Rajesh Patel Vs State of Chhattisgarh

For Appellant : Mr. Prakash Tiwari, along with Mr. Anmol Singh, Advocates through legal Aid. Mr. Dhirendra Prasad Mishra, Advocate For Respondent : Ms. Nupur Trivedi, P.L.

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Hon'ble Shri Justice Arvind Kumar Verma,

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Order on Board

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09. 09.2024

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This criminal appeal has been filed under Section 36(B) of NDPS Act r/w Section 374 (2) of Cr.P.C. by the appellant against the judgment of conviction and order of sentence dated 13.05.2003 passed by the learned Special Judge (N.D.P.S. Act) Jagdalpur in Special Case No. 05/2003, whereby the appellant has been convicted and sentenced as follows:-

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Convicted under Sentenced to Sections

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20(B)(ii)(B) of N.D.P.S. R.I. for 5 years and 6 months with fine of Act, 1985 Rs. 25,000/- and in default of payment of fine, additional R.I. for one and half year.

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The prosecution case, in brief, is that on 24.01.2003 at about 3:00 pm ASI T.S. Thakur (PW-1), while returning from a court hearing towards Police Chowki Bastar, allegedly noticed the appellant seated under a mango tree with a carry-bag near village – Bhirlinga, P.S. Jagdalpur, District Bastar; that PW-1 is stated to have called Bunty @ Karunakar (PW-2) and Naveen Kant (PW-3) from a nearby field. On interrogation, the appellant Rajesh Patel accepted that he is having some contraband Ganja in his bag and carry bags which was purchased from Boregaon thereafter the said police officer given him notice under Section 50 of NDPS Act and after due procedure sezied 10.500 kg of substance described as ganja from those bags. That the appellant was arrested. After completion of investigation, the charge-sheet was filed before the competent Court against the appellants.

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The learned Special Judge (N.D.P.S.), Act, Jagdalpur, after appreciating oral and documentary evidence available on record vide judgment dated 13.05.2003, convicted the appellant for the offence punishable under Section 20(b)(ii)(B) of the N.D.P.S. and sentenced him as mentioned in opening paragraph of this order.

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The appellant was in custody from 25.01.2003 to 13.05.2003 (3 months and 18 days) during trial and he was in jail from the date of judgment dated 13.05.2003 to 25.11.2004 (Total time spent in jail 1 year 10 months 1 day.)

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Learned counsel for the appellant would submit that the appellant is innocent persons and has been falsely implicated in the aforesaid case

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and the mandatory provisions have not been followed by the prosecution. The judgment of the Trial Court is bad in law as well as on facts. The learned Trial Court ought not to have convicted and sentenced the appellants and ought to have given the benefit of doubt since the evidence submitted by the prosecution is very shaky and unbelievable. The Trial Court failed to appreciate the evidence and documents available on record. Alternatively, learned counsel for appellant submits that the trial Court has awarded the sentence of RI for 5 years and 6 months and fine of Rs. 25,000/- under Section 20(b)(ii)(B) of the N.D.P.S, in default of payment of fine one and half year additional R.I.

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Learned counsel for the appellant further submits that he does not want to press this appeal on merits and confine his arguments to the sentence part thereof only. Further, learned counsel for appellants submits that the appellant at present is aged about 49 years and as he is facing criminal trial since 2003 and the appellant has already undergone more than one year and 10 months awarded by the trial Court in NDPS Special Case No. 05/2003. There is also no previous criminal antecedents against the appellant. Therefore, the jail sentence awarded to the appellants may be reduced to the period already undergone by them. Learned counsel for appellants placed his reliance upon the decisions of the Coordinate Bench of this High Court in the matters of Ajay Kumar Sarthi V. State of Chhattisgarh in CRA No. 243 of 2022, Pritam Patel Vs. State of Chhattisgarh in CRA No. 903 of 2015 and Yogendra Singh Markam Vs. State of Chhattisgarh in CRA No. 1760 of 2022, the Cor-ordinate Bench has reduced the sentence to the period already undergone, and therefore, similar relief may be extended to the appellants herein as well.

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Ms. Nupur Trivedi learned Panel Lawyer appearing for the respondent/State, submits that the Trial Court has rightly convicted and sentenced the appellant, in which no interference is called for.

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I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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From perusal of the records, it transpires that on 24.01.2003, one Assistant Sub Inspector namely t.S. Thakur had arrived at the court of Jagdalpur for adducing his evidence. At 03:00 p,. he returned back towards his police chowki Bastar. On the way, when he was making his way passed through village bhirlings, he saw the present appellant who was sitting under a Mango tree and having a bag and carry bag. In the meantime, the said ASI reached there and inquired about his baggage. On interrogation, appellant accepted that he is having some contraband Ganja in his bag and carry bag. Thereafter the said police officer, given notice under Section 50 of the NDPS Act and 10.500 kg of substance described as ganja was allegedly recovered from the exclusive possession of the appellant. Further, it appears that Investigation Officer has followed the mandatory provisions of Section 42(1) 42(2) of the NDPS Act 1985 and after giving information to the Superior Gazette Officer, he recovered ganja from the exclusive possession of the accused and the IO has also followed the norms of 52A, 55 and 57 of the NDPS Act. The IO has taken samples of 25:25 grams of ganja and sent for FSL test and FSL report is positive. The trial Court after considering the material available on record and evidence of the prosecution witnesses, convicted the appellant for the offence under Section 20(B)(ii)(B) of the N.D.P.S. and sentenced to undergo RI for 5 years and 6 months to appellant and fine of Rs. 25000/-. Considering the material available on record and the evidence adduced by the

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prosecution, I am of the view that the Trial Court did not commit any illegality or infirmity in the findings recorded by Trial Court as regards conviction of the appellants under Section 20(B)(ii)(B) of the N.D.P.S. Therefore, the conviction of the appellant is maintained.

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As regards the sentence awarded to them. Considering the fact that the appellants are facing criminal trial since 2003 and thereafter more than 22 years has been elapsed, considering the age of the appellant at present and further considering the quantity of contraband seized from the possession of the appellant i.e.10.500 kg contraband(ganja), which is intermediate quantity and there is no previous criminal antecedents against him and further the appellant has already undergone one year and 10 months of jail sentence awarded by the trial Court and bail was also granted to him by this Court on 20.10.2004, there would be no useful purpose to send the appellant in jail as he has already suffered undergone sentence and also agony of criminal trial for so many years, that meets the ends of justice. So this Court finds it appropriate to reduce the sentence from RI for 5 year and 6 months under Section 20(B) (ii)(B) of the N.D.P.S. to the period already undergone by the appellant i.e. one year and 10 months of jail sentence. However, fine amount is maintained and the fine amount of Rs. 25,000/- shall be deposited by the appellant before the trial Court within a period of 30 days from the date of receipt of copy of this judgment.

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With the aforesaid observations, the criminal appeal is partly allowed to the extent indicated hereinabove.

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Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/(Arvind Kumar Verma ) Judge

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Jyoti

Rajesh Patel v. State of Chhattisgarh

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Rajesh Patel v. State of Chhattisgarh

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