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2001 DIGILAW 36 (CHH)

RAVINDRA KUMAR v. STATE OF CHHATTISGARH

2001-03-28

R.S.GARG

body2001
JUDGMENT 1. This judgment shall dispose of Criminal Appeal Nos. 50/2000 and 78/2000, as both the appeals arise out of the same judgment. 2. Each of the appellant being aggrieved by the judgment dated 10-10-2000 passed in Special Case No. 6/2000 by the learned Special Judge (N.D.P.S.), Raipur convicting each of the appellant under Section 20(b)(l) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act and sentencing them to rigorous imprisonment for two years and pay fine of Rs. 2000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months, have filed this appeal. 3. The prosecution case in brief is that on 6-12-1999, Assitant Sub Inspector G.S. Gangwal of police station, Mahasamund received an information from one Surya Narayan Tiwari that the accused persons who were riding a new Luna moped, which did not bear the registration number, were having narcotic drug and made an offer to said Surya Narayan for purchasing the said ganja. After receiving the information, the information was recorded in writing, thereoffen the copy of the wirtten information was sent to the Addl. Superintendent of Police and said Mr. Gangwal proceeded towards the spot with sealing wax and the witnesses. After giving notice under Section 50 to each of the appellant and after obtaining their consent, their search was taken. From the Luna, abour 7.1 kg. narcotic were seized while from the pocket of accused Ravindra about 50 gms. ganja was recovered. 4. Thereafter the accused persons were brought back to the police station where the first information report was registered and an information was again sent to the Addl. Superintendent of Police. The samples drawn from the said contraband were sent for their analysis. After obtaining the positive report, on conclusion of the investigation, challan was filed against the appellants. As the accused persons denied commission of the offence, they were put to trial. Learned trial court after hearing the parties convicted and sentenced the accused persons as referred to above. 5. Shri Suryakant Mishra, learned counsel for the appellants, submits that as the mandatory provisions contained in Section 42 of the N.D.P.S. Act have not been complied with, each of the accused deserves to be acquitted. 6. Learned counsel for the State referring to the documents exhibited during the course of trial submits that provisions of Section 42 have been complied with in their true spirit. 6. Learned counsel for the State referring to the documents exhibited during the course of trial submits that provisions of Section 42 have been complied with in their true spirit. 7. P.W.5 G.S. Gangwal is the person who received and recorded the information. According to him, after receiving the information, he sent a copy of the same to the Addl. Superintendent of Police and proceeded towards the spot with seal, sealing wax and the other things. According to him, he had gone to the spot with his staff and P.W.1 Surya Narayan. The entries were made by him in Rojnancha Sanha No. 362. He has further stated that the information was sent to the Addl. Superintendent of Police through Constable Manharan, who after delivering the information came back and his return was recorded in Rojnamcha Sanha No. 368. The accused persons did not put even a single question to P.W.5 G.S. Gangwal regarding non-compliance of Section 42 of the Act. From the statements of P.W.5 G.S. Gangwal, it clearly appears that after receiving the information from P.W.1 Surya Narayan Tiwari, he recorded the same in writing, sent the information to the Addl. Superintendent of Police and immediately after return of the person, who went to deliver the information made yet another entry in the Raj Namcha Sanha. 8. From the evidence available on the record, it cannot be held that provisions contained in Section 42 of the Act were not complied with. 9. Learned counsel for the appellants next contended that provisions of Section 50 which are mandatory in nature were not complied with, therefore also, each of the accused deserves to be acquitted, Ex.P/2 and P/4 are the notices issued to accused Chhotu alias Chandrabhan in accordance with Section 50 of the Act. Ex.P/3 is the notice given to accused Ravindra. Learned counsel for the appellants contends that as Ex.P/2 and P/4 two notices were issued to the same man, it creates a situation of doubt. In the opinion of this Court, preaparation of two notices in itself would not non-suit the prosecution because the law does not say that more than one notice cannot be issued. A fair readintg of Ex.P/2, P/3 and P/4 would make it clear that notices under Section 50 were given to each of the accused and their consent was taken under Ex.P/5 and P/6. 10. A fair readintg of Ex.P/2, P/3 and P/4 would make it clear that notices under Section 50 were given to each of the accused and their consent was taken under Ex.P/5 and P/6. 10. Learned counsel for the appellants submits that as issuance of the notices and requirement of the consent appears to be apaper compliance, this Court must interfere and acquit each of the accused. 11. Unfortunately, none of the witnesses were cross-examined on this aspect. When the prosecution witnesses were clearly stating that notices' were given to the accused persons and their consent was taken, then it was obligatory upon the accused to cross-examine the witnesses and at least give a suggestion that issuance of the notices was a farce of empty formality. Unfortunately, the cross-examination was not as now sought to be argued. I am unable to hold that because of non-compliance of Section 50, the accused persons deserved to be acquitted. 12. It was lastly contended that looking to the quantity of contraband, the sentence awarded to each of the accused be reduced to the period already undergone by them. 13. Learned counsel for the State on the other hand submits that the quantity of ganja is more than seven kilogram and the manner in which the appellants proposed to sell the ganja would clearly show that they are not the simple carriers but are drug peddlers. 14. I have heard the parties on the question of sentence also. From the order passed by the court below, it appears that each of the accused is in custody w.e.f. 7-12-1999, by now they have undergone almost 1 year and 4 months. Taking into consideration the quantity of ganja, I am of the opinion that the sentence deserves to be reduced but not to the period already undergone but to the period of 1 1½ years. While maintaining the conviction and sentence of fine and the default sentence, the jail sentences are reduced to 1 1½ years. The accused persons are in jail. They may serve out the remaining sentence. 15. Each of the appeal is partly allowed on the question sentence only. Appeal against conviction dismissed.