Sln£*l%y€":"~' v. State of Chhattisgarh

HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.582 of 2008 APPELLANT/: (Accused in jail) RESPONDENT: Raju Saw, S/o Shri Pursawan Saw, aged about 32 years, R/o Vill. New Diliya, Post & P.S. Dihri, Distt. Rohtash, Bihar. Versus . Stateof Chhattisgarh, Ambikapur, Distt. Surguja (CG) through P.S. {Criminal appeal under Section 374 of the Code of Criminal Procedure, 1973} Presen?? Mr. Vivek Kumar Pandey, counsel for the appellant. Mr, Sushil Dubey, Govt. Advocate for the State/respondent. Sinale Bench; Hon'ble Mr. T.P. Sharma, 3 JUDGMENT (Delivered on 28th July, 2009)

1. This criminal appeal is directed against the judgment of conviction & order of sentence dated 28-3-2008 passed by the Special Judge under the Narcotic Drugs and PsychotropicSubstances Act, 1985 (for 'the Act'), Ambikapur in Special Criminai CaseNo.16/2007, shor-t learned Special Judge after holding the whereby & whereunder accused/appellant guilty for possession of brownsugar, convicted himunder Section 21 (b) of the Act and sentenced to undergo R.I. for three years & pay fine of R.s.20,OQO/-, in default of payment offine to further undergo R.I. for six months, illicit contraband article

2. Judgment is challenged on the ground that without any credible & the mandatory clinching evidence and without compliance of provisions of the Act meant to safeguard the accused from frivolous accusation, the Court be!ow has convicted & sentenced the appellant and thereby committed illegality.

3. Case of the present accused/ appellant is not resident ofAmbikapur and he is resident of District the prosecution, in brief, is that Rohtas, State of Bihar. The accused was in front of Ghadi Chowk, -Ambikapur. Investigating Officer Nasar Siddiqui (PW-7) received the present information on 19-2-2007 at about 5.10 p.m. appellant is in possession of brown sugar and he was searching for customers. He recorded Roznamcha Bx.P-18 and after calling Panch liiirt11 w witnesses, recorded the informationin Ex.P-1. Copy was sent to the superior officer. The Investigating Officer along with raid party, left for the spot after mentioning the fact in Roznamcha Ex.P-21 that due to paucity of time procurement of search warrant could not be The appellant was present near Ghadi Chowk, he was possible. informed about the information and also about his right of search before the Magistrate or Gazetted Officer vide Ex.P-2. The accused consented forsearch by the Investigating Offieer. Firstly the accused made search of raid party and witnesses vide Exs.P-3 & P-4, thereafter, the Investigating Officer made search of the accused, one pouch containing brown sugar was found in the pocket of accused vide Ex.P-5, same was identified by the witnesses vide Ex.P- 6 as brown sugar. Notice was issued to Suresh Soni (PW-3) vide Ex.P-7, weighing apparatus was called & verified vide Ex.P-8 and the article was made homogenous vide Ex.P-9. The article was weighed by Suresh Soni (PW-3) and found that the article was 55.100 gms. vide Ex.P-10, same was seized vide Ex.P-11 and sealed. Seal Panchnama was also prepared vide Ex.P-12. arrested vide Ex.P-13. The Investigating Officer came back to the The accused was Police Station along with the accused & article. F.I.R. was lodged vide Ex.P-29. Special reportwas sent to the superiorofficervide Ex.P-28. Written Roznamcha was recorded vide Ex.P-22. The property was produced in the Police Station and same was kept in Malkhana, Roznamcha ofthe same was recorded vide Ex.P-23. After recording Roznamcha Ex.P-24, seized article was sent for analysis vide Ex.P-25. Intimation of the F.I.R, was sent to the Magistrate vide Ex.P-30. Seized article was examined and found consisting of diacetylmorphine (brown sugar) by the State F.S.L., Raipur, vide the witnesses were recorded and after Ex.P-31. Statements of completion of investigation, charge sheet was filed before the Special Judge, Ambikapur.

4.1n order to prove the guilt of the prosecution has examined as many as seven witnesses. Statement of the accused the accused, was'recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & '"false implication. •^s^

5. After affording opportunity of hearing to the parties,learned Special in the aforesaid Judge has convicted & sentenced the appellant manner.

6.1 have heard learned counsel the parties and perused the impugned judgment as also the record of the trial Court.

7. Learned counsel for the appellant argued that independent witnesses inctOtling the witness who has weighed the article have not supported the case of the prosecution. Investigating Officer has not Statements of followed the procedure prescribed. the Police Officers are not safe to rely upon for In the present case, warranting conviction under the special Act. The Pplice Officer has proceeded to spot, but tias not complied the provisions of Section 42 of the Act. The Investigating Officer has not recorded the grounds for not obtaining the search warrant and also has not submitted such report to his superior officer. Learned counsel further submits that this is a case of 55.100 gms. of brown sugar which is above small In case of brown sugar, quaHtity and below commercial quantity. commercial quantity is more than 250 gms. The present appellant is in custody since 19-2-2007 and has completed 2 years 5 months in the period already In case of sentence of three years, jail. undergone would be sufficient sentence.

8. On the other hand,learned counsel appearing on behalf of the State/ respondent supported the j.udgment and argued that in th's case, the prosecution has complied the mandatory provisions of thespecial Ex.P-21 Roznamcha copy of which has been sent to the Act. suparior officer reveals that due to paucity oftime, the Investigating Officer has not obtained search warrant, sufficient same is This is a CQmpliance of the provisions of Section 42 of the Act. special case of possession of brown sugar and heavy punishment is provided for such offence. Normally, the Panch witnesses do not support the'case of the prosecution and in absence of corroboration from Panch witnesses, the statements of ttie police officers who are The present also independent witnesses cannot be discarded. accused is resident of District Rohtas, State of Bihar, he is not known to any of the police officers and he has notoffered any explanation as to why he was present at Ambikapur at the time of such '>•' ^ commission of the offence, or any enmity or interestedness with the police officer.

9. In order to appredate the contentions of the parties, I have examined the statements of the witnesses.

10.In this case, Arjun Kumar Sonkar (PW-1), the alleged Panch witness & Suresh Soni (PW-3), who according to the case of the prosecution weighed the article, have not supported the case of the prosecution In his detailed and the prosecution has declared them hostile. examination & cross-examination, Suresh Soni (PW-3) has not said anyt.bing to show that why he has signed over Ex.P-10, document for weighment. Arjun Kumar Sonkar (PW-1) has deposed in para 6 of his cross-examination that on the fear of Police Officer, he has signed and on refusal he was booked by the Police Officer under Section ISlof theCr.P.C. According td his statementhe is running a hotel. ll.Ramdas Ram (PW-2) - Head Constable, Dharmendra Shrivastava (PW-4) - Constable,Arun Dubey (PW-5) - Head Constable, Sangram Singh (PW-6) - Head Constable & Nasar Siddiqui (PW-7), who has conducted investigation, are police officers. Their evidence cannot be discarded only on the ground that these witnesses are police officials and interested in the outcome of the case. While dealing witt] the same question i.e. evidentiary value of the statements of the Apex Court has held in the case of Anil alias Police Officers, Andya Sadashiv Nandoskar v. State of Maharashtra , testimony of police officials are not because they are police officials. However, their evidence should be carefully scrutinized and independently appreciated. The Apex Court liable to be discarded merely further held that witnesses being police officers do not byitself their creditworthiness if non-examination of create a doubt about Panch witnesses is explained satisfactorily. Para 5 of the said judgment readsas under:- "Indeed all the 5 prosecution witness who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or infirmity. Prudence, however, requires that the evidence of the from some inherent suffers . that 1(1996) 2SCC 589 L/l beyond in which prosecution the non-examination of police officials, who are interested in the outcome of the result of the case, needs to be carefully independently appreciated. The scrutinised police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefulty and critically analysed t.he evidence of all the 5 police officials. There is nothing on the record to show that any one of them was hostile to be appellant and despite lengthy cross-examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the he was apprehended. Their manner evidence regarding search and seizure of weapons from the appellant is straightforward, inspires confidence and It consistent and specific. learned counsel for the appellant has not been able let alone fatal, infirmity in to point out any serious, their evidence. In our opinion, the factum of search and seizure of the country-made revolver from the the appellant has been conscious possession of established reasonable doubt. The explanation given by the the two prosecution, panch witnesses, which is supported by the report Ext. 24 filed by PW 4 PI Gaikwad is satisfactory. The evidence on the record shows that the raiding party them two independent panchas at the time of search and seizure and they were so joined. They were also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore they could not be examinedat thetrial. In the face ofthe facts stated in report Ext. 24, the correctness of which has remained virtually unchallenged during the cross-examination of PW 4, the non-examination of the two panchas cannot be said to be on account of any oblique reason. Their non-production at trail thus has not created any dent in the prosecution case. The withholding these witnesses since it made every effort the trial but failed on account of the fact that they had left the addresses furnished by them at the time of search and their whereabouts could not be traced despite diligent efforts made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension the search and seizure by the raiding party and the recovery from the appellantof the country-made revoiver and cartridges for which he could produce no licence or authority because of the non-examination ofthe panch witnesses. We find to traceand produce them at to join with sincere efforts the appellant, prosecution accused cannot % that the evidence of PW 1 to PW 5 is reliable, cogent and trustworthy." l2.Further,in the matter of P.P. Beeran v. State of Kerala it has been held by the Apex Court that reliance can be placed on the uncorroborated evidence of the Sub Inspector of Police. l3.In the light of the aforesaid legal propositions, I have gone through the evidence of these Police Officers. :"»£' . • •

14.Nasar Siddiqui (PW-7), Investigating Officer of the case, has stated in his evidence that on 19-2-2007 he received information from the informant, he recorded Roznamcha, called witnesses and prepared recording Roznamcha he information Panchanama Ex.P-1. After proceeded for spot along with the Police force, present there, he informed the accused about his right of search underSection 50 of the Act vide Ex.P-2. The accused made search the accused was of the Police Officers and witnesses vide Exs.P-3 & P-4, thereafter, he made search of the accused vide Ex.P-5 andfound brown sugar whiGti was identified vide Ex.P-6. Notice was given to Suresh Soni (PW-3) vide Ex.P-7, weighing article was verified vide Ex.P-8and after making the article homogenous vide Ex.P-9, the article was weighed and found to be 55.100 gms. vide Ex.P-10, same was seized & sealed vide Ex.P-11, and seal Panchnama was prepared vide Ex.P-12. Statements of the witnesses were recorded. Due to paucity of time, Nasar Siddiqui (PW-7) has not procured the search warrant which he has intimated vide Ex.P-27 to the superior officer. This witness has also deposed that he has lodged the F.I.R. vide Ex.P-29. The property was deposited to Malkhana vide Ex.P-16. Detailed report was sent yide Ex.P-28. Copy of the F.I.R. was sent to the Special Judge vide Ex.P-30. The property was sent analysis vide Ex.P-25 and report ofthe analysis is Ex.P-31. iS.Ramdas Ram (PW-2), Head Constable, has deposed that he has received the property, he kept the same in Malkhana and procured the property in Ma//?/?ana vide Ex.P-15, He has provided the Roznamchas Exs. P-20 to P-24. le.Dharmendra Shrivastava (PW-4), Head Constable, has deposited the In his cross-examination he has property to the State F.S.L., Raipur. explained as to why he has not deposited the property before the AIR 2001 SC 2420 7 F.S.L., Raipur on 21-2-2007 and why he has deposited the property on 25-2-2007. l7.Arun Dubey (PW-5), Head Constable, has deposed that he has transmitted the note Panchnamas Exs.P-1 & P-27 to the superior Police Officer and the same is admitted by Sangram Singh (PW-6), Head Constable-cum-Reader tp the City Police Superintendent. is.Main witness Nasar Siddiqui (PW-7), Inspector, has admitted in para conducted another 24 of his cross-examination that he has investigation also. Defence has cross-examined this witness in detail but it has not been able to elicit anything to discredit his testimony, or inimical terms with the accused or interestedness in the outcome of the case. In absence of such material his evidence cannot be disbelieved only on the ground that he is Police Officer. His evidence Ts supported by the promptly lodged F.I.R., the documents and evidence of other Police Officers which inspire confidence, and the same is trustworthy. l9.After appreciating the evidence available on record, learned Special Judge has convicted &sentenced the appellant in the aforesaid manner. Conviction of the appellant is based on clinching & reliable evidence sustainable under the law.

20.As regards the question of sentence, the appellant is incustody since 19-2-2007 and he has completed 2 years 5 months of jail sentence. Taking into consideration the quantity of brown sugar found in possession of the appellant, Sentences imposed upon him require reconsideration and sentence of imprisonment already undergone & finewould served the purpBse.

21.Consequently, the appeal is partly allowed. Conviction of appellant under Section 21 (b) of the Act senfences of R.I. for three years & fine of Rs.20,000/- are reduced to the period already undergone (from 19-2-2007 till today i.e. approximately more than 2 years 5 months) & fine of Rs.20,000/-,in default additional R.I. for six months. is maintained, however Soma SdA T.P. Sharma Judge