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2013 DIGILAW 211 (CHH)

Bhunesh Sahu v. State of Chhattisgarh

2013-07-16

RADHE SHYAM SHARMA

body2013
JUDGMENT These appeals are directed against judgment dated 4th June, 2007 passed by special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth the Act, 1985), Dhamtari in Special Case No. 10/2007. By the impugned judgment, accused/appellant Ful Singh, Sunder Nayak, Deepak Devdas, Bhunesh Sahu have been convicted under Section 20(b)(ii)(C) of the Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/-, in default of payment of fine, to further undergo simple imprisonment for 2 years. 2. The case of the prosecution, in brief, is as under : Ashok Kumar Dwivedi (P.W. 8) was posed as Sub-Inspector in Traffic Branch, Dhamtari on 9-3-2005. On 9-3-2005, he received information from the mukhbir that appellant Fulsingh was bringing ganja in maruti van bearing registration No. C.G. 05 A 4486 along with his friends. He recorded mukbir suchana panchanama (Ex. P/15) and also entered in rojnamcha sanha (Ex. P/19). He transmitted the same information to Deputy Superintendent of Police, Dhamtari. Thereafter he proceeded towards old bus stand, Dhamtari and reached there that where one Sheikh Farook (P.W. 2) and Eliyas (P.W. 1) met him. He informed them regarding mukhbir suchana. Thereafter he proceeded towards village Soram along with Sheikh Farook (P.W. 2) and Eliyas (P.W. 1) and when they reached near canal (nahar), the maruti van bearing registration No. C.G. 05A 4486 came there. One of the appellants was driving the vehicle and other appellants were sitting inside the van. On being inquired, the appellants told their names. The appellants were informed about their right under Section 50 of the Act, 1985 vide Ex. P/2, Ex.P/2A, Ex.P/3 and Ex.P/4. Consent of the appellants were recorded in Ex. P/2, Ex.P/2A, Ex.P/3 and Ex.P/4 itself. Thereafter, Sub-Inspector Ashok Dwivedi (P.W. 8) searched the maruti van bearing registration No. C.G. 05A 4486. In the said maruti van, 7 jute bora (bags) were found. Identification of the recovered article was conducted vide Ex. P/6. After physical verification, it was found that the recovered article was Ganja. Ganja was weighed on the spot and it was found that out of 7 bags, (1) one white plastic bag had contained 11.650 kg. (2) one white colour fertilizer bag (bori) had contained 4.570 kg. (3) one white colour fertilizer bag had contained 10.260 kg. (4) one white colour plastic bag had contained 11.440 kg. Ganja was weighed on the spot and it was found that out of 7 bags, (1) one white plastic bag had contained 11.650 kg. (2) one white colour fertilizer bag (bori) had contained 4.570 kg. (3) one white colour fertilizer bag had contained 10.260 kg. (4) one white colour plastic bag had contained 11.440 kg. (5) one white colour plastic bag had contained 17.060 kg. (6) one white colour plastic bag had contained 6.580 kg. and (7) one white colour plastic bag had contained 8.430 kg. of ganja. Total 69.990 kg. of ganja were recovered from the maruti van. 14 samples were prepared. The recovered ganja and its samples were seized vide Ex. P/7. the appellants were arrested on the spot vide Ex. P/8 to Ex.P/11 and panchnama proceeding was prepared vide Ex. P/13. Registration and insurance papers of maruti van bearing registration No. C.G. 05A 4486 were seized from Smt. Yashoda Malviaya vide Ex. P/17. Dehati nalishi (Ex.P/21) was prepared. Thereafter, Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) came back to Police Station Kotwali, Dhamtari and to that effect rojnamcha sanha No. 806 was recorded and he handed over the property and appellants to Station House Officer, Police Station Kotwali, Dhamtari and a regular First Information Report (FIR) No. 118/2005 was recorded for offence under Section 20(b) of the Act, 1985 vide Ex.P/23. The seized property were handed over to Malkhana Moharrir for their safe custody. The samples were sent to Forensic Science Laboratory, Raipur. A report (Ex. P/25) was received therefrom, in which, the test of ganja was found positive in all the 14 samples. After completion of the investigation, chargesheet was filed against the appellants in the Court of Special Judge under the Act, 1985. Dhamtari, who conducted the trial and convicted and sentenced the appellants as mentioned above. 3. Smt. Indira Tripathi, Shri Tariq Haider and Shri Vivek Rathore learned counsel for their respective appellant argued that there was no compliance of provisions of Sections 42, 50, 55 and 57 of the Act, 1985. They further argued that the secret information was not sent to Superior Officer. They further argued that there is nothing on record to show that the bora (bags) were containing Ganja and the samples taken out from the container was sealed and specimen of seal was prepared. The seizures from the appellants were not in accordance with law. They further argued that the secret information was not sent to Superior Officer. They further argued that there is nothing on record to show that the bora (bags) were containing Ganja and the samples taken out from the container was sealed and specimen of seal was prepared. The seizures from the appellants were not in accordance with law. The conscious possession was not proved by the prosecution. Learned counsel for the appellants further argued that there is material contradiction in the evidence of prosecution witnesses. Ashok Kumar (Dwivedi (P.W. 8) deposed that he recovered 7 bora (bags) and prepared 14 samples. Amit Singh (P.W. 3) and R. P. Mishra (P.W. 4) who were police Constables deposed that 6 plastic bori (bags) were recovered and 12 samples were prepared, which is material contradiction and fatal to the case of the prosecution. Learned counsel for the appellants also submitted that the prosecution has not been able to prove that the seized articles were ganja. According to Sub-Inspector Ashok Kumar Dwivedi (P.W. 8), only leaves were seized therefore, the prosecution has not been able to prove that the seized articles were ganja. They further argued that the recovered articles were not sealed by the Station House Officer before handing it over to Malkhana Moharrir. The samples were sent to FSL, Raipur belatedly and there is no explanation therefor. Hence, the appellant deserves acquittal. 4. On the contrary, Shri Mahesh Mishra and Shri A. K. Singh, learned Panel Lawyers appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court. 5. I have heard rival contentions of the parties at length and have also perused the record of Special Case No. 10/2007. 6. Now, I shall examine whether the provision of Section 42 of the Act, 1985 has been substantially complied with or not? 7. Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) deposed that on 9-3-2005, he was posted as Assistant Sub-Inspector in Special Cell District Police, Dhamtari. On 9-3-2005, he received information from mukhbir that the appellants were bringing ganja in maruti van bearing registration No. C.G. 05A 4486. He further deposed that he recorded mukhbir suchna panchnama vide Ex. P/15 and also entered the above mukhbir suchna in rojnamcha sanha (Ex. P/19) and its copy is Ex. P/19C. On 9-3-2005, he received information from mukhbir that the appellants were bringing ganja in maruti van bearing registration No. C.G. 05A 4486. He further deposed that he recorded mukhbir suchna panchnama vide Ex. P/15 and also entered the above mukhbir suchna in rojnamcha sanha (Ex. P/19) and its copy is Ex. P/19C. He further deposed that the secret information was sent to Deputy Superintendent of Police, Dhamtari. R. P. Mishra (P.W. 4) deposed that on 10-3-2005, he was posted as Constable in Police Station Kotwali, Dhamtari. He further deposed that he received mukhbir suchna panchnama from Ashok Kumar Dwivedi (P.W. 8) and handed over it to Deputy Superintendent of Police, Dhamtari. Gandhi Joge (P.W. 5) deposed that on 10-3-2005 he was posted as Deputy Superintendent of Police at Dhamtari. On 10-3-2005 at about 5.00 am, he received mukhbir suchna (Ex.P/15) without search warrant search panchnama (Ex. P/16) from Constable Raghuvansh Mishra. He further deposed that mukhbir suchna was sent by Sub-Inspector Ashok Kumar Dwivedi (P.W. 8). 8. Looking to the evidence of Sub-Inspector Ashok Kumar Dwivedi (P.W. 8), R. P. Mishra (P.W. 4) and Gandhi Joge (P.W. 5) and Ex.P/15, Ex.P/16 and P/19C, it appears that Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) received secret information and he recorded the same vide Ex. P/15 and also entered it into rojnamcha sanha (Ex. P/19) and communicated it to Deputy Superintendent of Police, Dhamtari. 9. Sections 42(1) and 42(2) of the Act, 1985 are mandatory in nature and need strict compliance and which ought to be construed complied with strictly compliance of furnishing information to the superior officer should be forthwith or within a very short time, while total non-compliance of requirement of Sections 42(1) or 42(2) is impermissible. Delayed compliance with satisfactory explanation for delay would be acceptable and whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. 10. Sections 42(1) and 42(2) of the Act, 1985 are mandatory in nature. In the instant case, Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) received secret information and he entered it into rojnamcha sanha and also prepared mukhbir suchna panchnama and transmitted it to Deputy Superintendent of Police, Dhamtari immediately. Therefore, there was substantial compliance of Section 42 of the Act, 1985. 11. In the instant case, Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) received secret information and he entered it into rojnamcha sanha and also prepared mukhbir suchna panchnama and transmitted it to Deputy Superintendent of Police, Dhamtari immediately. Therefore, there was substantial compliance of Section 42 of the Act, 1985. 11. Now, I shall examine whether provision under Section 50 of the Act, 1985 has been substantially complied with or not, or whether the compliance of provision of Section 50 of the Act, 1985 is mandatory in the instant case. 12. Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) deposed that before making search he had given notice to the appellants vide Ex.P/2, Ex.P/2A, P/3 and P/4. He further deposed that the appellants gave their consent in Ex. P/2, Ex.P/2A, P/3 and P/4 itself. 13. Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) deposed that he informed the appellants that they had right to be searched before a Gazetted Officer or before a Magistrate through notice Ex. P/2, P/2A, P/3 and P/4. In the notice ( Ex. P/2), it is mentioned thus : (Vernacular matter omitted........Ed.) In the consent (Ex. P/2), it is mentioned thus : (Vernacular matter omitted........Ed.) In Ex. P/2A, Ex. P/3 and Ex.P/4, the appellants were informed about their legal right and their consent were taken in the same manner as mentioned above. 14. In the instant case, from bare perusal of Ex. P/2, P/2A, P/3 and P/4 it reveals that Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) informed the appellants about their legal right under Section 50 of the Act, 1985 regarding search before a Gazetted Officer or before a Magistrate or before him and, therefore, provision of Section 50 of the Act, 1985 is complied with. 15. In the instant case, the search was made of maruti van bearing registration No. C.G.05A 4486. When the search is made of a house or a vehicle or a container or a bag or premises, Section 50 of the Act, 1985 is not applicable. In the instant case, the search was made of maruti van, therefore, Section 50 of the Act, 1985 would not be applicable. 16. Learned counsel for the appellants argued that the evidence of Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) has not been supported by the independent witnesses and there are material contradictions in their statements. Therefore, the conviction cannot be based on the evidence of Sub-Inspector Ashok Kumar Dwivedi (P.W. 8). 16. Learned counsel for the appellants argued that the evidence of Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) has not been supported by the independent witnesses and there are material contradictions in their statements. Therefore, the conviction cannot be based on the evidence of Sub-Inspector Ashok Kumar Dwivedi (P.W. 8). 17. In Girja Prasad (Dead) by LRs. v. State of M.P. (2007) 7 SCC 625 : ( AIR 2007 SC 3106 ) the Hon™ble Supreme Court observed thus : 25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. 26. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 , Venkatarama Ayyar, J. stated : (AIR p. 230, para 40). 40........ The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distruct and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration. 27. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration. 27. In Tahir v. State (Delhi) (1996) 3 SCC 338 : ( AIR 1996 SC 3079 ) dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated : (SCC p. 341, para 6) 6...... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliabe, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case. 18. In P. P. Beeren v. State of Kerala, 2001 (9) SCC 571 : ( AIR 2001 SC 2420 ) the Hon’ble Supreme Court observed thus : Sub-Inspector of Police searching the appellant/accused and finding him to be in possession of opium, in such circumstances, evidence of Sub-Inspector, even if not corroborated by any other (sic) held can nonetheless be made the sole basis for conviction. 19. In Karamjit Singh v. State (Delhi Admn.) (2003) 5 SCC 291 : ( AIR 2003 SC 1311 ) the Hon’ble Supreme Court observed thus : 8. ........The testimony of police personnel should be treated in the manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down......... 20. In Sumit Tomar v. State of Punjab, (2013) 1 SCC 395 , the Hon’ble Supreme Court held thus : ...... However, in the absence of any animosity between the accused and the official witnesses, there is nothing wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire materials relied on by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case...... After taking into account the entire materials relied on by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case...... 21. In the instant case, Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) deposed that he reached near village Soram. When they reached near canal (Nahar), one maruti van bearing registration No. C.G. 05A 4486 came there. He stopped the maruti van. On being inquired, the appellants told their names. The maruti van was being driven by one of the appellants and other appellants were sitting inside the maruti van. He further deposed that the appellants were informed about their legal right and thereafter he searched the maruti van and found 7 bags (bora) which were kept in maruti van. He further deposed that physical verification of the recovered article was conducted vide Ex. P/6. After physical verification, it was found that the recovered article was ganja. Thereafter, ganja was weighted and weightment panchnama was also prepared. 22. Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) deposed that recovered 7 bags were weighted and total weight of the ganja was 69.990 kg. and he prepared 14 samples 50 grams each were prepared and recovered ganja and samples were sealed and specimen seal impression was affixed in seizure memo. He further deposed that the appellants were arrested and panchnama karwai (Ex. P/13) and Dehati Nalishi (Ex. P/21) was recorded on the spot. 23. Amit Singh (P.W. 3) deposed that on 10-3-2005 he had weighted ganja and found 69.990 kg. ganja and samples of 50-50 grams were prepared. He further deposed that the samples of ganja were seized. R.P. Mishra (P.W. 4) also deposed in similar fashion. 24. Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) deposed that the 7 bags of ganja was kept inside the maruti van but R. P. Mishra (P.W. 4) and Amit Singh (P.W. 3) deposed that 6 bora (bags) were found in the van and Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) deposed that he prepared 14 samples and Amit Singh (P.W. 3) and R. P. Mishra (P.W. 4) deposed that 12 samples were prepared. This contraction is not of very much importance and not material. 25. This contraction is not of very much importance and not material. 25. Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) specifically deposed that he found 7 bori (bags) in the maruti van and prepared 14 samples, two samples from the each bag. He specifically deposed that panchnama were prepared on the spot and he handed over it to Malkhana Moharrir. Ex. P/21 is Dehati Nalishi. In Dehati Nalishi (Ex. P/21) also it is mentioned that 14 Nos. of samples each sample contained 50 grams were prepared and in panchnama karwai (P.W. 13) also it is mentioned that 14 samples were prepared and Amit Singh (P.W. 3) and R. P. Mishra (P.W. 4) deposed that total weight of the ganja was 69.990 kg. and Sub-Inspector Ashok Kumar Dwivedi (P.W. 8) also deposed that the weight of the ganja was 69.990 kg. 26. Lakhanlal Suryavanshi (P.W. 7) deposed that he was posted as Head Constable/Malkhana Moharrir in Police Station Dhamtari. He brought Malkhana Register of Police Station Dhamtari. In the said Register the entry regarding the property is made in Sl. No. 47. The Malkhana Register is Ex. P/18 and its photocopy is Ex. P/18C. In Ex.P/18C, it is mentioned that 7 bori (bags) of ganja of 69.990 kg. and 14 packets of samples were received. It appears that 7 bori (bags) ganja were recovered by Sub-Inspector Ashok Kumar (Dwivedi (P.W. 8) and he prepared 14 samples. 27. Head Constable Lakhanlal Surya-vanshi (P.W. 7) deposed that the samples were sent to Forensic Science Laboratory (FSL), Raipur for chemical examination on 14-3-2005. Ex. P/25 is FSL Report. In FSL report (Ex. P/25), it is mentioned that sealed 14 packets were received through Constable Dinesh Chandel 153 on 14-3-2005. In Ex. P/25 the relevant part is as under :” (Vernacular matter omitted.....Ed.) It appears that the ganja was seized and samples were prepared on 10-3-2005 and the samples were sent to FSL Raipur vide letter of Police Superintendent, Dhamtarai dated 12-3-2005 and the same was received in FSL, Raipur on 14-3-2005. It appears that the property was received after 4 days. 28. In Jarnail Singh v. State of Punjab, AIR 2011 SC 964 , the Hon’ble Supreme Court observed as follows : 14. .....The trial Court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. 28. In Jarnail Singh v. State of Punjab, AIR 2011 SC 964 , the Hon’ble Supreme Court observed as follows : 14. .....The trial Court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of Chemical Examiner pales into insignificance. We are of the considered opinion that mere delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with. There is sufficient evidence to indicate that the delay, if any, was wholly unintentional. This Court had occasion to deal with a similar issue, in the case of Balbir Kaur v. State of Punjab, (2009) 15 SCC 795 : ( AIR 2009 SC 3036 ). The Court made the following observations : As far as delay in sending the samples is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh case ( AIR 2009 SC 432 : 2008 AIR SCW 7514) wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case......... 29. Therefore, mere delay of 4 days in sending the samples to the office of the chemical examiner would not be fatal to the case of the prosecution. 30. In Ex.P/25, it is mentioned that : (Vernacular matter omitted.....Ed.) 31. The defence has not been able to prove that the seal put on the samples were, in any manner, tampered with before the samples were examined by the Chemical Examiner. There was delay of mere 4 days in sending the samples to FSL, Raipur. It is not proved as to how the aforesaid delay of 4 days affected the same examination when it could not be proved that the seal of the sample were, in any manner, tampered with. There was delay of mere 4 days in sending the samples to FSL, Raipur. It is not proved as to how the aforesaid delay of 4 days affected the same examination when it could not be proved that the seal of the sample were, in any manner, tampered with. In the circumstances, when the seal was found intact at the time of examination by the Chemical Examiner and the said fact was recorded by him in his report, mere delay in sending the sample to the Chemical Examiner itself would not be fatal to the case of the prosecution. 32. Therefore, in the instant case, from the above, it is apparent that provisions of Sections 42, 50, 55 and 57 of the Act, 1985 are substantially complied with. Hence, I find no infirmity in the impugned judgment of conviction and sentence passed by the learned Special Judge. 33. For the foregoing reasons, the appeals are liable to be and are hereby dismissed. Appeals dismissed.