Harish Kumar Pandey v. State Of Chhattisgarh

: Ms. Isha Jajodia, Panel Lawyer CRA No. 393 of 2016 1 - Vikas Sharma S/o Ghanshyam Prasad Aged About 19 Years R/o Near Sati Mandir, Bhatapara, P.S. Bhatapara, Distt. Balodabazar - Bhatapara Chhattisgarh. , Chhattisgarh ---Appellant(s) Versus 1 - State Of Chhattisgarh Through Station House Officer, Kasdol, Distt. Balodabazar - Bhatapara Chhattisgarh. , Chhattisgarh --- Respondent(s) For Appellant(s) : Mr. Amit Singh Chauhan, Advocate For Respondent(s) : Ms. Isha Jajodia, Panel Lawyer 2 Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 28/04/2025

1. Today when the matter is called out for hearing, no one appeared on behalf of the appellant in CRA No. 393 of 2016. I, therefore, re- quested for assistance from a counsel of the High Court legal aid ser- vices committee, Mr. Amit Singh Chauhan, Advocate has been nomi- nated to assist the court. I have gone through the judgment under ap- peal and the depositions of witnesses and exhibits assisted both by Advocate through the High Court Legal Services Committee and Learned State Counsel. In view of (2014) SCC 222 (Surya Baksh Singh Vs. State of Uttar Pradesi), I do not consider it necessary to adjourn this case and issue fresh notice to the Appellant as his inter- est has been duly taken care of by nominating another counsel from the High Court Legal Services Committee.

2. This criminal appeal has been filed under Section 374(2) of Cr.P.C. by the appellants against the judgment of conviction and order of sen- tence dated 02.03.2016 passed by the learned Special Judge (N.D.P.S.) and First Additional Sessions Judge, Balodabazar, Dis- trict- Balodabazar (C.G.), in Special Criminal (NDPS) Case No. 07/2015, whereby the appellants have been convicted and sentenced as follows:- Conviction Sentence U/s 20(b)(ii)(b) of NDPS Act, R.I. for 3 years and fine of Rs. 1985 10,000/-, in default fine, 3 additional S.I. for 6 months to both the appellants.

3. The prosecution case, in brief, is that, Inspector Subhash Das along with his staff was taking action under Motor Vehicle Act near Guru Ghasidas Chowk in front of Police Station Kasdol on 08.08.2015 when a Hero Honda motor cycle without number plate having a black colour bag in the middle and a boy sitting on the pillion was coming from the direction of Gayatri Chowk Kasdol. When the police stopped the motor cycle, he tried to escape. The staff surrounded him and caught him and when questioned and asked about the contents of the bag, he confessed of keeping ganja in the bag, a panchnama was prepared and information was given to Sub Divisional Police Officer through constable number 710 and summons were issued.

4. The learned Special Judge (NDPS) & First Additional Sessions Judge, Balodabazar, District-Balodabazar (C.G.), after appreciating oral and documentary evidence available on record vide judgment dated 02.03.2016, convicted the appellant for the offence punishable under Section 20(b)(ii)(B) of the N.D.P.S. and sentenced him as men- tioned in opening paragraph of this order.

5. The appellant was in jail from 09.08.2015 to 02.03.2016 (207 days) during trial and they are in jail from the date of judgment dated

02.03.2016 to 22.04.2016 ( 52 days), in total 259 days.

6. Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the aforesaid case and the mandatory provisions have not been followed by the prosecution. The judgment of the Trial Court is bad in law as well as on facts. The 4 learned Trial Court ought not to have convicted and sentenced the ap- pellant and ought to have given the benefit of doubt since the evi- dence submitted by the prosecution is very shaky and unbelievable. The Trial Court failed to appreciate the evidence and documents available on record.

7. Learned counsel for the appellant submits that he does not want to press this appeal on merits and confine his arguments to the sentence part thereof only. Further, he submits that the appellant at present is aged about 33 years and is facing criminal trial since 2015 and the ap- pellant has already undergone around 8 months awarded by the trial Court in NDPS Case No. 07/2015. There is also no previous criminal antecedents against the appellant. Therefore, the jail sentence awarded to the appellant may be reduced to the period already under- gone by him.

8. Learned Panel Laywer appearing for the respondent/State, submits that the Trial Court has rightly convicted and sentenced the appellant, in which no interference is called for.

9. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

10. From perusal of records, it transpires that Inspector Subhash Das along with his staff was taking action under Motor Vehicle Act near Guru Ghasidas Chowk in front of Police Station Kasdol on 08.08.2015 when a Hero Honda motor cycle without number plate having a black colour bag in the middle and a boy sitting on the pillion was coming from the direction of Gayatri Chowk Kasdol. When the police stopped 5 the motor cycle, he tried to escape. The staff surrounded him and caught him and when questioned and asked about the contents of the bag, he confessed of keeping ganja in the bag, a panchnama was prepared and information was given to Sub Divisional Police Officer through constable number 710 and summons were issued.

11. Now the question arises before this Court is whether the prose- cution has proved the compliance of mandatory provisions of NDPS Act?

12. The accused were caught transporting ganja during regular traffic checking by Subhash Das (PW-12), in such a situation if immediate action would not have been taken then surely the accused would have escaped. In this situation, PW-12 was authorized under the proviso of Section 42 of NDPS Act and he acted accordingly. It appears from Ex. P/1, Ex. P/2 and Ex. P/3 that due proceedings were initiated by the Inspector. The evidence in the case does not show any violation of sections 42 and 43 of the Sleeping Drugs and Psychotropic Substances Act.

13. In the present case, the accused are said to have ganja in their bags, due to which the provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not applicable. Thus, it is clear that the mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act has not been violated in any way by the police officer.

14. Dilip Kumar Toppo (PW 09) has stated in his deposition that on

08.08.2015, T.I. Subhash Das took action to seize the ganja and kept it in the store room in a sealed packet which was tied in a red cloth. 6 This witness has certified Ex.P. 21. Thus, in the evidence of this witness, the seized ganja was kept in the store room. In this regard, the principle has been propounded in the judgment of the Hon'ble Chhattisgarh High Court in Vaikatrao vs. Chhattisgarh State 2006 Criminal Law General 2326 CG that, where the depositing of the ganja in the store room is confirmed by the employee, in such a situation the charge cannot be considered unproven. Thus, it is proved from the testimony of witness Dilip Kumar Toppo that the seized ganja was kept in the maal khana. There is no contradiction in the evidence of this witness. From the evaluation of the said evidence, it is found that there is no non-compliance of section 55 of the Narcotic Drugs and Psychotropic Substances Act.

15. The trial Court after considering the material available on record and evidence of the prosecution witnesses, convicted the appellants for the offence under Section 20(b)(ii)(B) of the N.D.P.S. and sentenced to un- dergo RI for 3 years and fine of Rs.10000/- to both the appellants. Considering the material available on record and the evidence ad- duced by the prosecution, I am of the view that the Trial Court did not commit any illegality or infirmity in the findings recorded by Trial Court as regards conviction of the appellants under Section 20(b)(ii)(B) of the N.D.P.S.

16. As regards the sentence awarded to the appellants. Considering the fact that the appellants are facing criminal trial since 2015 and there- after more than 10 years has been elapsed, considering the age of the appellants at present and further considering the quantity of ganja seized from the joint possession of the appellants i.e. 6 Kg 800 gm 7 contraband(ganja), which is intermediate quantity and there are no previous criminal antecedents against them and further the appellants have already undergone 8 months of jail sentence awarded by the trial Court, this Court is of the opinion that in the interest of justice, the sen- tence imposed upon them is reduced to the period already undergone. However, fine imposed by trial Court is maintained.

17. The appellants are reported to be in on bail. Their bail bonds are not discharged at this stage and the same shall remain operative for a further period of 6 months in light of Section 437-A of Cr.P.C.

18. With the aforesaid observations, both the criminal appeals is partly allowed to the extent indicated hereinabove.

19. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compli- ance. Madhurima Sd/- (Arvind Kumar Verma) JUDGE