Sidhi, Madhya Pradesh v. 1 - State of Chhattisgarh through- Police Station Arjuni District : Dhamtari, Chhattisgarh
Case Details
1 HIGH COURT OF CHHATTISGARH AT BILASPUR 2025:CGHC:925-DB NAFR CRA No. 501 of 2018 1 - Amit Kumar Tiwari S/o Sushil Prasad Aged About 27 Years R/o- Village Devardadh, Police Station- Sidhi, District- Sidhi, (M.P.), District : Sidhi, Madhya Pradesh --- Appellant versus 1 - State of Chhattisgarh through- Police Station Arjuni District : Dhamtari, Chhattisgarh --- Respondent For the appellant For the State : : Mr. M.K. Baeg, Advocate Mr. Soumya Rai, Panel Lawyer CRA No. 914 of 2018 1 - Omkar Maravi S/o Manglu Singh Aged About 27 Years R/o Village Piparda, Police Station Rajendra Gram District : Anuppur, Madhya Pradesh 2 - Anil Singh S/o Hemraj Singh Aged About 23 Years R/o Village Piparda, Police Station Rajendra Gram , District : Anuppur, Madhya Pradesh --- Appellants Versus 1 - State of Chhattisgarh through the Station House Officer, Police Station Arjuni District Dhamtari Chhattisgarh. --- Respondent For the appellants For the State : : Mr. Sudhir Bajpai, Advocate Mr. Soumya Rai, Panel Lawyer A ANNAJEE RAO Digitally signed by A ANNAJEE RAO 2 Division Bench
Legal Reasoning
Hon’ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (07-01-2025 ) Sanjay Kumar Jaiswal, J 1. The instant appeals are directed against the judgment of conviction and order of sentence dated 08.03.2018 passed by the learned Special Judge (NDPS Act, 1985) Dhamtari, District Dhamtari in Special Criminal Case No.108/2016 whereby the appellants have been convicted and sentenced as under : Conviction & sentence of appellant Amit Kumar Tiwari of Cr.A.No.501/2018 U/s 20(b)(ii) (C) of NDPS Act, 1985 : RI for 15 years and fine of Rs.1,40,000/-, in default of payment of fine, further RI for 3 years Conviction & sentence of appellants Omkar Maravu & Anil Singh of Cr.A.No.914/2018. U/s 20(b)(ii) (C) of NDPS Act, 1985 : RI for 15 years and fine of Rs.1,40,000/-, in default of payment of fine, further RI for 3 years each. 2. Since the facts and evidence involved in both these appeals are almost
Decision
similar, they are disposed of by this common judgment. 3.1 As per the prosecution case, on 25.8.2016 the SHO of P.S. Arjuni C. Tirkey (P.W.10) with his/her team was going for patrolling in rural area. During patrolling, a secret information was received at village Aamdi that one black coloured Honda Accord Car bearing No. DL-03-CAK-3206 is transporting contraband (ganja) and is coming from Dhamtari to village Aamdi. On the basis of that, the panchnama of receiving secret information was prepared and informed the same to the DSP 3 Headquarters. On the basis of that, P.W.11 DSP Smt. Meeta Pawar reached to the spot and called two independent witnesses and thereafter road was blockaded. After some time, the above Car reached to the spot and it was intercepted by the police. The appellants were alleged to be occupants of the above vehicle. One other accused Abhishek Shukla had absconded from spot. Thereafter upon searching the Police found 146.400 Kgs of Ganja in the said car and seized the same. During investigation, various documents (panchnamas) were prepared and accused persons were arrested. After completion of investigation, the charge sheet was filed before the Court. 3.2 The learned trial Court has framed the charges against the appellant for the offence u/s 20(b)(ii)(C ) of the NDPS Act, 1985. The appellants denied the charges, therefore, they were put to trial. The prosecution in order to prove its case has examined as many as 12 witnesses and exhibited 45 documents. After examination of the prosecution witnesses, the statement of appellants were recorded u/s 313 of CrPC. The appellants pleaded innocence and false implication in the crime. The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for the offence u/s 20(b)(ii)(C ) of the NDPS Act and sentenced them as mentioned in first paragraph of this judgment, against which this appeal has been preferred by the appellant challenging the impugned judgment of conviction and order of sentence. 4.1 Mr. Sudhir Bajpai and Mr. M.B. Baeg, learned counsels appearing for the respective appellants would submit that the the contraband was not seized from the exclusive possession of the appellants and they are poor daily wage labourers and on the date of occurrence, the appellants were hired as labourers for loading and unloading of bags, which is reflected in Ex.P-14. So the contraband ganja seized from the vehicle cannot be said to have been seized from the conscious possession of the appellants. Learned counsels would further submit that learned trial Court is absolutely unjustified in convicting the appellant for the offence u/s 20(b)(ii)(C ) of the NDPS Act, as the prosecution has failed to prove the said 4 offence beyond reasonable doubt. It is further contended that the prosecution has given-up the independent witness and the conviction is based on only official witnesses. 4.2 They next contend that the prosecution has failed to prove the ownership and possession of the offending Car and the IO P.W.11 Meeta Pawar, DSP at para 26 admitted that she has not ascertained the fact as to who is the registered owner of the seized vehicle. 4.3 Their further last contention is that no special reason has been assigned by the learned trial Court for awarding punishment/sentence of more than 10 years. Reliance is placed on decisions of the Supreme Court in Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh (2022) 16 SCC 58 and Rafiq Quereshi v. Narcotic Control Bureau, Eastern Zonal Unit (2019) 6 SCC 492. 5. Per contra, Mr. Soumya Rai, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by adducing cogent evidence. He further submits that though the fact of ownership of the offending car is not ascertained, but the IO Meeta Pawar (P.W.11) has been able to prove the recovery of Ganja from the appellants who were the inmates of the offending vehicle and therefore the case of prosecution cannot be said to be vitiated. He further submits that the provisions contained u/s 55 & 52A(2) of the NDPS Act have satisfactorily been complied with by the prosecution in the present case. As such the conviction and sentence passed by the learned trial Court against the appellant is well merited and, therefore, present appeals deserve to be dismissed. 6. We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection. 7. In the instant case, Smt. Meeta Pawar (P.W.11) who is Investigating Officer has admitted in paragraph 26 of evidence that she did not make any enquiry to ascertain the details of registered owner of the Car from which the material was recovered. She categorically denies the suggestion that no intoxicants of any kind 5 were found from the clothes worn by the accused. She further states that she enquired about the particulars of owner of Honda Accord Car No. DL-3CAK/3206 after reaching the police station. However, the witness voluntarily says that she did not enquire about the address of registered owner of the above car. At para 27, she states that she did not make any enquiry about the offending car used by the accused in the incident and it was enquired by another officer. She further admits in para 31 of her cross examination that Article “A” is the pollution test certificate of the seized car. Article A-2 is the Insurance Certificate. The name of the insured person who is the owner of the vehicle is normally written in the Insurance Certificate. She states that name of Dinesh Mahajan was written on A to A part of Article A-2. The documents (receipts) of new Car is Article A-3 in which the name of Dinesh Mahajan was mentioned on A to A part. She further states that as per Article A-4, Dinesh Mahajan purchased the vehicle seized in the said case wherein name of customer was mentioned as Dinesh Mahajan on A to A and his address was also mentioned on B to B part. Thus, perusal of evidence of I.O. Smt. Meeta Pawar (PW-11) at a glance would show that the information regarding owner of vehicle was available. However, though the fact of ownership of the offending vehicle has not been ascertained by the I.O., but only on the said aspect the entire case of the prosecution cannot be said to be vitiated. 8. So far as seizure of contraband is concerned, the allegation of prosecution is that on the date of incident i.e., 25.08.2016, 69 packets of illegal cannabis (ganja) total weighing 146.400 Kgs were seized/recovered from the possession of the appellants who were the inmates of the offending vehicle bearing Regn. No. DL- 03/CAK/3206 vide Ex.P-37 in presence of independent witnesses. The investigating officer has duly proved the recovery/seizure of ganja from the appellants vide Ex.P- 37 after the search was made by Ex.P-31. 9. The NDPS Act is a complete Code in itself. Once the procedure enumerated in Sections 42, 43, 49 & 50 is scrupulously followed, it was for the accused, from whose possession the substance is recovered, to explain how he/they came into 6 possession of the same. It has also been held by their Lordships of Supreme Court in Mukesh Singh v. State (NCT of Delhi) (2020) 10 SCC 120 that it is not always necessary to corroborate the testimony of police officials, through the testimony of independent witnesses. 10. In case of Dharampal Singh v. State of Punjab (2010) 9 SCC 608 it has been held that lack of independent witness is not fatal to the case of prosecution. By adopting the same analogy, it has further been held in Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627 that the independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. 11. In view of the above legal position, it is vividly clear that merely because of lack of independent witnesses or for the reason that the seizure witnesses have not supported the prosecution case it cannot be said that the entire prosecution’s case stands vitiated. More particularly, in the instant case, the I.O. Meeta Pawar (P.W.11) has duly proved and supported the recovery/seizure of ganja from the appellants by seizure memo Ex.37 and Search Memo Ex.P-31 and as per FSL report (Ex.P-17 & 18) also, it has been found that the Ganja is present in the samples which were taken from the contraband seized from the appellants on the spot. Therefore, there is no valid reason to disbelieve the fact of recovery and seizure of Ganja from the appellants, as such, the findings recorded by the learned trial Court in this regard is liable to be and is hereby affirmed. We hereby hold accordingly. 12. If that be the position, learned counsels for the appellants submit that they do not make much emphasis on merits of appeals, at this stage, however, they contend that the trial Court did not assign the reason for imposing sentence of 15 years RI which is higher than minimum sentence of 10 years. Learned counsels further submit that the appellants are poor indigent persons and looking to their indigence, their sentence may be reduced. 13. In this regard, section 32B of the NDPS Act states about the facts to be taken into account for imposing higher than the minimum punishment, which reads as under :- 7 “Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely :- (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c ) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities ; (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence.” 14. The Supreme Court in Rafiq Quereshi v. Narcotic Control Bureau, Eastern Zonal Unit (2019) 6 SCC 492 has held that in a case where the court imposes a punishment higher than minimum relying on an irrelevant factor and no other facts as enumerated in Sections 32B(a) to (f) is present, award of sentence higher than minimum can be interfered with and observed in Para 23 & 24 as under: “23. In view of the foregoing discussion, we are of the view that punishment awarded by the trial Court of a sentence higher than the minimum relying on the quantity of substance cannot be faulted even though the Court had not adverted to the factors mentioned in clauses (a) to (b) as enumerated 8 under Section 32B. However, when taking any factor into consideration other than the factors enumerated in Section 32B, (a) to (f), the Court imposes a punishment higher than the minimum sentence, it can be examined by higher Courts as to whether factor taken into consideration by the Court is a relevant factor or not. Thus in a case where court imposes a punishment higher than minimum relying on a irrelevant factor and no other factor as enumerated in Section 32(B) (a to f) are present award of sentence higher than minimum can be interfered with. 24. In the present case The High Court held that although gross quantity of 8.175 Kg. of Heroin was alleged to have been recovered from the appellant but actual quantity of Heroine which was found to be in possession was only 609.6 gm. The High Court held that since the appellant was found in possession of Narcotic Drugs as per the analysis report to 609.6 gm. which is much higher than the commercial quantity, punishment higher than the minimum is justified. The High Court reduced the punishment from 18 years to 16 years. We, thus, uphold the judgment of the trial court and the High Court awarding the punishment higher than the minimum, however, looking to all the facts and circumstances of the present case including the fact that it was found by the High Court that the appellant was only a carrier, we find that the ends of justice will be sub-served in reducing the sentence from 16 years to 12 years. Thus, while maintaining the conviction of the appellant the appellant is sentenced to undergo 12 years rigorous imprisonment with fine of Rs. 2 lakh and in default of payment of such fine the appellant shall further undergo for a simple imprisonment for six months. The appeal is partly allowed to the extent as indicated above. 15. Further, the Supreme Court in an unreported decision rendered in Budhiyarin Bai Vs. State of Chhattisgarh Cr.A.no.1218/2022 arising out of SLP (Criminal) No.4935 of 2022 decided on August 10, 2022 observed in Paras 16, 17, 18 & 19 as under : “16. It may be noticed that the minimum sentence 9 prescribed under the NDPS Act for such offence u/s 20(b)(ii) (C) is 10 years which may extend to 20 years with a fine of Rs.1 lakh which may extend to Rs.2 lakhs. While imposing higher than the minimum punishment, such of the factors which are to be taken into consideration have been provided under Section 32B of the NDPS Act but after we have gone through the record with the assistance of the counsel for the parties, we are of the view that the learned trial Judge as well as the High Court have not taken into consideration the factors to be kept in mind for imposing higher than the minimum sentence provided under Section 32B of the NDPS Act. 17. We are of the considered view that the offences under the NDPS Act are very serious in nature and against the society at large and no discretion is to be exercised in favour of such accused who are indulged in such offences under the Act. It is a menace to the society, no leniency should be shown to the accused persons who are found guilty under the NDPS Act. But while upholding the same, this Court cannot be oblivious of the other facts and circumstances as projected in the present case that the old illiterate lady from rural background, who was senior citizen at the time of alleged incident, was residing in that house along with her husband and two grown up children who may be into illegal trade but that the prosecution failed to examine and taking note of the procedural compliance as contemplated under sections 42, 50 and 55 of the NDPS Act, held the appellant guilty for the reason that she was residing in that house but at the same time, this fact was completely ignored that the other co- accused were also residing in the same house and what was their trade, and who were those persons who were involved into the illegal trade providing supplies of psychotropic substances, prosecution has never cared to examine. 18. We are not going to examine the question any further but taking in totality of the matter and the background facts which have come on record that she was an illiterate senior citizen on the date of incident i.e., 15th January, 2011, having no criminal record and was from the rural background, completely unknown to the law and unaware of what was 10 happening surrounding her, all these incidental facts have not been considered by the the learned trial Court while awarding sentence to the appellant. 19. In the given facts and circumstances, while upholding conviction of the appellant, and considering the old age of the accused appellant, who is a poor illiterate lady completely unaware of the consequences, we consider it appropriate that the sentence of the accused appellant be reduced to 12 years’ rigorous imprisonment and a fine of Rs.1 lakh and in default, to further undergo rigorous imprisonment of six months which shall meet the ends of justice. Ordered accordingly.” 16. In the instant case, according to the arrest report of appellant Onkar (Ex.P- 35) he belongs to the tribal category and works as a labourer. He is 27 years old and is an illiterate. According to appellant Amit Kumar Tiwari’s arrest report (Ex.P-39), he belongs to general category and works as a labourer and had studied upto class 10th and according to appellant Anil Singh’s arrest report (Ex.P- 40) he belongs to tribal category and works as a labourer and had studied upto class 10th. 17. In the light of Section 32B of the NDPS Act coupled with above quoted principle of law laid down in case of Rafiq Quereshi (Supra) and Budhiyarin Bai Versus State of Chhattisgarh (supra) since no specific or any special reason has been assigned by the learned trial Court for awarding sentence higher than minimum to the appellants for having committed offence u/s 20(b)(ii)(C ) of the NDPS Act, in the considered opinion of this Court, while affirming the conviction of the appellant for offence u/s 20(b)(ii)(C ) of th NDPS Act, we deem it appropriate to reduce the sentence of 15 years rigorous imprisonment, as awarded to the appellants by the learned trial Court to 10 years rigorous imprisonment while maintaining the fine sentence. Since the appellants are found to be poor laborers, looking to their incapability to pay huge fine amount it would be appropriate to reduce the default sentence period of 3 years, which has been fixed for non- payment of fine, to 6 months. 11 18. Hence the sentence of imprisonment is reduced from 15 years to 10 years and the imposition of sentence of fine amount of Rs.1,40,000/- shall remain intact. In default of payment of fine, the accused/appellants are directed to undergo additional RI for 6 months instead of 3 years. 19. Consequently both the criminal appeals are partly allowed to the extent indicated herein above. 20. Let a certified copy of this order along-with original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for necessary information and action, if any. Sd/- (Sanjay K. Agrawal) Judge Sd/- (Sanjay Kumar Jaiswal) Judge Rao