Tulsa Kora Vs State of Chhattisgarh

The present appeal has been filed by the appellants under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned judgment of conviction and sentence dated 28.02.2025 passed by Learned Special Judge (N.D.P.S. Act) Raipur, District Raipur (C.G.), in Special Criminal Case No. 172/2023, whereby the appellants have been convicted

¶20

2

¶21

for the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced them for R.I. for 04 years with fine of Rs. 25,000/- in default of payment of fine further R.I. for 03 months to each of the appellants. 3. The brief facts of the case are that PW-8, Rajendra Kumar Dubey, who is the

¶22

Assistant Sub Inspector of Police, posted at Police Station Purani Basti, Raipur, received a secret information on 29.07.2023 that three ladies having illegal contraband in their bags standing near Bhatagaon overbridge and waiting for bus for its transportation. The said secret information was recorded in writing and panchnama was prepared. A copy of the secret information was sent to Senior Police Officer. Departure from the Police Station was recorded in Rojnamcha No. 6. The police party proceeded to the place of incident and when they reached on the spot, they found three ladies standing there, and on being asked, they disclosed their names. The notice under Section 50 of the NDPS Act was given to them separately and their right to be searched from any Magistrate, Gazetted Officer or the Police Officer have been informed. The appellants gave their consent to be searched by the Assistant Sub Inspector Rajendra Kumar Dubey and relevant panchnama was prepared. The police party also gave their own search to the appellants and no incriminating articles were found. On being searched of the bags of the appellants, from the appellant Tulsa Kora, 6kg of Ganja, which was wrapped in two packets by brown colour cello tape have been recovered. From the appellant Parvati Pujari, 6.300 kg Ganja, has been seized from her bag which was wrapped in two packets by brown colour cello tape and from the appellant Rashmi Pangi, 5.200 kg Ganja, has been seized from the plastic bag which was wrapped in two packets by brown colour cello tape. The seizure memo has been prepared. The seized contraband were identified by its rubbing, smelling and burning and identification panchnama was prepared. The notice under Section 91 of the Cr.P.C. were also given to

¶23

3

¶24

the appellants but they could not produce any documents with respect to the valid possession of the said contraband. Weighment witnesses were also called, the seized contraband were weighed and necessary panchnamas were also prepared. The seized contraband were sealed on the spot and specimen seal panchnama were also prepared, the information about arrest of the appellant were also given to their relatives. Dehati Nalasi was recorded on the spot. The police party along with the seized contraband and other articles including the accused persons came to the Police Station where the seized articles were kept in safe custody of Malkhana and FIR was registered. The inventory as required under Section 52-A of the NDPS Act was prepared by the Judicial Magistrate First Class, Raipur and sampling was done by him. After the inventory and sampling, the samples were sent for its chemical examination to FSL, Raipur, from where report has been obtained in which Ganja contents were found. After completion of usual investigation charge-sheet was filed against the appellants for the offence under Section 20(b) of the NDPS Act, before the learned trial Court.

¶25

The learned trial Court has framed charge against the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act. The appellants denied the charge and claimed trial.

¶26

In order to prove the charge against the appellants, the prosecution has examined as many as 9 witnesses. Statement of the appellants under Section 313 of the Cr.P.C. have also been recorded, in which they denied the circumstances appears against them, plead innocence and have submitted that in search of their livelihood they came to Raipur. However, they have been detained by the police authorities and roped in a false case of alleged trafficking of Ganja.

¶27

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

¶28

4

¶29

Learned counsel for the appellants would submit that the appellants are not challenging their conviction, however, they are praying for reduction of the sentence awarded to them for the alleged offence. He would further submits that about 6 kg of Ganja have been seized from each of the appellants separately and they have been convicted for the offence under Section 20(b) (ii)(B) of the NDPS Act. The offence of Section 20(b)(ii)(B) relates with the offence of trafficking of contraband having more than small and less than commercial quantity for which there is no minimum sentence provided. The appellants are in jail since 29.07.2023 and thereby they have already undergone more than two years of the jail sentence. All the appellants are ladies of young age, there is no criminal antecedent against them and considering the quantity of the contraband and the nature of offence, their sentence may be reduced for the period already undergone by them.

¶30

On the other hand, learned counsel for the State opposes and have submitted that the appellants were found in possession of about 6 kg Ganja to each of the appellants and they were in process of trafficking the same. Considering the gravity of the offence and impact of the offence in the society and public at large, the learned trial Court has awarded the appropriate sentence to each of the appellants which is just and proper and under the facts and circumstances of the case, the appellants are not entitled for any leniency.

¶31

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

¶32

Although the appellants are not challenging their conviction for the offence under Section 20(b)(ii)(B) of NDPS Act, for possession of alleged contraband with them. However, this Court deem it appropriate to examine the evidence available on record.

¶33

PW-8, Rajendra Kumar Dubey, the Investigating Officer stated in his evidence that on 29.07.2023 he received secret information that three ladies

¶34

5

¶35

having illegal contraband in their possession and they were standing near Bhatagaon overbridge for trafficking the same. He recorded the secret information in Rojnamcha Sanha Ex.P/37 and its attested true copy is Ex.P/37-C. The secret information panchnama and necessity to search without warrant panchnama Ex.P/30 and Ex.P/31 was prepared in presence of the witnesses Chandresh Kumar Chandraker and Bhanuram Markam. Two independent witnesses were called through the constable No. 898 Chandresh Kumar Chandraker and his departure was recorded in Rojnamcha Ex.P/38. The independent witnesses Avinash Dahariya PW-2 and Divesh Dewangan PW-1 were appeared in the Police Station and their arrival was also recorded in Rojnamcha Ex.P/39.

¶36

The secret information panchnama and necessity to search without warrant panchnama were forwarded to the City Superintendent of Police, Purani Basti, Raipur and the departure of the constable was also recorded in Rojnamcha Ex.P/40, who after its service came back to Police Station. The notice Ex.P/1 and Ex.P/28 were given to the independent witnesses to assist in search proceeding. Thereafter, the police party proceeded towards the place of incident and their departure were also recorded in the Rojnamcha Ex.P/42. When they reached on the spot they found three ladies. On being asked they disclosed their names as Tulsa Kora, Parvati Pujari and Rashmi Pangi. He informed their right to be searched by any Gazetted Officer, Magistrate or by himself. The notice under Section 50 of NDPS Act given to the accused persons is Ex.P/2. The appellants gave their consent to be searched by him which is recorded in writing and the same is Ex.P/5. He himself gave his own search to the appellants and panchnama Ex.P/6 was prepared. The search of police force was also given to the appellants and panchnama Ex.P/7 was prepared the search of the independent witnesses were also done and panchnama Ex.P/8 was prepared.

¶37

On being search of the bags of the appellants two packets of Ganja

¶38

6

¶39

in each of the bags in each of the appellants were seized and Talashi panchnama Ex.P/9, Ex.P/10 and Ex.P/11 were prepared. The search memo of contraband seized from the appellant Tulsa Kora is Ex.P/12, Parvati Pojari is Ex.P/13 and Rashmi Pangi is Ex.P/14. The seized contraband were identified on the spot by its rubbing, smelling and burning and identification panchnama Ex.P/15 was prepared. The weighment witness Raju Yadu PW-9 was also called along with the weighing machine and after physical verification of the weighing machine the contraband was weighed. On being weighed the contraband seized from the appellant Tulsa Kora was found to be of 6 kg, Parwati Pujari was found to be 6.300kg and from Rashmi Pangi was found to be of 5.200kg the physical verification panchnama of the weighment machine is Ex.P/16 and weighment panchnamas are Ex.P/17, Ex.P/18 and Ex.P/19. The seized Ganja were sealed on the spot and specimen seal panchnama Ex.P/20 was prepared. The Ganja were seized vide seizure memo Ex.P/21, Ex.P/22 and Ex.P/23. The notice under Section 91 was given to the appellants to produce the valid documents, however, they failed to produce any document which has been reduced in writing in Ex.P/43, Ex.P/44 and Ex.P/45. Spot map Ex.P/46 was prepared by the police and Dehati Nalasi Ex.P/47 was recorded on the spot. After completing the search proceeding the police party along with the accused persons and seized articles came to the police station and their arrival was also recorded in Rojnamcha Ex.P/48. The FIR Ex.P/49 was registered and the appellants were arrested

¶40

The arrest of the appellants were informed to their relatives through the document Ex.P/50, Ex.P/51 and Ex.P/52. The seized articles were kept in safe custody of Malkhana and obtained the acknowledgment Ex.P/35. He made an application Ex.P/53 for inventory on which order of inventory proceeding was issued which is Ex.P/54. The document with respect to the inventory are Ex.P/55 to Ex.P/60 and the photographs of the inventory

¶41

7

¶42

proceedings are Ex.P/61 to Ex.P/72. The samples were drawn during inventory which was sent to the FSL, Raipur for its chemical examination and obtained FSL report Ex.P/73 and Ex.P/74 in which the Ganja contents were found in the samples after completion of the investigation the charge-sheet has been filed.

¶43

In cross-examination of this witness he remained firm in the entire process of search and seizure and the defence could not extracted any material which makes the entire proceeding of search and seizure doubtful. All the mandatory provisions of the NDPS Act appears to be complied with from the evidence of this witness PW-8.

¶44

PW-1, Divesh Dewangan, and PW-2 Avinash Dahariya are the independent witnesses and admitted their signature over the documents Ex.P/1 to Ex.P/26.

¶45

PW-3, Nilesh Pathak is the Head constable and posted at the Office of City Superintendent of Police. He received the secret information report and search without warrant panchnama and issued the acknowledgment.

¶46

PW-4, Chandresh Kumar Chandraker, is the Head constable posted at Purani Basti, Raipur and he called the two independent witnesses PW-1 and PW-2.

¶47

PW-5, Abdul Mustaq Khan, is another constable who has taken the sample packets of Ganja to the FSL, Raipur along with the memo of Superintendent of Police.

¶48

PW-6, Monish Kumar Sahu, is another Head constable who is the Malkhana at Police Station, Purani Basti, Raipur. He also proved the safe custody of the seized articles, inventory proceeding and sealing of the seized articles. Nothing could be elicited by the defence in the evidence of PW-6 so that his evidence can be disbelieved or any tempering with the samples could be extracted. His defence is remain intact in his cross-examination in support of the prosecution.

¶49

8

¶50

PW-7, Bhanuram Markam, is another constable who had taken the report to the Office of City Superintendent of Police, Raipur.

¶51

PW-9, Raju Yadu is the weighment witness but he has turned hostile and not supported the prosecution case.

¶52

From the overall evidence led by the prosecution, it transpires that the police authorities have followed all the mandatory provisions of the NDPS Act while search and seizure proceeding. The discrepancies are minor and does not affect the substantial compliance of the mandatory provisions. Considering the facts and evidence available on record as also the law laid down by Hon’ble Supreme Court, the learned trial Court has convicted the appellants for illegal possession of Ganja and this Court is of the opinion that the prosecution has proved the offence against the appellants, therefore, this Court upheld the conviction of the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act.

¶53

So far as the sentence awarded to the appellants is concerned, the submissions made by learned counsel for the appellants that the appellants are ladies and having young age group. The offence of Section 20(b)(ii)(B) of the NDPS Act does not provide any minimum sentence which may extend to R.I. for 10 years. The appellants are already remained in jail for more than 02 years and thus considering the quantity of Ganja and the manner in which they have found in possession of about 6 kg of Ganja to each of the appellants, their sentence may be reduced for the period already undergone by them is appealing.

¶54

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:-

¶55

“9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the

¶56

9

¶57

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 subculture 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 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.”

¶58

Considering the submissions made by learned counsel for the appellants and also in view of the law laid down by Hon’ble Supreme Court in the matter of Mohammad Giasuddin (Supra), this Court is of the opinion that ends of justice would meet if the sentence awarded to the appellant is to be reduced.

¶59

Consequently, while maintaining the conviction of the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act, their sentence are reduced for the period already undergone by them from R.I. for 04 years. The fine sentence as well as default stipulation are remain intact.

¶60

With the aforesaid modification/alteration of their sentence, the appeal is partly allowed .

¶61

The appellants are reported to be in jail. They be released forthwith if not required in any other case, subject to complying the fine sentence and

¶62

10

¶63

default stipulation.

¶64

Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

¶65

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

¶66

Sd/-

¶67

(Ravindra Kumar Agrawal) Judge

¶68

Alok

Tulsa Kora v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Tulsa Kora v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Abc (Child in Conflict With Law) Vs State of Chhattisgarh

Pellet Manufacturers Association of India Vs State of Chhattisgarh

Manisha Pradhan Vs State of Chhattisgarh

Smt. Sadhna Kothari Vs Badgaiya Brothers Pvt. Ltd.

Dey Narayan Singh Vs Jai Majisa Hardware

Dinesh Patel Vs State of Chhattisgarh