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2012 DIGILAW 313 (CHH)

SURESH DUBEY v. STATE OF C. G.

2012-12-01

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 24.07.2007 passed by Special Judge, Bilaspur in Special Case No. 30/2006 convicting the accused/appellant under Section 20(b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Act of 1985') and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 1,00,000, in default of payment of fine to further undergo rigorous imprisonment for one year. 2. Facts of the case in brief are that on 16.08.2006 a secret information was received by S.L. Chouhan (PW-4) - Station House Officer, Kota to the effect that one Ramesh Dubey, resident of Kota was keeping ganja in his house. The said information was reduced to writing vide Ex.P-3 and in compliance of Section 42 of the Act of 1985, it was forwarded to SDO (P) vide Ex.P4. When the police party reached the house of Ramesh Dubey, an information was also given to them that accused/appellant herein namely Suresh Dubey the brother of Ramesh Dubey was in possession of contraband. Notice under Section 50 of the Act of 1985 was given to the appellant vide Ex.P-5; his consent was obtained vide Ex.P-6 and thereafter personal search memo of police people as well as the accused was prepared vide Ex.P-7 to P-10. Contraband was recovered vide Ex.P-11; its identification was made vide Ex.P-12; verification memo of weighing balance was prepared vide Ex.P-13; weighment memo Ex.P-14 was prepared and vide Ex.P-15 22.650 Kg of ganja contained in four plastic bags was seized each carrying 7 Kg, 8 Kg, 5.150 Kg and 2.500 Kg which was kept in small packets. Two samples of 100 gms each were drawn, samples and contraband were sealed and vide Ex.P-16, the accused/appellant was arrested. After returning to police station entry was made in Rojnamcha sanha vide Ex.P-24, contraband was handed over to head constable for being kept in safe custody vide Ex.P-1 and it was kept in safe custody vide Ex.P-2. Notice was given to the accused/appellant under Section 91 of the Code of Criminal Procedure as to whether he was having any license or authority to keep the contraband, which was answered in negative. Notice was given to the accused/appellant under Section 91 of the Code of Criminal Procedure as to whether he was having any license or authority to keep the contraband, which was answered in negative. Vide Ex.P-27 in compliance of Section 57 of the Act of 1985, a detailed report regarding entire proceedings was sent to SDO(P) Kota and FIR Ex.P-26 was registered against the accused/appellant under Section 20(B) of Act of 1985. Electricity bill Exp-31 was collected to establish the ownership of the premises. Vide Ex.P-28 FSL memo dated 18.08.2006 was prepared, samples were sent to FSL on that day itself and after receiving positive FSL report Ex.-P30 challan was filed on 13.11.2006 under the same section Court below however framed the charge under Section 20(b) (ii) (C) of the Act of 1985. 3. In support of its case, prosecution has examined 05 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges leveled against him and pleaded his innocence and false implication in the case. He has also taken a defence that as he was asked by police people to dump murum, he has been falsely implicated in the present case. 4. Counsel for the accused/appellant submits that there is total noncompliance of Section 42 of the Act of 1985 as the secret information was in respect of the contraband in possession of the accused/appellant which was reduced to writing vide Ex.P-3 and sent to superior officer vide Ex.P-4 but in his Court statement the investigating officer has stated that secret information was received in respect of Ramesh Dubey and not Suresh Dubey. According to him, the investigating officer has further stated that while completing the formalities in the case of Ramesh Dubey, he had received a secret information in respect of ganja in possession of the accused/appellant namely Suresh Dubey and thus according to the counsel for the appellant Ex.P-2 & P-3 are nothing but fabricated documents. He submits that out of four plastic bags two samples of 100 gms each were drawn but there is no evidence as to from which bag they were drawn. He submits that Malkhana register has not been produced in the Court and the samples as well as the seized contraband were not produced in the Court during trial. He submits that out of four plastic bags two samples of 100 gms each were drawn but there is no evidence as to from which bag they were drawn. He submits that Malkhana register has not been produced in the Court and the samples as well as the seized contraband were not produced in the Court during trial. He submits that independent witnesses have not supported the case of the prosecution and have been declared hostile. According to him, the prosecution has utterly failed to prove the conscious possession of the contraband from the accused/appellant and further that it was the accused/appellant alone who was residing in the said house because the production of the electricity bill is not sufficient to hold that the appellant was in occupation of the house in question as the said bill was a very old one. According to him, the prosecution has not proved the fact that seal put on the seized contraband and samples remained intact throughout the proceedings. He submits that the prosecution has failed to prove the net weight of the seized contraband because according to the case of prosecution 22.650 Kg of ganja was found in possession of the accused/appellant and while making weighment the prosecution has weighed the bags also. He submits that in a case of border line weighment where more than 20 Kg of ganja comes within the category of commercial quantity and less than 20 Kg comes within greater than small but less than commercial quantity, separate weighment of contraband and bag is necessary. He submits that actual weighment was made vide Ex.P-14 at 5.20 p.m. whereas in the recovery memo Ex.P-11 which was made at 4.45 p.m., the weighment of ganja in different bags has been shown and this establishes the fact that prosecution has cooked up false case against the accused/appellant. He further submits that seized contraband has not been produced before the trial Court and on this ground alone the accused/appellant deserves to be acquitted. He submits that there is non-compliance of Section 55 of Act of 1985 also. In support of his submissions, counsel for the accused/appellant placed reliance on the decisions of Supreme Court in the matter of Jinendra and another Vs. State of M.P. 2003 SAR (Cr.) 902, in the matter of Ashok alias Dangra Jaiswal Vs. He submits that there is non-compliance of Section 55 of Act of 1985 also. In support of his submissions, counsel for the accused/appellant placed reliance on the decisions of Supreme Court in the matter of Jinendra and another Vs. State of M.P. 2003 SAR (Cr.) 902, in the matter of Ashok alias Dangra Jaiswal Vs. State of M.P. (2011)5 SCC 123 , in the matter of Noor Agga Vs. State of Punjab 2008 Cr.L.R. (SC) 655, in the matter of State of Rajsthan Vs. Gurmail Singh 2005 Cr.L.R. (SC 328) and decisions of this Court in the matter of Sidhartha Gautam Vs. State of C.G. 2009(2) CGLJ 250 and in the matter of Ganga Singroule alias Akhilesh Singroule Vs. State of Chhattisgarh 2009(2) CGLJ 382 . 5. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that present is not a case of total non-compliance of Section 42 of the Act. He submits that in the secrete information which was reduced to writing vide Ex. P-3 name of the accused/appellant is there and the said information was forwarded firstly over telephone to SDO (P) and then a separate memo was also sent by a special messenger vide Ex. P-4. He further submits that when the raid party reached the house of Ramesh Dubey brother of the accused/appellant, an information was received to the effect that accused/appellant had also kept ganja in his possession on which the police people went to the house of the accused/appellant too and after completing all the formalities like serving notice under Section 50 of the Act and obtaining his consent etc. search was made and four plastic bags containing total 22.650 Kg of ganja were found in possession of the accused/appellant. State counsel further submits that there is no evidence on record so far as homonisation of the seized contraband is concerned before drawing two samples of 100 gram each. He submits that vide Ex. P-28, two samples were sent to Forensic Science Laboratory on 18.8.2006 which were duly received by it on 21.8.2006 vide Ex. P-29. According to the State counsel, in the report Ex. P-30 it is specifically mentioned that sample which was marked as article "A" contained 19 small paper packets of ganja. He submits that as per the seizure memo Ex. P-15 from the 4th bag, ganja was found wrapped in small paper packets. P-29. According to the State counsel, in the report Ex. P-30 it is specifically mentioned that sample which was marked as article "A" contained 19 small paper packets of ganja. He submits that as per the seizure memo Ex. P-15 from the 4th bag, ganja was found wrapped in small paper packets. State counsel thus submits that an inference can be drawn that the sample - Article "A" was drawn from the 4th bag containing 2.500 Kg of ganja. State counsel further submits that even assuming that there is no concrete evidence in respect of drawing samples from the first three bags containing 7 Kg, 8 Kg and 5.150 Kg of ganja, at least from the fourth bag from which 2,500 Kg. of ganja was seized, appellant is liable to be convicted for possessing 2.500 Kg. of ganja. He further submits that seal put on the seizure memo tallies with the seal impression received by the FSL along with the samples. He submits that non production of entire seized contraband would not vitiate the trial because the accused/appellant has failed to prove as to what prejudice has been caused to him by the same. He further submits that electricity bill Ex. P-31 is in the name of the appellant and thus there remains no doubt that the house in question belongs to him only. He submits that even if in the recovery memo Ex. P-11 the weight of the contraband has been shown, it is of no help to the accused/ appellant because no question was put to the investigating officer seeking his explanation for the same. State counsel further submits that the accused/appellant has failed to prove as to what prejudice has been caused to him by mere mentioning his name in the document Ex. P-11. According to him, copy of the relevant page of Malkhana register was duly produced and proved before the trial Court vide Ex. P-1 C. He submits that after receiving secrete information, SDO (P) namely I.H. Khan had immediately reached the police station and he was apprised of the secrete information and therefore also Section 42 of the Act stood duly complied with. 6. Heard counsel for the parties and perused the material available on record. 7. Santosh Yadav (PW-1) - Malkhana Mohorir has stated that on 16.8.2006 he received 22.650 Kg of ganja along with weight, balance and cash of Rs. 6. Heard counsel for the parties and perused the material available on record. 7. Santosh Yadav (PW-1) - Malkhana Mohorir has stated that on 16.8.2006 he received 22.650 Kg of ganja along with weight, balance and cash of Rs. 23,000 in a sealed packet from S.L. Chouhan - Station House Officer and the same was deposited in the Malkhana and after making entry at S. No. 27 vide Ex. P-1 C, acknowledgement Ex. P-2 was given to the Station House Officer. Though this witness has not stated anything regarding withdrawal of samples for being sent to Forensic Science Laboratory, from Ex. P-1C it is apparent that samples were drawn and sent to Forensic Science Laboratory through constable No. 587 and said constable had received the acknowledgement from the Forensic Science Laboratory, after depositing the same. Dhruv Kumar Pandey (PW-2) - police constable and one of the members of the raid party has duly supported the case of the prosecution. Dewari (PW-3) - an independent seizure witness has not supported the case of the prosecution and has been declared hostile. He however has admitted his signature on Ex. P-3 to P-6. S.L. Chouhan (PW-4) - the investigating officer has stated that on the date of incident he received a secrete information that one Ramesh Dubey of Masjid Para had kept ganja in his house. This secrete information was reduced to writing vide Ex. P-3, entry was made in Rojnancha Sanha at S. No. 583 vide Ex. P-19-C, information was sent to superior officer i.e. SDO (P) through constable No. 37, entry was made in Rojnamcha Sanha vide Ex. P-20C, said information was duly received by SDO (P) vide Ex. P-4. According to him, immediately thereafter, SDO (P) namely I.H. Khan came to the police station, he was apprised of the secrete information vide Ex. P-22C and along with SDO (P) the police party proceeded to the house of Ramesh Dubey. During search of the house of Ramesh Dubey, 3.650 Kg. of ganja was found along with cash of Rs. 2300. He has further stated that in the house of Ramesh Dubey an information was also received that accused/appellant - brother of Ramesh Dubey was also having ganja in his house and then acting upon the said information, house of the accused/appellant was also raided, notice under Section 50 of the Act was given vide Ex. 2300. He has further stated that in the house of Ramesh Dubey an information was also received that accused/appellant - brother of Ramesh Dubey was also having ganja in his house and then acting upon the said information, house of the accused/appellant was also raided, notice under Section 50 of the Act was given vide Ex. P-5, consent of the accused/appellant was obtained vide Ex. P-6, search memo was prepared vide Ex. P-7, personal search memos Ex. P-8 to P-10 were prepared and during search of the house of the accused/appellant in four plastic bags, 7 Kg, 8 Kg, 5.150 Kg and 2.500 Kg of ganja was recovered vide recovery memo Ex. P-11. Identification memo Ex. P-12 was prepared, physical verification of balance was done vide Ex. P-13, weighment of contraband was done vide Ex. P-14 and on weighment being done total contraband came out to be 22.650. From the seized contraband, samples of 100 gram each were drawn, they were duly sealed and seizure was made vide Ex.P-15. Accused/appellant was arrested vide Ex. P-16, after returning to the police station entry was made in Rojnamcha Sanha Ex. P7, information was given to the superior officer vide Ex. P-25-C and then FIR Ex. P-26 was recorded. All the seized articles were handed over to Malkhana Mohorir and entry to this effect was made. This witness has further stated that notice Ex. P-17 was given to the accused/appellant under Section 91 of the Code of Criminal Procedure. Vide Ex. P-27, entire information was given to the superior officer and samples were sent to Forensic Science Laboratory together with memo Ex. P-28 and Ex. P-29 is the acknowledgement given by the Laboratory whereas the report given by it is Ex. P-30. He has further stated that to prove possession of the accused/appellant over house in question, electricity bill Ex. P-31 was seized. Separate specimen seal memo was prepared vide Ex. P-33. In cross-examination, this witness has stated that houses of the accused/ appellant and Ramesh Dubey are adjacent and that other persons were also residing nearby but in spite of being called nobody had come there at the time of completing formalities. In paragraph 20 he has stated that before preparing identification memo Ex. P-12 he had taken out ganja from all the bags and in presence of the witnesses the seized contraband was identified by burning and smelling. In paragraph 20 he has stated that before preparing identification memo Ex. P-12 he had taken out ganja from all the bags and in presence of the witnesses the seized contraband was identified by burning and smelling. According to him, the factum of drawing ganja from all the bags has not been mentioned in the identification memo Ex. P-12. This witness has further stated that from the seized contraband, samples of 100 gram were drawn and sealed and then the seized contraband was deposited in Malkhana Manharanlal Dubey (PW-5) is the Patwari who prepared nazari naksa Ex. P-34 and memo of spot verification vide Ex. P-36. 8. Minute examination of the evidence available on record makes it clear that on 16.6.2006 accused/appellant was found in possession of 22.650 Kg. of ganja. Investigating officer has duly supported the case of the prosecution. However, there is no evidence available on record so far as drawing of samples from the first three bags which contained 7 Kg., 8 Kg. and 5.150 Kg of ganja respectively, is concerned. Evidence goes to show that samples were drawn from the fourth bag which contained 2.500 Kg. of ganja which was seized by the police vide Ex. P-15. Evidence further shows that the samples were sent for chemical examination and from the FSL report Ex. P-30 it is clear that one sealed packet was received containing 19 small packets which ultimately was found to be ganja. Thus, the accused/appellant can safely be connected with seizure of 2.500 Kg. of ganja which was seized from the fourth bag vide Ex. P-15. So far as the judgments cited by the counsel for the accused/appellant in the matter of Jitendra and another Vs. State of M.P regarding non-production of contraband in the Court is concerned, the acquittal in that case was not merely on the ground of non-production of the seized contraband but on other grounds also i.e. non examination of investigating officer and that there was some dispute between the landlord and tenant and therefore the Court was of the view that possibility of false implication cannot be ruled out. Likewise, case of Ashok alias Dangra Jaiswal Vs. State of Madhya Pradesh is not similar to the present case and the facts of that case and this one are entirely different. Similar is the situation with the case of Noor Agga Vs. Likewise, case of Ashok alias Dangra Jaiswal Vs. State of Madhya Pradesh is not similar to the present case and the facts of that case and this one are entirely different. Similar is the situation with the case of Noor Agga Vs. State of Punjab because in the said case also acquittal was not based only on non-production of ganja and there were other material discrepancies like weight of seized contraband including documentary ones. Likewise, in the case of Siddarth Gautam Vs. State of C.G. cumulative effect of all the points including that of non-production of contraband in the Court was taken into consideration by this Court and then the order was passed in favour of the accused/ appellant. This Court does not find any force in the argument of the counsel for the accused/appellant that sample of seal was not deposited in the Malkhana and therefore the case of the prosecution becomes doubtful. Judgment of the Supreme Court in the matter of State of Rajsthan Vs. Gurmail Singh is of no help to the accused/appellant because in the case in hand it was produced in the Malkhana vide Ex. P-1 C. Similarly, the decision in the matter of Noor Agga (supra) is also of no help to the accused/appellant because seal may not have been deposited in Malkhana but the contraband remained intact till it was sent to and received by the Forensic Science Laboratory and it is clearly mentioned in its report that it was found in sealed condition and seal impression was also tallied. On 16.8.2006 vide Ex. P-1C contraband was deposited in, Malkhana, on 19.8.2006 two sealed packets were sent to FSL and on 21.8.2006 they were received by the Forensic Science Laboratory in sealed condition. Contention of the counsel for the accused/appellant that independent witnesses have not supported the case of the prosecution and conviction cannot rest solely on the statement of investigating officer has no force because it is settled legal position that the accused can be convicted merely on the statement of the investigating officer provided it is trustworthy and inspires confidence of the Court. In the matter of State of Punjab Vs. Nirmal Singh (2009) 12 SCC 205 it has been held by the Apex Court as under: "10. In the matter of State of Punjab Vs. Nirmal Singh (2009) 12 SCC 205 it has been held by the Apex Court as under: "10. There is no legal bar on recording the conviction on the basis of evidence of official witness and Section 50 of the Act has no application as there was no personal search.” 9. Thus, in view of the aforesaid factual discussion, this Court is of the considered opinion that the accused/appellant can safely be convicted with respect to seizure of 2.500 Kg. of ganja which was made from the fourth bag vide Ex. P-15. However, as regards seizure of 7 Kg., 8 Kg. and 5.150 Kg. of contraband from the first three bags, prosecution has not properly proved the same and therefore the accused/appellant cannot be connected with the same and is entitled for benefit of doubt. 10. In the result, appellant's conviction for possessing 2.500 Kg. of ganja is maintained. As the accused/appellant is in jail since 16.6.2006 and thereby completed the jail sentence of about six years, this Court thinks it proper to reduce the sentence to the period already undergone by him. Order accordingly. He be set free forthwith if not required in any other case. As regards fine amount, it is reduced to Rs. 10,000/- from that of Rs. 1,00,000/-. If the accused/appellant fails to deposit the fine amount of Rs. 10,000/- (ten thousand), he will have to undergo RI for four months. 11. Appeal thus partly succeeds. Appeal Partly Allowed.