(Cr.A.No.77/2018) v. State of Chhattisgarh, Through Station House Officer, Police Station Magarlod, District Dhamtari

FIR was registered vide Ex.P-21 in which name of Rajendra Singh was mentioned as accused, however, it has been mentioned therein that one accused is absconding. Report under Section 57 of the NDPS Act was sent to the Sub-Divisional Officer of Police, Kurud, vide Ex.P-23C. Samples of the seized contraband article Ganja were taken on 17-3-2010 and same were deposited in the FSL, Raipur on 19-3-2010. Final report was prepared on 18-6-2010 in which present accused / appellant Dhani Ram Gond was found absconding. FSL report was prepared on 14-7- 2010 vide Ex.P-26 in which the samples were found to be Ganja. After (Cr.A.No.77/2018) conclusion of trial, Rajendra Singh Thakur @ Abhay was convicted under Section 20(b)(ii)(C) of the NDPS Act and sentenced to undergo rigorous imprisonment for twenty years & pay fine of ₹ 1,00,000/-, in default, to further undergo additional rigorous imprisonment for five years, which was later-on, modified by this Court in appeal by reducing jail sentence to 10 years and enhancing fine sentence to ₹ 1,00,000/- with default stipulation.

4. The present appellant was arrested on 11-7-2017 and put to trial and he has been convicted by the trial Court by recording finding in paragraph 51 of the impugned judgment that though the appellant was absconding from the spot, the investigation made by the Investigating Officers namely, Manoj Kumar Berwanshi (PW-5) & Pradip Kumar Sori (PW-6) would also be applicable to the present accused / appellant, who was absconding, and thereafter proceeded to convict him.

5. Mrs. Laxmin Tondey, learned counsel appearing for the appellant, would submit that the prosecution has not been able to prove the offence alleged against the appellant beyond reasonable doubt and the trial Court is absolutely unjustified in convicting and sentencing the appellant for the aforesaid offence, therefore, the appellant is entitled for acquittal.

6. Mr. Rishi Rahul Soni, learned amicus curiae, would submit that since the statement of the present appellant under Section 67 of the NDPS Act, as stated by Investigating Officers – Manoj Kumar Berwanshi (PW-5) & Pradip Kumar Sori (PW-6), which has been allegedly recorded on 15-3- 2010, was not exhibited and furthermore, by virtue of Section 67 of the (Cr.A.No.77/2018) NDPS Act, as held by their Lordships of the Supreme Court in the matter of Tofan Singh v. State of Tamil Nadu1, followed in the matter of Balwinder Singh (Binda) v. The Narcotics Control Bureau2 and further followed in the matter of Rajkumar Hariram Gameti v. State of Gujarat and another3, a statement made by an accused and recorded under Section 67 of the NDPS Act is inadmissible in evidence as a confessional statement in the trial of an offence under the NDPS Act, the present appellant is liable to be acquitted. He would further submit that dock identification made by Investigating Officer Pradip Kumar Sori (PW-6) is a very weak piece of evidence and on that basis, the present appellant could not be convicted. In support of this contention, he would rely upon the decision of the Supreme Court in the matter of Bollavaram Pedda Narsi Reddy and others v. State of Andhra Pradesh4. In that view of the matter, the appellant herein is entitled for acquittal and accordingly, the instant appeal deserves to be allowed.

7. Mr. Arvind Dubey, learned Government Advocate appearing for the State / respondent, would support the impugned judgment of conviction and order of sentence and submit that the Special Court is absolutely justified in convicting the present appellant and as such, the appeal deserves to be dismissed.