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2014 DIGILAW 294 (CHH)

Satyanand Gupta v. State of Chhattisgarh

2014-08-06

CHANDRA BHUSHAN BAJPAI

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JUDGMENT Chandra Bhushan Bajpai, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 26-2-2002 passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act'), District Raigarh in Special Criminal Case No. 14/2001 whereby and whereunder, the learned Special Judge under the NDPS Act after holding the appellant guilty for illicit possession of 1 kg. ganja, convicted the appellant under Section 20(b)(i) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 5 months and to pay fine of Rs. 100/-, in default of payment of fine, to further undergo rigorous imprisonment for one month. Conviction is impugned on the ground that without there being any iota of evidence, court below has convicted and sentenced the appellant as aforesaid mentioned and thereby committed illegality. 2. As per case of the prosecution, on 7-10-2001 at about 8.50 p.m., K.P. Dwivedi (PW-1), SHO, Police Station Tamnar, District Raigarh, received information from informant that at Village Karrapali, Police Station Tamnar, the appellant is engaged in illegal transportation of ganja and he is rehiring from Orissa with ganja to his home village. K.P. Dwivedi (PW-1) prepared the informer punchnama vide Ex.-P/1 in the presence of two witnesses, he gave notice (Ex.-P/2 and Ex.-P/3) to panch witnesses Kalachand Rathiya (PW-3) and Pardesi Rathiya (PW-2) to remain present at the time of raid with police raiding party. K.P. Dwivedi (PW-1) gave radio message to SDO (P), Kharsiya for information and necessary action vide Ex.- P/4. Along with the panch witnesses and police party he reached to the Village Karrapali, he gave the appellant notice vide Ex.-P/6 and informed regarding the information received through the informer for illegal possession of ganja by the appellant and also intimated him regarding his legal right that he may be searched before any Gazetted Officer or Magistrate or if he wishes, search can be conducted by K.P. Dwivedi (PW-1). The appellant agreed that he wants to be searched by the said police officer. He gave his consent in the Ex.-P/6. Thereafter, K.P. Dwivedi (PW-1) and the witnesses and staff were searched by the appellant and nothing objectionable sub-stance noticed in the search. Talashi panchnama was prepared vide Ex.-P/7 and Ex-P/8. The appellant agreed that he wants to be searched by the said police officer. He gave his consent in the Ex.-P/6. Thereafter, K.P. Dwivedi (PW-1) and the witnesses and staff were searched by the appellant and nothing objectionable sub-stance noticed in the search. Talashi panchnama was prepared vide Ex.-P/7 and Ex-P/8. After the search of the Investigating Officer and panch witness and staff of the Police Station Tamnar, the Investigating Officer conducted search of the appellant. The appellant was having blue coloured zipped bag in which ganja like substance about 1 kg. was recovered. The search panchnama of the appellant was prepared vide Ex.-P/9. Ganja like substance was physically examined by the investigating Officer and the witnesses. They confirmed the presence of ganja positive upon physical examination vide Ex.-P/10. After search of the appellant and before taking weight of substance ganja so recovered again the Investigating Officer, his staff and witnesses were searched by the appellant, nothing objectionable substance was found. Search panchnama was prepared vide Ex.-P/11. The panchnama for weighing apparatus ¼rjktw½ and measurement was prepared vide Ex.-P/5. The weighing instrument and measurement were found to be correct. Ganja so recovered from the appellant with the bag which he was carrying along with him was weighed and found 1 kg. The weighment panchnama of ganja was prepared vide Ex.-P/12. Samples were taken for 25-25 grams. They were sealed separately. The remaining ganja (950 grams) was sealed separately. Impression of the seal marked in the seizure memo, the seizure memo was prepared vide Ex.-P/13. The spot map was prepared by the Investigating Officer vide Ex.-P/14. The appellant was duly arrested vide arrest memo Ex.-P/15. Investigating Officer K.P. Dwivedi (PW-1) recorded the dehati nalishi at the spot vide Ex.-P/17. He along with the appellant, ganja so seized, after completion of the proceeding at the spot, returned to Police Station Tamnar where he lodged the First Information Report (FIR) and registered crime number as 90/2001 under Section 20(b) of the NDPS Act against the appellant vide Ex.-P/18. Ganja so seized and the two samples of 25-25 grams in sealed condition were kept in safe custody of Malkhana Moharrir. He handed it over to Malkhana Moharrir, for which panchnama vide Ex.-P/16 was prepared before the witnesses. Copy of the FIR and necessary documents were sent to Judicial Magistrate First Class, Gharghoda as required by the law. Ganja so seized and the two samples of 25-25 grams in sealed condition were kept in safe custody of Malkhana Moharrir. He handed it over to Malkhana Moharrir, for which panchnama vide Ex.-P/16 was prepared before the witnesses. Copy of the FIR and necessary documents were sent to Judicial Magistrate First Class, Gharghoda as required by the law. The Investigating Officer wrote the rojnamcha sanha for the information he received regarding the ganja with the appellant vide Ex.-P/20. Rojnamcha Sanha for sending the information to the SDO (P) for information and necessary action is recorded in Ex.-P/21. The rojnamcha sanha regarding further proceedings as per information received and for proceedings towards the Village Karrapali was prepared vide Ex.-P/22 and Ex.-P/23. Sanha regarding complete proceedings and further action was written vide Ex.-P/24. Sanha regarding sending the sealed sample for Forensic Science Laboratory (FSL), Raipur was recorded vide Ex.-P/25 and Ex.-P/26. The Investigating Officer sent sample for FSL vide draft Ex.-P/27. The receipt of the said sample at FSL is Ex.-P/28. The FSL, Raipur examined the sample sent by the Investigating Officer and after examination ganja was found positive in the sample so sent. The statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). 3. After completion of the investigation, charge-sheet was filed before the First Additional Sessions Judge/Special Judge under the NDPS Act, who conducted the trial. 4. In order to prove the guilt of the appellant, the prosecution examined as many as 4 witnesses. The appellant was examined under Section 313 of the Code wherein he denied the circumstances appearing against him and pleaded innocence and false implication in crime in question. 5. After providing opportunity of hearing to the parties, learned Special Judge under NDPS Act convicted and sentenced the appellant as aforementioned. 6. I have heard learned counsel for the parties and perused the judgment impugned and the record of the court below. 7. Learned counsel for the appellant vehemently argued that panch witnesses Pardesi Rathiya (PW-2) and Kalachand Rathiya (PW-3) had not supported the story of the prosecution, they turned hostile. They had not deposed anything against the appellant. Pardesi Rathiya (PW-2) had deposed in para 7 that he and Kalachand Rathiya (PW-3) both reached to the house of Muniram as per instruction of Kotwar. They had not deposed anything against the appellant. Pardesi Rathiya (PW-2) had deposed in para 7 that he and Kalachand Rathiya (PW-3) both reached to the house of Muniram as per instruction of Kotwar. He saw the police in the courtyard of Muniram, they had a blue bag, police informed him that they recovered this bag from the house of Muniram. The Police had taken his and Kalachand's (PW-3) signature on 10-12 papers. A few papers were blank and in some papers two or three lines were written. Head of the police station said that they were getting late and asked them to sign in the papers and said that he will write those papers after signing in those papers as instructed. Thereafter, both of them went to their house. As per this witness at the time of signing in the courtyard of Muniram, the appellant was not present and he does not know what is written in those papers. The learned counsel for the appellant also drew the attention of this Court to the statement of Kalachand Rathiya (PW-3) at para 5 and argued that this panch witness too supported the story of the Pardesi Rathiya (PW-2) and deposed that he saw that police people in the courtyard of Muniram with a blue bag and the police people informed him that they recovered the bag from the house of Muniram. This witness too supported in toto to Pardesi Rathiya (PW-2) and deposed that as instructed by the police officer that they were getting late, they will complete the papers afterwards. Both these panch witnesses signed, the appellant was not present at the time of said proceedings and thereafter they went to their house. So the panch witnesses are not supporting the story of the prosecution. K.P. Dwivedi (PW-1) admitted in para 14 of his cross-examination that the appellant's house is situated in front of the house of Muniram. As per the submission, the Investigating Officer has not seized the contraband article on the spot, not marked the sample and the seizure memo at the spot. Information (Ex.-P/4) given to SDO (P) is not sufficient as required under Section 42 of the NDPS Act. Information by the radio message is not appropriate, he has to send the message in writing. Information (Ex.-P/4) given to SDO (P) is not sufficient as required under Section 42 of the NDPS Act. Information by the radio message is not appropriate, he has to send the message in writing. The Investigating Officer K.P. Dwivedi (PW-1) admitted in para 1 that he has sent the Ex.-P/4, radio message, to SDO (P), Kharsiya, since the requirement of Section 42 of the NDPS Act is not followed, the sample was not sealed, there was violation of Section 55 of the NDPS Act as the article seized were not taken by the officer-in-charge of the police Station, the Investigating Officer himself deposited the sample and ganja to the Malkhana Moharrir, Section 57 of the NDPS Act is not followed which is mandatory, with this the prosecution has failed to prove the guilt against the appellant, hence, the appellant may be acquitted of the charges. The learned counsel for the appellant placed reliance in the matter of Rajender Singh v. State of Haryana, 2011 (4) MPHT 435 (SC) whereupon the total non-compliance of the provisions of Section 42 of the NDPS Act, the Hon'ble Supreme Court set aside the conviction and sentence of the accused and acquitted the accused by allowing the appeal. The learned counsel for the appellant also placed reliance in the matter of Thandi Ram v. State of Haryana, 2000 Cri. L.J. 588 (SC) whereupon non-compliance of Sections 55, 57 of the NDPS Act, the Hon'ble Supreme Court held the conviction vitiated and as the accused sentenced to imprisonment for 10 years had already undergone sentence for 9 years the Hon'ble Supreme Court allowed the appeal and set aside the judgment of conviction against the appellant. It is submitted on behalf of the appellant on the basis of these two cited case law which are applicable to the facts of the present case, the appeal may be acquitted. 8. Per contra, learned counsel appearing for the State opposed the above argument and submitted that the Investigating Officer complied with the mandatory provisions of the NDPS Act. He acted as per Section 42 of the NDPS Act, he wrote the information, sent it through radio message which was received by the superior official. He also followed the Sections 55 and 57 of the NDPS Act. He acted as per Section 42 of the NDPS Act, he wrote the information, sent it through radio message which was received by the superior official. He also followed the Sections 55 and 57 of the NDPS Act. The impression of the seal was affixed in the sample and receipt of ganja and also in the seizure memo, seal found intact by the FSL, the sample was sent for chemical examination. The complete information was intimated to the superior official. Since he followed the mandatory provisions of the NDPS Act and also Section 42 of the NDPS Act as required to be followed in case of search of building, conveyance or place and also for search of body of any person since as per the prosecution's story the appellant was holding the said blue bag, for search of said bag Section 42 of the NDPS Act is not attracted, even otherwise, the written information was sent through by radio message to the superior official and since he followed the entire mandatory provisions of the NDPS Act as required, the cited case laws are not applicable to the facts of this case and merely on account of Non-corroboration by panch witnesses, the statement of Investigating Officer K.P. Dwivedi (PW-1) does not become false. His statement to be valued on its own strength. The statement of the Investigating Officer is truthful, trustworthy and acceptable and there shall be no adverse effect over the prosecution's story on account of non-corroboration by the panch witnesses. Hence, it submitted on behalf of the State that the learned trial Court has duly convicted and sentenced the appellant. Thus, the appeal may be dismissed. 9. In order to appreciate the arguments advanced on behalf of the parties, I have examined the evidence adduced on behalf of the prosecution. 10. So far as the evidentiary value of K.P. Dwivedi (PW-1) is concerned, the panch witnesses Pardesi Rathiya (PW-2) and Kalachand Rathiya (PW-3) turned hostile, even then as per the settled proposition of law, merely on the basis of non-corroboration of panch witnesses, the evidence of Investigating Officer may not become inadmissible, the evidence of Investigating Officer K.P. Dwivedi (PW-1) has to be valued upon credibility of his own evidence. If the evidence of K.P. Dwivedi (PW-1) found to be truthful and trustworthy, the same may be accepted and admitted against the appellant. 11. If the evidence of K.P. Dwivedi (PW-1) found to be truthful and trustworthy, the same may be accepted and admitted against the appellant. 11. So far as evidence of the Investigating Officer 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 v. State of Maharashtra, (1996) 2 SCC 589 : ( AIR 1996 SC 2943 ) held 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 witnesses 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 any one 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. 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 P.I. Gaikwad is satisfactory. The evidence of 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. 24, the correctness of which has remained virtually unchallenged 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 trial 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. 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 v. 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. Both the panch witnesses belong to the same village, may be won by the appellant, they nowhere stated in their cross-examination that K.P. Dwivedi (PW-1) gave any threat or undue pressure for signing of the documents. Both the witnesses gave no explanation as to how they signed about 10-12 papers which were almost blank and they had not complained to any of superior officials. On perusal of the statement of Pardesi Rathiya (PW-2) and Kalachand Rathiya (PW-3), it clearly indicates that they are deliberately shielding the truth and their statement cannot be held as truthful and reliable. So far as the evidentiary value of K.P. Dwivedi (PW-1) is concerned, the defence has cross-examined him at lengthily, but nothing came in the cross-examination which could discredit the evidentiary value of the evidence. There is no reason for false implication of the appellant. The evidence of K.P. Dwivedi (PW-1) remained unshaky, truthful, clinching and credible, hence, the trial Court has rightly accepted the evidence of K.P. Dwivedi (PW-1) and held it proper and truthful. I see no reason for any interference with the finding of the trial Court so far as it relates to admissibility of the evidence of Investigating Officer K.P. Dwivedi (PW-1). 14. Upon perusal of the seizure memo (Ex.-P/13), it appears that the Investigating Officer after taking two samples of 25-25 grams, duly seized, sealed and affixed the seal on all the packets. The impression of the seal is also affixed in the seizure memo (Ex.-P/13). This document shows even the preparation of the packets and how they are prepared and sealed. I am of the view that the Investigating Officer properly sealed and affixed the impression of seal at the spot. The impression of the seal is also affixed in the seizure memo (Ex.-P/13). This document shows even the preparation of the packets and how they are prepared and sealed. I am of the view that the Investigating Officer properly sealed and affixed the impression of seal at the spot. So far as compliance of Section 55 of the NDPS Act is concerned, K.P. Dwivedi (PW-1) was himself the SHO of Police Station Tamnar at the time of incident since he himself proceeded for the investigation of the case, duly seized the contraband article along with the samples and he deposited the so seized packets for security with the Malkhana Moharrir of his police station, he prepared the panchanama, obtained the receipt. I am of the view that there is no force in the argument that there is non-compliance of Section 55 of the NDPS Act. Also so far as compliance of Section 42 of the NDPS Act is concerned, as per the evidence adduced by the prosecution, the Investigating Officer not entered in any building, conveyance or place, he simply make search of the belongings of the appellant as he was keeping a blue bag with him. Since he had not entered in any building, conveyance or place, Section 42 of the NDPS Act does not attract. Even then, he prepared Mukhbir Suchana Panchanama (Ex.-P/1), prepared the radio message (Ex.-P/4) and sent the same through wireless which was duly received by the superior official, even not required, he followed the requirement of Section 42 of the NDPS Act. With this fact, the case law cited, Rajender Singh v. State of Haryana (supra) is of no support for the present case and distinguishable as in the said case no independent witness could ever be brought by the police party. In the present case, independent witnesses of the same village were given notice for the proceedings of the case, they remained present and they signed about 10 to 12 documents. In Rajender Singh's (supra) case, the superior official not uttered a single word about the receipt of any written information from his junior officer which is not identical with the facts of this case. I am of the view that the case of Rajender Singh v. State of Haryana (supra) is distinguishable from the facts and legal position of this case. I am of the view that the case of Rajender Singh v. State of Haryana (supra) is distinguishable from the facts and legal position of this case. So far as the other cited case law of Thandi Ram v. State of Haryana ( AIR 2002 SC 468 ) (supra) is concerned, in that case Sections 42, 50, 55, 57 of the NDPS Act were not complied, but, in the present case, the appellant was intimated regarding his legal authority to be searched before the Magistrate or Gazetted Officer as required in the Section 50 of the NDPS Act, though in the present case, search of person of the appellant was not conducted, inter alia, a bag held by the appellant was searched. With the facts of present case, compliance of Section 50of the NDPS Act was not required, even then of Section 50 of the NDPS Act was complied by the Investigating Officer by giving the notice and intimating the appellant his legal right and the Investigating Officer obtained written consent in hand writing of the appellant as shown in Ex.-P/6 and thereby provisions were followed. The appellant is not successful by throwing any element of suspicion in the proceedings done by K.P. Dwivedi (PW-1) for sending a filled report of all the particulars of such arrest and seizure to immediate official superior. For complete proceedings, rojnamcha sanha Ex.-P/24 is written as the matter was reported to the immediate superior official. Even otherwise, no specific facts are asked in the detailed cross-examination of K.P. Dwivedi (PW-1). In totality of the evidence so adduced by the prosecution, I am of the view that the Investigating Officer has followed the mandatory provisions of the NDPS Act. There is no reason for any suspicion for implication and for the evidence adduced on behalf of the prosecution. There was no reason to disbelieve the statement of Investigating Officer K.P. Dwivedi (PW-1), he had duly proved that the appellant was in illicit possession of 1 kg. of ganja for which he proceeded as per requirement of law. I am of the view that the principle reiterated in the case of Thandi Ram v. State of Haryana (supra) is not applicable in the present case as the facts of Thandi Ram's (supra) case are distinguishable from the facts of this case. 15. of ganja for which he proceeded as per requirement of law. I am of the view that the principle reiterated in the case of Thandi Ram v. State of Haryana (supra) is not applicable in the present case as the facts of Thandi Ram's (supra) case are distinguishable from the facts of this case. 15. Considering the entire evidence adduced on behalf of the prosecution, I am of the view that the evidence adduced on behalf of the prosecution is sufficient and acceptable. The prosecution has duly proved that on 7-10-2001 at Village Karrapali, Police Station Tamnar, at about 10.50 p.m., the appellant was found in illicit possession of ganja 1 k.g. which was offence under Section 20(b)(ii)(A) of the NDPS Act. Hence, the judgment of conviction against the appellant does not call for any interference. 16. So far as the quantum of sentence is concerned, the trial Court has awarded 5 months' rigorous imprisonment along with fine of Rs. 100/- with default sentence of additional rigorous imprisonment for 1 month, looking to the quantum of ganja seized from the appellant, I am of the view that the sentence awarded to the appellant is just and proper and it cannot be termed as a sentence on higher side. As per the provisions, the Court can award sentence of rigorous imprisonment which may extend to 6 months. Looking to the quantity of ganja, I am of the opinion that the sentence so awarded to the appellant is proper looking at the gravity of the offence and it does not call for any interference and the sentence is not disproportionate to the act attributed to the appellant. Consequently, the appeal being devoid of merit, is liable to be dismissed and is hereby dismissed. Appeal dismissed.