Chattisgarh High Court
Bhura Kole vs State Of Chhattisgarh on 14 December, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 703 of 2003
• Bhura Kole S/o Chaitu Kole, Aged about 20 years, R/o Vill. Bagdara,
P.S. University Rewa, Distt. Rewa, [M.P.]
---- Appellant
Versus
• State Of Chhattisgarh Through P.S. Govt. Railway Police, Bilaspur
[C.G.]
--- Respondent
For Appellant : Shri Vijay Shankar Mishra, Advocate. For Respondent/State: Shri Pawan Kesharwani, Panel Lawyer.
Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 14/12/2023
1. This appeal arise from the judgment of conviction and order of sentence dated 17-06-2003 passed in Special Criminal Case No.10/2002 by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985/Additional Sessions Judge Bilaspur, Chhattisgarh convicting the appellant under Section 20(b)(ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and sentencing him with R.I. for 4 years along with fine Rs.5,000/- in default of payment of fine, further R.I. for one year.
2. The case of the prosecution, in brief, is this, the Station House Officer, Police Station G.R.P., Bilaspur received a secret information on 09.01.2002 at about 20:35 hours that two person of dark complexion who were wearing full-pant and jerkin aged about 20-22 years and one wearing black cap are coming from 322 down Nagpur Tata passenger 2 to Bilaspur carrying Ganja with them in a black colour bag. The secret information was recorded by the Station House Officer in Rojnamcha Sanha No.600 dated 09.01.2002 and prepared Mukhbir Suchna Panchnama in presence of the witnesses. Another Panchnama with respect to non-obtaining the search warrant due to lack of sufficient time was also prepared and information received from the informer was communicated to the Department, SRP Raipur through the telephone and copy of the panchnama was sent to the Superintendent of police (Rail) Raipur and thereafter, he along with other officials and witnesses went to the platform No.1. When the train reached on the platform No.1 the appellant deboarded from the train from general bogie 6233 having black colour bag in his hand and wearing the same clothes as the informer informed. On being asked by the Station House Officer he disclosed his name as Bhura Kole S/o Chaitu Kole R/o Village Bagdara, District Rewa (M.P.). Information under Section 42 of the NDPS Act was given and his right to search has been informed upon which the appellant has given his consent for his search from the said Station House Officer. The Station House Officer gave his own search and other witnesses, staff gave their search to the appellant and no any objectionable item were found. Thereafter, upon search of the bag of the appellant brown coloured substance was found kept in a plastic bag. After due physical test it was found to be Ganja and upon weighment of the same total weight comes to 10 Kg. Out of total 10 Kg. Ganja, 100 gram was taken out for its sample and the sample was sealed separately and the remaining Ganja was also sealed and he prepared its memo separately.
The appellant was taken to the police station along with the seized Ganja. The reason for his arrest was informed and the 3 appellant was arrested and sealed packet of Ganja and sealed sample were kept in Malkhana through Malkhana Muharrir. The FIR was registered against the appellant. Statement of witnesses were recorded under Section 161 of the Cr.P.C. Seized sample of Ganja was sent to the FSL examination to obtain report, which confirmed that the seized article was Ganja. After completion of the investigation charge sheet under Section 20(b)(ii)(B) of the NDPS Act was filed before the Special Judge under the NDPS Act, Bilaspur.
3. On 17.04.2002 charge under Section 20(b)(ii)(B) of the NDPS Act has been framed against the appellant. The appellant abjured his guilt and pleaded innocence and claimed trial.
4. In order to establish the charge against the appellant the prosecution has examined as many as 6 witnesses. The statement under Section 313 of the Cr.P.C. has been recorded in which the appellant denied the material appeared against him in the case and he pleaded innocence and stated that he has been falsely implicated in the case.
5. After appreciation of the evidence available on record, the trial Court has convicted and sentenced the appellant as mentioned in para No.1 of this judgment. Hence this appeal.
6. Learned counsel for the appellant would submit that the appellant is innocent and he has been falsely implicated in the offence. No offence is made out against the appellant as alleged. The mandatory provisions of Section 42, 50, 55 and 57 of the NDPS Act has not been complied with. The place from where the said Ganja is said to have been seized is a public place and there were so many persons present. He would further submit that the bag from which the Ganja is said to have been seized does not belong to the present appellant it is belonging to someone else. He was standing nearby the bag, 4 therefore, on apprehension the police has caught him on suspicion that the bag belonged to the appellant and conduct the entire search.
7. On the other hand, learned counsel for the State opposes the submission made by learned counsel for the appellant and submits that all the mandatory provisions of the NDPS Act have been complied with. The appellant was holding the bag when he deboarded the train and before search all his rights were informed to him for conducting the search and the trial Court has rightly convicted the appellant and there is no need to interfere with the impugned judgment of conviction and sentence.
8. I have heard learned counsel for the parties and perused the record.
9. A.K.Som (PW-1) who was ASI and Reader, Raipur SRP office Raipur has stated in his deposition that on 10-01-2002 at about 17:20 hours Constable Samay Lal had come along with the intimation panchnama issued from the SHO GRP Bilaspur and he received the same and given acknowledgement which is Ex.-P/1 and Ex.-P/2. There is nothing in his cross-examination to disbelieve the evidence of this witness.
10. Similarly, Samay Lal (PW-2) has deposed that on 10-01-2002 he has taken envelops given by the SHO for its delivery to SRP Raipur and he has delivered the said envelopes to SRP Raipur.
11. Jagarnath Ram (PW-3) who is a Constable has taken the sample for examination to FSL, Raipur. He has stated that on 21-01-2002 the SHO has given him sealed packet, sealed envelop for its deposition to FSL Raipur and on the same day he has deposited it to FSL Raipur and his acknowledgement is Ex.-P/3. In cross-examination he has stated that the packets were received by him for its deposition at 09:45 a.m. on the same day he has deposited it with the FSL, Raipur.
12. R.L. Bada (PW-4) who is the Station House Officer of GRP, Bilaspur 5 and Investigating Officer of the case has stated that on 09-01-2002 at about 08:35 hours he received secret information that two persons are coming from 322 down Nagpur Tata passenger having Ganja along with them. After receiving the secret information the same has been recorded in Rojnamcha Sanha, which is Ex.-P/4C. The informers intimation was forwarded to the Superintendent of Police, Rail Raipur and obtained its acknowledgement. The original of the same is tagged with another case No.9/2002 and its photocopy is Ex.-P/1. Copy of postal receipt is Ex.-P/2. The panchnama of informers information is Ex.-P/5 in which his signature is there and signature of witnesses are also there in Ex.-P/5. The informer's information panchnama has been prepared at 21:00 hours and the copy of the same was sent through Constable Samay Lal Tandon vide Ex.-P/1. Since it was the time to reach the train at platform and there was no time to obtain search warrant, therefore, another panchnama was prepared in presence of the witnesses for search without warrant and entry has been made to that effect in Rojnamcha Sanha. The panchnama of search without warrant is Ex.-P/6, in which his signature and the signature of witnesses are there. Rojnamcha containing report of preparing panchnama regarding search without warrant is Ex.-P/7 and its copy is Ex.-P/7C. Thereafter, he left the police Station and went to the railway platform No.1 rojnamcha sanha to this effect is Ex.-P/8 and copy of the same is Ex.-P/8C. After reaching the train No.322 down Nagpur Tata passenger on the platform two persons as described by the informer having black colour bag in their hand and out of those two persons one is the present accused/appellant and they had kept separate bags. The present accused/appellant was having black colour bag. He informed him the informer's information and gave notice by informing 6 that he has right to be searched from him or any gazetted officer. Receipt of the said notice is Ex.-P/9 in which acknowledgement of the appellant is there. The appellant has given his consent for his search from him and since he was illiterate the sentence of his consent was written on Ex.-P/9 by witness Shiv Shrivas and the consent letter is Ex.-P/10 in which signature of the witnesses are there. He himself was searched by the appellant, the witnesses and staff were also searched by the appellant and the search panchnama Ex.-P/11 was prepared in presence of the witnesses. Upon search of the bag of the appellant Ganja was found which was kept in a white plastic bag and it was in wet condition. He himself has physically verified the article seized from the appellant that it is Ganja and physical verification report is Es.-P/12 was prepared in which signature of the witnesses are there. Upon its weighment Ganja was found to be 10 Kg. The weighment panchnama (Ex.-P/13) was also prepared in presence of the witnesses. Out of 10 Kg. Ganja, 100 gram Ganja was taken out for sample before the witnesses and wrapped in another paper and he sealed the sample packet as well as the remaining quantity of Ganja and seized the same. The seal which was used for sealing the sample as well as the Ganja was also impressed in the seizure memo Ex.-P/14 in which also the signatures of the witnesses are there and specimen seal was also impressed. After all these proceedings he returned back to the police station where FIR (Ex.-P/15) was recorded and handed over the sample packet of Ganja and remaining quantity of ganja which was sealed packet to the Head Constable for keeping it in Malkhana, which was acknowledged by him vide Ex.-P/16 and thereafter, an inventory was prepared and sent to the SRP, Raipur and obtained acknowledgement Ex.-P/2. Memo was got prepared for examination of 7 the seized article and sample for examination from the FSL, Raipur and it was sent for the same vide Ex.-P/17, from where acknowledgement Ex.-P/3 was obtained and the FSL report is Ex.- P/18. The appellant was arrested vide Ex.-P/19. In cross-examination the Investigating Officer remained firm and the defence could not elicit any point so as to disbelieve the statement of the Investigating Officer that he has acted malafidely or his deposition can be disbelieved on the ground that he has violated the mandatory provisions of the NDPS Act.
13. Anantram Sahare (PW-5) is Head Constable Muharrir at GRP Police Station Bilaspur and Malkhana In-charge, he has kept the seized sample of Ganja and remaining quantity of Ganja in sealed condition in Malkhana and made entry in the Malkhana Register which is Ex.-P/20. He has admitted in cross-examination that he was member of the team who has conducted raid in the platform. In cross-examination of this witness also there is nothing specific so as to disbelieve the evidence of this witness.
14. Santosh Kumar Yadav (PW-6) who is a witness of seizure has turned hostile and stated that on the instruction of police he has made his signature over documents.
15. From the statement of R.L. Bada (PW-4), Investigating Officer as also the statement of A.K.Som (PW-1), Samay Lal (PW-2), Jagarnath Ram (PW-3) and Anantram Sahare (PW-5) it is established that it is the appellant who was having black colour bag while deboarding the train which contained Ganja and the same was seized by the police from his conscious possession. The learned trial Court has rightly convicted the appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act, therefore, conviction of the appellant for said offence is upheld. 8
16. Now, the question is what would be appropriate sentence for the offence committed by the appellant. The trial Court has awarded R.I. for 4 years with fine of Rs.5000/- for commission of the offence. The appellant was remained in jail from 10-01-2002 to 17-06-2003 which comes to 1 year 5 months and 8 days and further from the date of judgment, i.e., 17-06-2003 to 30-07-2003 which is about 1 month and 13 days, therefore, total period undergone by the appellant is 1 year, 6 months and 21 days. Since the incident was of the year 2002 and he faced the criminal proceeding for more than 20 years, no fruitful purpose would be served if he is again sent jail for serving his remaining sentence and therefore, considering the period of detention, social status of the appellant, the appellant is sentenced for the period already undergone by him and the fine amount is enhanced to Rs.10,000/-. If the appellant fails to deposit the fine amount as ordered in this judgment within three months from the date of judgment, he shall have to undergo R.I. for six months in default of payment of fine. If the fine amount has already been deposited as ordered by the trial Court, the same may be adjusted in the fine amount of Rs.10,000/-.
17. The appellant is reported to be on bail. His bail bonds are continued for a period of six months as provided under Section 437-A of the Cr.P.C. The appeal is partly allowed.
Sd/-
(Ravindra Kumar Agrawal) Judge Aadil