Aarif Khan vs State Of Chhattisgarh

Ram Prasanna Sharma, J

Shri Shailendra Soni and Shri Narendra Singh Thakur, Advocates have been engaged by the appellant for arguing the case on his behalf. Despite

repeated calls they have not appeared when the case is called for final hearing, therefore, Shri Shivendu Pandya, Advocate, who is present in the

Court has been appointed as Amicus Curiae to argue the case on behalf of the appellant.

Challenge in this appeal is to the judgment of conviction and order of sentence dated 17-2-2010 passed by the Special Judge (Narcotic Drugs &

Psychotropic Substance Act, 1985 (for short, ""the Act, 1985""), Janjgir, District Janjgir-Champa (CG) in Special Criminal Case No. 11 of 2009 wherein

the said Court convicted the appellant for commission of offence under Section 20(B)(1)(ii) (C) of the Act, 1985 for illegal possession of contraband

Ganja measuring 20.140 kgs on 7-9- 2009 at abut 8.15 pm at village Budgahan, Police Station Baloda, District Janjgir-Champa (CG) and sentenced

him to undergo RI for ten years and fine of Rs.1,00,000/- with default stipulations.

In the present case, Incharge of Police Station Baloda received information that one person is in possession of contraband Ganja and this

information was recorded in Panchnama and information was sent to higher authorities. Witnesses were called and directed to remain present during

seizure proceeding. Appellant was given notice regarding his right to be searched by any Magistrate or Gazetted Officer as per Ex.P/17, but he gave

consent to be searched by the said Police officials. First all members of raid party were searched and no objectionable article was found in their

possession and thereafter one bag was seized from the possession of the appellant in which contraband articles were kept in 12 packets. All the

packets were weighed in electronic weighing machine and total quantity was found to be 20.140 kgs. Two samples of 50 grams each were separated

and sealed on the spot and rest of the articles were also seized and sealed. All the seized articles were given to Incharge of Malkhana for keeping the

same in safe custody. The articles which were kept in safe custody and the samples were given to Constable Vijay Kumar Patel for depositing the

same in Forensic Science Laboratory for examination. As per report of FSL, test of Ganja was found to be positive. The matter was investigated and

the appellant was charge-sheeted.

Learned counsel appearing as Amicus Curiae for the accused/appellant submits as under:

(i) Mandatory provisions under Sections under Sections 42, 50, 52, 55 and 57 of the Act, 1985 have not been properly complied with which vitiated the

prosecution case.

(ii) PW/5 Naval Kishore Singh admitted that weight of Ganja was done at Kishan shop but no one from that shop is examined, therefore, version of

prosecution is not supported by this witness.

(iii) Entry register was not produced before the trial Court against the mandatory provisions of Section 42of the Act, 1985 which vitiates the trial.

(iv) The trial Court has not evaluated the evidence in its true perspective and came to a wrong conclusion which is liable to be reversed.

Per contra, State counsel supporting the impugned judgment has submitted that the finding arrived at by the trial Court is based on proper

marshaling of evidence which is not liable to be interfered with by this Court.

I have heard counsel for the parties and perused the material on record.

From the evidence of PW/6 Rajesh Shrivastava, Sub Inspector, it is established that the appellant was having a bag in which contraband articles

were kept. From his evidence and seizure of bag, it appears that it is not a personal search. Personal search is done when contraband article is kept

either in wearing of the person concerned or in inner part of the body, but that is not the case here. Contraband article was kept in a bag which is not

the part of the body. Though notice under Section 50 of the Act, 1985 was given to the appellant, but the same was not required looking to the

evidence adduced by the prosecution. Again, it is not a case of search in confined place, therefore, Section 42 of the Act, 1985 has no application.

From the evidence of PW/1 Holiram Bhargav, Head Constable, it is clear that information received by the police authorities on 7-9-2009 was sent

to Sub Divisional Officer (Police) Janjgir and same was received by the said office as per Ex. P/1 and P/2. From the evidence of PW/2 Preetamlal

Yadav, Head Constable, it is clear that all the information received by the police authorities and all the proceeding of search and seizure were

recorded in Rojnamcha Sanha as per Exs. P/6, P/7, P/8 & P/9. The proceedings (Ex.P/9 & P/10) are recorded in Rojnamcha Sanha and same is sent

to higher authorities as per these documents. Therefore, it cannot be said that provisions under Section 55 or 57 of the Act, 1985 are flouted.

Again from the evidence of PW/5 Naval Kishore Singh and Sub Inspector Rajesh Shrivastava (PW/6), it is established that weight of seized article

was 20.140 kgs. From their evidence it is also established that 50 grams of contraband Ganja from each packet was separated as sample and bundle

of seized articles was 12 in number. From the evidence of Sub Inspector Rajesh Shrivastava (PW/6) and Head Constable Preetamlal Yadav (PW/2),

it is established that seized articles were given to PW/2 Preetamlal Yadav who was Head Constable and Incharge of Malkhana and he recorded

regarding delivery of articles in the register of Malkhana as per Ex.P/3 and P/4 and as per evidence of both witnesses, the articles seized were kept in

safe custody of Malkhana.

From the evidence of PW/4 Vijay Kumar Patel, it is established that he received 12 packets from Police Station Baloda and deposited the same in

FSL as per Ex.P/13. As per the report of said FSL (Ex.P/14), the articles were found to be Ganja. As the test of article is positive, it is established

that seized article is contraband Ganja. As per schedule of the Act, 1985, quantity more than 20 kgs of Ganja is commercial quantity and for

possession of commercial quantity offence under Section 20(B)(ii)(C) of the Act, 1985 is made out for which the trial Court convicted the present

appellant.

On overall assessment of the entire evidence and argument advanced on behalf of the appellant, this court is of the view that no mandatory

provision was flouted during the course of investigation and argument on behalf of the appellant has no force. Thus in the aforesaid view of the matter

this Court is of the considered opinion that the findings recorded by the Court below do not suffer from any legal flaw warranting inference in this

appeal. Conviction and sentence of the appellant under Section 20(B)(1)(ii)(C) of the Act, 1985 is hereby affirmed.

Heard on the point of sentence.

Minimum sentence for offence under Section 20(B)(1)(ii)(C) of the Act, 1985 is RI for ten years and fine of Rs.1,00,000/-.

The trial Court awarded minimum sentence and less than minimum sentence cannot be awarded.

Resultantly, the appeal being without any force is liable to be dismissed and it is dismissed as such with the affirmation of the judgment impugned.

As the appellant is already reported to be behind the bars, no further order for arrest etc is necessary.