Rohit Markande 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 23/08/2019 passed by the Special Judge (NDPS Act), Bemetara, District Bemetara, C.G. in Special Case (N.D.P.S.) No.5/2017

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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 01	Year and fine of
Narcotic Drug and Psychotropic	Rs.1000/- an	d in default of
Substances Act, 1985	payment of additional R.I.	fine 03 months

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Digitally
ASHUTOSH signed by
MISHRA ASHUTOSH
MISHRA

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The prosecution's case in brief is that on March 3, 2017, Investigating Officer Nathuram Nishad of Berla Police Station received information from an informant that accused Rohit Markande was concealing marijuana for illegal sale at his home in Sodh village. Upon receiving this information, the Investigating Officer prepared an Informant Panchnama and sent a notice to the Sub-Divisional Magistrate, Berla, for further action. Witnesses Manoj and Omprakash were summoned by issuing notices under Section 160 of the CrPC. Due to the senior officer's absence, and the possibility of the accused escaping and the drug being mishandled or destroyed, the Investigating Officer prepared a report outlining the reasons for the search under the provisions of the NDPS Act and, after informing the senior officer, proceeded to Sodh village with accompanying staff and witnesses. On reaching in front of the house of the accused, accused Rohit Markande was found near his house, to whom, citing informer's information, a notice was given regarding search of the accused in front of witnesses. Before the search operation of the accused, the police staff and witnesses were also searched. On searching the house of the accused located in village Sodh, about 300 grams of narcotic substance Ganja, kept for illegal sale, was found in a plastic bag kept on the fridge near the door inside a room of the said house and Ganja and other substances were found at the main door of the storeroom. About 1 kg of ganja hidden in a bundle was recovered. After showing it to the witnesses, the said ganja was rubbed, smelled and tasted and an identification panchnama was prepared. For the weighing process of the said ganja, weigher Banshilal Soni was

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summoned with an electronic weighing scale and after verification of the said scale, the ganja seized from the accused was weighed in front of the witnesses. The total ganja recovered from the accused Rohit Markande was found to be 1 kg 300 grams. The ganja recovered from both the bags was seized separately and two packets of 50-50 grams each were taken out as samples and the remaining ganja was sealed separately. The accused was given a notice under Section 91 of the CrPC to produce valid documents regarding possession of the said narcotic substance. The accused stated in writing that he did not have a license. The investigating officer then seized the marijuana in the presence of witnesses and prepared two separate seizure sheets. A site map of the scene was prepared. A rural complaint was filed on the spot and the accused was formally arrested. A formal FIR was registered after the seized marijuana and the accused were returned to the police station. Witness statements were taken. Fifty-gram samples of marijuana extracted from the seized drug were sent to the FSL, Raipur, by the Superintendent of Police, Bemetara, for testing. The FSL report confirmed the drug to be marijuana. Subsequently, a charge-sheet number 64/17 under Section 20(b) of the Narcotics Act was filed against the accused before the Special Court.

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During the trial, a charge was framed against accused Rohit Markande under Section 20 (b) (II) (a) of the N.D.C.S. Act. The accused denied the charge and sought trial. The prosecution then examined nine witnesses in support of its case: Radheshyam Rajput (PW-1), Banshilal Soni (PW-2), Manoj Kosle (PW-3), Jagmohan Kunjam (PW-4), Omprakash Gaikwad

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(PW-5), Surendra Kumar Jangde (PW-6), Vishnu Prasad Sapre (PW-7), N.R. Nishad (PW-8) and Rajendra Singh Rajput (PW-9).

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In his statement of conviction under Section 313 of the CrPC, the accused denied the charges leveled against him, stating that he was innocent and had been falsely implicated. He did not present any evidence in his defense. 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 01 Year and the appellant was in jail since 03/03/2017 to 28/04/2017 thereafter he was granted bail by this Court in M.Cr.C. No.1926 of 2017 and presently also he is on bail. He would next contend that since the incident is of the year 2017 and more than 08 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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After having given anxious consideration to the entire material available on record, this Court finds that the learned trial Court has properly appreciated the oral as well as documentary evidence and has rightly recorded the finding of guilt against the appellant. The recovery of

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contraband ganja from the conscious possession of the appellant stands duly proved by the testimony of prosecution witnesses, which inspires confidence and does not suffer from any material contradiction or omission so as to discredit the prosecution case.

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The seizure proceedings, preparation of panchnamas, and forwarding of samples for chemical examination have been duly established. The FSL report confirms that the seized substance was ganja. The procedural requirements under the Narcotic Drugs and Psychotropic Substances Act, 1985 have been substantially complied with, and no such violation has been demonstrated which may vitiate the trial.

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Accordingly, this Court finds no illegality or perversity in the finding recorded by the learned trial Court. The conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act is hereby affirmed.

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Now coming to the question of sentence, it is evident that the appellant has been sentenced to undergo rigorous imprisonment for one year along with fine of ₹1,000/-, with default stipulation. While considering the propriety of sentence, certain mitigating circumstances deserve due consideration:

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The incident pertains to the year 2017, and considerable time has elapsed since then.

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The quantity of contraband involved is of intermediate quantity, i.e., more than small but less than commercial quantity.

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There is no material available on record to indicate that the

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appellant is a habitual offender or has any criminal antecedents.

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The appellant has already undergone a substantial period of incarceration during investigation, trial, and pendency of the present appeal.

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The appellant has faced the protracted ordeal of criminal proceedings for several years, which itself operates as a deterrent.

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It is well settled that while imposing sentence, the Court is required to strike a balance between the nature of offence and the mitigating circumstances of the offender. The object of sentencing is not only punitive but also reformative. Considering the aforesaid factors in their totality, this Court is of the considered view that the ends of justice would be adequately met if the substantive sentence of imprisonment awarded to the appellant is reduced to the period already undergone by him.

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Consequently, while maintaining the conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act, the sentence of one year rigorous imprisonment imposed by the trial Court is hereby modified to the period already undergone by the appellant. The sentence of fine of ₹1,000/- is affirmed. In default of payment of fine, the appellant shall undergo the default sentence as awarded by the trial Court.

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