Prakash Sahu Alias Pappu Vs State of Chhattisgarh

Prakash Sahu Alias Pappu S/o Puran Lal Sahu Aged About 20 Years R/o Village Bhumiya, Police Station Tilda - Newra, District - Raipur, Chhattisgarh. ---- Appellant

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Versus

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State Of Chhattisgarh Through - The Police Station Berla, District - Bemetara, Chhattisgarh. ---- Respondent

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(Cause-title taken from Case Information System)

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For Appellant (in CRA No.166/2024) : Mr. Lalit Jangde, Advocate For Appellant (in CRA No.198/2024) : Mr. Veer Verma alongwith Mr. Abhishek Banjare, Advocate For State/Respondent : Mr. Ajay Pandey, Govt. Advocate.

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Hon'ble Shri Justice Ravindra Kumar Agrawal

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10.04.2024

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Both these appeals are arisen out of the same crime number and same sessions case, therefore, they are being decided together.

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1 . Being aggrieved by the judgment of conviction and sentence dated 04.01.2024 passed by learned Special Judge (NDPS Act), Bemetara, in Sessions trial No.05/2023, whereby the appellants have been convicted for the offences under Section 20(b)(ii)(B) of The Narcotic Drugs And Psychotropic Substances, Act, 1985 (in short NDPS, Act) and sentenced each of them for R.I. of 10 years

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with fine of Rs.1,00,000/- and in default of payment of fine amount additional R.I. for 2 years.

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2 . Brief facts of the cases are that Rajendra Kashyap PW-9, has received secret information on 07.09.2023 that two persons were standing at Bharchatti Chowk came by Honda Activa Motorcycle and having illegal narcotic substance in their bag and they are searching the prospective purchaser. The secret information was produced in writing, panchanama was prepared, the intimation of secret information was sent to O/o. SDOP, Berla. Panchanama of search without warrant was prepared and police party proceeded towards the place of the incident. When they reached on the place of incident two persons were found standing at Bharchatti Chowk alongwith Honda Adtiva Motorcycle bearing No. C.G.04PG4991. One of them was having a white bag in his hand and sitting on the motorcycle and the other person was standing nearby the motorcycle. Both of them have disclosed their names as Kapil Adil and Prakash Sahu Alias Pappu. The accused persons were informed by the police about the secret information. The right to search has also been informed and on being searched of their bag the alleged contraband was seized which was kept in the bag wrapped in brown colour plastic tape. The alleged contraband was identified by its smell and test on the spot, thereafter identification panchnama was also prepared and on being noticed given to then they could not produced any valid document for its possession. The seized contraband was weight on the spot and it was found that the seized contraband was 2.200Kg. Two samples were separated and the seized Ganja samples were sealed

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on the spot. The seized contraband, samples, Honda Activa motorcycle and accused persons were taken in the police station. FIR has been registered at police station. The seized contraband and samples were kept in safe custody of Malkhana at Police Station. After completion of necessary formalities of sending information to the higher authorities and also sending the samples for its FSL examination to State FSL, Raipur and further after completion of investigation the charge sheet was filed against the accused persons before the learned trial Court for the offence under Section 20(b) of NDPS, Act.

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3 . The learned trial Court has framed the charges against the accused persons for the offence under Section 20(b) of NDPS, Act. The accused persons abjured their guilt and claimed trial.

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4 . In order to establish the charges against the accused persons the prosecution has examined as many as 12 witnesses. Statements under Section 313 of the CrPC of the accused persons have also been recorded in which they denied the circumstances appeared against them, plead innocence and submitted that they may be acquitted. After appreciating the oral as well as documentary evidence produced by the prosecution, the learned trial Court has convicted and sentenced accused persons as mentioned in opening para of this judgment, hence, this appeals.

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5 . Learned counsel for the appellants would submit that the appellants are innocent and are falsely been implicated in the offence. The prosecution has failed to prove its case beyond reasonable doubt. There are non-compliance of mandatory provisions of the NDPS Act,

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for which the benefit should have been given to appellants and also entitled for acquittal. He would further submit that even if it is found that the accused persons are in possession of the seized Ganja of 2.200Kg an excessive sentence has been awarded to them in view of the quantity of the alleged contraband. They would further submit that the appellant Kapil Adil (in CRA No.166/2024) is in jail since 08.09.2023 and the appellant Prakash Sahu@pappu is remained in jail from 08.09.2023 to 08.12.2023 and from 04.01.2024 till date, thereby they have already undergone the sentence for more than 7 months and looking to the quantity of the Ganja, their period of undergone may be considered to be sufficient sentence for the alleged offence.

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6 . On the other hand learned State counsel opposes the argument advanced by the learned counsel for the appellants and have submitted that although the seizure of Ganja is said to have made from accused Kapil Adil, but both the accused persons were found together in Honda Activa motorcycle of the appellant Prakash Sahu@pappu the Ganja was kept and both of them were standing together, therefore it could not be said that the Ganja was not in conscious possession of Prakash Sahu@pappu and Kapil Adil and he was not in knowledge of the fact that the co-accused Kapil Adil is having Ganja in his bag. He would further submit that considering the impact of contraband in the society, the appellant are not entitled for any leniency, therefore their appeals are liable to be dismissed.

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7 . I have heard the learned counsel for the parties and peruse the material available on record.

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8 . PW-9, R.K. Kashyap, the investigating officer have stated in his deposition that he is posted as Assistant Sub Inspector at Police Station Berla since September, 2023. On 07.09.2023, at about 11:00 a.m., he received a secret information that two persons were standing at Bharchatti Chowk came by Honda Activa motorcycle and out of them one who was sitting in said Activa motorcycle was having contraband Ganja in his white coloured bag and they are in search of its purchaser. He has informed about the secret information to the other police constables. Duty certificate Ex.P/32 was prepared by him and collected the search party by calling them and issue notice to them Ex.P/1, P/23 and P/24. The secret information was informed to SDOP, Berla vide memo Ex.P/26. The panchnama regarding search without warrant was prepared vide Ex.P/2 in presence of the witnesses and thereafter they proceeded towards the place of incident alongwith the necessary documents, laptop, mini-printer and other requisites and left the police station at 12:55 p.m.

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9 . At about 01:45 p.m., they reached the Bharchatti Chowk near Motiram Lodhi’s shop found that blue coloured Honda Activa motorcycle bearing No. CG04PG4991 was standing there on which two persons were standing one of them was having a white coloured bag, when the police party detained and asked their name, the person who was having white coloured bag in his hand has disclosed his name as Kapil Adil, whereas, the other person who was standing there has disclosed as name Prakash Sahu@pappu. They informed about the secret information to them. The police party

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have also gave them their option of right to search from them, Gazetted Officer or any Magistrare then accused persons have gave their consent that they will agree for their search by police party, panchnama Ex.P/4 was prepared to that effect. The police party have also gave search to the accused persons nothing incriminating could be found in search of police party, panchnama to that effect Ex.P/5, P/6, P/7 and P/8 was prepared.

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10. On being searched, the Ganja like substance was found in the white coloured bag which was wrapped in brown coloured plastic tape and panchnama vide Ex.P/9 was prepared. The said contraband was identified by its smell and taste and identification panchnama Ex.P/11 was prepared. The contraband which was seized from the appellant No.1, Kapil Adil was weighed and after its weighment 2.200Kg Ganja was found. The weighment apparatus has also been verified and verification panchnama Ex.P/12 was prepared, weighment panchnama Ex.P/13 was also prepared, seal panchmana of police station was also prepared vide Ex.P/14 and P/15. Notice under Section 91 of Cr.P.C. was also given to the accused persons vide Ex.P/16 and P/17. The recovered contraband was seized from appellant Kapil Adil vide Ex.P/18 and Honda Activa motorcycle was also seized from accused Prakash Sahu@pappu vide Ex.P/19. Both the accused persons were arrested on the spot and their arrest memorandum Ex.P/20 and P/21 were prepared. Information about the arrest of accused persons were given to their relatives vide Ex.P/33 and P/34. After completion of the search proceeding, unnumbered Dehati Nalsi was registered vide Ex.P/35 and spot map

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Ex.P/22 was also prepared and the police party has returned back to the police station alongwith the seized contraband, seized Honda Activa motorcycle and accused persons. The FIR Ex.P/36 was also registered at police station. The seized contraband and Honda Activa motorcycle was kept in safe custody of Malkhana vide Ex.P/37. The information of search proceeding was sent to the DSP, Berla vide Ex.P/38. The inventory was also prepared by the learned First Class Judicial Magistrate and in her presence, two samples of 100 grams each were separated, sealed and again kept in the safe custody of Malkhana and the proceedings and preparation of inventory under Section 52A of the NDPS Act is Ex.P/40. Two samples of the seized contraband was sent to Regional FSL, Raipur for its FSL examination vide Ex.P/41 and after completion of the usual investigation charge-sheet was filed before the learned trial Court. In his cross-examination, the defence could not elicited any material point by which the evidence of this witness can be disbelieved. This witness has mainly cross-examined on the point of preparation of documents and the search proceedings, however, this witness has remained firm by saying that when they proceeded towards the place of incident he saw that both the accused persons were there and one of them is having white coloured bag in which Ganja like substance was found.

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11. PW-1 Harishchandra Kosley and PW-2 Manglu Netam are the panch witnesses before whom the document Ex.P/1 to P/22 was prepared. Both these witnesses have turned hostile and have not supported

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the case of the prosecution and stated that on the instance of police they have signed those documents.

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12. PW-3 Mohd. Jahid, who has weighed the alleged contraband and he too has turned hostile and stated that he has not conducted the weighment proceeding of the alleged contraband.

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13. PW-4 Surendra Jangde, Constable at Police Station Berla, who was also in the team of search party and has taken intimation of secret information to the office of the SDOP, Berla. He has duly supported the case of the prosecution and stated that 2.200Kg of Ganja was seized from the accused persons at Bharchatti Chowk.

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14. PW-5 Bhushan Markande, PW-6 Pramod Banjare and PW-12 Amresh Sai, who were Constable and also in the team of search party have supported the case of prosecution and remain intact in their cross-examination.

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15. PW-7 Govind Chhatri, who is Head Constable and posted as Reader in office of SDOP, Berla. He has received the intimation Ex. P/28.

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16. PW-8 Kamlesh Kumar Chelak who was the Patwari and prepared the spot map Ex. P/30 and panchnama P/31.

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17. PW-10 Dinanath Yadav, Head Constable, Malkhana Moharrir of the Police Station, Berla, who has also duly supported the case of the prosecution that on the date of incident the seized Ganja, Honda Activa motorcycle was handed-over to him for keeping in safe custody of Malkhana. He kept the same in Malkhana and relevant entries have been made in the Malkhana register vide Ex.P/45 to P/50 and its attested true copies Ex.P/45C to P/50C. This witness has remained firm in his cross-examination, but for minor omission

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or contradiction nothing could be extracted from the evidence of this witness also.

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18. PW-11, Vivek Patley, who is SHO at Police Sation, Berla has stated in his deposition that vide memo of S.P., Berla vide Ex.P/41, the samples of the seized Ganja were sent for FSL examination to State FSL, Raipur and fromwhere the FSL report Ex.P/57 was received in which the seized contraband was found to be Ganja.

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19. From the overall evidence led by the prosecution, it has been established that on the date of incident i.e. on 07.09.2023, the police party has seized 2.200Kg Ganja from the accused persons. Both of them were standing together at Bharchatti Chowk and therefore, learned trial Court has rightly convicted the appellants for the offence under Section 20(b)(ii)(B) of NDPS Act and therefore, the conviction for the said offence is hereby affirmed.

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20. So far as the sentence is concerned, the learned trial Court has awarded the sentence of R.I. for 10 years with fine of Rs.1,00,000/to each of the appellant for the alleged commission of offence.

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21. Considering the quantity of Ganja as 2.200Kg, the sentence awarded by the learned trial Court is appears to be disproportionate. Section 20(b)(ii)(B) does not provided for any minimum sentence, but may extend to 10 years with fine which may extend to Rs.1,00,000/-. The learned trial Court has awarded maximum term of punishment which in the opinion of this Court is liable to be reduced.

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22. Considering the facts of the present case, socio-economical status of the parties, considering the quantity of alleged Ganja seized form the

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appellant and the appellants are sentenced for commission of offence under Section 20(b)(ii)(B) of NDPS Act for R.I. for 6 months with fine of Rs.5,000/- each and in default of payment of fine amount, they shall undergo further R.I. for one month, with this modification in the sentence part, both these appeals are partly allowed . The appellant Kapil Adil is reported to be in Jail from 08.09.2023 till date and the appellant Prakash Sahu@pappu is remained in Jail from 08.09.2023 to 08.12.2023 and from 04.01.2024 till date, they shall be released forthwith if not required in any other case. They are entitled for the set–off of the period already undergone by them.

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23. Keeping in view the provisions of Section 437-A CrPC, the appellants are directed to forthwith furnish a personal bond by each of appellants in terms of Form No.45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- with one reliable surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court.

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24. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

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Sd/- (Ravindra Kumar Agrawal) Judge

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Ravi Mandavi

Prakash Sahu Alias Pappu v. State of Chhattisgarh

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Prakash Sahu Alias Pappu v. State of Chhattisgarh

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