G.Krishna Vs State of Chhattisgarh

Challenge in this appeal is to the judgment of conviction, and order of sentence dated 05.03.2003 passed by the Special Judge, NDPS Act, Raipur in Special Criminal Case No.5 of 2002, whereby, appellant has been convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’) and sentenced him RI for 5 years and to pay fine of Rs.50,000/-, in default of payment of fine, additional RI for one year.

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Briefly stated facts of the case are that, on 01.01.2002 at about 10.30 am, PW2, RP Chelak, Station House Officer, Police Station-GRP, Raipur, has received secret information that a person was standing on the platform-1 of Raipur Railway Station, carrying Ganja in two carry bags for sale. The information was entered into the Roznamcha, Ex.P6. Secret information Panchnama, Ex.P7 was prepared, the Police party proceeded to the place of incident, and they found the appellant standing

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nearby the waiting room of platform-1 and he has provided the right to search from any Gazetted Officer, Magistrate or the Police party. Then the appellant gave his consent to the Police party for his search. The Police party also gave their own search to the appellant but nothing incriminating was found on search. On being search of carry bag of the appellant, Ganja like substance was recovered in two bags. On being weighed, 7 kg of Ganja in one bag and 6 kg of Ganja, in the other bag, was recovered from him, which was wrapped in a news-paper. Two samples of 50 gms each were separated, packed and sealed. Remaining contraband Ganja was also packed and separately sealed. The seized Ganja and the appellant were taken to the Police Station, FIR has been registered, and the appellant was arrested. Seized Ganza was kept in the safe custody of Malkhana and from there, it was sent for FSL examination, and after completion of usual investigation, charge-sheet was filed in the Court of learned Special Judge, NDPS, Raipur, for the offence punishable under Section 20(b)(i) r/w 8 of the NDPS Act.

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Learned trial Court has framed charge against the appellant for the offence under Section 20(b)(i) r/w 8 of the NDPS Act, the appellant denied the charge and claimed trial.

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In order to establish the charge against the appellant, prosecution has examined three witnesses. Statement under Section 313 of the CrPC of the appellant has also been recorded, in which he denied the material appearing against him, pleaded innocence and submitted that he

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has been falsely implicated in the offence. One defence witness has also been examined by the appellant.

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After appreciation of oral as well as documentary evidence produced by the parties, learned trial Court has convicted and sentenced the appellant, as mentioned in paragraph 1 of this appeal. Hence this appeal.

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Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond any reasonable doubt. The mandatory provisions of the NDPS Act have not been complied with, yet the learned trial Court has convicted the appellant. It has not been proved by the prosecution that the seized samples of Ganja were sealed in presence of the witnesses. It has been kept under safe custody and without there being any tampering, the same has been sent for its FSL examination. In alternative, he would further submit that the offence of Section 20(b)(ii)(B) does not provide for any minimum sentence, and the appellant remained in jail for about 13 months. Considering the quantity of Ganja allegedly seized from the appellant and the period of sentence he has already undergone, sentence of the appellant may be reduced for the period already undergone by him.

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On the other hand, learned State counsel opposes and would submit that the prosecution has proved its case beyond any reasonable doubt, by complying all the mandatory provisions of NDPS Act, there may be some omissions and contradictions, despite that the evidence of

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prosecution witnesses cannot be disbelieved on that ground alone. The complicity of the appellant in the offence in question has been proved by the independent witness PW1, Owner of Pan Shop, and therefore, learned trial court has rightly convicted and sentenced the appellant for the alleged offence .

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Heard learned counsel for the parties and perused the record.

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PW2, RP Chelak, who is the Station House Officer of the GRP Raipur, stated in his deposition that on 01.01.2002, he was posted at GRP Raipur. He received secret information at about 10.30 am that a person, who is having Ganja in his carry bag was standing on the platform-1. Secret information was endorsed in Roznamcha, Ex.P6, Secret information Panchnama Ex.P7 was prepared, the intimation about the secret information was sent to the Dy. Superintendent of Police, Railway, vide Ex.P8, Panchanama of search without warrant was Ex.P9, and the departure of the Police party was endorsed in Roznamcha, which is Ex.P10, on the platform-1, Railway Station, Raipur, the appellant was found present, Police party informed him about the secret information and informed him about his rights to be searched by any Gazetted Officer, Magistrate, or Police party. In the notice, he gave his consent for search to the Police party, which has been reduced in writing in Ex.P2, the Police Party also gave their search to the appellant and no incriminating articles were found with them. On being search of the carry bags of the appellant, 7 kg of Ganja was recovered from one carry bag and 6 kg

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from another. Seized material was weighed. Two samples of 50 gms each were separated, sealed, the remaining quantity of Ganja was also sealed. The weighment Panchnama Ex.P4 was prepared and the Ganja was seized vide seizure memo Ex.P5. Along with the articles and the appellant, the Police party reported to the Police Station, where arrival was recorded in Roznamcha vide, Ex.P12, FIR Ex.P13 was registered and seized Ganja was kept in safe custody of Malkhana, and relevant entry was made in the Malkhana Register, Ex.P14. The appellant has been arrested vide Ex.P15 and the information about the proceedings has been sent to the Special Court, Raipur, as also to the SDO, Rail vide Ex.P16. The seized sample of Ganja was sent to the FSL, Raipur vide Ex.P17, from where the FSL report Ex.P19 was received and found the Ganja in the sealed sample. In cross-examination, this witness has remained firm in saying that from platform-1 of the Railway Station, Raipur, total 13 kg Ganja was seized from the possession of the appellant, which was kept in two different carry bags, containing 7 kg in one bag and 6 kg in another bag. From the FSL report, material was found to be Ganja.

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PW1 Dinesh Kumar Tiwari, who is the witness of the proceeding right from the secret information, up to the seizure of Ganja from the appellant, and has duly supported the case of prosecution. Nothing could be extracted from this witness by the defense, so that his evidence can be disbelieved.

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PW3 is the Head Constable, who has taken the secret information to the office of DSP, Rail.

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From the evidence of aforesaid witnesses, the complicity of the appellant in the offence in question has been duly proved by the prosecution that he was having Ganja without there being any authority on the alleged date of incident and involved in the alleged offence. The learned trial Court, therefore, has rightly convicted the appellant for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and the conviction of the appellant for the said offence is upheld.

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Now, the question is, what would be the appropriate sentence for the offence committed by the appellant. The trial Court has awarded RI for five years with fine of Rs.50,000/- for commission of the offence. The appellant was remained in jail from 01.01.2002 to 20.03.2003 which comes about 14 months and 19 days. Since the incident is of the year 2002, the appellant is facing lis since more than 22 years. Presently, he appears to be aged about 57 years, having innumerable responsibility of his family. There is no any other incident against the appellant reported in between the period .

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In view of the peculiar facts and circumstances of the present case, no fruitful purpose would be served if he again sent to jail for serving his remaining sentence and therefore, considering the period of detention, his socio-economic status, and also the nature of offence, the appellant is

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sentenced for RI for one year, with fine of Rs.10,000/-, in default of payment of fine amount, further RI for one month.

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In the result, the appeal is partly allowed. Conviction of the appellant is maintained . However, the jail sentence awarded to the appellant is reduced from RI of 5 years to RI for one year along with fine of Rs.10,000/- and in default of payment of fine amount, further RI for one month. He is reported to be on bail. His bail bonds are continued for a further period of six months as provided under Section 437-A of the CrPC.

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Record of the trial court along with 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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padma

G.Krishna v. State of Chhattisgarh

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G.Krishna v. State of Chhattisgarh

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