Ishwar Lal Noniya Vs State Of Chhattisgarh

This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, being aggrieved by the judgment of conviction and order of sentence dated 29.06.2016 passed by the learned Special Judge (NDPS Act), Korba (C.G.) in

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Special NDPS Case No. 68/2014, whereby the appellant has been convicted for the offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.30,000/-, and in default of payment of fine, to further undergo rigorous imprisonment for three years.

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The prosecution case, as emerging from the charge-sheet, oral evidence and documentary exhibits, is that on 07.09.2014, the Assistant District Excise Officer / Excise Inspector, Korba Circle, received secret information that the appellant was involved in possession and sale of ganja at Kailash Nagar, Balco, District Korba. Considering the urgency and likelihood of removal of contraband, the excise staff proceeded to the spot without obtaining a search warrant, after recording reasons and preparing panchnama relating to non-obtaining of warrant. The appellant was intercepted near Ram Mandir, Kailash Nagar, Balco. He was informed about the secret information and was apprised of his right under Section 50 of the NDPS Act. Consent was obtained for search by the excise officer himself. Upon search, a plastic bag containing green leafy substance was recovered from the possession of the appellant. On examination and smell, it was suspected to be ganja. The seized substance was weighed on a verified scale and found to be 5 kilograms. From the bulk, 75 grams was drawn as sample, divided into three packets of 25 grams each, sealed on the spot. The remaining ganja was separately sealed. Necessary search panchnama, seizure memo, sampling memo, arrest memo and seal papers were prepared on the

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spot in presence of witnesses. The sample packets were forwarded to the Forensic Science Laboratory, Raipur, which confirmed the substance to be ganja. ter completion of investigation, charge-sheet was filed for offence under Section 20(b)(ii)(B) NDPS Act. The learned trial Court framed charge accordingly. The appellant abjured guilt and claimed trial.

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In order to bring home the charge, the prosecution examined official witnesses, including the Excise Inspector (PW-10), seizure witnesses, and formal witnesses. Various documents such as seizure memo, search panchnama, arrest memo, sample seal memo, forwarding letter, and FSL report (Ex. P/22) were brought on record. Independent witnesses, including PW-9 Durga Bai Pandey, did not fully support the prosecution case and were declared hostile.

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Learned Court below vide judgment under challenge has convicted and sentenced the appellant herein as mentioned above. Hence the appeal filed by the present appellant.

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4. Learned counsel for the appellant contended that:

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(i) that the judgment impugned being contrary to the material available on record is liable to be set aside.

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(ii) The conviction is based solely on official witnesses, and independent witnesses have not supported the prosecution. (iii) Mandatory provisions of the NDPS Act, particularly Sections 42 and 50, have not been complied with in letter and spirit.

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(iv) No search warrant was obtained, despite sufficient time being

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available.

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(v) Only 75 grams sample was sent for chemical examination, while the remaining bulk was not sent, creating serious doubt regarding the integrity of the seized material.

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(vi) The seized contraband was not produced before the Court.

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(vii) The appellant has no previous criminal antecedents.

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(viii) The appellant has already remained in custody for about two and a half years.

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(ix) The sentence of ten years is harsh and disproportionate, considering the quantity involved is less than commercial quantity. It was, therefore, prayed that the sentence be reduced to the period already undergone while maintaining the fine.

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Learned counsel for the State opposed the appeal and submitted that:

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(i) The recovery of ganja from the possession of the appellant has been proved beyond reasonable doubt.

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(ii) The official witnesses are trustworthy, and their testimony cannot be discarded merely because independent witnesses turned hostile.

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(iii) The chemical examination report conclusively establishes that the seized substance was ganja.

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(iv) The seized quantity of 5 kilograms falls within intermediate quantity, and therefore conviction under Section 20(b)(ii)(B) is legally sustainable.

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(v) Learned State counsel supported the judgment and submitted that recovery, compliance of Section 50 NDPS Act, sealing, sampling and FSL confirmation stand proved beyond reasonable doubt. It was argued

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that hostility of witnesses does not demolish the prosecution case

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The learned trial Court has correctly appreciated the evidence and passed a well-reasoned judgment and therefore, the appeal may be dismissed.

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

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This Court has carefully examined the entire prosecution case as unfolded through oral and documentary evidence. The prosecution rests primarily upon the testimony of the official witnesses, contemporaneous seizure documents, and the forensic report.

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PW-10, the Excise Inspector, is the star witness of the prosecution. He has deposed that on 07.09.2014, upon receipt of secret information regarding possession and sale of ganja by the appellant at Kailash Nagar, Balco, he informed his superior officers and, considering the urgency of the situation, proceeded to the spot with the excise staff. His testimony clearly explains the reason for non-obtaining of search warrant, namely, apprehension of removal of contraband.

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PW-10 has further stated that the appellant was intercepted near Ram Mandir, Kailash Nagar, and was informed of the secret information. The appellant was apprised of his legal right under Section 50 of the NDPS Act, and a written consent was obtained permitting search by the excise officer himself. The consent memo and Section 50 compliance documents have been duly proved.

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According to PW-10, during search, a plastic bag containing greenish leafy substance was recovered from the possession of the appellant. On physical examination and smell, the substance appeared to be ganja. The seized contraband was weighed on a verified scale and found to be 5 kilograms. From the bulk ganja, 75 grams was drawn as representative sample, divided into three packets of 25 grams each, sealed on the spot. The remaining ganja was also separately sealed. Seizure memo, sampling memo, seal paper, arrest memo and related panchnamas were prepared contemporaneously. These documents stand duly proved on record as Exhibits.

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PW-11 and other official witnesses have corroborated the seizure, weighing, sampling and sealing procedure. Their evidence is consistent on material particulars and inspires confidence. Independent witnesses, including PW-9 Durga Bai Pandey, though partly resiling from their earlier statements, have admitted their signatures on the seizure and panchnama documents. The mere fact that independent witnesses turned hostile does not, by itself, discredit the prosecution case, particularly when the official witnesses are reliable and supported by documentary evidence.

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The prosecution has further established the safe custody and transmission of samples. The sample packets were forwarded to the Forensic Science Laboratory, Raipur, and the FSL report (Ex. P/22 / Ex. P/33) conclusively opines that the seized sample was ganja, after physical, chemical and microscopic examination.

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From the overall appreciation of evidence, this Court finds that the chain of custody remains intact, and the prosecution has been able to establish recovery of ganja from the possession of the appellant.

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The quantity recovered from the appellant is 5 kilograms of ganja, which clearly falls within the category of intermediate quantity under the NDPS Act.

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The compliance of Section 50 of the NDPS Act stands proved through oral evidence and written consent. The explanation for not obtaining a search warrant has been contemporaneously recorded and cannot be said to be an afterthought.

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The testimony of the official witnesses, supported by seizure documents and the FSL report, proves the prosecution case beyond reasonable doubt. Hence, the conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act does not suffer from any legal infirmity and is liable to be affirmed.

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It is not in dispute that:

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(i) the appellant is a first-time offender,

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(ii) the recovered quantity is less than commercial quantity,

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(iii) the appellant has remained in custody for about two and a half years, and

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(iv) the prosecution has not alleged involvement in organized or repeated trafficking.

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The Supreme Court, in Shahejadkhan Mahebubkhan Pathan v.

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State of Gujarat (2013) 1 SCC 570 , has held that in NDPS cases

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involving non-commercial quantity, sentencing must be proportionate and individualized. In Ramesh Kumar v. State of Punjab (2015) 6 SCC 552 , the Supreme Court reduced the sentence to the period already undergone in a case involving intermediate quantity, observing that prolonged incarceration of a first offender may not advance the cause of justice.

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In Rafiq Qureshi v. Narcotic Control Bureau (2019) 6 SCC 492, it has been reiterated that courts retain discretion to mould the sentence in appropriate cases involving intermediate quantity. 18. Similarly, in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, (2008) 5 SCC 161, the Supreme Court emphasized that sentencing must be proportionate to the actual culpability, particularly where the recovered quantity does not fall within the commercial category.

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Applying the aforesaid principles, this Court is of the considered view that while the conviction must stand, the sentence of ten years’ rigorous imprisonment is excessive in the facts and circumstances of the present case.

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While affirming the conviction, this Court has independently examined the question of sentence in the light of the principles laid down by the Supreme Court with regard to offences involving intermediate quantity under the NDPS Act.

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In view of the law laid down by the Supreme Court and the facts and circumstances of the present case, this Court is of the considered

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opinion that ends of justice would be adequately met by reducing the substantive sentence of imprisonment to the period already undergone, while maintaining the fine imposed by the trial Court.

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Consequently, the appeal is partly allowed. The conviction of the appellant for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act is hereby affirmed. However, having regard to the fact that the recovered quantity is of intermediate category, that the appellant is a first-time offender, and that he has already undergone approximately two and a half years of incarceration, the sentence of rigorous imprisonment awarded by the learned trial Court is reduced to the period already undergone. The fine of Rs.30,000/-, as imposed by the learned trial Court, shall remain intact, along with the default stipulation. Since the appellant is reported to be on bail, his bail bonds and surety bonds shall stand discharged, subject to deposit/payment of the fine amount, if not already deposited.

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The appellant shall comply with Section 437-A of the Code of Criminal Procedure, and furnish the requisite bond before the trial Court within the stipulated period.

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Sd/(Arvind Kumar Verma) Judge

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Digitally signed by SUGUNA SUGUNA DUBEY Date: DUBEY 2026.02.03 11:31:48 +0530

Ishwar Lal Noniya v. State Of Chhattisgarh

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Ishwar Lal Noniya v. State Of Chhattisgarh

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