfgiven to the appellant. He was informed of his right of being examined by‘a gazetted officer or a Magistrate, upon which, the appellant gave his consent for being searched by Tillu Singh. Thereafter, ASI: Tillu Singh (P.W.1) gave his own search, wherein, r no objectionable material was found. Thereafter, accused was searched and in the bag kept by the appellant ganja was found”. Even in his cross—examination, there is nothing to doubt his statement. 10. Vivek Sharma (P.W.3) has stated that he had gone on patrolling duty in the night. It was recorded in rojnamchd sanha No.125 (EXP—13). He has stated that in the morning of 6.420033, while he was returning from village Kudalgaon and ASI Tillu ‘ Singh Thakur was going ahead of him and reached the spot, he found that ASI— Tillu Singh Thakur had already caught hold of two persons, one of them was the appellant and witnesses were also present. Thereafter, the identification by visual appearance and smell of the article was made by him and a panchnama to ‘ this effect was prepared vide EXP-’7. He has also deposed that 'Chamru had weighed the quantity which was found to be 3.300 kg. and a weightment panchnama EXP—1 was prepared. He also w< «wax é”? deposed that he had drawn two samples each of 25 grams of ganja and sealed. He has also deposed that separate samples seal panchnama was prepared in EXP—10. Vide EXP—12, ganja was seized along with bag. The seized quantity of ganja along with the samples drawn were entrusted to Malkhana Moharrir Vide EXP— 12. After drawing the complete proceedings, FIR was registered Vide EXP—17. He also deposes that a detailed report in EXP—18 r was sent to CSP, Jagdalpur. He has deposed that packets of salhples were sent to FSL under a memorandum dated 8.4.2003 of the Superintendent of Police, Jagdalpur through constable — A Mangturam Vide EXP—2O and the acknowledgment was issued Vide EXP—21. A report of FSL in EX.P.23 was received which was found positive. He also states that he had recorded the statement of Deenbandu, Chamru Ram, constables- Pankharajiss, Premlal 85 Dhanurjay. Even in his cross—examination, the said witness has supported the case of the prosecution. Moreover, the testimony of Tillu Singh Thakur (P.W.1) and Vivek Sharma (P.W3) on all material aspects are coherent. 11. Chamru (P.W,2) has stated regarding the fact that he saw that the appellant was moving across and Deenbandhu also reached the spot and at that point of time, Tillu Singh caught hold of the appellant and recovered a bag kept by him in which ganja was found. He has deposed that he had smelt it. Though he states ‘ that weighment was not done in his presence, he does not deny V his signatures on various documents of weighment and he also iadmits his signature in other documents of search, panchnama i prepared at the spot; l l i 1 s? @ 12. Thus from the testimony of Tillu Singh Thakur (P.W.1), Chamru (P.W.2), Vivek Sharma (P.W.3), the prosecution has succeeded in proving that the appellant was found in possession of 3.300 kg and he failed to account for such possession or any valid authority of law. 13. Shant Kumar Denial (P.W.4) has deposed that Station House in- charge Vivek Sharma (P.W.3)rhad deposited ganja of two sealed packets of samples in the Malkhana and entry to that effect was made in the malkhana register. He has proxged the relevant entries of mglkhana register at Sr. No 26 (EXP-24) in respect of the appellant. V'f a 14. In so far as seizure of ganja is concerned, the same has been proved by trustworthy and reliable testimony of ASI —Tillu Singh Thakur. Even Chamru (P.W.2) has stated that a bag containing ganja was seized from the possession of the appellant and he smelt it and found that it was ganja. Therefore, merely because the other panch witness has not been examined, the case ‘of the prosecution could not be thrown on this count. This Court in the ‘case of Vinod Namdeo Vs. State .of M.P. decided on 1st October, }2010 in Criminal Appeal No.1607/2000 has held that where the seizure is proved to have been made genuinely on the basis of itrustworthy‘ testimony of investigating officer, conviction can be lbased on such seizure even if panch witnesses have not supported §the case of the prosecution on the point of seizure. Present is a l l icase l where in so far as the seizure is concerned, Chamru (P.W.2) also clearly stated that in his presence appellant was caught hold @ and a bag was recovered from his possession which was found containing ganja. 15. Other submission of learned counsel for the appellant that the testimony of Vivek Sharma (P.W.3) does not support the case of the prosecution cannot be accepted. In so far as time, place and date of commission of offence is concerned, Vivek Sharma (P..W.3) has clearly deposed that while he was on patrolling duty in the ¢ night and while he was coming back in the morning and A.S.I.- Tilfui‘ Singh was also there going ahead of him, accused was intercepted and when he reached the spot, he found that ASI- 4 Tillu Singh Th‘akur had already recovered ganja and also that upon weighment 3.300 kg. ganja were found which were recovered from the possession of the appellant. 16. The submission of learned counsel for the appellant that looking to the quantity of ganja which has been recovered from the appellant and taking 'into consideration the age of the appellant and that there is no previous record of conviction either in respect of any contraband or any other kind of offence, the conviction is liable to be reduced to the period already undergone, has considerable force. The total quantity of ganja Which is said to lhave been recovered from the possession of the appellant is 3.300 3kg. The maximum punishment which can be awarded for ‘ ipossession of ganja up to 20 kg., has been prescribed as 10 years v :under Section 20 (b) (ii) (B) of the NDPS Act. The small quantity ;under the law' is prescribed to be less than 1 kg. Taking into l i consideration that the quantity which has been found proved to ‘have been seized from the appellant is more than 3 kg. which is @ nearer to the lower limit than the upper limit, in the opinion of this Court, interest of justice would be served if the total period of imprisonment awarded to the appellant is reduced to 1 year 85 6 months. 17. Accordingly, the total sentence awarded to the appellant is reduced to 1 year 85 6 months instead of 2 years and 6 months ayVarded by the learned trial Court. The amount of fine as well as consequences of non-deposition of fine shall remain unaltered. a f i 18. Record shows that though initially the appellant was granted bail, i he misused his liberty and therefore, the warrant of arrest was issued and then he was produced in custody before this Court on 9.8.2010. Learned counsel for the appellant also made submission at the bar that the appellant is in jail for serving remaining period of sentence. Therefore, no orders are required to be passed in that regard. 19. Appeal is accordingly allowed to the extent and in the manner indicated above. Sdl- l ‘Manindra Mohan Shrivastava Judge Praveen kw g ’