(Arising out of judgment of conviction and order of sentence dated 28.06.2019 passed by v. State of Chhattisgarh, Through Police Station Kanker, District Kanker Chhattisgarh
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1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.01.22 14:33:28 +0530 2025:CGHC:2420-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1171 of 2019 (Arising out of judgment of conviction and order of sentence dated 28.06.2019 passed by the learned Special Judge (NDPS Act) North Bastar, Kanker (C.G.), in Special (NDPS Act) Case No.50/2018) Moh. Kamil Patel, S/o Moh. Kasim Patel, aged about 37 years, R/o Duvpursahi, P.S. Kotapara, District Koraput, Orissa ... Appellant versus State of Chhattisgarh, Through Police Station Kanker, District Kanker Chhattisgarh. ... Respondent For Appellant : Mr. Akath Kumar Yadav, Advocate For Respondent/State : Mr. HAPS Bhatia, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (15.01.2025) Sanjay Kumar Jaiswal, J. 2 1. Invoking jurisdiction of this Court under Section 374(2) of
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the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 28.06.2019 passed by the learned Special Judge (NDPS Act) North Bastar, Kanker (C.G.), in Special (NDPS Act) Case No.50/2018 by which the appellant has been convicted for offence as under:- Conviction Sentence & Fine U/s 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 U/s 3/181 of the Motor Vehicles Act ₹ RI for 20 years and to pay fine of 2,00,000/-; in default of payment of fine, additional rigorous imprisonment for 3 years Simple imprisonment for 15 days and to pay fine of 100/-; in default of payment of fine, simple imprisonment for 7 days ₹ 2. The prosecution case in brief is that on 18.09.2018, Sub- Inspector of Kanker Police Station, received information from an informant that a white Bolero pickup vehicle bearing registration number CG-08-AE-8630, coming from Keshkal towards Kanker, was transporting illegal cannabis. Acting on this information, a report was prepared and the details were recorded in the Rojnamcha Sanha (Ex.P-39C). At the scene, the police personnel along with independent 3 witnesses Sarju Ram Yadav (PW-11) and Ajay Dubey (PW-2) awaited the arrival of the vehicle. About half an hour later, a white Bolero vehicle bearing registration number CG-08- AE-8630 arrived and was intercepted. The driver/accused identified himself as Mohammad Kamil Patel. The accused was served a notice regarding the search of his vehicle and his consent was obtained in the presence of witnesses. Subsequently, a search of the accused’s vehicle revealed a total of 14 plastic bags containing contraband in a tin cabin behind the driver’s seat, along with 25,000/- in cash ₹ stored in the vehicle’s trunk. Further, a recovery panchnama (Ex.P-9) was prepared for the seized contraband. Samples were taken from the seized material, which was burned, smelled, and rubbed, confirming the substance to be cannabis. A sample identification panchnama was prepared in the presence of witnesses. To weigh the seized substance, notice under Section 160 of the CrPC (Ex. P-21) was issued to Sunil Patel (PW-3), a resident of Subhash Ward, Kanker, who brought an electronic weighing machine. The machine was physically verified in the presence of the accused and witnesses, and a panchnama was prepared. The total weight of 14 plastic bags of the contraband seized from the vehicle was found to
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be 206.230 kilograms. Two packets of 100 grams were taken from each of the 14 bags, totaling 28 sample packets 4 weighing 2.8 kilograms. The seized contraband were sealed, and a seal sample was prepared along with a panchnama (Ex.P-17). The accused was arrested, and his family members were informed. A site map (Ex.P-27) of the crime scene was prepared. Thereafter statements of witnesses were recorded and investigation was completed, the police filed charge-sheet against the appellant. 3. The prosecution in order to prove its case examined as many as 13 witnesses and exhibited 51 documents, whereas the appellant-accused in support of his defence neither examined any witness nor exhibited any document. 4. The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence. 5. Mr. Akath Kumar Yadav, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 20(b)(ii)(C) of the NDPS Act, as the prosecution has failed to prove the said offence beyond reasonable doubt. He further submits that recovery and seizure witnesses, namely, Ajay Dubey (PW-02) and Sarju Ram Yadav (PW-11) 5 and weigher Sunil Kumar Patel (PW-3) have turned hostile and they have not supported the case of the prosecution at all. He further vehemently argued that the provisions contained under Sections 42(2) & 50 of the NDPS Act have not been complied and the samples of the seized contraband have not been taken in presence of concerned Magistrate, and also there is a delay in sending samples of seized contraband to FSL, therefore, the entire prosecution’s case stands vitiated and, as such, appellant herein deserves to be acquitted of the charges. Hence, it is prayed by him that sentence of the appellant may also be reduced suitably. Thus, the present appeal may be allowed in full or in part. He would rely upon the judgment passed by Hon’ble Supreme Court in the case of Avtar Singh and others Vs. State of Punjab reported in (2002) 7 SCC 419. 6. Per-contra, Mr. HAPS Bhatia, 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 leading evidence of clinching nature. He further submits that though seizure and recovery witnesses Ajay Dubey (PW-2) and Sarju Ram Yadav (PW-11) and weigher Sunil Kumar Patel (PW-3) have turned hostile, but Investigating Officer i.e. Sub-Inspector Kamil Haq (PW-12) has fully proved the case of the 6 prosecution and, therefore, the case of the prosecution cannot be said to be vitiated. Learned State counsel further submits that the provisions contained in Sections 42 and 50 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 appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 8. In the case at hand, on the date of offence i.e. 18.09.2018, illegal contraband i.e. Ganja was recovered and seized from the possession of the appellant, present in his white Bolero vehicle bearing registration number CG-08-AE-8630, vide Recovery Panchnama and seizure memo Ex.P/9 and Ex.P/16 respectively in presence of witnesses- Ajay Dubey (PW-02) and Sarju Ram Yadav (PW-11). However, both the said witnesses have turned hostile and not supported the case of the prosecution. Indeed, they have only stated that they have signed the Recovery Panchnama and the seizure memo. But, Investigating Officer, namely, Kamil Huq (PW- 12) has duly proved the recovery and seizure of Ganja from 7 the appellant vide Ex.P/9 and Ex.P/16. In this regard, their Lordships of the Supreme Court in the matter of P.P. Fathima v. State of Kerala 1 held that mere fact that a panch witness did not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made and observed in Para-07 as under: “7. Learned counsel then contended that in view of the fact that the Panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a Panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of PWs. 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails.” 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 1 (2003) 8 SCC 726 8 came into possession of the same. It has also been held by their Lordships of the Supreme Court in Mukesh Singh v. State (NCT of Delhi) 2 that it is not always necessary to corroborate the testimony of police officials, through the testimony of independent witnesses. 10. 3 In the matter of Dharampal Singh v. State of Punjab it has been held that lack of independent witness is not fatal to the case of the prosecution. By adopting same analogy, it has further been held in Rizwan Khan v. State of Chhattisgarh 4 that the independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. 11. As such, from above analysis on the point, it is vividly clear that merely because seizure witnesses have not supported the case of the prosecution, it cannot be said that the entire prosecution’s case stands vitiated. More particularly, in the present case, Investigating Officer, namely, Kamil Huq (PW-12) has duly proved and supported recovery and seizure of Ganja from the appellant vide Recovery Panchnama (Ex.P/9) and seizure memo (Ex.P/16) respectively and, as per FSL report (Ex.P/51) also, it has been opined that Ganja is present in the samples A1 to 2 3 4 (2020) 10SCC 120 (2010) 09 SCC 608 (2020) 09 SCC 627 9 A28, which were taken from the contraband seized from the appellant from the spot. Therefore, we do not see any good ground to disbelieve the fact of recovery and seizure of Ganja from the appellant on the date and time of the offence vide Ex.P/9 & Ex.P/16 and, as such, the findings recorded by the learned trial Court in this regard, is liable to be and is hereby affirm. We hereby hold accordingly. 12. The next contention that has been raised on behalf of the appellant is that the samples taken from seized contraband were sent to the FSL with delay. 13. In this regard, on perusal of record it seems that the seizure was made on 18.09.2018 and the samples packets (A1 to A28) were sent on 20.09.2018 from the office of Superintendent of Police, District North Bastar Kanker (C.G.) to State Forensic Science Laboratory which were received by the State Forensic Science Laboratory on 22.09.2018. Consequently, the argument putforth in this behalf by the appellant deserves to be and is hereby rejected. 14. Another contention that has been raised on behalf of the appellant is that Section 42(2) of the NDPS Act has not been complied by the prosecution in its letter and spirit. 15. The Trial Court in paragraph 27 of its judgment 10 clearly held that in the case of Anil @ Kalu Vs. State of Chhattisgarh reported in 2014 CR.L.J. 3386, information was sent to the senior officer and was also received at the office, however, the senior officer was not present at the office. In Anil @ Kalu (supra), it has further been held that information was received at the office of Dy. S.P., since he was not present in the office, in order to avoid disappearance of evidence and doing away with the property, the raid was conducted, as such, it is amply clear that there has been a sufficient compliance of Section 42 of the NDPS Act. In the present case at hand, the information was sent within 72 hours, and any alteration in the date of acknowledgment is not fatal. Furthermore, even if there was any delay in receiving the information at the S.D.O.P.’s office, it cannot be deemed as non-compliance with Section 42(2) of the NDPS Act. On the basis of aforesaid evidence available on record, it cannot be held that the prosecution has failed to comply Section 42(2) of the NDPS Act in the present case. Hence, the finding recorded by the trial Court in this regard is just and proper, therefore, the argument putforth in this behalf by the appellant also deserves to be and is hereby rejected. We hereby hold accordingly. 16. Another limb of argument that has been putforth on 11 behalf of the appellant is that Section 50 of the NDPS Act has also not been complied with by the prosecution in the present case. 17. The Trial Court in paragraph 28 of its judgment clearly held that from the perusal of Section 50 of the NDPS Act, it is clear that the provisions of this section apply only to personal searches. According to the prosecution, the seized cannabis was kept in a Bolero vehicle, which was under the control of the accused at the particular time. In the case of Madan Lal & Others vs. State of Himachal Pradesh reported in 2003 AIR SCW 3669, it has been held that the provisions of Section 50 of the NDPS Act do not apply to the search of a vehicle or a bag but only to personal searches. Hence, the finding recorded by the trial Court in this regard is also just and proper, therefore, the argument putforth in this behalf by the appellant also deserves to be and is hereby rejected. We hereby hold accordingly. 18. As such, in view of the discussion made hereinabove, taking into consideration that the Appellant has no criminal antecedents, he is currently aged about 42 years and he is facing the lis since 2018, in the considered opinion of this Court, while affirming the conviction of the 12 appellant for offence under Section 20(b)(ii)(C) of the NDPS Act, we deem it appropriate to reduce his sentence of 20 years rigorous imprisonment, as awarded to him by the learned trial Court, to 12 years rigorous imprisonment. However, the fine sentence and default stipulation, as awarded by the learned trial Court, shall remain intact. Furthermore, the conviction and sentence imposed upon him for offence punishable under Section 3/181 of the Motor Vehicle Act shall remain as it is. 19. Consequently, this criminal appeal is party allowed to the extent indicated herein above. 20. Let a certified copy of this order alongwith original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Shubham