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2014 DIGILAW 186 (CHH)

HIRALAL v. STATE OF C. G.

2014-04-28

CHANDRA BHUSHAN BAJPAI

body2014
Judgment 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22.11.01 passed by Special Judge, under Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') Bastar at Jagdalpur in Special Case No.63/2000 whereby and whereunder the Special Judge after holding the appellant guilty for illegally possessing 2 kg contraband article cannabis (ganja), convicted him under Section 20(b)(i) of the Act and sentenced to undergo rigorous imprisonment for 1 year and 6 months and to pay fine of Rs.2000/-, in default of payment of fine, to further undergo RI for three months. 2. Conviction is impugned on the ground that without being any iota of evidence, the trial Court has convicted and sentenced the appellant as aforementioned, thereby committed illegality. 3. As per case of the prosecution, on 15.12.2000, Ratnesh Singh Tomer (PW-5), Sub-Inspector, received information from informant that 3-4 people are possessing ganja at Kanker bus stand. Ratensh Singh Tomer (PW-5) recorded the information in rojnamchasanha and called two panch witnesses and informed them about the said information. Panchanama (Ex-P/1 and P/3) were prepared. He sent one police constable to inform the superior officers about the information. SDO, Police received copy of Ex-P/1 & P/3. They were apprehending that the persons having contraband article ganja may flee from the spot. He prepared panchname (Ex-P/2) and sent the panchnama for obtain search warrant towards SDO, Police. Thereafter IO (PW-5) along with police staff and panch witnesses reached bus stand, Kanker. Informer indicated the persons. Then he interrogated Manglu Ram, Heeralal and Balram Sahu and enquired about their name, address and from where they were coming. Investigating officer intimated the appellant about information regarding presence of ganja with him. The appellant refused for any such possession. Then he gave notice to the appellant under Section 50 of the Act and intimated him regarding his consent whether he wishes his search before any Gazetted Officer or before Magistrate or if he wishes he can be searched before the said officer. Notice (Ex-P/15) served upon him. The appellant agreed in writing that he wants to be searched by said police officer, then the witnesses, 10 and staff were searched by the appellant and other accused. Nothing found upon the search of 10 and other persons present. Thereafter panchanama (Ex-P/4) prepared. Notice (Ex-P/15) served upon him. The appellant agreed in writing that he wants to be searched by said police officer, then the witnesses, 10 and staff were searched by the appellant and other accused. Nothing found upon the search of 10 and other persons present. Thereafter panchanama (Ex-P/4) prepared. Then he made search of the body of the appellant and no contraband article was found. Talashi panchnama (Ex-P/5) is prepared. The appellant was keeping a packet with him, in which some ganja like contraband narcotic material was found which was physically examined and presence of cannabis (ganja) was confirmed. Panchnama (Ex-P/6) was prepared. They weighed the article recovered from the appellant, panchnama (Ex-P/7) was prepared. Thereafter weight of article found from the possession of the appellant was taken which was found 2 kg, out of which, two samples of 25-25 grams prepared. Namuna panchnama (Ex-P/9) was prepared. Remaining ganja was seized, sealed and seizure memo (Ex-P/10) prepared. The appellant was arrested vide Ex-P/16. Investigation regarding other persons found at the spot was separately done. The 10 returned to the Police Station, deposited the ganja so seized with samples before Head Constable/Moharir and obtained receipt (Ex-P/12). He recorded his return. Detailed report prepared and sent to the higher police officials vide memo Ex-P/17 & P/18. He registered First Information Report vide Ex-P/19. Samples were sent to FSL, Raipur through SP Kanker vide memo Ex-P/20 and the same was received by FSL vide Ex-P/21. After chemical examination, FSL, Raipur gave its report vide Ex-P/22 and found presence of ganja in the samples. Family members of the appellant were informed regarding his arrest through wireless message to concerned police station. The 10 sent First Information Report, seizure memo and information of arrest to the Kanker Court and statements of the witnesses were recorded. 4. After completion of investigation, charge sheet was filed before Special Judge, Bastar at Jagdalpur. Learned Special Judge conducted the trial. 5. In order to appreciate the guilt of the appellant, the prosecution has examined as many as 5 witnesses. The accused was examined under Section 313 of the Code, in which he denied the circumstances appearing against him, pleaded innocence and false implication in crime in question. 6. After providing opportunity of hearing to the parties, the learned Special Judge convicted and sentenced the appellant as aforementioned. 7. The accused was examined under Section 313 of the Code, in which he denied the circumstances appearing against him, pleaded innocence and false implication in crime in question. 6. After providing opportunity of hearing to the parties, the learned Special Judge convicted and sentenced the appellant as aforementioned. 7. I have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that the IO (PW-5) has not followed the mandatory provisions of Section 42 of the Act, wherein he has to obtain search warrant for searching of the appellant. IO (PW-5) before proceeding for bus stand Kanker from police station, has not lodged rojnamchasanha to this effect. Mandatory provision of Section 50 of the Act is not followed. Notice has not given. Notice does not contain signature of panch, witnesses. The IO (PW-5) has not allowed his search and search of his staff. Dehati nalishi at the spot should have been written by the IO, instead he lodged First Information Report only when he returned to the police station. Even before the arrest, crime number was marked and thereafter FIR written which creates suspicion. Mukhbir panchnama (Ex-P/1) and pannchnama regarding search warrant (Ex-P/2), carbon copy of original documents in which crime number is mentioned, make the case of the prosecution suspicious. IO (PW-5) had not prepared two samples of 25-25 grams each. He had not marked the impression of seal in the seizure memo (Ex-P/10). Hence, the IO has not followed the mandatory provision of investigation as provided under the Act. On the basis of such omission and lapses and not following the mandatory provisions of the Act, it is submitted that the appeal may be allowed and the appellant may be set at liberty since the prosecution has failed to prove the guilt against the appellant, inter alia it is submitted that the appellant served the part of the sentence i.e. from 15.12.2000 to 02.01.2001 (17 days) and thereafter again he has taken into custody from the date of judgment on 22.11.2001 up to 03.5.2002, where this Court considered the application under Section 398 of the Code and released him on bail by suspending the sentence imposed upon him and ordered that he be released on bail on executing a sum of Rs.5000/- with one surety of like amount. After few days of the order, after taking certified copy of the order on behalf of the appellant, bail bonds were furnished before the trial Court and thereafter he was released. She further submitted that the appellant has already served about 6 months sentence awarded to him. The appellant is first offender and there is no previous criminal antecedent against him. He is facing the trial and contesting the litigation for last 4 years. If the Court affirms the order of conviction, sentence may be reduced to the period already undergone by him. Contraband article seized is only 2 kg for which the period already undergone would serve the purpose. 9. On the other hand, learned counsel for the State opposed the above argument and submitted that the investigating officer complied the mandatory provisions of the Act. He has recorded the departure from the police station in rojnamchasanha. He had complied with Section 50 of the Act where he gave notice to the appellant and intimated the legal, rights that if he wishes he can make his search before the Gazetted Officer or before Magistrate or if he wishes he can allow search by IO(PW-5). Thus, Section 50 of the Act has been complied. The appellant in his own handwriting agreed that he wants to make search by IO. He further submits that Section 50 of the Act is about search on any person under the provisions of Section 42 of the Act. In the present case, contraband article ganja was found in a plastic bag that the appellant was holding at that time. Even otherwise, Section 50 of the Act does not attract where search of the bag held by any person is required because, Section 50 of the Act contemplates regarding search of any person even otherwise in the present case, provisions of Section 50 of the Act was followed. There is no necessary to have signature of panch witness in Ex-P/5, since it was not given by IO to the appellant. It is not a panchnama or any other type of document where the signature of the witnesses are required. Also submitted that search of IO and other persons was duly conducted by the appellant and other persons. Panchnama (Ex-P/4) clearly shows that search of IO and other staff and other persons have conducted by the appellant. It is not a panchnama or any other type of document where the signature of the witnesses are required. Also submitted that search of IO and other persons was duly conducted by the appellant and other persons. Panchnama (Ex-P/4) clearly shows that search of IO and other staff and other persons have conducted by the appellant. Also submitted that writing of dehati nalishi is not required as per provisions of law at the spot itself. The IO after completion of major part of the investigation, returned to the Police Station and thereafter he lodged First Information Report (Ex-P/19) which cannot be said as suspicious or in contravention of law. Also submitted that since on the very same day search of three persons were conducted, that is why the original documents of Ex-P/1 & P/2 were kept in the other case it was duly proved and not at all challenged by the defence. Also both the documents are carbon copies duly proved. Also submitted on behalf of the State that after registration of First Information Report, the crime number is written in the seizure memo (Ex-P/10). It also indicates the initial crime number as 0/2000. It is neither interpolated or added something simply marking crime number, that too after registration of FIR the document cannot be held suspicious. The property was duly seized and deposited with head constable and sent for chemical examination. Receipt (Ex-P/21) reveals that properties were received at FSL in a sealed condition. Report of FSL (Ex-P/22) indicates that sample sent was duly sealed. Simply by not putting impression of the seal in the seizure memo cannot be held that seizure is suspicious. It is also submitted on behalf of the State that guilt is duly proved by the prosecution in the trial Court and need not warrant any interference. Looking to the quantity of seized ganja, the appellant was duly-convicted, hence appeal be dismissed. 10. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced on behalf of the prosecution. 11. In the present case, even panchnama (Ex-P/2) was duly proved. No other question was asked. The original document was kept in the case of other accused. No suspicion can be affixed on this. IO duly deposed regarding his departure from police station and recording of the documents (Ex-P/1, P/2, P/3). 11. In the present case, even panchnama (Ex-P/2) was duly proved. No other question was asked. The original document was kept in the case of other accused. No suspicion can be affixed on this. IO duly deposed regarding his departure from police station and recording of the documents (Ex-P/1, P/2, P/3). He duly intimated the appellant regarding his authority and his right to be searched before Magistrate or Gazetted Officer. The appellant agree to be searched by IO. Ex-P/5 is a document which inspires confidence. It does not require the signature of panch witnesses, since it is a notice. IO has duly proved the contents of the notice. The IO allowed the appellant and other accused for their search of the raiding party. Writing of dehati nalishi at the spot itself is not mandatory requirement. After completion of proceedings at the spot, IO reached back to the Police Station and there he duly wrote FIR and registered the case. Samples of 25-25 gms each were duly taken from seized ganja and in description of Ex-P/10 clearly mention that 25-25 grams of substance were taken and sealed and rest of the ganja i.e. 1 kg 950 grams was sealed separately. It clearly shows that samples were taken as per requirement of law. The crime number in seized memo is written after the registration of crime. Though panch witness Shaikh Masukh (PW-1) and Mohd. Faiyaj (PW-4) have tuned hostile and had not supported the case of the prosecution, but so tar as the statement of IO is concerned, he had been cross examined at length but nothing has been shown to discredit or disbelieve his statement. So far as the evidentiary value of the police officer is concerned, the Apex Court in the case of Anil alias Andya Sadashiv Nandoskar Vs. State of Maharashtra, (1996)2 SCC 589 , that testimony of police officials are not liable to be discarded merely because they are police officials. However, their evidence should be carefully scrutinized and independently appreciated. The Apex Court further held that witnesses being police officers do not by itself create a doubt about their creditworthiness if non-examination of Panch witnesses is explained satisfactorily. Para 5 of the said judgment reads as under:- "Indeed all the 5 prosecution witness who have been examined in support of search and seizure were members of the raiding party. They are all police officials. Para 5 of the said judgment reads as under:- "Indeed all the 5 prosecution witness who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinised and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and critically analysed the evidence of all the 5 police officials. There is nothing on the record to show that anyone of them was hostile to be appellant and despite lengthy cross-examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country-made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non-examination of the two panch witnesses, which is supported by the report Ext. 24 filed by PW 4 PI Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent panchas at the time of search and seizure and they were so joined. They were also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore they could not be examined at the trial. In the face of the facts stated in report Ext. They were also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore they could not be examined at the trial. In the face of the facts stated in report Ext. 24, the correctness of which has remained virtually lillchallenged during the cross-examination of PW 4, the non-examination of the two panchas cannot be said to be on account of any oblique reason. Their non-production at the trail thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the addresses furnished by them at the time of search and their whereabouts could not be traced despite diligent efforts made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country-made revolver and cartridges for which he could produce no licence or authority because of the non-examination of the panch witnesses. We find that the evidence of PW 1 to PW 5 is reliable, cogent and trustworthy." 12. Further, in the matter of P.P. Beeran Vs. State of Kerala AIR 2001 SC 2420 , it has been held by the Apex Court that reliance can be placed on the uncorroborated evidence of the Sub-Inspector of Police. By non-corroboration of panch witness regarding prosecution story, the prosecution story does not become suspicious. I am of the view that evidence of IO inspires confidence and trustworthy and on the basis of his statement, the trial Court has rightly convicted and sentenced the appellant as aforesaid manner. 13. Considering the entire evidence adduced on behalf of the prosecution is sufficient and is acceptable. The prosecution duly proved that on 15.12.2000 at bus stand Kanker, the appellant was in possession of contraband article ganja. I am of the view that the trial Court rightly convicted the appellant under Section 20(b)(i) of the Act and I hereby affirm the judgment of conviction against the appellant. 14. The prosecution duly proved that on 15.12.2000 at bus stand Kanker, the appellant was in possession of contraband article ganja. I am of the view that the trial Court rightly convicted the appellant under Section 20(b)(i) of the Act and I hereby affirm the judgment of conviction against the appellant. 14. So far as the quantum of sentence is concerned, the appellant served about six months jail sentence awarded to him. The quantity of recovered ganja was 2 kg. The appellant is the first offender, he is facing the trial and contesting the litigation for last 13½ years, it would be proper and just to reduce the sentence of imprisonment imposed to the appellant. 15. Looking to the totality of the circumstances appeared before this Court, I am of the view that no any purpose will be served in sending the appellant back to jail. Object of criminal justice would be served in awarding the sentence already undergone by him. 16. Consequently, the appeal is partly allowed. Conviction of the appellant awarded by the trial Court is hereby affirmed. However, sentence awarded to the appellant is modified and instead of RI for 1½ years, he is sentenced to undergo imprisonment for the period already undergone by him. Sentence of fine and in default 3 months RI is also hereby affirmed. Appeal Partly Allowed.