Tijauram Verma Vs State Of Chhattisgarh

This appeal is preferred under Section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment dated 04.02.2014 passed by learned Special Judge (NDPS Act) & First Additional Sessions Judge, Balodabazar, District- Balodabazar- Bhatapara C.G. in Special Criminal (NDPS) Case No. 01/2013, wherein the said Court convicted the appellant and sentenced him as under:-

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Conviction	Sentence
U/S 20 (b) (ii) (B)of NDPS Act	R.I for 02 years, with fine amount of
	Rs. 10,000/-, in default of payment of
	fine, to undergo additional R.I. for 06
	months.

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Brief facts of the case are that on 21.06.2010 at about 12:30 pm, Investigating Officer (PW-09) was posted as ASI/Station House In-charge in the Police Station- Simga, had received the secret information from the informant that the appellant was carrying the bag of contraband article ganja for selling purpose through his bicycle and coming from village Chourenga to village Darchura. Upon receiving of the said information, he recorded the secret information and prepared Mukhbir Suchna Panchnama in presence of the witnesses. He also informed about this information to the higher officials, thereafter he reached the spot along with the police personnel and witnesses. In compliance of Section 50 of the NDPS Act he gave notice to the appellant and obtained his consent for search. On being searched, contraband article ganja was found from the appellant’s possession in four plastic bags which were weighed and found to be of 4.00 kg and after completion of other formalities he returned to the police station along with the seized property in Malkhana. The samples of seized contraband article ganja were sent to FSL for its chemical examination and as per FSL test report, received from FSL, Raipur, the contraband article was found to be ganja. The prosecution after completing the due and necessary investigation, led the charge-sheet before the concerned Jurisdictional Magistrate , who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the accused person for alleged commission of offence under Section 20 (b) (ii) (B) of Narcotic Drugs and Psychotropic Substance Act

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1985, (for short, NDPS Act). The accused having abjured guilt was subjected to trial.

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To robe the appellant in the crime in question, prosecution has examined as many as 10 witnesses. In the statement of the appellant recorded under Section 313 Cr.P.C., the appellant pleaded his innocence and false implication in the case. However, no defence witness was adduced by the appellant.

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Learned Trial Court after hearing the counsel for the respective parties and considering the material available on record, has convicted and sentenced the accused/appellant as mentioned in inaugural para of this judgment.

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Learned counsel for the appellant submits that the learned Trial Court error in convicting the appellant for the said offence without any cogent reason. Learned Trial Court failed to consider the fact that none of the witnesses except the police personnel have supported the case of the prosecution even the seizure witnesses have turned hostile and therefore, without any proof with regard to the possession of the contraband article ganja by the appellant, learned trial Court has failed to consider the evidence of independent witnesses. He further submits that the learned Trial Court has failed to consider that even otherwise, there is violation of the mandatory provision of Section 42 and Section 50 of NDPS Act. therefore, the impugned judgment passed by the learned trial Court is liable to be set aside.

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Alternatively, he submits that if this Court ultimately comes to the conclusion that the conviction of the appellant under Section 20 (b) (ii) (B) of NDPS Act, 1985 as imposed by the trial Court is just and proper, considering the fact that the incident took place in the year 2010, the appellant is now aged more than 55 years, he has remained in jail for about

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03 months, he did not misuse the liberty so granted to him, while being on bail, he is facing the lis since 2014 i.e. for about more than 10 years and no useful purpose would be served in again sending him to jail, therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him may be reduced to the period already undergone by him.

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Ex adverso , learned counsel for the respondent/State supporting the impugned judgment submits that the learned trial Court properly appreciated the oral and documentary evidence and rightly convicted the appellant. Therefore, the judgment impugned does not suffer from any irregularity or infirmity warranting interference by this Court in the instant appeal.

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Heard learned counsel for the parties and perused the material available on record including the impugned judgment.

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It is evident from the record of learned Trial Court that it framed charge against the appellant for offence punishable under Section 20 (b) (ii) (B) of NDPS Act as the allegation of the prosecution that the appellant/accused had illegally possessed 4.00 kg contraband article ganja. Learned Trial Court after appreciating the oral and documentary evidence, convicted the appellant for offence under Section 20 (b) (ii) (B) of NDPS Act and sentenced as mentioned in inaugural para of this judgment.

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PW-1 Mahesh Kumar Gupta and PW-10 Ramcharan Diwakar, who are the witnesses of search and seizure and they have only admitted their signatures in the documents i.e., Exs. P/1 to P/8 on A to A part and B to B part, but they denied all the proceedings which were conducted before

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them. Prosecution declared them hostile and cross-examined, but they denied all suggestions of the prosecution.

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PW-2 Dhaneshwar Kumar Nishad has also not supported the prosecution case and he only admitted his signature in weighed panchnama (Ex. P/6) on B to B part. Prosecution declared him hostile and cross-examined, but he denied all suggestions of the prosecution.

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PW-9 Lallan Singh (I.O) has stated that he seized 4.00 kg contraband article ganja from the appellant and prepared all the documents before the independent witnesses and he also sent information and lodged Rojnamcha Sanha and he filed true copies of Rojnamcha Sanha vide Ex. P/16 and Ex. P/18. FIR is Ex. P/19 and also proved all proceedings from Exs. P/1 to P/8. In his cross-examination, he remained firm in his version.

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PW-5 Diamond Shriwas gave secret (Mukhbir ) information vide Ex. P/1 to S.D.O. Police, Balodabazar and in this regard he stated that duty certificate had been issued vide Ex. P/14.

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PW-6 Ram Prasad Sahu, who was posted as Assistant Reader/Constable in the office of S.D.O. Police, Balodabazar has stated that he received secret (Mukhbir ) information vide Ex.P/1 and he admitted his signature on B to B part of duty certificate (Ex. P/14).

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PW-4 Manjas Lakda, who was posted as Maal Mohrir on the date of incident and stated that on 25.06.2010, Constable No. 52 had deposited 4.00 kg ganja and he produced Malkhana register vide Ex. P/9 and copy of the same is Ex. P/9C. In their cross-examinations, all the police personnel remained firm in their version.

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Considering the material available on record and the evidence adduced by

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the prosecution, this Court is of the view that the learned trial Court rightly found that the appellant had illegally possessed 4.00 kg contraband article ganja and trial Court did not commit any illegality or irregularity in the findings as recorded by it as regards conviction of the appellant. So, the conviction of the appellant is hereby affirmed.

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As regards the sentence, keeping in view the facts that incident took place in the year 2010 and nearly 15 years have rolled by since then. The appellant is now aged more than 55 years and he remained in jail for about 03 months and he did not misuse the liberty so granted to him, while being on bail, however he has no criminal antecedents and he is facing the lis since 2014 i.e. for about more than 10 years and no useful purpose would be served in again sending him to jail, therefore, in the interest of justice, it would be appropriate if the sentence imposed upon him is reduced to the period already undergone by him.

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Ex consequenti , the appeal is partly allowed . Conviction of the appellant under the aforementioned section is affirmed and he is sentenced to the period already undergone by him. The impugned judgment stands modified to the above extent.

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The appellant is reported to be on bail. However, keeping in view the provisions of Section 481 of BNSS, 2023 the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- with one 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 thereon shall appear before the Hon'ble Supreme Court.

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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.

Sd/-

(Rajani Dubey)

JUDGE

AMIT PATEL

Tijauram Verma v. State Of Chhattisgarh

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Tijauram Verma v. State Of Chhattisgarh

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