Rajesh Kumar Soni Vs State of Chhattisgarh

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2024:CGHC:23489

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 611 of 2006

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Rajesh Kumar Soni, aged about 20 years, S/o. Munna Lal Soni, resident of Bada Bazar, Sambalpur, at present Village Ram Nagar, Baloda, Thana Baloda, District Janjgir Champa, Chhattisgarh

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... Appellant

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versus

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The State of Chhattisgarh, through: the District Magistrate, Korba, Chhattisgarh

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... Respondent

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(Cause title taken from Case Information System)

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For Appellant	:	Mr. Shubham Tripathi, Advocate
For Respondent/State	:	Mr. Kanwaljeet Singh Saini, Panel Lawyer

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Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment in Chamber

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03/07/2024

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The present criminal appeal under Section 374(2) of Code of Criminal Procedure has been filed by the appellant against the impugned judgment of conviction and sentence dated 11.08.2006, passed by the learned Special Judge, NDPS Act, Korba, in Special

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Case No. 5 of 2005, whereby the appellant has been convicted for the offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘NDPS Act’), and sentenced for R.I. for three years with fine of Rs. 25,000/-, in default of payment of fine, additional R.I. for one year.

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The brief facts of the case are that on 03.11.2005, the Station House Officer of Police Station Deepka has received a secret information that the accused is having Ganja in his possession and in search of prospective purchaser. The secret information was reduced in writing and informed it to the Superintendent of Police. He proceeded towards the alleged place, where appellant was found. The police personnel informed his right to be searched by any Gazetted Officer or any Magistrate and after obtaining his consent to be searched by the police officers, he was being searched. The police officers have also given their search to the accused. On being searched, 2 kg of Ganja was found in the bag, which was by kept by the appellant and wrapped in a newspaper. After its weighment, 2 samples of 50 grams each have been drawn, separately sealed and seized from appellant. The appellant, seized ganja, and its samples were taken to police station, where the FIR Exhibit P-17 has been registered against the appellant for the offence under Section 20(b) of the NDPS Act. The samples drawn from the ganja have been sent for its chemical examination to State FSL, Raipur and after completion of usual investigation, charge sheet was filed before the learned trial Court.

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The learned trial Court has framed charge on 13.03.2006 for the offence under Section 20(ii)(C) of the NDPS Act. The appellant

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denied the change and claimed trial. On 11.05.2006, the charge has been amended and the new charge of Section 20(b) of the NDPS Act has been framed. The appellant denied the charge and claimed trial.

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In order to establish the charge against the appellant, the prosecution has examined 09 witnesses. Statement under Section 313 of Cr.P.C. of the appellant has also been recorded, in which he denied the circumstances appeared against him, pleaded innocence and has submitted that he has been falsely implicated by the police. One defence witness Vishnu Soni (DW-1) has been examined by the appellant.

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After appreciation of the oral as well as documentary evidence led by the parties, the learned trial Court has convicted the appellant and sentenced him, as mentioned in the earlier part of this judgment. Hence, this appeal.

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Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. The mandatory provisions of the NDPS Act has not been complied with and therefore, the appellant cannot be convicted for the alleged offence. In alternative, he would submit that the appellant has already undergone about 6 months and 15 days of his jail sentence, the offence is of the year 2005 and the quantity of ganja is only 2 kg. The offence under Section 20(b) of the NDPS Act does not provide for any minimum sentence and therefore the sentence already undergone by the appellant may be considered to be the sufficient sentence for the alleged offence.

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On the other hand, learned counsel for the State opposes and has submitted that after considering the entire evidence led by the prosecution as well as the appellant, the learned trial Court has convicted the appellant for the alleged offence and sentenced him, which is just and proper. All the mandatory provisions have duly been complied with and there is no infirmity or illegality in the impugned judgment. Therefore, the appellant is not entitled for any leniency and his appeal is liable to be dismissed.

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I have heard learned counsel for the parties and perused the record.

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PW-8 Vibhor Singh, who is the Station House Officer of Police Station Deepka, has stated in his evidence that on 03.11.2005 at about 3.55 pm, he received a secret information that the accused is roaming near Railway Crossing at Deepka having ganja in his bag and searching the prospective purchaser. The secret information Panchnama Exhibit P-2 was prepared by him and it has also been recorded in Sanha Exhibit P-14. The secret information was informed through telephone to the City Superintendent of Police, Darri and the report in writing has also been sent, which is Exhibit P-1. Vide summons Exhibit P-5 he called the witnesses. When they reached on the spot, the accused found there. He informed his name as Rajesh and resident of Baloda. He also informed about the secret information received by him and informed his right to be searched by any Magistrate or any Gazetted Officer or from the police authorities. He has also given him a notice under Section 50 of the NDPS Act, Exhibit P-6. The accused has given his consent to be searched by the police authorities, which is reduced in writing vide Exhibit P-7.

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The police personnel have also given their search to the accused and the Panchnama Exhibit P-8 has been prepared. The accused was being searched and Panchnama Exhibit P-9 was prepared. On being searched, Ganja was seized from the bag of the accused, which was wrapped in newspaper. The said Ganja was physically identified by its smell and by burning and the Identification Memo Exhibit P-10 was prepared. The seized article Ganja was weighed by Pradeep Kumar Sindhi PW-2, and after its weighment, it was found to be 2 kg. Two samples of 50 gm each were separated. The Ganja was seized vide seizure memo Exhibit P-4 and Ganja was marked as Article-A. The Ganja, its sample have been separately sealed and specimen seal was also impressed in Exhibit P-11. Spot Map Exhibit P-15 was prepared by the police. The seized Ganja, its sample and the appellant were taken to the Police Station. The seized Ganja and its sample was handed over to the Malkhana Moharrir and obtained the Acknowledgment Exhibit P-13. The seized sample of Ganja was sent for its chemical examination to the State FSL, Raipur and obtained its Acknowledgment Exhibit D-1.

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After its chemical examination, the FSL report Exhibit P-16 was received. Statement under Section 161 of the witnesses have been recorded, and after completion of investigation charge-sheet was filed. In cross-examination of this witness, the defence could not extract any material point, which makes the evidence of this witness doubtful.

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PW-8 Vibhor Singh has proved all the process of investigation in its manner, but for minor omissions or contradictions, his evidence is

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consistent that, on being secret information, 2 kg of Ganja has been seized from the appellant, and the seized article was found Ganja in FSL report.

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From the evidence of PW-1 Shiv Kumar Pandey, who is the constable at Police Station Darri, has proved the information received by him regarding the secret information Exhibit P-1 and P-2.

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PW-4 Rakesh Kumar and PW-4 Harprasad Yadav, who are the independent witnesses, have proved the seizure of 2 kg Ganja from the appellant and seizure memo Exhibit P-4. These witnesses have also remained firm in saying that 2 kg ganja has been seized from the appellant in their presence.

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PW-5 Bojhan Ram Dahariya, who is the head constable at Police Station Deepka and was in-charge of Malkhana, has proved the articles kept in the Malkhana in safe custody and sent the sample packet of the seized article to the FSL.

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PW-9 Chattar Singh, who is also the head constable at Police Station Deepka has further proved the part of the investigation and preparation of the document in support of the prosecution's case.

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From the evidence led by the prosecution, the learned trial Court has come to the conclusion that the appellant was found in possession of 2 kg of Ganja on 03.11.2005 and the same has been seized from him, for which he is having no plausible explanation about its possession. Thus, he committed the offence under Section 20(b) of the NDPS Act. This Court is also in agreement with the finding

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recorded by the learned trial Court about the guilt of the appellant for the alleged offence.

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So far as the sentence part is concerned, the appellant has been sentenced for R.I. for 3 years with fine of Rs. 25,000/- for the offence of Section 20(b) of NDPS Act.

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In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 Hon'ble Supreme Court has observed that If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries and held in Para 9 as follows:

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"9. Western jurisprudes and sociologists. from

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their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817: "The laws of England are written in blood". Alfieri has suggested: 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of

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social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw: 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: "If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences."

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The alleged offence is of the year 2005. The appellant was aged about 20 years at that time and appears to be 44 years of age at present. He would definitely settle in his family life, having various responsibilities of his family. The offence of Section 20(b) of the NDPS Act does not provide for any minimum sentence. As per the report submitted by the State obtained from the District Jail, Korba, that the appellant has undergone 6 months and 15 days of his jail sentence, which includes the period, for which he remained in jail during the trial.

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In view of the judgment passed by the Hon'ble Supreme Court, the offence is of the year 2005, quantity of Ganja seized from the appellant and also that the appellant has already undergone 6 months and 15 days of his sentence, in the peculiar facts of this case, the ends of justice would meet, if the appellant is sentenced for R.I. for 5 months for the alleged offence.

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Consequently, the conviction of the appellant for the offence under Section 20(b) of the NDPS Act is maintained. However, he is sentenced for R.I. for 05 months with fine of Rs. 5000/-, in default of payment of fine, he should further undergo R.I. for one month.

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