Sunil Singh S/O Sh. Ganpat Singh Vs State of Rajasthan

Instant S.B. Criminal appeal is preferred by appellant Sunil Singh aggrieved from judgment of conviction and sentence dated 06.11.2024 in sessions Case No.47/2020 passed by learned Special Judge (NDPS Act Cases) (Additional Sessions Judge No.1), Khetri, Jhunjhunu whereby appellant was convicted under Section 8/20 of NDPS Act and further sentenced to undergo rigorous imprisonment of 4 years with fine of ₹₹1,00,000/-.

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Learned counsel for appellant while placing reliance upon grounds of appeal submitted that appellant is an innocent person and he was falsely implicated by police. He further submitted that both the independent witnesses PW-1 and PW-2 had turned hostile and not supported the case of prosecution. He further submitted that besides these witnesses (PW-1 and PW-2), all other witnesses are police witnesses and their evidence is stereotype. He further

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submitted that PW-12 Mahendra Singh has not taken all necessary precautionary steps required to be taken before initiating proceeding of search and seizure. He also submitted that a proper notice under Section 50 of NDPS Act was not served upon appellant accused before effecting search upon him. He also referred the cross-examination of witnesses and submitted that the trial court without ensuring compliance of Section 52A of NDPS Act, has convicted appellant. He further submitted that appellant has already served substantial part of sentence, therefore a lenient approach be adopted against him.

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Aforesaid contentions were opposed by learned Public Prosecutor and he submitted that the trial court has considered all relevant material and evidence before arriving at a conclusion of conviction. He also referred criminal antecedents of present appellant and submitted that appellant was already sentenced in one of NDPS matter therefore the appellant is not entitled for any leniency.

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Heard learned counsel for appellant and learned Public Prosecutor. Perused the record. 5. The facts giving rise to instant criminal appeal are that on 27.07.2020, S.H.O, P.S. Buhana, District-Jhunjhunu, PW-12 Mahendra Singh on information by another accused Vikram Singh @ Lilu has intercepted a car driven by appellant and after serving a notice under Section 50 of NDPS Act, on search found that the appellant was transporting 10Kg ganja in his car bearing No.RJ14TE7108. After taking samples, remaining contraband were seized followed by preparation of search and seizure memo. On return to police station, FIR NO.144/2020 under Section 8/20 of

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NDPS Act was registered. After investigation, charge-sheet was filed before learned trial court against the appellant. Thereafter another supplementary charge-sheet was filed against Paramjeet Singh under Section 8/29 of NDPS Act. Learned trial court has framed charge under Section 8/20 of NDPS Act against present appellant and under Section 8/29 of NDPS Act against Paramjeet. The prosecution has examined 16 witnesses and exhibited 30 documents in support of prosecution. The accused were examined under Section 313 Cr.P.C. and they have not submitted any defence evidence. Learned trial court has acquitted Paramjeet Singh from charge under Section 8/29 of NDPS Act but convicted Sunil Singh under Section 8/20 of NDPS Act and sentenced him to undergo rigorous imprisonment of four years with fine of ₹1,00,000/-.

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On the basis of information by accused Vikram Singh (another case), who was arrested with 5 Kg Ganja on 27.07.2020 by PW-12 Mahendra Singh, the police has led Nakabandi and intercepted car No.RJ14TE7108 driven by appellant. PW-12 in his evidence before trial court has deposed about entire process adopted by police. The deposition indicated that after information, nakabandi was led and an information under Section 42 of NDPS Act was sent to Superintendent of Police, Jhunjhunu. Further compliance of Sections 50, 52 and 55 of NDPS Act was explained by PW-12. After process, compliance under Section 57 of NDPS Act was also explained by PW-12. PW-12 has also explained about application for verification and disposal under Section 52A of NDPS Act. We have considered the entire cross-examination of PW-12 from the entire cross-examination, nothing has come on record

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which can contradict the entire process and suggest that the process is manipulative one. The evidence of PW-12 suggest that two independent witnesses were called through Constable Ratan Singh and he was examined by prosecution as PW-4. Both the independent witnesses PW-1 and PW-2 have turned hostile and not supported the case of prosecution but the admission of PW-1 and PW-2 clearly indicated that they have put their signature on memos as exhibited by PW-12. The evidence on record also suggested that PW-7 Hari Ram Sharma, PW-8 Kalyan Singh, PW-9 Bheem Singh, PW-10 Ajay Kumar, PW-13 Satya Narayan, PW-15 Sashikant Sharma were also part of police team which accompanied PW-12 at the time of interception and process of search and seizure in the instant case. The evidence of all these witnesses are almost similar in nature and nothing comes on record which would contradict the examination-in-chief of theses witnesses. The trial court has considered the evidence of these witnesses.

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Herein this case, the recovery was effected from a gunny bag, placed in the car and this car was in possession of appellant. In case of Vijay Singh Chandubha Jadeja Vs. State of Gujarat

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AIR 2011 SC 77 Hon’ble Supreme Court while considering compliance of Section 50 of NDPS Act has held that noncompliance of Section 50 of NDPS Act would be fatal for the prosecution but it is also important that provision of Section 50 of NDPS Act is applicable only in case of search in persona but herein the recovery was effected from car and provision of Section 50 of NDPS Act is not applicable. Hon’ble Supreme Court in case of Ranjan Kumar Chadha Vs. State of HP 2023 SCC Online SC

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1262, followed in case of State of Kerala Vs. Prabhu, Criminal Appeal No.3434/2024 is applicable and the arguments of learned counsel for appellant have no merits in the instant case.

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If the independent witnesses have turned hostile and not supported the case of prosecution, then it does not mean that the proceeding is fake or false. Herein this case, the police witnesses have supported the case in toto and the evidence suggested that PW-4 has called PW-1 and PW-2 and before being included in entire process the consent of PW-1 and PW-2 was obtained by PW9.. The evidence of PW-1 and PW-2 also suggested that they have admitted their signature though PW-1 in cross-examination has admitted that his signatures were procured on blank papers but no complaint was made by him. The signature of PW-1 was procured on 8 documents from Ex.P1 to Ex.P8. Similarly crossexamination of PW-2 suggested that he is not aware about contents of Ex.P-2, P3, P5 to P8, P10 and P-11. The questions which were put to PW-2 clearly suggest that he has changes his version when he was asked by defence.

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The matter was investigated by PW-14 Parmod Kumar and his evidence suggested about link evidence and moreover RC of vehicle in question was recovered in presence of PW-5. The evidence suggested that recovered articles were brought to police station and same were deposited in Malkhana by PW-11 which was later sent to FSL and the evidence of PW-3 Jai Prakash suggested deposition of sample to FSL on 30.07.2020. Aforesaid indicated that the link evidence is also established from evidence led by the prosecution.

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Having gone through the evidence on record as led by prosecution, it is established that appellant was intercepted by PW-12 in front of PW-1, PW-2 and other police witnesses, when his car was searched, a gunny bag containing ganja was recovered. After recovery, sample was taken and this sample was sent to FSL. The FSL report Ex.P-25 was exhibited by IO and it indicated that recovered article was Ganja as defined under Section 2 (iii) (b) of NDPS Act. After evidence of recovery and establishment of presence of present appellant with car in question it is established that 10Kg contraband was recovered from conscious possession of appellant. After establishment of recovery, presumption under Sections 35 and 54 of NDPS Act is applicable in the instant case. There is not a single iota of doubt about identification and involvement of appellant, therefore after drawing presumption under Section 35 and 54 of NDPS Act, it was duty of the appellant to rebut onus which was shifted upon him. The appellant in his statement under Section 313 Cr.P.C. has failed to give sufficient explanation about the evidence produced against him. A mere denial of evidence is not sufficient to rebut the presumption, rather the appellant is required to show that he was not in conscious possession or the articles recovered from his possession does not belong to him thus the accused has failed to rebut the presumption. The trial court has not committed any error while recording conviction against appellant under Section 8/20 of NDPS Act.

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As regard to sentence is concerned, the record submitted by learned Public Prosecutor indicated that this appellant was convicted by learned Additional Sessions Judge, Charkhi Dadri,

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Haryana in case No.71/2017 in a matter arising out of FIR No.379/2017. The report further indicated that by judgment dated 04.03.2024, appellant was convicted under Section 20 of NDPS Act and further sentenced to undergo rigorous imprisonment of 9 years with fine of ₹90,000/-. The appellant was already sentenced in another NDPS matter and present case is second one. Besides this, there are three other cases and out of which one has resulted into acquittal whereas in other case relating to Khetri, Jhunjhunu, appellant was convicted and sentenced to undergo imprisonment of 1 year with fine.

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Having considered the background and criminal antecedents as mentioned hereinabove, I am of considered view that this is not a fit case wherein sentence can be reduced in any manner thus the appellant does not deserve any leniency as drug menace is increasing day by day in the society and it is ruining the younger generation of country. Therefore, there is no ground to take lenient approach in the matter.

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The impugned order required affirmation on both counts, conviction and sentence, hence appeal is liable to be dismissed. 15. Accordingly, the criminal appeal preferred against judgment of conviction and sentence dated 06.11.2024 is hereby dismissed with all pending applications, if any.

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(ASHOK KUMAR JAIN),J

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PREETI VALECHA /96

Sunil Singh S/O Sh. Ganpat Singh v. State of Rajasthan

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Sunil Singh S/O Sh. Ganpat Singh v. State of Rajasthan

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