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2023 DIGILAW 596 (MP)

Mohhomad Ikhtyar Baksh v. State of M. P.

2023-06-13

DINESH KUMAR PALIWAL

body2023
JUDGMENT 1. This criminal appeal under section 374(2) of Code of Criminal Procedure, 1973 has been preferred by the appellant against the impugned judgment of conviction and order of sentence dated 2.11.2022 passed by Special Judge, N.D.P.S., Panna (M.P.) in SC NDPS No. 5 of 2017 (State of M.P. v. Mohd. Ikhtyar Baksh), whereby learned Special Judge has convicted the appellant/accused for commission of offence under section 8(c) read with section 20(b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short hereinafter referred to as ‘the Act’) as appellant was found in possession of 1 kg. contraband (Ganja). He has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5,000/-. In default of payment of fine, he shall further undergo rigorous imprisonment for three months. 2. The case of the prosecution, in brief, is that as per the complaint/F.I.R. and documents filed therewith, on 30.9.2016, Sourabh Batham (P.W.-8), S.H.O. Devendra Nagar, District Panna (M.P.) received a secret information that a person riding on a motor-cycle on its number plate word ‘Nigahe Karam’ is written and it is bearing registration number MP-35-MD-8695 is transporting 1 kg. Ganja (cannabis) in a white colour polythene for illegal sale. Sourabh Batham (P.W.-8) recorded the said information in general diary No.24. He sent the information to his superior officer through mobile phone. Witnesses Bharti Sharan Shukla (P.W.-4) and Ravendra Singh (P.W.-7) were summoned through constable Dhirendra Singh (P.W.-2). Witnesses were made understand the information received form the informer. Thereafter, Sourabh Batham (P.W.-8) alongwith investigation kit and A.S.I. Sandeep Bhartiya (P.W.-5), A.S.I. Surendra Singh Parihar (P.W.-10), other police force and witnesses traveling through official vehicle bearing registration No. MP-03-A-2422 reached near Motva Tiraha Warehouse. At around 11:15 pm., as per the informer’s information, one person riding on a motor-cycle came, his motor-cycle was intercepted. He was made understand with the information which was received from informer. He was served a notice under section 50 of the Act and was made to understand his legal right to be searched before a Magistrate or a Gazetted Officer; however, he refused to exercise the said right and stated that Sourabh Batham (P.W.-8) can conduct the search. Panchnama of consent was prepared. 3. Before search, police force and witnesses gave their search to the accused. Panchnama was prepared. Panchnama of consent was prepared. 3. Before search, police force and witnesses gave their search to the accused. Panchnama was prepared. In search of the motor-cycle, one white colour polythene was found hanging in the handle of the motorcycle. ‘Sundrani Boot House, Purani Galla Mandi ke paas Nagod’ was found printed on the white colour polythene and in it one wrapped packet containing contraband (Ganja) was found; panchnama was prepared. It was weighed on the electronic weighing machine, it was found one kg. Ganja worth Rs.6,000/-. Two samples of 25-25 gms. each were drawn from the recovered packet and weighing panchnama was prepared. Samples were sealed in separate envelop and contraband was seized in a separate envelop. Seizure memo of the contraband, samples and motor-cycle bearing registration number MP-35-MD-8695 were prepared. Accused was arrested and information of his arrest was given to his family members. 4. After coming-over to police station General Diary No.44 was recorded and seized contraband was handed over to head constable for depositing the same in Malkhana and F.I.R. was registered at F.I.R. No.204 of 2016 for commission of the offence as mentioned in paragraph No.1 above. Seized samples were sent through Exhibit-P/42 draft to Forensic Science Laboratory, Sagar for chemical examination. After examination, F.S.L. report (Exhibit-P/43) was received. As per the mandate of Section 52A of the Act, seized contraband was destroyed. 5. After completion of investigation, charge-sheet was filed. Learned Special Judge framed charges against the appellant/accused for commission of offence under section 8(c) read with section 20(b)(ii)(A) of the N.D.P.S. Act. Accused claimed to be tried and refuted the charges. 6. In order to prove its case, prosecution examined eleven witnesses viz. Ashok Singh Chouhan (P.W.-1), Dhirendra Singh (P.W.-2), Ramswahal (P.W.-3), Bharti Sharan Shukla (P.W.-4), Sandeep Bhartiya (P.W.-5), Chandrashekher Bagri (P.W.-6), Ravendra Singh (P.W.-7), Sourabh Batham (P.W.-8), R.K. Prajapati (P.W.-9), Surendra Singh Parihar (P.W.-10), and Laxman Singh (P.W.-11). In defence, accused has not examined any witness. 7. Learned trial Court after hearing both the parties found the prosecution case proved and convicted and sentenced the appellant as shown herein-above in paragraph No.1. 8. I have heard learned counsel for the parties and perused the entire record. 9. In defence, accused has not examined any witness. 7. Learned trial Court after hearing both the parties found the prosecution case proved and convicted and sentenced the appellant as shown herein-above in paragraph No.1. 8. I have heard learned counsel for the parties and perused the entire record. 9. At the very outset, learned counsel for the appellant has submitted that appellant does not want to challenge his conviction for commission of offence under section 8(c) read with section 20(b)(ii)(A) of the Act, but has prayed for reduction of the jail sentence as appellant has already been undergone imprisonment for more than 7 months and 15 days. He has prayed that it is a case of small quantity, therefore, fine may be enhanced but jail sentence may be reduced as appellant is first offender. 10. Per contra, learned counsel for the State has supported the findings of conviction and order of sentence recorded by learned trial Court and has prayed for dismissal of the appeal. 11. In this case, Sourabh Batham (P.W..-8) in his evidence has deposed that on 30.9.2016, he had received a secret information. He had recorded the information in General Diary at number 24 dated 30.9.2016 (Exhibit-P/32). He had prepared mukhbir panchnama (Exhibit-P/3) before constable Dhirendra Singh (P.W.-2) and constable Shailendra Bahadur. It is further deposed that he had informed to S.D.O.P. through mobile phone. The said fact was recorded in General Dairy Number 26 dated 30.9.2016 copy whereof is Exhibit-P/34. Independent witnesses were summoned. Information (Exhibit-P/42) was sent to S.D.O.P. Same was received in his office by his reader head constable Babulal. It is further deposed that a motor-cycle was intercepted and the person riding the motor-cycle had introduced himself as Mohd. Ikhteyar Baksh. First of all, he and other police force and witnesses had given their search to the accused and thereafter, in search of the motor-cycle, one polythene bag was found hanging on the motor-cycle handle and in it, a wrapped packet was found kept. It was opened before the witnesses and it was found to be contraband (Ganja). Seized contraband was weighed after mixing. The contraband kept in polythene was mixed homogeneously and on weighing the same, it was found to be one kg. Thereafter, two samples of 25-25 gms. each were drawn from recovered contraband and were put in two separate lock pouches and were kept in white paper envelop. Seized contraband was weighed after mixing. The contraband kept in polythene was mixed homogeneously and on weighing the same, it was found to be one kg. Thereafter, two samples of 25-25 gms. each were drawn from recovered contraband and were put in two separate lock pouches and were kept in white paper envelop. Panchnama of seizure memo was prepared. 12. The aforesaid evidence of Sourabh Batham (P.W.-8) is found fortified from the evidence of Dhirendra Singh (P.W.-2) and Sandeep Bhartiya (P.W.-5). It is also the evidence of Sourabh Batham (P.W.-8) that after coming-over to police station, entry was made in general diary at number 44 dated 1.10.2016, copy whereof is at Exhibit-P/39. F.I.R. (Exhibit-P/40) at F.I.R. No.204/2016 dated 1.10.2016 was recorded. Seized contraband and drawn samples were handed over to In-charge Malkhana for depositing the same in Malkhana and in this regard, panchnama (Exhibit-P/41) was prepared. Thereafter, aforesaid samples through Superintendent of Police, Panna’s draft letter (Exhibit-P/42) were sent to Forensic Science Laboratory, Sagar for chemical examination and from Forensic Science Laboratory, Sagar, report (Exhibit-P/43) was received and seized item was found to be cannabis. 13. The aforesaid evidence of Sourabh Batham (P.W.-8) stands corroborated from the evidence of Dhirendra Singh (P.W.-2), Sandeep Bhartiya (P.W.-5) and Chandrashekher Bagri (P.W.-6). Although, Bharti Sharan Shukla (P.W.-4) and Ravendra Singh (P.W.-7) have turned hostile, but only on that count, the evidence of police officer cannot be discarded as their evidence appear worth reliance and there are no reasons to falsely implicate the accused. Even otherwise, the appellant/accused has not challenged his conviction as recorded by the learned trial Court. 14. Thus, having scanned entire evidence adduced on record by the prosecution, this Court finds no illegality or infirmity in the impugned judgment of conviction recorded by the Court below and, as such, same is uphold. However, taking note of the fact that appellant accused is first offender and learned trial Court has noted the same in paragraph 46 of impugned judgment and considering the fact that appellant/accused has already undergone imprisonment for more than 7 months, this Court deems it fit to reduce the sentence from one year to the period already undergone by him as the seized quantity of contraband is the small quantity. 15. 15. Consequently, the appeal is partly allowed and modified to the extent that appellant/accused is sentenced to undergo imprisonment for the period he has already undergone, subject to depositing the fine amount which is enhanced by this Court from Rs.5,000/- to Rs.10,000/- within a period of one month. 16. Registry/trial Court is directed to prepare super-session warrant/release warrant and to send the same to the Superintendent of jail/jail authorities concerned with a direction that if appellant/accused is not required in any other case, he be released in this case forthwith. However, it is clarified that if fine amount as quantified by this Court is not deposited within a period of one month from the release of the appellant/accused from the jail, he would surrender himself to serve the entire jail sentence of one year as awarded by the learned trial Court with default stipulations. 17. Registry is directed to immediately sent down the trial Court record along with copy of this order to the trial Court concerned for information and necessary compliance through Session Judge, Panna.