Chattisgarh High Court
Jaichand @ Chhotu vs State Of Chhattisgarh 67 Acqa/161/2015 ... on 7 March, 2018
Bench: Pritinker Diwaker, Sanjay Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 500 of 2011
Jaichand @ Chhotu, S/o Sukhchand Rajak, aged 23 years,
Occupation - Driver, R/o Village Bagrar, PS Marvahi, Distt.
Bilaspur (CG)
---- Appellant
Versus
State Of Chhattisgarh through District Magistrate, District-
Dhamtari (CG)
---- Respondent
For Appellant : Shri Dhirendra Pandey, Advocate. For Respondent/State : Shri Adil Minhaj, Panel Lawyer.
Hon'ble Shri Justice Pritinker Diwaker Hon'ble Shri Justice Sanjay Agrawal Judgment On Board By Justice Pritinker Diwaker 07/03/2018 This appeal arises out of the judgment of conviction and order of sentence dated 11.5.2011 passed by the Special Judge (NDPS Act), Dhamtari in Special Criminal Case No. 09/2010, convicting the accused/appellant under Section 20(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act and sentencing him to undergo RI for 15 years and to pay a fine of Rs.1 lac, in default whereof to suffer additional RI for five years.
02. Facts of the case in brief are that on 2.2.2010 when the Sub Inspector of Crime Branch-Dhamtari Shri Ramesh Sahu (PW-9) was on 2 patrolling duty, he received a secret information that one white Maruti Aulto is coming from Nagri to Dhamtari carrying contraband in the same. The secret information panchanama Ex.P/21 was prepared and copy of the same was forwarded to superior officer Dy.S.P., Dhamtari vide Ex.P/1. Two independent witnesses were called by giving notice Ex.P/18. At 12.35 noom Maruti Car bearing registration No. CG 04/B/6437 was intercepted near Kukrel Banspara and the accused/appellant was found sitting in the driving seat. He disclosed his identity as Jaichand @ Chhotu. Notice under Section 50 of the Act was given vide Ex.P/10, the appellant gave his consent vide Ex.P/11, and the police party gave their search vide Ex.P/2. When the vehicle was searched vide Ex.P/12, in 17 gunny bags contraband was found, the same was tested through tasting, smelling, rubbing and burning and found to be ganja vide Ex.P/13 and seized vide Ex.P/14. After physical verification of the weighing machine vide Ex.P/3, the contraband was weighed and it came to be 203.5 kg vide Ex.P/4. Representatives samples, 34 in number, each of 50 gm, were drawn vide Article A-A1 to Q-Q1 after homogenization of the same. Notice under Section 91 of CrPC being given to the appellant vide Ex.P/22, the appellant failed to produce any licence to transport the contraband. Dehati Nalishi Ex.P/23 was recorded at 5.45 pm against the appellant on 2.12.2010 under Section 20(b) of the Act. The appellant was arrested at 6.20 pm vide Ex.P/16 on 2.12.2010. Spot Ex.P/17 was prepared, based on Dehati Nalishi after reaching police station FIR (Ex.P/5) was registered against the appellant under Section 20(b) of the Act. The seized articles including the samples were deposited in 3 the Malkhana vide Ex.P/19C on 2.12.2010. On 3.12.2010 information was sent to higher official vide Ex.P/26. Vide Ex.P/27 the seized articles were sent to FSL on 8.12.2010 in duly sealed condition which was received by FSL on the same day. As per FSL report Ex.P/29 the contraband was confirmed to be ganja. After completion of usual investigation, charge sheet was filed against the appellant under Section 20(b) of the Act and thereafter, charge was framed accordingly by the trial Court.
03. So as to hold the accused/appellant guilty, the prosecution examined 9 witnesses in all. Statement of the accused was also recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.
04. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellant as mentioned in para- 1 of this judgment.
05. Learned counsel for the appellants submits as under:
(i) that there is non-compliance of Sections 42, 50, 55 & 57 of the Act.
(ii) that in the Malkhana register there is no entry as to on what date the samples were drawn.
(iii) that in the Malkhana, sample seal has not been deposited.4
(iv) that in the Malkhana record there is no mention that the samples so drawn were duly sealed.
(v) that from total seized quantity of ganja, after drawing 34 samples, the remaining contraband was not weighed again.
(vi) that while weighing contraband the gunny bags have also been weighed whereas the prosecution was required to weigh only seized contraband and it was incumbent on the part of the prosecution to mention as to what was the separate weight of gunny bags.
(vii) that ownership of the vehicle has not been proved by the prosecution.
(viii) that in the seizure memo name of owner of the vehicle has not been mentioned.
(ix) that there is discrepancy in showing the time of stopping the vehicle. According to the police, the vehicle was intercepted at 12.30 noon whereas as per independent witness PW-5, it was at 12.45 to 12.50 noon.
(x) that the seized contraband was not produced in the Court by the prosecution.
06. On the other hand, supporting the impugned judgment it has been vehemently argued by learned counsel for the State as under:
that Section 42 of the Act is not applicable as the vehicle was apprehended during transit.5
that present is not a case of personal search and therefore, provisions of Section 50 of the Act would not be attracted.
in respect of compliance of Section 55 of the Act it has been argued that from Ex.P/19 and P/19C, it is clear that the seized articles were duly deposited in the Malkhana in safe custody.
in respect of Section 57, it has been argued that information was sent vide Ex.P/26 to the superior officer.
that impression of the seal was also sent to FSL and the same has been mentioned in the seizure memo Ex.P/14.
as per Ex.P/29 i.e. FSL report, the seal was found intact in all 34 samples.
from the order sheet dated 8.4.2011 of the trial Court it is apparent that the entire seized contraband including the samples were produced before the Court.
07. Heard counsel for the respective parties and perused the material on record.
08 PW-1 Jamvant Deshmukh, Head Constable, while supporting the prosecution case has stated that after receiving the secret information he took the same to the office of Dy.S.P., Dhamtari and handed over the same to the Reader. PW-2 Prahlad Banchhor, while supporting the prosecution case has stated that he was member of the patrolling party and after receiving secret information, one Maruti car was 6 apprehended, the appellant was found sitting in the driving seat who disclosed his name as Jaichand @ Chhotu and after completing the necessary formalities, the vehicle was searched, on which in 17 gunny bags contraband was found. He further states that physical verification of the weighing machine was done vide Ex.P/3, all the gunny bags were weighed separately and total weighment came to be 203.500 kg. Thereafter, homogenization of the contraband was done, total 34 samples were drawn from it and after marking them the same were duly sealed. The police party reached Police Station - Arjuni where Dehati Nalishi was recorded and FIR was registered under Section 20(b) of the Act vide Ex.P/5. The seized articles were deposited in the Malkhana.
09. PW-3 Kumbhkaran Netam, Reader to Dy.S.P., Dhamtari, has proved receipt of secret information in the office of Dy.S.P. vide Ex.P/6. PW-4 SR Nirmalkar registered the regular FIR. He has stated that seized contraband were sent to FSL on 8.12.2010 and on 9.12.2010 the acknowledgement was submitted vide Ex.P/7. PW-5 Rakhram, independent witness, has duly supported the prosecution case and has described the entire proceedings conducted by the police authorities. He has stated as to how the weighment was done, samples were drawn and how the mandatory provisions of the Act were followed. PW- 6 Bhunuram Verma, Police Constable, was a member of the patrolling party. He has also duly supported the prosecution case. PW-7 Khileshwar Kujur took the samples to FSL and received acknowledgement thereof vide Ex.P/7. PW-8 SL Sinha, Malkhana Muharrir, has proved the Malkhana register. He, however, admits that 7 there is no mention as to on what date the seized samples were sent to FSL but states that as per receipt dated 9.12.2010 samples were deposited in the FSL.
10. PW-9 Ramesh Sahu, investigating officer, has stated that on 2.12.2010 he along with police staff was on patrolling duty when he received a secret information that one white Maruti Aulto is coming from Nagri to Dhamtari carrying contraband in the same, on which secret information panchanama Ex.P/21 was prepared, copy of the same was forwarded to superior officer Dy.S.P., Dhamtari vide Ex.P/1; two independent witnesses were called by giving notice Ex.P/18; search without warrant panchanama was prepared vide Ex.P/9 in presence of witnesses; at 12.35 noom Maruti Car bearing registration No. CG 04/B/6437 was intercepted near Kukrel Banspara; the accused/appellant was found sitting in the driving seat and on being enquired he disclosed his identity as Jaichand @ Chhotu. On notice under Section 50 of the Act being given vide Ex.P/10, the appellant gave his consent vide Ex.P/11, and the police party gave their search vide Ex.P/2. When the vehicle was searched vide Ex.P/12, in 17 gunny bags contraband was found, the same was tested through tasting, smelling, rubbing and burning and found to be ganja vide Ex.P/13 and seized vide Ex.P/14. After physical verification of the weighing machine vide Ex.P/3, when the contraband was weighed it came to be 203.5 kg vide Ex.P/4; from which representatives samples, 34 in number, each of 50 gm, were drawn vide Article A-A1 to Q-Q1 after homogenization of the same. However, on notice under Section 91 of CrPC being given to the appellant vide Ex.P/22, he failed to produce any licence to 8 transport the contraband. Dehati Nalishi Ex.P/23 was recorded at 5.45 pm against the appellant on 2.12.2010 under Section 20(b) of the Act. The appellant was arrested at 6.20 pm vide Ex.P/16 on 2.12.2010. Based on Dehati Nalishi after reaching police station FIR (Ex.P/5) was registered against the appellant under Section 20(b) of the Act. The seized articles including the samples were deposited in the Malkhana vide Ex.P/19C on 2.12.2010 and on 3.12.2010 information was sent to higher official vide Ex.P/26. Vide Ex.P/27 the seized articles were sent to FSL on 8.12.2010 in duly sealed condition which was received by FSL on the same day. As per FSL report Ex.P/29 the contraband was confirmed to be ganja. In cross-examination he remained firm and denied all the adverse suggestions.
11. Close scrutiny of the evidence makes it clear that acting upon the secret information on 2.2.2010 Ramesh Sahu (PW-9), who was on patrolling duty along with other staff, intercepted the vehicle in question, in which the appellant was found sitting in the driver seat and after making him aware of the secret information and giving notice under Section 50 of CrPC, when his vehicle was searched and in 17 gunny bags ganja like substance. After examination of the contraband by testing, smelling, burning and rubbing, it was found to be ganja. From the unrebutted oral and documentary evidence, it is noticed that soon after getting secret information, a panchanama was prepared in this respect vide Ex.P/21 and copy of the same was forwarded to superior officer Dy.S.P., Dhamtari vide Ex.P/1. PW-1 Jamvant Deshmukh, Police Constable, and PW-3 Kumbhkaran Netam, Reader to D.S.P, have proved the same.
9
PW-9 Ramesh Sahu, I.O., has stated that notice under Section 50 of the Act was given to the appellant vide Ex.P/10, which bears his signature as also the signature of PW-5 Rekhram and one Bhuneshwar, on which the appellant gave his consent vide Ex.P/11 to be searched by the police and on search of the vehicle Ex.P/12, in 17 gunny bags contraband was found. Before search of the accused/appellant and his vehicle, search of the members of police party and the witnesses (PW-5 and one Bhunshwar) was made vide Ex.P/2, on which nothing objectionable was found in their possession. PW-5 and PW-9 have duly supported the prosecution case on this point. Proceedings regarding weighment of the contraband and drawing of representative samples have also been duly proved by the independent witness PW-5 Rekhram and PW-2 Prahlad Banchhor. Further, as per PW-9 Ramesh Sahu when the appellant was given notice under Section 91 of CrPC vide Ex.P/22, the appellant failed to produce any licence to transport the contraband. This part of evidence of PW-9 remains unchallenged in his cross-examination. Thus, from the above oral and documentary evidence, it stands proved beyond reasonable doubt that on the date of incident 203.500 kg of ganja was seized from the conscious and exclusive possession of the appellant.
12. As regards compliance of Section 42 of the Act, admittedly, the secret information was received by the police while they were on patrolling duty and therefore, having received such information, apprehending the escape of the accused and concealment of evidence of the offence, the accused was intercepted for being checked and searched without obtaining warrant. In such circumstances, it is not 10 mandatory to make strict compliance of the provisions of Section 42 of the Act. In the matter of Hamidbhai Azambhai Malik (supra) the Supreme Court observed as under:
12. The search was made by the raiding party at about 4.30 P.M. on 15. 12.1995. Section 42 will be invocable only if the search is made by the police officer or the concerned authority, upon the prior information. If such a person has reason to believe from personal knowledge or information given by any person and obliged to take down in writing as such the information about the accused having possessed of and dealing with contraband article like 'charas' came to be appraised of by the concerned PSI Mr. K,D,Pandya, LCB Branch of Bharuch Police Station, in course of his investigation of an offence, registered vide CR No.II-135 of 1995. Therefore, it is settled proposition of law when such an information or intimation or knowledge comes to the notice of the Investigating officer in course of the regular patrolling or an investigation of some other offence, it is not necessary to follow in all cases the conditions incorporated in Section 42.
13. However, it may also be noted that by way of abundant precaution, the PSI Mr. Pandya though he was investigating the offence registered with CR No. 135 of 1995 under the NDPS Act, upon receipt of an intimation or information about the present offence, also noted down such an information taken down in writing, which is produced at Exh. 30, and such information was transmitted through a messenger immediately to the higher officers. Not only that this part of the procedure, by way of abundant precaution, exercised and followed by the PSI, is also manifestly recorded in the complaint at 11 Exh.32.
13. In the matter of Sukhdev Singh Vs. State of Haryana, reported in (2013) 2 SCC 212, the Supreme Court while dealing with the applicability of Section 42 of the Act, held as under:
"15. Section 42 can be divided into two different parts. First is the power of entry, search seizure and arrest without warrant or authorisation as contemplated under sub-section (1) of the said section. Second is reporting of the information reduced to writing to a higher officer in consonance with sub-section (2) of that section. Sub- section (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by the Parliament vide Act 9 of 2001 with effect from 2nd October, 2001. After amendment of this sub-section, the words 'forthwith' stood amended by the words 'within 72 hours'. In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within 72 hours from the time of receipt of information. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated under the amended sub-section (2) of Section 42. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more meaningful. In the present case, the information was received by the empowered officer on 4th February, 1994 when the unamended provision was in force. The law as it existed at the time of commission of the offence would be 12 the law which will govern the rights and obligations of the parties under the NDPS Act."
14. Notice was given to the accused under Section 50 of the Act and after obtaining his consent where he agreed for his personal search as also for search of the vehicle from the police, the search was made and in 17 gunny bags certain objectionable thing was found, which was later on confirmed to be ganja. So far as compliance of 50 of the Act is concerned, a bare reading of the said section makes it clear that provisions of this section do not apply to any search or seizure where the article was not being carried on the person of the accused. It can be invoked only in cases where the drug/narcotic substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted.
15. In the matter of Makhan Singh Vs. State of Haryana reported in (2015) 12 SCC 247, the Supreme Court considering the scope of Section 50 of the Act, held as under:
"14. A Constitution Bench of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, while dealing with the scope of Section 50 of the NDPS Act, had emphasized upon the aspect of availability of right of an accused to have 'personal search' conducted before a Gazetted Officer or a Magistrate and held as under:
"32...The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible- it cannot 13 be disregarded by the prosecution except at its own peril.
33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial."
15. Compliance with Section 50 of the NDPS Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which the accused may be carrying ought to be searched. In State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, this Court in Para (11) has held as under:
"11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."
The same view was reiterated in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746.
16. In the present case, since the vehicle was searched and the contraband was seized from the vehicle, compliance with Section 50 of the NDPS Act was not required. In the absence of independent evidence connecting the appellant with the fitter- rehra, mere compliance with Section 50 of the NDPS Act by 14 itself would not be sufficient to establish the guilt of the appellant. It is a well-settled principle of the criminal jurisprudence that more stringent the punishment, the more heavy is the burden upon the prosecution to prove the offence. When the independent witnesses PW1 and DW2 have not supported the prosecution case and the recovery of the contraband has not been satisfactorily proved, the conviction of the appellant under Section 15 of the NDPS Act cannot be sustained."
16. Thus, in view of the above settled legal position, if the evidence of the present case is examined, it stands proved that the prosecution while effecting search and seizure has duly complied with the provisions as contained in Sections 42 and 50 of the Act.
17. As regards compliance of Sections 55 & 57 of the Act, from the oral and documentary evidence on record it is clear that after drawing samples, the samples and seized contraband were duly sealed, specimen seal was also affixed in seized contraband as well as the samples and the seizure memo. The seized contraband as also the samples were deposited in the Malkhana. As per PW-8 SL Sinha, all the gunny bags and the samples were duly sealed and were deposited in the Malkhana in sealed condition vide Ex.P/19C. PW-9 Ramesh Sahu has also stated that the sealed samples, 34 in number, were sent to FSL for examination and entry to this effect was made in the Rojnamchasanha vide Ex.P/27 and receipt of the same was obtained on 9.12.2010 vide Ex.P/28. PW-9 Ramesh Sahu has further stated that having found the offence under Section 20(b) of the Act being substantiated, he registered the same vide Ex.P/23 and arrested the appellant vide Ex.P/16. After completing the necessary formalities he 15 returned to Police Station and reduced the entire proceeding in writing in Rojnamchasanha vide Ex.P/25 and forwarded a report thereof to the office of Dy.S.P., Dhamtari on 3.12.2010 vide Ex.P/26C. In cross- examination, the defence could not point out anything which could suggest that there was non-compliance of the provisions of Section 57 of the Act. Thus, it cannot be said that there was any chance of tampering with the samples, contraband or the seal, and from the above, it is clear that the prosecution has duly complied with the provisions of Sections 55 & 57 of the Act.
18. So far as argument of the appellant that the seized contraband was not produced in the Court is concerned, the same is contrary to the record because as per order sheet dated 8.4.2011 of the trial Court it is clear that the seized contraband including the samples were produced before the Court.
19. So far as argument regarding separate weighment of the gunny bags and the contraband is concerned, even if it is assumed that separate weighment was not done by the police, it hardly makes any difference in the quantity of the contraband because from the possession of the appellant a huge quantity of ganja i.e. 203.500 kg was seized and if the weight of the gunny bags is deducted from it, even then the quantity would be much more than the commercial quantity.
20 Thus, having examined the overall evidence, oral and documentary, available on record in light of the aforesaid principles of law laid down by the Supreme Court, it stands proved beyond all 16 reasonable doubt that it is the appellant who was found in illegal possession of huge quantity of contraband-ganja and as such, findings recorded by the trial Court holding him guilty under Section 20(ii)(C) of the Act cannot be faulted with and is hereby affirmed.
21. In the result, the appeal being without any substance is liable to be dismissed and is hereby dismissed. Appellant is reported to be in jail, therefore, no further order regarding his arrest/surrender etc. is required to be passed.
Sd/ Sd/
(Pritinker Diwaker) (Sanjay Agrawal)
Judge Judge
Khan