Research › Search › Judgment

Chhattisgarh High Court · body

2001 DIGILAW 90 (CHH)

KANHAIYALAL v. STATE OF CHHATTISGARH

2001-08-21

R.S.GARG

body2001
JUDGMENT 1. Appellant Kanhaiyalal being aggrieved by the judgment dated 17-3-2001 passed in Special Case No. 16 of 2000 by the learned Special Judge (NDPS), Rajnandgaon convicting the appellant under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo R.I. for five years and pay fine of Rupees Five thousand, in default of payment of fine to undergo further R.I. for three months has filed this appeal. 2. The prosecution case in brief is that V.S. Dwivedi an Inspector when was on patrol and making search of certain members of Bajrang Dal he was accompanied with Deputy Superintendent of Police Amit Saxena, Sub Inspector Lochan Pandey, Assistant Sub Inspector S.K. Dike and two other constables. When he reached near B.N.C. Mills he received an information from the informer that one man was standing near Dau-Chawl with a bag containing Ganja. He prepared Panchanama of the informer's report and thereafter sent an information on wireless to the City Superintendent of Police. The said Superintendent of Police reached to the spot, the officer gave a notice under Section 50 to the accused and after obtaining his consent took his search. In the search of the accused 2 kg Ganja was recovered. The samples were drawn and after preparing the Panchanamas etc. the bag containing Ganja and the samples were properly sealed. After return to the police station said V.S. Dwivedi registered first information report and sent a copy of the same to the Special Court. On 10-3-2000 the samples were sent for analysis. The Forensic Science Labortory reported that the sample was of Ganja. The Investigating Officer after recording the statements of the witnesses and further armed with the Panchanamas and the F.S.L. report filed the challan. As the accused denied commission of the offence he was put to trial. After recording the evidence and hearing the parties the learned trial Court convicted and sentenced the accused as referred to above. 3. Shri Suryakant Mishra, learned counsel for the appellant, submitted that there was absolute non-compliance of Section 50 of the Act because from the statements of PW-8 Rohit Kumar Kurre it would clearly appear that the consent of the accused was not taken. 4. Shri Ranveer Singh, learned Govt. 3. Shri Suryakant Mishra, learned counsel for the appellant, submitted that there was absolute non-compliance of Section 50 of the Act because from the statements of PW-8 Rohit Kumar Kurre it would clearly appear that the consent of the accused was not taken. 4. Shri Ranveer Singh, learned Govt. Advocate, on the other hand, submitted that from EX.P/2 it would clearly appear that the City Superintendent of Police who is a gazetted officer had given the option to the accused. He further submits that the defence is nowhere said that the accused exercised his right of being searched by a Magistrate. He submits that even otherwise it is the right of the officer to take the accused to the nearest available officer or the Magistrate. According to him as the person who was conducting the search proceedings was a gazetted officer it was not necessary for him to take the accused to the Magistrate. 5. From EX.P/2 which is proved by PW-8 Rohit Kumar Kurre it would clearly appear that he had informed the accused that he had the information that the accused was carrying Ganja in his gunny bag and he wanted to take the search of the accused. He further informed the accused that the accused had a right to be searched either by the Magistrate or by the officer himself. In the entire cross-examination of this witness not even a single suggestion has been given to the witness that EX.P/2 was not served upon the accused. Even it has not been suggested by the accused that he exercised his option of being searched by a Magistrate. In absence of such a suggestion by the accused it would not be possible to hold that PW-8 Rohit Kumar Kurre did not comply with the mandatory provisions of Section 50 of the Act. 6. Shri Mishra next contended that the independent witnesses did not support the statements of PW-7 V.S. Dwivedi and PW-8 Rohit Kumar Kurre, therefore, the accused deserves to be acquitted. 7. Shri Ranveer Singh, learned Govt. Advocate, opposing the argument submitted that about 2 kg. Ganja was recovered from possession of the accused and in absence of any suggestion by the accused that these two witnesses were inimical to the accused or were trying to thrust false liability over him it cannot be held that the accused was falsely implicated. 8. Shri Ranveer Singh, learned Govt. Advocate, opposing the argument submitted that about 2 kg. Ganja was recovered from possession of the accused and in absence of any suggestion by the accused that these two witnesses were inimical to the accused or were trying to thrust false liability over him it cannot be held that the accused was falsely implicated. 8. True, it is that the independent witnesses did not support PW-7 and PW-8 but the fact remains that 2 kg. Ganja was recovered from the possession of the accused. From the statements of PW-2 Sushil Kumar it would clearly appear that in the search of the accused Ganja was recovered' from his possession. From the statements of PW-3 Peeladau it would appear that he was informed by number of persons that the accused was carrying Ganja and thereafter this witness had weighed the said Ganja. PW-4 Veer Prasad and PW-5 Anand Kumar did not support the prosecution but in the opinion of this Court that would be hardly of any consequence because from the statements of the witnesses it would clearly appear that the accused was found in conscious possession of the contraband. 9. Placing strong reliance upon the judgments of the Supreme Court in the matters of State of Punjab Vs. Balbir Singh], and State of Punjab Vs. Baldev Singh, Shri Mishra submitted that as the recorded information was not sent by PW-7 V.S. Dwivedi to his official superior and as the said provision is mandatory the accused deserves to be acquitted. 10. Shri Ranveer Singh, learned Govt. Advocate, on the other hand, submits that observations made by the Supreme Court in the matter of State of Punjab Vs. Balbir Singh (supra) and State of Punjab Vs. Baldev Singh (supra) must be read in their true perspective. According to him an information is required to be sent to the official superior immediately so that the possibility of false implication is ruled out. According to him after receiving wireless message if the officer reached the spot then it cannot be held that there was non communication of the information to the official superior. 11. In the matter of State of Punjab Vs. According to him after receiving wireless message if the officer reached the spot then it cannot be held that there was non communication of the information to the official superior. 11. In the matter of State of Punjab Vs. Balbir Singh (supra) in paragraph 25(3) the Supreme Court has observed that under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send copy thereof to his immediate official superior. If there is total non-compliance of this prevision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. 12. Section 42(2) says that where an officer takes down by information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy therefor to his immediate official superior. 13. If sub-section (2) of Section 42 is sought to be applied vertabim then the argument of Shri Mishra would be justified but if the true intention behind sub-section (2) of Section 42 is taken into consideration the shallowness of the argument would precipitate. Sub-section (2) of Section 42 cannot be read dehors Section 42(1). Section 42(1) requires that if an empowered officer receives an information then he has to take down the same in writing. The proviso appended to Sub-section (1) of Section 42 says that if such officer has reason to believe that a search-warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Section 42 refers to power of entry, search, seizure and arrest without warrant or authorisation. At this stage it would also be necessary to refer to Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 50 relates to conditions under which search of persons shall be conducted. Section 42 refers to power of entry, search, seizure and arrest without warrant or authorisation. At this stage it would also be necessary to refer to Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Section 50 relates to conditions under which search of persons shall be conducted. It reads as under: Section 50: Conditions under which search of persons shall be conducted - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate, (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. 14. Section 50 provides that when any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate if such person so requires. Section 50 refers to the personal search while Section 42 refers to power of entry, search, seizure and arrest without warrant or authorisation. If further says that between sunrise hand sunset the empowered officer may enter into and search any such building or conveyance or place, in case of resistance, break open any door and remove any obstacle to such entry, take into to his custody such drug or substance and all materials used in the manufacture of the drugs or substance etc and detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance. 15. 15. A comparison of Section 50 with Section 42 of the Act would make it clear that after making an entry if a search is effected and contrabands are found then the officer is entitled to seize the said articles and arrest the person who in his opinion or according to his belief has committed any offence punishable under Chapter IV relating to such drug or substance. According to Section 50 an empowered officer is required to give a notice to a suspect that he has reasons to believe or he had an information which makes him believe that such suspect was possessed of Ganja. In a case of personal search Section 50 would apply while in case of search of building, conveyance or enclosed etc. Section 42 would apply. In the present case, as the personal search was to be taken the compliance of Section 50 was required. The records would show that after receiving the information PW-7 V.S. Dwivedi prepared a Panchanama of the information and finding shortage of time immediately sent a message to his official superior. Present is not a case where after receiving the information the official superior did not take an immediate action. The records would show that after receiving the information PW-8 Rohit Kumar Kurre City Superintendent of Police came to the spot. After his arrival he took charge of all the things and issued a notice under Section 50 of the Act to the accused. From the statements of V.S. Dwivedi (PW-7) it would clearly appear that after receiving the-' information he recorded the same and sent a wireless message to the City Superintendent of Police. He has also stated that the said Superintendent of Police Rohit Kumar Kurre came to the spot, took charge of the proceedings and conducted the proceedings. 16. PW-8 Rohit Kumar Kurre has clearly stated that he had come to the spot, issued a notice to the accused and thereafter took the search of the accused. From this evidence it would not appear that there was non compliance of Section 42(2) or of Section 50 of the Act. The observations made by the Supreme Court in relation to Section 42(2) were in relation to search of a building, conveyance, enclosed area etc., they are not in reference to the personal search. From this evidence it would not appear that there was non compliance of Section 42(2) or of Section 50 of the Act. The observations made by the Supreme Court in relation to Section 42(2) were in relation to search of a building, conveyance, enclosed area etc., they are not in reference to the personal search. After going through the legal provisions and the evidence available in the records, I am unable to hold that the prosecution did not comply with the provisions of Section 42(2) and/or Section 50 of the Act. 17. It was lastly contended by Shri Mishra that looking to the age and the quantity of Ganja the Court below was unjustified in imposing the maximum sentence awardable under Section 20(b)(i) of the Act. He has prayed that the accused is in jail for about 11/2 year and if the sentence is reduced to the period already undergone the same would meet the ends of justice. 18. Shri Ranveer Singh, learned counsel for the State, has however, submitted that the Court below was justified in awarding the maximum sentence because the narcotic offences are being committed regularly. 19. I have heard the parties. 20. Section 20(b)(i) provides for maximum sentence on five years, it also provides for imposition of fine. Section 20(b)(i) does not say that for a particular quantity a particular jail sentence will have to be awarded. When the law provides for a maximum sentence then it leaves discretion with the Judge/Magistrate that looking to the circumstances of the case it may award a particular sentence. In a given set of circumstances the Court may award lesser or maximum jail sentence. The question will have to be considered by the Judge before he awards the sentence. In a given case award of a short sentence may meet the ends of justice and in a given case award of the maximum jail sentence •would be the requirement of the case. It would fallacious to say that for possession of 2 kgs of Ganja five years jail sentence would be the requirement of the law and at the same time for possession of 20, 50, 100 kgs of Ganja five years jail sentence should be awarded. It would fallacious to say that for possession of 2 kgs of Ganja five years jail sentence would be the requirement of the law and at the same time for possession of 20, 50, 100 kgs of Ganja five years jail sentence should be awarded. When a discretion is given to a Judge he must exercise the discretion in accordance with law especially taking into consideration the facts of the case, the quantity so seized, the age of the accused, the circumstances under which the offence was committed and so on. The award of the maximum sentence would be justified if the Court records a finding that less than the maximum would not meet the ends of justice. A casual statement that the maximum sentence is required to be awarded would not meet the ends of justice. In the present case, the learned Court below has simply observed that a large quantity of the contraband Ganja was recovered from possession of the accused, therefore, maximum sentence was required to be awarded. 21. The law did not define the small, large or extra large quantity of the contrabands. It would be note worthy that the Central Government has amended the Narcotic Drugs and Psychotropic Substances Act by the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act No.9 of 2001). Section 2 of the original Act has now been amended and the Act now provides definitions of "commercial quantity" and "small quantity". What would be a commercial quantity or a small quantity is to be specified by the Central Government by Notification in the Official Gazette. By the said amending Act Section 20 of the Principal Act has also been amended. What would be a commercial quantity or a small quantity is to be specified by the Central Government by Notification in the Official Gazette. By the said amending Act Section 20 of the Principal Act has also been amended. It how provides that where such contravention relates to Sub Clause (b) and involves small quantity then the punishment would be for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both and if the contravention relates to sub Clause (b) and involves quantity lesser than the commercial quantity but greater than small quantity then the punishment would be for a period which may extend to ten years and fine which may extend to one lakh rupees, and if the contravention relates to sub Clause (b) and involves commercial quantity then the awardable imprisonment shall not be less than ten years R.I. but the same may extend to twenty years and such person shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees and further that the Court may for reasons to be recorded in the judgment impose a fine exceeding two lakh rupees. 22. I tried my best but failed in my attempt to obtain any Official Gazette Notification. 23. I am not embarking upon the provisions introduced by the Amending Act but I wish to say that the quantity of Ganja would be a relevant factor for the purposes of awarding the sentence. Even for the sake of repetition I would say that while awarding the sentence a Court must take into consideration that looking to the nature of the offence, age of the accused, the circumstances in which the offence was committed and the quantity of the contraband, what should be reasonable sentence. Award of the maximum sentence though is within the discretion of the Court but when different Courts award different sentences then the faith of the general public shakes. People talk bad about the Judges and the judicial system, probably for this only reason the Central Government has amended the Act. 24. Award of the maximum sentence though is within the discretion of the Court but when different Courts award different sentences then the faith of the general public shakes. People talk bad about the Judges and the judicial system, probably for this only reason the Central Government has amended the Act. 24. Taking into consideration the quantity of ganja, the age of the accused which is shown to be 60 years and further that it is not alleged by the prosecution that the accused was actively engaged in Narcotics or business of contra-band, I consider present to be a fit case for reducing the jail sentence to the period of one year. However, the fine amount and the default sentences are maintained. The accused appears to be in jail. He be required to undergo the remaining sentence. If he deposits the fine amount, then, on his undergoing the substantive jail sentence, he be released, but if he does not deposit the fine amount, then, he be required to undergo the default sentence also. 25. The appeal to the extent indicated above is allowed. 26. Let a copy of this judgment along with the records be sent back to the trial Court which in its own turn shall inform the accused about the judgment. Appeal Partly Allowed.