Ramhaiya Lal Kashyap 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 22/10/2016 passed by the Special Judge (constituted under the NDPS Act, 1985), Janjgir-Champa, C.G. in Special Criminal Case No.12/2016 whereby the appellant has been convicted and sentenced as under:-

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Conviction		Sentence
Under Section 20(B)of Narcotic	R.I. for 03	Years and fine of

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Digitally ASHUTOSH signed by MISHRA ASHUTOSH MISHRA

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Drug and Substances Act,	Psychotropic 1985	Rs.5000/- payment additional	an of R.I.	d in fine	default of 03 months

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The case of the prosecution in brief is that on 04/02/16, an informant information panchnama was registered in Rojnamcha Sanha No. 36 dated 04/02/16 that a person is carrying Ganja in motor cycle No. 11B 5950 from Birghani to Janjgir for sale, on the information, an informant information panchnama was prepared and an employee was sent to give the information to the SDOP without receiving the search warrant, information was given about proceeding for verification, Panchnama was prepared and along with witnesses Lalaram Kashyap, Ashwin, Ravindranath, Manoj Rathore were summoned and along with the staff ASI Tiwari, constable no. 499 Shivkumar, constable no. 182 Komal Tiwari Tekeshwar Katakwar, a raid was conducted by cordoning off the area near Lachhanpur Sai Temple in jeep no. CG 03-4405. During the raid, a person came from Janjgir on a red colour Hero Honda CD 100 motor cycle no. 11B 5950 was intercepted and on being enquired, he told his name as Ramhaiya Lal Kashyap, resident of village Karra, police station Navagarh. Ramhaiya Lal Kashyap was informed about the informer's information and he was given the option of getting his search done by a magistrate gazetted officer, who himself agreed to get the search done by the inspector. Following the provisions of the NDPS Act, the inspector allowed himself, his staff, his witnesses and the accused to search his Bolero vehicle. After that, the accused and his motorcycle were searched. On searching, a substance resembling ganja was found in

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three green coloured polythene bags in the trunk of his motorcycle. A recovery panchnama was prepared and the said ganja was recovered. The same was identified to be Ganja. After weighing the recovered ganja after physical verification of the weighing scale, it was found to be 3 kg of ganja. Of which 50-50 grams were weighed separately and sample packets were prepared and kept in polythene bags. 2 kg 900 grams and 50-50 grams sample packets A and B, totaling 3 kg of ganja with moisture, worth Rs. 10,500/- and a motorcycle CD 100 SS number CG 11 B 5950 were seized from the possession of the accused.

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The act of the accused was found to be an offence under Section 20B of the NDPS Act, hence he was arrested on 04/02/16 at 18:45 hrs after informing him about the reasons for his arrest and the accused was brought to the police station along with the seized goods and a crime was registered against him and the seized goods were handed over to the HCM for safekeeping and after sending information under Section 57 of the NDPS Act, the accused was sent to judicial custody. He was sent on remand and after completing the investigation in the case, the charge sheet was presented before the court.

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Upon framing of charges against the accused under the relevant sections, he denied the alleged offense and claimed trial. In statements recorded under Section 313 CrPC, the accused stated his innocence and stated that he had been falsely implicated. The accused presented no evidence in his defense.

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To prove its side, the prosecution produced witnesses Lalaram (P.W.-1),

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Yashvin Ravindranath (P.W.-2), Manoj Kumar Rathore (P.W.-3), Suresh Kumar Panda Patwari (P.W.-4), Dilip Shukla Head Constable (P.W.-5), Prakash Dwivedi Constable (P.W.-6), Pratap Singh Chandra Tehsildar (P.W.-7), Vijay Singh Retired Sub-Inspector (P.W.-8), B.P. Tiwari Assistant Sub-Inspector (P.W.-9), Tekeshwar Katakwar Constable (P.W.10) and notice regarding appearance of witness Ex.P.-1, Panchnama for search by Gazetted Officer and Magistrate Ex.P.-2, Consent Panchnama of accused Ex.P.-3, Search Panchnama of himself and his force Ex.P.-4 and 5, Search Panchnama of Panchwitnesses Ex.P.-6, Search Panchnama of police vehicle Ex.P.-7, Search Panchnama of accused Ex.P.-4, Search Panchnama of accused's vehicle Ex.P.-9, Recovery Panchnama Ex.P.-10, Narcotic Drug Identification Panchnama Ex.P.-11, Samras Panchnama Ex.P.-12, Physical verification of weighing scale Panchnama Ex.P.-13, Weighing Panchnama Ex.P.-14, Sample Narcotic Drug Weighing Panchnama Ex.P.-15, Sample Seal Panchnama Ex.P.-16, Seizure Memo Ex.P.-17, Patwari Map Ex.P.-18, Arrest form of the accused Ex.P.-19, Arrest Memo of the accused Ex.P.-20, Statement of witness Lalaram Ex.P.-21, Site Map Ex.P.-22, Statement of witness Yashvin Ravindranath Ex.P.-23, Copy of Register of RO No.-68 Ex.P.-24, Seizure Delivery Receipt Ex.P.-25, RO No.-36, 37, 38, 39, 40, 66 and 67 respectively Ex.P.-26C, 27C, 28C, 29C, 30C, 31C, 32C, Memorandum for conducting chemical test Ex.P.-33, State Forensic Laboratory Receipt of receipt of exhibit Ex.P-34, State Forensic Laboratory test report Ex.P.35, physical verification panchnama Ex.P.-36, informant information panchnama Ex.P.-37, information receipt Ex.P.-38, Section 42 (2) NDPS

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Act Appendix-1 Ex.P.-39, Section 52 NDPS Act Ex.P.-40, acknowledgement of summons issued to witness Manoj Ex.P.-41, information regarding reasons for arrest Ex.P.-42, rural complaint Ex.P.43, FIR Ex.P.-44 have been exhibited.

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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 03 Years and the appellant was in jail since 05/02/2016 till 22/10/2016 thereafter he was granted bail by this Court on 08/11/2016 and presently also he is on bail. He would next contend that since the incident is of the year 2016 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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Upon hearing learned counsel for the parties and on perusal of the entire record of the trial Court, this Court has undertaken a re-appreciation of the evidence to examine the correctness of the impugned judgment.

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The prosecution case, in brief, is that on 04.02.2016, on the basis of prior information, the investigating agency intercepted the appellant and from

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his possession recovered 03 kilograms of ganja contained in polythene packets. The seizure proceedings were conducted on the spot, samples were drawn, sealed and thereafter sent for chemical examination. The prosecution has primarily relied upon the testimony of PW-9 B.P. Tiwari (Assistant Sub-Inspector/Investigating Officer). This witness has deposed that on the date of incident he received secret information regarding transportation of contraband ganja. The information was reduced into writing and after complying with procedural requirements, he proceeded to the spot along with police personnel and independent witnesses. He has stated that the appellant was intercepted and after informing him of his legal rights, search was conducted, during which three packets containing ganja were recovered from his possession. He has proved the seizure memo and stated that on weighment the total quantity was found to be 03 kilograms.

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PW-9 B.P. Tiwari has further stated that from the seized contraband, two samples of 50 grams each were drawn, sealed on the spot and necessary seizure and sampling panchnamas were prepared in presence of witnesses. He has also proved that the seal used was intact and the seized articles were duly marked and secured. He has further deposed that the appellant was informed of his right under Section 50 of the NDPS Act and thereafter the search was conducted.

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The testimony of PW-9 B.P. Tiwari is corroborated by PW-5 Dilip Shukla (Head Constable/Malkhana In-charge), who has stated that the seized contraband and sample packets were deposited in the Malkhana in sealed condition. He has proved the Malkhana register entries and has

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specifically stated that the seal was intact at the time of deposit and remained intact during custody.

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Further corroboration is available from PW-6 Prakash Dwivedi (Constable), who carried the sealed samples to the Forensic Science Laboratory. He has stated that the packets remained sealed and intact during transit and were deposited without any tampering.

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The independent seizure witnesses, namely PW-1 Lal Ram and PW-2 Ashwin Ravindranath, have supported the prosecution case and have deposed that the seizure proceedings were conducted in their presence and they signed the seizure memo voluntarily. Their testimony lends assurance to the prosecution case.

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The prosecution has also examined PW-3 Manoj Kumar Rathore, who has supported the prosecution version regarding weighment of the seized contraband and preparation of the weighment memo, stating that the total quantity was found to be 03 kilograms and samples were drawn accordingly.

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The documentary evidence including seizure memo, sampling memo, Malkhana register entries and forwarding letter have been duly proved. The FSL report (Ex. P/35) confirms that the samples sent for examination were ganja. This scientific evidence corroborates the oral testimony of the prosecution witnesses. So far as compliance of statutory provisions is concerned, the evidence of PW-9 B.P. Tiwari clearly establishes that the appellant was apprised of his right under Section 50 of the NDPS Act. There is no material to suggest violation of this

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provision. The evidence further establishes compliance of Sections 52 and 55 of the NDPS Act, as the contraband was properly sealed, deposited in Malkhana and sent to FSL with intact seals. The chain of custody is fully established.

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From the consistent and reliable evidence of the prosecution witnesses, particularly PW-9 B.P. Tiwari, it stands proved that the contraband was recovered from the conscious possession of the appellant. In such circumstances, the presumption under Sections 35 and 54 of the NDPS Act operates against the appellant. The appellant has failed to rebut this presumption by any cogent evidence.

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The defence has not been able to bring on record any material contradiction or infirmity which would go to the root of the prosecution case. The suggestions of false implication remain unsubstantiated. In view of the aforesaid analysis, this Court is of the considered opinion that the prosecution has successfully proved beyond reasonable doubt that the appellant was in conscious possession of 03 kilograms of ganja, and the learned trial Court has rightly convicted the appellant under Section 20(b) of the NDPS Act, 1985. The finding of conviction is hereby affirmed.

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Coming to the question of sentence, it is evident that the quantity involved is intermediate quantity. It is not the case of the prosecution that the appellant is a habitual offender or involved in organized narcotic trade. No criminal antecedents have been brought on record. It is also to be noted that the incident pertains to the year 2016, and the appellant has

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faced the rigours of criminal proceedings for a considerable period. The record further indicates that the appellant has already undergone a part of the sentence during trial. Considering the nature of quantity, absence of criminal antecedents, and the period already undergone, this Court is of the view that the ends of justice would be met if the substantive sentence is modified to the period already undergone.

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In the result, the conviction of the appellant under Section 20(b) of the NDPS Act, 1985 is hereby affirmed. However, the substantive sentence awarded by the trial Court is modified to the period already undergone by the appellant. The fine amount imposed by the trial Court is maintained. In default of payment of fine, the appellant shall undergo the default sentence as awarded by the trial Court.

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Consequently, this appeal stands allowed in part to the extent indicated 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 . SD/-

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SD/- (Arvind Kumar Verma) JUDGE

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Ramhaiya Lal Kashyap v. State Of Chhattisgarh

Case brief

What is this about?

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Ramhaiya Lal Kashyap v. State Of Chhattisgarh

Case brief

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