Nawal Sahu Vs State Of Chhattisgarh

This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 27/08/2016 passed by the Special Judge (NDPS), Korba, District Korba, C.G. in Special (NDPS) Case No.11/2015 whereby the appellant has been convicted and sentenced as under:-

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Conviction		Sentence
Under Section 20(b) (ii) (B) of	R.I. for	04 Years and fine of
Narcotic Drug and Psychotropic	Rs.10,000	/- and in default of
Substances Act, 1985	payment additional	of fine 10 months R.I.

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Digitally ASHUTOSH signed by MISHRA ASHUTOSH MISHRA

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The case of the prosecution is that on 29.07.2015, Assistant District Excise Officer P.L. Nayak, during Balco patrol, on the basis of information given by the informer, due to lack of time, without conducting a search, without search warrant went to Daihanpara Chowk, Balco along with his staff and stopped Naval Sahu. Witnesses were called. After the accused consented to the search, a bud-like substance was recovered from a plastic bag and on being examined, it was found to be marijuana. After weighing it on a verified scale, the contraband weighed was found to be 3KG out of which 90 grams was removed, 30 grams each in three polythene bags, sealed, and samples A, B, and C were prepared. The remaining marijuana was placed in the same bag and sealed. The accused was arrested and found to have committed a nonbailable offense under Section 20 (b) (II) (B) of the NDPS Act. Under Sections 55 and 57 of the NDPS Act, a case, FIR No. 99/15, was registered against the accused.

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The sample was sent to Forensic Science Laboratory, Raipur, in which it was found positive for Ganja and hence this charge sheet was presented against the accused on 14.09.2015.

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The charge sheet under Section 20 (B) (two) (B) of the Narcotic Drugs and Psychotropic Substances Act was framed against the accused Nawal Sahu and read out to him. On being explained to him, the accused denied having committed the crime and his plea was recorded in his own words. The accused was examined under Section 313 CrPC. During the examination, the accused declared himself innocent and that he had been falsely implicated and refused to give evidence in his defence.

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Prosecution in its support adduced oral evidence of Bharat Lal (PW-1), Musafir Yadav (PW-2), Ram Jaiswal (PW-3), Asam Singh Porte (PW-4) & P.L. Nayak (PW-5) and exhibited 30 documents. The learned trial Court after evaluating the facts & evidence convicted the accused as aforesaid. Hence this appeal.

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Learned counsel appearing for the appellant submits that he is not pressing this appeal on merits and confining the arguments to the quantum of sentence only. He would next contend that the sentence awarded to the appellant is R.I. for 04 Years and the appellant was in jail from 29/07/2015 to 25/10/2016 i.e. 01 Year and 02 Months & 26 Days thereafter he was granted bail by this Court and presently he is on bail. He would next contend that since the incident is of the year 2015 and more than 10 years have elapsed, therefore, it is prayed that the sentence awarded to appellant be reduced to the period already undergone by him.

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Per contra, learned State counsel would submit that the judgment of the trial Court is well merited which do not call for any interference.

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

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In the present case, the prosecution has examined P.L. Nayak (PW-5), who was posted as Excise Sub-Inspector as the main Investigating Officer. His testimony reveals that upon receipt of secret information, he reduced the same into writing and informed his superior officer, thereby complying with the mandate of Section 42 of the NDPS Act. The documentary exhibits relating to such compliance have been duly

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proved.

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P.L. Nayak (PW-5) has further deposed that he called independent witnesses namely Bharat Lal (PW-1), Musafir Yadav (PW-2) and Ram Jaiswal (PW-3) to the spot and served them notices to remain present during the search proceedings. Though these independent witnesses did not fully support the prosecution case during trial, they have admitted their signatures on the seizure memo and related documents. Their partial hostility does not demolish the prosecution case when official testimony remains reliable.

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The evidence of P.L. Nayak (PW-5) further establishes that before conducting the search of the accused, the accused was informed of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. A consent memo was prepared accordingly. Prior to searching the accused, personal search of the staff and witnesses was also conducted.

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P.L. Nayak (PW-5) has categorically stated that from the possession of the accused, approximately 3 kilograms of ganja was recovered. The seizure memo and sampling procedure have been duly proved. Three samples of 30 grams each were drawn, sealed and marked. The chain of custody has been established through documentary evidence. The seized contraband was deposited in the malkhana and entries were made in the register. PW-4 Asam Singh Porte, who is an office witness, has corroborated the forwarding of samples and proved relevant documentation. The FSL report confirms that the samples contained

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ganja.

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The report under Section 57 of the NDPS Act was also sent to the superior officer within the prescribed time. No material contradiction has been elicited in the cross-examination of P.L. Nayak (PW-5) so as to render his testimony unreliable. The defence has failed to demonstrate any procedural lapse which would vitiate the trial.

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In light of the above discussion, this Court finds that the prosecution has proved beyond reasonable doubt that the accused was in conscious possession of intermediate quantity of ganja. Thus, the seizure of contraband Ganja from the possession of the appellant stands proved. Accordingly, the finding of conviction recorded by the learned trial Court under Section 20(b)(ii)(B) of the NDPS Act calls for no interference and is hereby affirmed.

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As regards the quantum of sentence, considering the fact that the incident is of the year 2015, the quantity of contraband involved is not commercial, the Appellant has faced long trial, Appellant has suffered the jail sentence from 29/07/2015 to 25/10/2016 i.e. 01 Year and 02 Months & 26 Days thereafter he was granted bail by this Court and presently he is on bail and no criminal antecedents are brought on record. Considering the totality of circumstances and the period of detention already undergone by the appellant, this Court is of the view that ends of justice would be met by reducing the substantive sentence to the period already undergone by the appellant. The fine amount shall remain intact. It is ordered accordingly.

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Consequently, this appeal stands allowed in part to the extent indicated

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herein-above.

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Appellant is on bail. His bail bonds shall remain operative for a period of 06 months in view of Section 437A of CrPC (now Section 481 of Bhartiya Nagrik Suraksha Sanhita, 2023).

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

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SD/-

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(Arvind Kumar Verma) JUDGE

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ashu

Nawal Sahu v. State Of Chhattisgarh

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Nawal Sahu v. State Of Chhattisgarh

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