Chattisgarh High Court
Tuna @ Avinash And Anr vs State Of Chhattisgarh on 20 January, 2023
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
Cr.A. No. 1088 of 2013
& Cr.A. No.1612 of 2019
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on : 06/01/2023
Judgment Delivered on : 20/01/2023
Criminal Appeal No. 1088 of 2013
1. Tuna @ Avinash S/o Lambu Nayak Aged About 23 Years R/o
Sahajbahali, Thana Raj Kishan Nagar @ Raj Kishor Nagar,
District Angul, Orissa.
2. Mohan @ Khetro Mohan S/o Parmanand Behera Aged About 22
Years R/o Sahajbahali, Thana Raj Kishan Nagar @ Raj Kishor
Nagar, District Angul, Orissa.
---- Appellants
Versus
The State Of Chhattisgarh Through Thana Saraipali, District
Mahasamund, Chhattisgarh.
---- Respondent
AND
Criminal Appeal No. 1612 of 2019
Sarat S/o Shri Basant Nayak Aged About 32 Years R/o
Sahajbahli, P. S. Rajkishan Nagar (Rajkishore Nagar), District
Angul Orissa.
---- Appellant
Versus
State Of Chhattisgarh Through In-Charge Police Station
Saraipali, District Mahasamund Chhattisgarh.
---- Respondent
For Appellants : Mr. Sourabh Dangi and Ms. Aditi Singhvi,
Advocates in Cr.A. No. 1088 of 2013 and
Mr. Shashi Kumar Kushwaha, Advocate in Cr.A.
No.1612 of 2019.
For Respondent : Mr. Ashish Tiwari, G.A. and Mr. Soumya Rai, P.L.
Division Bench:
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Rakesh Mohan Pandey
CAV Judgment
Per Rakesh Mohan Pandey, J.
1. These two criminal appeals preferred by the appellants/accused 2 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 persons herein under Section 374 (2) of the Cr.P.C. are directed against the impugned judgment of conviction and order of sentence dated 14.05.2013 passed by the Learned Special Judge, Narcotic Drugs and Psychotropic Substances Act, Mahasamund, Chhattisgarh in Special Criminal Case No.20 of 2011, whereby the appellants have been convicted for offence punishable under Section 20(b)(ii)(C) of the NDPS Act and sentenced to undergo rigorous imprisonment for 12 years with fine of Rs.1,00,000/-, in default of payment of fine to further undergo additional RI for 2 years to each of the appellant.
2. The case of the prosecution, in brief, is that on 30.10.2011 at about 6:30 am, Sewakram Dhruv (PW-4), Assistant Sub-Inspector received a secret information regarding transportation of contraband (ganja) from Orissa towards Mahasamund in white-colour car. The information was recorded in Roj Namcha Sanha (Ex.P/6C). The police prepared a panchanama (Ex.P/7C) as Sewakram Dhruv (PW-4) had no time to obtain search warrant. Sewakram Dhruv (PW-4) proceeded alongwith independent witnesses Bablu Behra (PW-7) and Sarthi Sao (PW-8) towards checkpost and the vehicle bearing registration No.OR-02F-1777 was intercepted at Banjarinaka, Rehtikhol, Saraipali. Notice was given to the independent witnesses to accompany Sewakram Dhruv (PW-4). The vehicle was stopped in which, three persons were travelling. The appellants were informed about their right to be searched in presence of Gazetted Officer or Magistrate by notice (Ex.P/10). The 3 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 appellants gave their consent for search by the Investigating Officer vide Ex.P11. Opportunity was granted to the appellants to search the members of the raiding party vide Ex.P/12 to P/15. Sewakram Dhruv (PW-4) searched appellant No.1 - Tuna @ Avinash and seized red and black bag from his possession vide Ex.P/15. Blue and Black colour bag was seized from appellant No.2 - Sarat vide Ex.P/16 and a blue-colour bag was seized from the possession of appellant No.3 - Mohan @ Khetro Mohan vide Ex.P/17. Total 5 numbers of bags were seized from the possession of the appellants and 21 packets of contraband (ganja) were found in 5 bags. The small content from each bag were taken and tested by burning and smelling and it was confirmed as ganja vide Ex.P/17. The weighing scales were brought from Bharat Lal Bariha (PW-5) and it was verified vide Ex.P/19. From appellant No.1 - Tuna @ Avinash - 8 kg & 3 kg, total 11 kg of ganja, from appellant No.2 - Sarat - 7 kg & 3 kg, total 10 kg of ganja and from appellant No.3 - Mohan @ Khetro Mohan, 10 kg 600 gm of ganja was seized. Samples of the seized articles were taken vide Ex.P/20 & P/21. Seized articles were handed over to Malkhana and its receipt is Ex.P/32. Information regarding completion of the proceeding was sent to the Sub-Divisional Officer (Police) Saraipali on 31.10.2011 vide Ex.P/5. The sample of the seized article were sent for FSL examination on 31.10.2011 vide Ex.P/32. The FSL report was received vide Ex.P/1 and according to it, the contents of the sample has been found to be ganja. First Information Report (Ex.P/27) was also recorded by 4 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 Sewakram Dhruv (PW-4).
3. Learned trial Court has framed charge for offence punishable under Section 20(b)(ii)(C) of the NDPS Act, 1989.
4. The prosecution, in order to prove its case, examined as many as 10 witnesses and exhibited 35 documents and Article A/1 & 2, photographs. The appellants/ accused persons, in support of their defence, have neither examined any witness nor exhibited any document. Statement of the appellants were recorded under Section 313 of CrPC in which, they abjured their guilt and entered into defence.
5. Learned trial Court after completion of trial and after appreciating oral and documentary evidence on record, convicted and sentenced the present appellants for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act as mentioned in the opening paragraph of this judgment, against which these two appeals have been preferred by appellants - Tuna @ Avinash and Mohan @ Khetro Mohan in Cr.A. No. 1088 of 2013 and appellant - Sarat in Cr.A. No. 1612 of 2019.
6. Learned counsel for the appellants would submit that the conviction of the appellants is based only on the testimony of the Investigating Officer, Sewakram Dhruv (PW-4). The independent witnesses have not supported the case of the prosecution. Even the witness of weighing machine Bharat Lal Bariha (PW-5) has not supported the case of the prosecution. They would further 5 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 submit that the sampling procedure was not done in accordance with the Standing Order No. 01/ 1988 dated 15.3.1988 according to which, the Investigating Officer ought to have serially numbered the packets by putting serial number. A seal should have been affixed over samples and seized contraband. Place and time of withdrawal of sample should have been made in the panchanama. They would also submit that according to clause 1.6 of the Standing Order, the Investigating Officer ought to have taken 24 gm of ganja from each packet as sample. They would further submit that the standing orders are mandatory in nature. They would also submit that the procedure adopted by the prosecution to send the contraband for FSL is doubtful, as the samples were taken for FSL on 31.10.2011, the same were given in the FSL laboratory on 2.11.2011 vide Ex.P/33. Hence, learned counsel for the appellants pray for acquittal of the appellants in both the cases.
7. On the other hand, learned State counsel would submit that the Investigating Officer, Sewakram Dhruv (PW-4) has complied the mandatory provisions of the NDPS Act regarding search and seizure in accordance with law and there is no infirmity or illegality in the above proceeding. The seized article was sent for FSL and FSL report is Ex.P/32 and same has been found as ganja vide Ex.P/1. He would further submit that the police witnesses cannot be rejected on the ground of non-corroboration by the independent witnesses. He would also submit that the defence has not challenged compliance of Section 42 or 50 of the NDPS Act. He 6 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 would further submit that learned trial Court after appreciating the entire material available on record has convicted and sentenced the appellants and the appeals preferred by the appellants are deserve to be dismissed.
8. We have heard learned counsel for the parties and perused the records with utmost circumspection.
9. The prosecution has examined Vishnu Barik (PW-1), Head-
Constable who recorded the secret information on 30.10.2011 at 6:40 am vide Ex.P/1 and the information was sent to SDO (Police) Saraipali vide Ex.P/2. In the cross-examination, the defence could not bring any discrepancy in his evidence. Nilamber Singh Netam (PW-2), Head-Constable-cum-Moharir has stated that the entry in Roj namcha Sanha was done regarding Crime No.409 of 2011 and after seizure the contraband was handed over to him to keep it in a safe custody of Malkhana. He has further stated that the seized article was properly sealed and the seized ganja was kept in 5 gunny bags, total weighing 31.600 gm. The 6 sample packets weighing 25 gm and 3 packets of ash each packet contains of 10 gm were handed over to him which were properly sealed. The above fact is recorded in the register at Sr. No. 99, dated 30.10.2011. In cross-examination, this witness remained firm. Nand Kumar Das (PW-3), Assistant Sub-Inspector, who was posted as Reader of Sub-Divisional Officer (Police) Saraipali, received secret information (Ex.P/1) and sent memo (Ex.P/2) information regarding completion of seizure proceeding (Ex.P/5). Sewakram 7 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 Dhruv (PW-4) has conducted investigation and he has exhibited all the relevant documents. In cross-examination, he has denied the suggestions given by the defence. From his evidence, it is apparent that he has complied the mandatory provisions of NDPS Act and in cross-examination, the defence has not brought contravention of any of the mandatory provisions of NDPS Act. The defence has not put any question regarding violation of the Standing Order No.1 of 1988 dated 15.3.1988. No question has been put regarding non- compliance of sampling procedure. Further, from evidence of this witness, it is quite vivid that total 21 packets were seized from the appellants and from all packets samples were taken and 3 packets of 10-10 gm were prepared. Thereafter, the article was burnt and by its smell and taste it was found as ganja. From seized packets, samples of 25-25 gm, total 6 packets were taken separately and this process has been described by this witness in his examination- in-chief. This witness has also stated that the seized contraband and the samples were properly sealed and the articles were handed over in the safe custody. In cross-examination paragraph 10 this witness has stated that there was no weight of 25 gm but weight of 50 gm was available, therefore, 50 gm of ganja was weighed and it was divided in two parts to make sample packets of 25 gms. The defence has not asked any question regarding illegal seizure or illegal sampling method. Bharat Lal Bariha (PW-5) has stated in his evidence that his weighing scale was taken by the police vide Ex.P/20 and ganja was weighed. In cross-examination, he has 8 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 stated that the weighing scale was in his hands whereas the articles were being weighed by the police. Thus, this witness has supported the case of the prosecution. Anil Kumar Manjhi (PW-6), Constable has put his signature over Ex.P/1 the secret information and its receipt. Bablu Behra (PW-7), who is witness of Ex.P/9, P/10, P/12, P/13, P/14, P/16, P/17, P/18, P/19, P/20, P/21, P/22, P/23, P/24, P/28, P/29, P/30 & Article-A/1 & 2, has admitted his signatures upon these documents. He has stated that a vehicle was intercepted by the police at Banjari Barrier. In paragraph 2, he has stated that he does not recognize the appellants. He has denied that he is not aware of the seizure of ganja and vehicle used for its transportation but he has stated that in seized bags there was ganja. He has further stated that he does not remember the quantity of ganja. He has also stated that all the signatures on the exhibited documents were put by him at Banjari Barrier. He was declared hostile and when suggestion was given by the counsel for prosecution he has admitted that when he reached at the place of incident the vehicle was stopped and the ganja was already seized and all the accused persons were near the car. He has admitted all the proceedings conducted by police. In cross-examination, he has admitted the photographs i.e. Article A/1 & 2 as they were taken by a camera man. Likewise, Sarthi Sao (PW-8) has admitted his signature but has not supported the case of the prosecution. Satish Kumar Khairwar (PW-9), Constable has stated that on 2.11.2011 vide Ex.P/33, he has handed over the sealed packets to the FSL 9 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 Laboratory. In cross-examination, no relevant question has been put to this witness.
10. The main contention of learned counsel for the appellants is that the independent witnesses have not supported the case of the prosecution and there is illegality in sampling. They would further submit that the provisions under Section 313 of the Cr.P.C. have not been complied with. Statements of Vishnu Barik (PW-1), Nilamber Singh Netam (PW-2) and Nand Kumar Das (PW-3) have not been put before the accused persons. He has placed reliance upon the judgments of Hon'ble Supreme Court in the case of Sanjeet Kumar Singh alias Munna Kumar Singh vs. State of Chhattisgarh1 Union of India vs. Bal Mukund2, Noor Aga vs. State of Punjab3, Mohan Lal vs. State of Punjab4, Jai Prakash Tiwari vs. State of M.P.5,
11. Considering the first argument of the appellants that the independent witnesses have not supported the case of prosecution. In the present case Bablu Behra (PW-7) and Sarthi Sao (PW-8) have been examined as seizure witnesses. Both the witnesses have admitted their signature upon (Ex.P/9, Ex.-P/10) copy of notices, Panchnama Ex. P/12, Search Panchnama (Ex.P/13, P/14 and P/15), seizure memo (Ex. P/16), Identification memo (Ex. P/17), Weight Verification Panchnama (Ex P/19), Weight Panchnama (Ex. P/20), Sample Panchnama (Ex. P/21), Property Seizure Memo (Ex. 1 2022 SCC OnLine SC 1117 2 (2009) 12 SCC 161 3 (2008) 16 SCC 417 4 (2018) 17 SCC 627 5 (2022) SCC OnLine SC 966 10 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 P/22 to Ex. P/24), Arrest Memo (Ex. P/28 to P/30) and Article A/1 and A/2, Photographs. Thus, it is not a case where both the witnesses have not supported the case of prosecution at all.
12. Further, on the basis of evidence of the police officials/police witnesses aware to the facts of the case, conviction can be recorded. The Hon'ble Supreme Court in the case of Rizwan Khan vs. State of Chhattisgarh6, has held in para 12, 13 and 14 is as under:-
"12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non- corroboration, by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [ see Pardeep Kumar [State of H.P. v, Pardeep Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420].
13. In the recent decision in Surinder Kumar V. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767], while considering somewhat similar submission on non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under: (SCC p.568) "15. The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. Stte of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191], relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.
6 2020 (9) SCC 627 11 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019
16. In State (NCT of Delhi) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652 : 2001 SCC (Cri) 248], it was held as under: (SCC p. 655) 'It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature."
14. Applying the law laid down by this Court on the evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials."
13. The case cited by learned counsel for the appellants to the effect that independent witnesses have not supported the case, i.e., Sanjeet Kumar Singh alias Munna Kumar Singh vs. State of Chhattisgarh (supra) is distinguishable from the present case as the independent witnesses have not completely deviated from the prosecution case. They admitted their signature and thus proved some parts of the investigation. Further, Bharat Lal Bariha (PW-5), witness of weighing measurement of contraband has supported the case of the prosecution. He has admitted that he was present at the time of weighing of the contraband. Thus, it cannot be said that all the independent witnesses have not supported the case of the prosecution.
12Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019
14. The next ground raised by the learned counsel for the appellants is with regard to non-compliance of the sampling procedure under the Standing Order No.1 of 1988, particularly clause 1.6, which says as under:-
"1.6 Quantity of different drugs required in the sample
- The quantity to be drawn in each sample for chemical test should be 5 grams in respect of all narcotic drugs and psychotropic substances except in the cases of Opium, Ganja and Charas/Hashish where a quantity of 24 grams in each case is required for chemical test. The same quantities should be taken for the duplicate sample also. The seized drugs in the packages/containers should be well mixed to make it homogeneous and representative before the sample in duplicate is drawn."
They have placed reliance on the matter of Amin Fidel Chris vs. Narcotics Control Bureau7 and Union of India vs. Bal Mukund and others (supra) and would submit that the Standing Orders are mandatory in nature and non-compliance of these Standing Orders would be fatal for prosecution. Sewakram Dhruv (PW-4), the Investigating Officer has stated that total 21 packets were seized and samples were taken from all packets. Three packets of 10-10 gms. were prepared and the article was burnt, whereas, six packets of 25-25 gms. were taken separately for chemical examination. The samples packets were sealed properly and kept in safe custody. From the language of the Standing Order 1.6 it appears that in case of Ganja a quantity of 24 gms. should be taken for chemical test in each case. In the present case the Investigating Officer has taken 7 2020 SCC OnLine Del 2080 13 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 sample from all packets, mixed it and prepared six sample packets of 25 gms. and thus there is compliance of this Standing Order. In cross-examination the defence has not put any suggestion or question to the Investigating Officer regarding non-compliance of the Standing Order 1.6 which deals with the sampling procedure. The learned counsel for the appellants are raising this issue first time before this Court and moreover, from the evidence it appears that the Investigating Officer has complied the requirement of the Standing Order 1.6. Therefore, the decision cited by learned counsel for the appellants are of no help.
15. The other submission of learned counsel for the appellant is that, the sample sent for FSL is doubtful. Nilamber Singh Netam (PW-2) who was In-charge of Malkhana has stated in his examination-in- chief that the seized contraband was handed over to him to keep it in safe custody. He has further stated that the seized article was properly sealed and Ex. P/3 was reduced in writing in this regard. Total 31.600 kg Ganja in five gunny bags were handed over to him in sealed condition and six sample packets weighing 25-25 gms. and three packets of 10-10 gms. were also handed over to him. Satish Kumar Kairwar (PW-9) has stated that on 02-11-2011, he had taken six sample packets of the contraband along with memo Ex. P/32 and copy of the FIR in which the specimen of seal was affixed. The receipt was given by the State Forensic Lab which is Ex. P/33. In cross-examination only one question was asked that there is no single weight of 25 gms. exist. No question was asked 14 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019 by the defence as to when he had collected the contraband from Malkhana, when he proceeded for Forensic Lab and when the contraband was handed over to the lab. The learned counsel for the appellants have cited judgment of the Hon'ble Supreme Court in the matter of Mohan Lal vs. State of Punjab (supra) where it is held that the samples should be sent either by insured post or through special messenger duly authorised for the purpose. Dispatch of samples by registered post or ordinary mail should not be resorted to. Samples must be dispatched to the Laboratory witnin 72 hours of seizure to avoid any legal objection.
In the present case the article was seized on 30-10-2011 at 13:00 Hrs. and samples were deposited with the Forensic Laboratory on 02-11-2011 within 72 hours.
16. The last submission of the appellants is that the provisions of Section 313 of the Cr.P.C. have not been complied with. The learned counsel for the appellants would submit that the statements of Vishnu Barik (PW-1), Nilamber Singh Netam (PW-2) and Nand Kumar Das (PW-3) have not been put before the accused persons. Further, other bundled questions have been asked under Section 313 of the Cr.P.C. which is not permissible.
17. Vishnu Barik (PW-1) is a witness of secret information (Ex. P/1) and the memo sent to the Sub-Divisional Officer (Police) Saraipal (Ex. P/2). Nilamber Singh Netam (PW-2), Head Constable and In-charge Malkhana to whom the seized contraband and the samples were handed over and its entry was made in the Malkhana Register (Ex. 15 Cr.A. No. 1088 of 2013 & Cr.A. No.1612 of 2019
P/4C). Nand Kumar Das (PW-3) is witness of secret information (Ex. P/1) who was posted on the post of Reader in the office of Sub- Divisional Officer (Police) and he had received the secret information (Ex. P/1) and memo issued in this regard, Ex. P/2 and further the memo regarding compliance of the investigation, Ex. P/5. The question No.1 in examination of the accused under Section 313 of the Cr.P.C. is with regard to the secret information, Ex. P/1 dated 30-10-2011, question No. 3 is with regard to Ex. P/2 information given to the office of Sub-Divisional Officer (Police) Saraipali. Again question No.5 is with regard to Ex. P/1 and P/2. The question No.6 is with regard to Ex. P/5 regarding compliance of the investigation. Thus, the documents issued, signed or sent by these witnesses have been put to the accused persons, therefore, the ground raised by the appellants regarding non-compliance of Section 313 of the Cr.P.C. is not made out.
18. Considering the above aspect of the matter discussed above and the judgments passed by the Hon'ble Supreme Court we have no hesitation to hold that there is no infirmity or illegality in the judgment of conviction and order of sentence recorded by the learned trial Court. In the result, both these criminal appeals are liable to be and are hereby dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rakesh Mohan Pandey)
Judge Judge
Nimmi/Aadil