Partly allowed

Deleted (Goutam Mandal) v. State of Chhattisgarh

Chhattisgarh HC13 Apr 2023CRA/937/2001

Case brief

AI extract

What is this about?

In an NDPS appeal challenging conviction and sentence, the High Court acquitted the appellant only regarding non-compliance of Section 50 for searching items on a vehicle. Upholding conviction against hostile witness testimony supported by IO statements and forensic evidence, the Court commuted the jail term to time already undergone but enhanced the fine.

What did the court decide?

Conviction maintained; jail sentence reduced to period already undergone; fine enhanced to Rs. 10,000/-.

Deleted (Goutam Mandal) Vs State of Chhattisgarh — Narcotics (NDPS) | Chhattisgarh HC (2023)

¶1

¶2

AFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

CRA No. 937 of 2001

¶5

Judgment Reserved on : 15.12.2022

¶6

Judgment Delivered on : 13.04.2023.

¶7

Gauram Mandal, son of Rameshwar Mandal, Aged about 22 years, Occupation Agriculture, resident of M.P. V. 33, Post Maranpalli, P.S. Kalimela, Distt. Malkangiri, Orrisa [Deleted, as per court order dated 01.09.2021]

¶8

B. Shekhar S/o B. Belswami Aged About 32 Years Occupation Tailoring, R/o Pututal, Vellore, P.S. Vellore Tamilnadu, Present Adress. -Faridhanagar, Near Bhilai Masjid, Supel, P.S. Supela, District Durg Chhattisgarh.

¶9

---- Appellants

¶10

Versus

¶11

State of Chhattisgarh Through P.S. Bodhghat District Jagdalpur Chhattisgarh.

¶12

---- Respondent

¶13

For Appellants : Mr. H. B. Agrawal, Sr. Advocate with Mr. Amit Tirkey, Advocate. For Res./State : Mr.Himanshu Kumar Sharma, Panel Lawyer

¶14

Hon'ble Shri Justice Narendra Kumar Vyas

¶15

(CAV Judgment)

¶16

This appeal is directed against the judgment of conviction and order of sentence dated 01.09.2001, passed by the Special Judge (N.D.P.S. Act), Bastar at Jagdalpur in Special Criminal Case No. 33/2001 whereby the accused/appellants have been convicted under Section 20(b)(1) of the

¶17

¶18

Narcotic Drugs and Psychotropic Substances Act (in short “NDPS Act') and appellant No. 1 has been sentenced to undergo rigorous imprisonment for 1 year and 6 months and to pay a fine of Rs.3,000/-, with default stipulation, whereas appellant No. 2 has been sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 4,000/- with default stipulation.

¶19

It is pertinent to mention here that appellant No. 1 – Gautam Mandal had died during pendency of the appeal, therefore, the appeal so far as it relates to appellant No. 1 stands abated in pursuance of the order passed by this Court on 01.09.2021.

¶20

As per prosecution case, on 28.05.2001 Mr. R. S. Netam Sub Inspector, Bodhghat Police Bus stand Chouki received secret information from informant that a bus bearing registration No. M.P.24/9088 was coming from Kota to Durg, in which two persons are sitting and carrying contraband ( ganja ). The said information was reduced to writing in Rojnamchasanha vide Ex.P/25 and forwarded to the C. S. P. Jagdalpur,vide Ex.P-23.

¶21

The police party along with witnesses went to the spot, apprehended the accused persons, gave them notices (Ex.P-1 and Ex. P/2) under Section 50 of the NDPS Act and made them aware of their legal rights, on which they consented to be searched by R.S. Netam, Sub-Inspector vide Ex.P-3. Personal search of the police party and the witnesses were also made by the appellants and nothing was found vide Ex.P/4. On search of the bag which was in possession of the appellant No. 1 and one carton which was in possession of appellant No. 2 carrying Ganja like substance were recovered and on being examined by smelling and burning, it was found to be Ganja

¶22

¶23

vide Ex. P-7. On weighment being done of the contraband, it was found to be 2.5kg from the possession of appellant No. 1-Gautam Mandal and 5kg from the possession of appellant No. 2 - B. Shekhar. Taul Panchanama Ex. P/8 and P/9 were prepared. Two samples, each of 24 gms, were drawn from the said contraband and seizure memo (Exs.P- 10 to 13) were prepared, the samples were duly sealed and kept in Malkhana and specimen of seal was affixed on the seizure memo vide Ex. P/14 and Ex. P/15. Mr. Netam, had asked both the accused persons regarding licence and gave them notice vide Exs. P/27 and P/28 but they both could not have the licence thereafter both the accused persons were arrested and spot map was prepared vide Ex.P-29. Intimation of the entire proceedings was forwarded to the C.S.P. Jagdalpur. After reaching police station, FIR (Ex.31) was registered against the appellants under Section 20(b) of the NDPS Act. The remaining contraband was deposited in Malkhana vide Ex. P/33, samples were sent to FSL for chemical examination, which was received by FSL on 28.08.2001 with intact seal and report of FSL is Ex.P-40, which confirms the seized contraband to the Ganja.

¶24

After investigation, charge sheet was filed against the accused/appellants under Section 20(B) of the NDPS Act. The Special Judge (N.D.P.S. Act) framed charge under Section 20(B) of the NDPS Act against them.

¶25

In order to bring home the guilt of the accused/appellants, the prosecution examined as many as 6 witnesses namely- Rampher Yadav (PW01), Seetaram (PW02), Jeevan (PW03), Guddu (PW04), S. R. Netam (PW05) and B. P. Joshi (PW06) and exhibited the documents Panchnama

¶26

¶27

from Goutam Mandal (Ex. P/1), Panchnama from B. Shekhar (Ex.P/2), Consent for search by both the accused person (Ex.P/3), search of the Police Party (Ex. P/4) search of the accused Goutam Mandal (Ex. P/5), search of the accused B. Shekhar (Ex. P/6), Identification panchnama (Ex.P/7) Taul Panchanama (Exs. P/8& P/9), Seizure panchanama (Ex. P/ 10), property seizure memo (Ex.P/11), seizure panchanama(P/12), Property seizure memo (Ex. P/13), Specimen seal panchanama(Ex.P/14), Specimen seal (Ex. P/15), arrest Panchnama (Ex. P/16), arrest memo(Exs. P/18 & P/19), statement of the witnesses(Ex. P.20), Mukhbir Soochna panchnama(Ex. P/21), Praroop 42(2) (Exs. P/22 &P/23) Rojnamchasana(Exs. P/24 & P/25(c)) bus ticket (Ex. P/26), notice (Exs.P/27 &P/28), Crime detail form(Ex. P/29), rojnamchasana (Ex. P/30(c)), FIR (Ex. P/31), rojnamchasana (Ex.P/32(c)), malkhana receipt (Ex. P/33), arrest information (Exs. P/34& P/35), grievous crime special report (Ex. P/36), and FSL report (Ex.P/40).

¶28

The statements of the accused/appellants were also recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. No defence witness has been examined on behalf of the accused/ appellants.

¶29

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 appellants as mentioned in first paragraph of this judgment.

¶30

Learned Sr counsel for the appellants would submit that the appellant No. 2 has been falsely implicated in crime in question, as there is no evidence

¶31

¶32

available on record to connect him with the appellant No. 1 in crime in question. He would further submit that Investigating Officer has not complied with the mandatory provisions of Sections 41, and 50 of the NDPS Act while making search & seizure of the alleged contraband Ganja. He would further submit that the seizure and other proceedings under the NDPS Act are performed in presence of the witnesses namely Seetaram (PW -2) and Jeevan (PW- 3) but both the witnesses have not supported the case of the prosecution and have been declared hostile. He also submits that fair investigation has not been done by the Investigating Officer while making seizure of contraband article and other proceedings against the appellant No. 2 and, therefore, the appellant No. 2 is entitled to be acquitted of the charges levelled against him. In support of his contention he has placed reliance on the judgments of the Supreme Court in the case of State of Punjab Vs. Balbir Singh reported in 1994 (3) SCC 299 and State of Punjab Vs. Baldev Singh , reported in 1999 (6) SCC 172 & Ismailkhan Aiyubkhan Pathan : Mustafakhan Abdulkhan Pathan: Dhanpal Singh B. Thakur v. State of Gujarat reported in 2000 (10) SCC 257; State of Haryana v. Vikram Singh reported in (2002) 2 SCC 676; Boota Singh & others v. State of Haryana reported in 2021 AIR (SC) 1913, Abdul Rashid Ibrahim Mansuri v. State of Gujarat, reported in (2000) 2 SCC 513.

¶33

Learned counsel for the State, while supporting the impugned judgment, submits that all the mandatory provisions of Sections 41 & 50 of the NDPS Act have been duly complied with by the prosecution while making search & seizure of alleged contraband Ganja, such as, notice under Section 50 of the NDPS Act was given to the appellants, thereafter, personal search of the

¶34

¶35

police party and the witnesses were also made by the appellants then consent was given by the appellants, therefore, the appellants have rightly been convicted & sentenced by the Trial Court, which does not call for any interference in the instant appeal.

¶36

I have heard learned counsel appearing for the parties and perused the material available on record including the impugned judgment.

¶37

In this case both the independent witnesses namely Seetaram (PW02) and Jeevan (PW03) of the seizure witnesses are declared hostile and they have not supported the case of the prosecution.

¶38

The prosecution in order to prove the guilt of the accused person has examined Rampher Yadav (PW01), who has narrated that the appellants were sitting in the bus bearing registration No. M.P.24/9088 which was coming from Kota to Durg and the police party has received secrete information that these persons were carrying contraband (ganja) with them. He has stated that 2.5kg contraband (ganja) was kept in a jhola (bag) which was in possession of Gotum Mandal and 5.0kg contraband (ganja) was kept in a Carton which was in possession of B. Shekhar. In his cross-examination he has stated that when the Sub-Inspector inspector R. S. Netam asked for search at the time he was there and heard it. When the accused person allowed him to search then only the search was made. The Accused persons were stated that they can be searched by Mr. R. S. Netam, Investigating Officer. He has stated that what I am saying is correct and identification was also carried out of the accused persons where he has rightly identified that one is Gautam Mandal and another is B. Shekhar.

¶39

The prosecution witness namely Seetaram (PW-2), who was seizure

¶40

¶41

witness of the alleged Ganja, has not supported the case of the prosecution and has turned hostile.

¶42

Another witness Jeevan (PW-3), who was rickshaw-puller, has narrated that how the incident took place and has stated that a carton and a bag were kept in the carrier above the seat of Bus where the accused persons were sitting, thereafter, both the accused persons got down from the Bus, thereafter, police party started search and on being search of that carton & Bag, smell of contraband article Ganja was coming out from that bag and carton and when it was measured, 2.5 kgs ganja was seized from bag whereas 5 kilograms ganja was seized from carton.

¶43

Sub-Inspector - S. R. Netam (PW-5), was examined and he has narrated the incident took place from the initial stage i.e. from the date when he has received information and to demonstrate that they have duly complied with the provisions contained in Sections 42 & 50 of the NDPS Act while making search & seizure of alleged ganja and documents to this effect were exhibited also. This witness has also been cross- examined by the defence. The Statements of the witnesses were recorded at the place of occurrence. It has further been stated that Dehati Nalishi was not recorded at the place of occurrence. He has also admitted that in the documents Exs. P-18 & P-19, it has not been mentioned that since the alleged contraband ganja was seized from the possession of accused persons, therefore, they were being arrested. He has also stated that the seizure memo has been sent to the senior Officer and the Court, apart from, that it has not been given to anybody. He has also stated that in the charge sheet, samples of the alleged ganja were not described. He has also stated that he has not given any written information to

¶44

¶45

the witnesses. He has stated that alleged contraband ganja was weighed by the Guddu. He also denied that all the proceedings were carried out in the police Station. He has stated that he has not given the bag and carton to Malkhana Muhrir.

¶46

Learned Special Court, NDPS Act, Bastar, vide its impugned order dated 1^st September, 2001, convicted and sentenced the accused/appellants as mentioned above in opening paragraph of this judgment and, thereafter, both the appellants were sent to jail. Being aggrieved & dissatisfied with the judgment passed by the Special Court, the appellants have preferred the instant appeal before this Court questioning the same.

¶47

It is stated at the bar that appellant No. 2 remained in jail from 29.5.2001 till passing of the judgment by the trial Court i.e. total about three months & six days.

¶48

On the factual matrix of the case, the point remains to be determined by this Court iswhether there is statutory compliance of provisions contained in Sections 42 & 50 of the NDPS Act in this case or not ? If Yes, what will be the effect.

¶49

At this stage, it would be appropriate to notice the provisions contained in Sections 42 & 50 of the NDPS Act, which are extracted below :-

¶50

“42. Power of entry, search, seizure and arrest without warrant or authorisation.

¶51

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs

¶52

¶53

control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,

¶54

(a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

¶55

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]

¶56

Conditions under which search of

¶57

¶58

persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. [(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”

¶59

From the evidence, material on record, it is quite vivid that contraband ganja was not seized from the person of the appellant No.2 but from the carton which was carried by the appellant No.2, therefore, there is no requirement for the prosecution to comply with the section 50 of the NDPS Act, as such submission made by learned Sr. Counsel for the appellant No.2 that prosecution has failed to comply with the mandatory provisions of Section 50, therefore, appellant No.2 is entitled to be acquitted, deserves to be rejected. The Hon’ble Supreme Court in the case

¶60

¶61

of Kallu Khan v. State of Rajasthan reported in AIR 2022 SC 50 has

¶62

held as under :-

¶63

“15. Simultaneously, the arguments advanced by the appellant regarding noncompliance of Section 50of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this Court, the argument of non-compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled.

¶64

The issue raised regarding conviction solely relying upon the testimony of police witnesses, without procuring any independent witness, recorded by the two courts, has also been dealt with by this Court in the case of Surinder Kumar (supra) holding that merely because independent witnesses were not examined, the conclusion could not be drawn that accused was falsely implicated. Therefore, the said issue is also wellsettled and in particular, looking to the facts of the present case, when the conduct of the accused was found suspicious and a chance recovery from the vehicle used by him is made from public place and proved beyond reasonable doubt, the appellant cannot avail any benefit on this issue. In our view, the concurrent findings of the courts does not call for interference.”

¶65

Now this Court has to examine the effect of non-support of prosecution case by the independent witnesses. From the evidence brought on record it is clear that the witnesses Sitaram and have not

¶66

¶67

supported the case of the prosecution but the I.O. S.R. Netam (PW05) has narrated the fact that the contraband ganja was seized from the appellant No.2 and thereafter the sample was sent to chemical analysis to the Forensic Science Laboratory Raipur. The witnesses were cross-examined by the accused wherein he has reiterated the fact that he has given the notice to the accused as per compliance of Section 50 of the NDPS Act and also denied that since simple was not prepared, therefore, entire contraband ganja was given to Moharrir for Malkhana.

¶68

Learned Sr. Counsel for the appellant No.2 would submit that seizure witnesses have turned hostile, therefore, merely on the statement of I.O. the conviction of the appellant No. 2 is bad in law.

¶69

It is not in dispute that the seizure witnesses were turned hostile but the prosecution has proved the case by the statement of I.O. and there is no cross-examination to falsehood the statement of the I.O. as such the case of the prosecution can be proved on the basis of statement of I.O. only. The facts that the contraband ganja was recovered from the appellant No.2 remained unshaken as such the burden lies upon the appellant No.2 as per Section 54 of the NDPS Act, which they miserably failed to rubutt the same. This issue is no more res integra as the Hon’ble Supreme Court in the case of Sanjeet Kumar Singh @ Munna Kumar Singh vs. State of Chhattisgarh reported in AIR 2022 SC 4051 has held in paragraph 17 and 18 which read as under:-

¶70

At the outset we would take note of some propositions of law on which there can be no controversy. They are, (i) that as per the decision of the Constitution Bench of this Court in Mukesh Singh (supra), the fact that the informant also happened to be the investigator,

¶71

¶72

may not by itself vitiate the investigation as unfair or biased; (ii) that it is not always necessary that the evidence of the police witnesses have to be corroborated by 3 (2020) 10 SCC 120 4 (2010) 9 SCC 608 5 (2020) 9 SCC 627 6 (2019) 10 SCC 473 5 independent witnesses, as held in Dharampal Singh and Mukesh Singh (supra); (iii) that the independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice as held in Rizwan Khan (supra); and (iv) that once it is established that the contraband was recovered from the accused’s possession, a presumption arises under Section 54.

¶73

But if the Court has -- (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats.

¶74

In view of above factual and legal position, it is quite vivid that the prosecution has proved its case beyond reasonable doubt and there is mandatory compliance of Sections 42 and 50 of the NDPS Act, as such the contention raised by the Learned Sr. Counsel regarding non-compliance of Sections 42 and 50 deserves to be rejected and accordingly, it is rejected.

¶75

¶76

Thus, the conviction of the appellant No. 2 for commission of offence under Section 20(b)(1) of the NDPS Act is legal, justified and does not warrant interference by this Court.

¶77

Now, this Court has to examine whether any mitigating factors are available on record to consider the sentence of the appellant No.2. 27. The offence was committed in the year 2001 at that time the appellant No.2 was 32 years and 22 years have already been lapsed and also considering the fact that the appellant No.2 remained in jail for 3 months and 6 days and also considering the quantity of contraband ganja recovered from the appellant No.2 is 5 Kg which is less than commercial but more than minimum, therefore, considering this fact that no further involvement of the appellant No.2 in the similar nature of offence has been brought on record by the prosecution and the fact that there is no minimum sentence prescribed for the offence for which the appellant No.2 is convicted. Under such circumstances, when the appellant No.2 remained in custody for 3 months and 6 days and also considering the fact that the appellant No.2 is the sole bread earner of his family, I am of the view that ends of justice would be served if the jail sentence may be reduced to the period already undergone by him while enhancing the fine amount of Rs. 4,000/- to Rs. 10,000/-. The enhanced fine amount shall be deposited by the appellant No.2 within two months from today before the concerned trial court.

¶78

On the basis of aforesaid discussion, appeal filed by the appellant No.2 is hereby partly allowed. Conviction directed against the appellant No.2 for offence punishable under Section 20(b)(1) of the Narcotic Drugs

¶79

¶80

and Psychotropic Substances Act is maintained but, his jail sentence is reduced to the period already undergone by the appellant No.2- B. Shekhar

¶81

while enhancing the fine amount for Rs. 4,000/- to Rs. 10,000/- .

¶82

Sd/-

¶83

(Narendra Kumar Vyas) Judge

¶84

amita