Kondagaon, Chhattisgarh v. State of Chhattisgarh Through Station House Of
Case Details
1 2025:CGHC:11194 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1300 of 2023 Devashish Rai S/o. Sitanath, Aged About 41 Years R/o. Juganikalar, Police Station Farasgaon, District - Kondagaon, Chhattisgarh ... Appellant versus State of Chhattisgarh Through Station House OfÏcer, Police Station - Kondagaon, District - Kondagaon, Chhattisgarh ... Respondent For Appellant : Mr. G.V. Kutumba Rao, Advocate. For Respondent/State : Ms. Subha Shrivastava, Panel Lawyer. PREETI KUMARI Digitally signed by PREETI KUMARI 06.03.2025 Hon'ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 1. Today, though the present appeal has been listed for hearing on IA No.01 of 2023, which is an application for suspension of sentence and
Legal Reasoning
grant of bail, but with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is being heard finally.
Decision
Accordingly, IA No. 01 of 2023 stands disposed of. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned 2. 3. 2 judgment dated 25.04.2023 passed by the learned Special Judge (N.D.P.S. Act), 1985, Kondagaon, District – Kondagaon (C.G.) in Special Criminal Case (NDPS Act 1985) No. 55/2018, whereby the learned Special Judge after holding the appellant guilty for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drug and Psychotropic Substance Act, 1985 (hereinafter refereed to as ‘the Act’) and sentenced him to undergo R.I. for 10 years and to pay fine of Rs. 1,00,000/-, in default of payment of fine to further undergo R.I. for 1 year. 4. The judgment of conviction and order of sentence is challenged on the ground that without there being any evidence relating to conscious possession of illicit contraband article (Ganja) and ignoring the fact that the prosecution has not complied with the mandatory provisions of the Act which is meant for providing the safeguard to the accused, learned trial court has committed an illegality in convicting and sentencing the appellant as aforementioned. 5. Case of the prosecution, in brief, is that Investigating Inspector Sharad Dubey (PW-11) was posted as Inspector/Station In-charge in Police Station Kondagaon in the year 2018. On 22.06.2018, he along with his staff Head Constable Rajesh Manhar (PW-6), Jaiman Mandavi, Narendra Netam(PW-8), Rituraj Singh(PW-3) went on town patrolling in government vehicle bearing registration No. CG 03 5167. When they reached near Raipur Naka during patrolling, at the same time, information was received through an informer that some people were illegally hiding ganja in a white Pick-Up bearing registration No. CG-17-H-0435 and were going from Malkangiri to Raipur via Jagdalpur- Kondagaon. The investigating ofÏcer prepared a Panchnama of the informer's information by informing his staff Head Constable Rajesh Manhar and Rituraj Singh about the above information received from the informer. Thereafter, Constable Rituraj Singh was sent to summon two independent witnesses and 3 after informing them through mobile from the police station, Constable 431 Nandu Netam and 485 Jailu Markam brought laptop, printer, seal-paper, paper, search light, torch, empty plastic sack and other necessary materials to Raipur Naka. Constable Rituraj Singh appeared on the spot with two independent witnesses Bablu Manikpuri and Krishna Sahu alias Khadu whom the investigating ofÏcer informed about the information received from the informer by giving them a notice under Section 160 of the Indian Penal Code and obtained their consent to be present in the proceedings. Then, a report was prepared regarding their presence on the spot for the proceedings and sent it by post to the ofÏce/residence of the Sub-Divisional OfÏcer of Police through constable 618 Narendra Netam. The said constable informed over mobile that the Sub-Divisional OfÏcer was not present in the Police Headquarters, on which the investigating ofÏcer directed him to give the mail to his reader. 6. The prosecution case further states that in the delay period of contacting other Senior OfÏcer or obtaining search warrant, when there was a possibility of the suspicious vehicle going beyond Kondagaon, the Investigating OfÏcer himself, along with staff and witnesses, set up a blockade at Raipur Naka in the light of street lights for action. On 23.06.2018 at 4.15 A.M., a suspicious vehicle Pick-up bearing registration No.CG-17-H-0435 was seen coming, which was stopped and investigated. The said suspicious vehicle was being driven by a person, who, when asked for his name and address, told his name to be Devashish Rai (appellant herein), whom the investigating ofÏcer took into custody for verification and the suspicious vehicle was brought to the light under street light on the roadside. After this, the suspect was made aware of the information received from the informer and his legal rights and was given the option to give consent for the search to be conducted by a Magistrate, Gazetted ofÏcer or himself, on which the suspect gave 4 consent to get his search conducted by the Investigating OfÏcer. After this, the Investigating OfÏcer got himself, his accompanying staff, government vehicle and witnesses searched and no suspicious object was recovered from the suspect. Later, when the Investigating OfÏcer searched the suspect, cash of Rs. 2,200/- and a driving license were recovered from his pant pocket. On searching the suspicious vehicle Pick-Up number CG-17-H-0435, 60 packets of hexagonal shaped suspicious drug wrapped in full colour cellotape were recovered hidden in a special chamber in the rear trolley. On identification, the said substance was found to be ganja. The Investigating OfÏcer gave notice to the suspect/accused under section 67 NDPS Act to produce valid documents regarding transportation, possession or sale of the recovered drug, on which the accused was unable to produce valid documents. 7. Thereafter, the Investigating OfÏcer summoned the weigher Santosh Markam (PW-9) with an electronic scale through Constable Jamyan Mandavi for weighing the recovered ganja and obtained his consent by giving him a notice and after physically verifying the electronic scale, marked the recovered narcotic substance ganja packets as Exhibit A-1 to A-60 and got all the packets weighed by the weigher, whose total weight was found to be 2 quintals 98 kg and 310 kg (298.310 Kgs.). The ganja packets were filled in four white plastic bags and marked as Exhibit A, B, C, D and sealed and seized the same along with other items recovered from the accused and prepared a seizure memo (Ex.P-44). The accused was arrested after being informed of the reasons for his arrest and his family was informed about it. During the above proceedings at the scene of incident, the Investigating OfÏcer simultaneously, prepared separate Panchnamas of the above proceedings and registered a rural report of crime number 0/18 under 5 Section 20b of the NDPS Act on the spot itself and took the accused and the items seized from him along with staff and witnesses back to Kondagaon police station and presented the rural report and handed over the seized property to Malkhana Mohrir Head Constable Tekram Dhruv (PW-1) and received the delivery letter acknowledgment from him. On the basis of the presented rural report, Sub-Inspector Bhushan Chandrakar (PW-4) registered the First Information Report of Crime No. 159/2018 (Ex.P-8) against the accused/appellant at Kondagaon police station and the matter was taken up for investigation. 8. During the investigation, statements of witnesses were recorded. Spot map of the crime scene was prepared, the Tehsildar and Executive Magistrate Kondagaon got the inventory, summing and sampling of the seized narcotic substance ganja done and a report was obtained, along with this, photography of the inventory process was also done, the sample packets prepared during the inventory were sent to the State Forensic Science Laboratory, Raipur for testing through a memorandum of the Superintendent of Police Kondagaon vide Ex.P-17 and a test report (Ex.P-29) was obtained, in which it was stated that the narcotic substance ganja was present in the sample packets. Information about the owner of the seized suspicious vehicle was obtained by correspondence with the District Transport OfÏcer Jagdalpur, according to which the said vehicle was found to be of Laxmandas Karamchandani, who told in his statement that he had sold the said vehicle to Amit Bhadra earlier and submitted a photocopy of the oath in this regard. The Patwari map of the crime scene was obtained by issuing a memorandum to the Tehsildar District Kondagaon. After other necessary investigation, a charge-sheet was presented against the accused/appellant along with notice to submit supplementary challan under Section 173 (8) CrPC in 6 respect of the owner of the vehicle. 9. After recording the statement of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 and after completion of investigation, charge sheet was filed in the Court of the Special Judge (N.D.P.S. Act), Kondagaon, District - Kondagaon (C.G.). 10. In order to prove the guilt of the appellant/accused, the prosecution has examined as many as 13 witnesses and exhibited 51 documents along with Articles A-01 to A-27 in support of its case. Statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973, in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. 11. Learned Special Judge after affording an opportunity of hearing to the parties, convicted and sentenced the accused/appellant as aforementioned. 12. Learned counsel for the appellant submits that the prosecution utterly failed to prove conscious possession of contraband article and in the absence of conscious possession, the accused is entitled for acquittal. He further submits that learned trial Court erred in not recognizing that, prior to the search of the accused, they were not afforded the option to be searched in the presence of a Gazetted OfÏcer or a Magistrate, as mandated by Section 50 of the NDPS Act. The Hon'ble Supreme Court has consistently held, in a series of judgments, that the accused must be given the option to choose whether they wish to be searched in the presence of a Gazetted OfÏcer or a Magistrate. Section 50 of the NDPS Act confers a significant right upon the person to be searched, allowing 7 them to request the presence of a Gazetted OfÏcer or a Magistrate during the search. The failure to provide this option to the accused renders the entire conviction invalid. of the NDPS Act. The learned trial Court failed to appreciate that there are major contradictions and omission occured in the statement of prosecution statements. This apart, the prosecution has failed to examine the seizure witnesses during the course of trial. Further, the appellant has already served out more than six and half years of jail sentence out of 10 years as awarded by learned trial Court, therefore, the sentence already undergone by him may be sufÏce to meet the ends of justice. 13. On the other hand, judgment impugned is supported on behalf of the respondent/State and submits that conscious possession of the appellant has been established by the prosecution by adducing evidence. The prosecution has complied with the provisions of Special Act and conviction and sentence is sustainable under the law. 14. I have heard learned counsel for the parties, perused the impugned judgment and records of the trial Court. 15. In order to establish the complicity of the accused/appellant in the crime in question, the prosecution has examined Mr. Sharad Dubey (PW-11), Inspector, who is the Investigating OfÏcer of the case has categorically deposed that after receiving information from the informant, on 22.06.2018 at 22:40 hrs., he along with his staff Head Constable Rajesh Manhar (PW-6), Jaiman Mandavi, Narendra Netam(PW-8), Rituraj Singh(PW-3), left for town patrolling in government vehicle number CG-03-5167, information of which was recorded by him in diary number 47 dated 22.06.2018 Ex.P-17, true copy of which is Ex.P-17C. On reaching Raipur Naka during patrolling, he received information from an 8 informer that some people are going from Malkangiri to Raipur via Jagdalpur-Kondagaon by hiding illegal drug ganja in a white colour pick- up vehicle number CG 17 H 0435. The ganja has been hidden in the pick-up, if an immediate raid is conducted then the ganja smugglers can be caught along with the consignment, if any delay is made, the vehicle will move ahead from Kondagaon and the ganja smugglers will run away or will destroy the evidence by destroying the consignment. He informed the police station from the spot itself that they should be present at Raipur Naka with laptop, printer, seal paper, torch, empty plastic bag, needle and thread and other necessary materials from the police station. As per his instructions, Constable No. 431 Nandu Netam and Constable No. 435 Jailu Markam left from Kondagaon Police Station with the said material to come to him, information of which has been entered in the police station's diary Sanha No. 51 dated 30.06.2018 at 00:05 hrs by Head Constable No. 328 Mohrir, the referred diary Sanha is Exhibit P-21, true copy of which is Exhibit P-21C. 16. Sub-Inspector Mr. Prahlad Yadav (PW-13) has stated in his statement that on 13.07.2018 he received the FSL report of the State Forensic Science Laboratory Raipur related to this case from the Superintendent of Police OfÏce, Kondagaon, which he has attached to the record, which is Exhibit P-29, according to which the opinion has been given that the sample packet sent for testing contained ganja. The said evidence of the witness is unchallenged in his cross-examination, on which there is no reason to disbelieve or doubt. From the observation of the chemical test report of the State Forensic Science Laboratory Raipur of Exhibit P-29, it is clear that the opinion has been given that the sample packets sent contained the narcotic substance ganja. As discussed above, the narcotic substance recovered from the accused at the scene of crime 9 was found to be ganja. From the said discussion, it is proved in the case that the substance recovered from the accused was ganja. 17. Now coming to the FSL Report i.e. Ex.P-29, on 02.07.2018, two sealed packed marked as X-1 and X-2 containing dried plant material with greenish-brown leaves, seeds, and flowers were produced for examination, which was brought by Lakhi Baghel Constable No. 354. The said samples were subjected to necessary physical, chemical, microscopic, and TLC tests, which yielded positive results for ganja (cannabis). 18. After appreciating the evidence available on record, the statement of investigating ofÏcer Sharad Dubey (PW-11), other prosecution witnesses and the documents available on records, particularly, seizure memo (Ex.P-44) and the FSL report (Ex.P-29), the learned Special Judge has arrived at a finding that the appellant was found in possession of 298.310 Kgs. of contraband articles (Ganja), further, the appellant has failed to give plausible explanation with respect to the huge recovery of the contraband article which were recovered from his possession and thus, he was convicted and sentenced as aforementioned. 19. Considering the evidence available on record, and the findings recorded by the learned trial Court as discussed above, the appellant has rightly been convicted and sentenced by the trial Court as aforementioned. I do not find any scope for interference in the judgment impugned. Consequently, the appeal is liable to be and is hereby dismissed. 20. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 25.04.2023. 10 21. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance, if necessary. Sd/- (Ramesh Sinha) Chief Justice Preeti