Bhawar Lal vs State of Chhattisgarh

Pritinker Diwaker, J.—This appeal is directed against the impugned judgment and order dated 12.12.1995 passed by the 3rd Additional Special Judge, Bastar in Sessions Trial No. 32/1995 convicting the accused/appellant u/s 20(b) of Narcotic Drugs & Psychotropic Substance Act (for short the NDPS Act) and sentencing him to undergo R.I. for two and half years and pay fine of Rs. 10,000/- in default of payment of fine to further undergo R.I. for one year. Brief facts of the case are that on 31.05.1995 when N. Kujur (PW-3), S.H.O. of Police Station Nagarnar, Distt. Bastar was on patrolling duty along with A.S.I. Vijaynath Singh (PW-1), secret information was received to the effect that two persons were crossing Orissa border carrying ganja with them. Both Vijaynath Singh (PW-1) and N. Kujur (PW-3) put barricades at the suspected place and after some time they intercepted a motorcycle bearing registration No. MP-25/0921. Notice u/s 50 of the NDPS Act was given to the accused/appellant vide Ex. P-1 and after obtaining his consent the vehicle was searched. Thereafter, during search of the vehicle, one plastic bag was found in possession of the accused/appellant containing ganja. Notice Annexure P-2 was given to the appellant asking him as to whether he was having the license for carrying the said contraband and in reply it was told by the appellant that he did not have any such permit. Seizure Ex. P-3 of the contraband was made and 15 Kg. of ganja was found in possession of the accused/appellant. Vide Ex. P-4, Weighment panchnama was made and dehati nalisi Ex. P-5 was recorded. After reaching Police Station, F.I.R. Ex. P-6 was registered vide Crime No. 86/1995 u/s 20(b) of the NDPS Act. On the same day i.e. 31.05.1995, a radio message was sent to the superior officer i.e. Superintendent of Police, Bastar. Thereafter, vide Ex. P-9, sample wps prepared and after sealing the bag vide Ex. P-8, the same was handed over to constable No. 816 for keeping the contraband in safe custody. Vide Ex. P-10 spot map was prepared on 14.06.1995. Sample was received by the Forensic Science Laboratory and its report Ex. P-11 was given on 15.06.1995. In the Forensic Science Laboratory, the contraband has been found to be ganja. After investigation, the challan was filed on 08.02.1995 u/s 20(b) 2. So as to prove the guilt of the accused/appellant, prosecution has examined as many as five witnesses. Statement of the accused/appellant was also recorded-under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded innocence and false implication in the case.

After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of this judgment.

Heard learned counsel for the parties and perused the material on record and the impugned judgment.

Contention of Shri Tulsiyan, learned counsel for the appellant is that there is total non-compliance of Sections 42 to 57 of the NDPS Act. He submits that though as per the challan, investigation has been done by Vijaynath Singh (PW-1) but in fact, as per the statement of N. Kujur (PW-3), it is he who carried out the investigation and lodged the F.I.R. as the complainant. He further submits that the contraband was not sealed on the spot but it was sealed in the Police Station. He further submits that there is no evidence on record to show as to whether the contraband was kept in the Malkhana or not. It has been further argued that while making the seizure of the contraband, the samples were not drawn and the same vitiates the trial. He argues that while sending the contraband to the Forensic Science Laboratory, the Investigating Officer has not put his own seal on the contraband and it has been observed by the trial Court that from the evidence it is not clear as to whose seal was affixed in the Article-A. He further argues that the information was not given in a proper manner to the superior officer and sending of radio message is not enough to ensure compliance of Section 57 of the NDPS Act. Lastly, it has been argued that seizure witness Puran Singh (PW-2) has not supported the prosecution case and has been declared hostile whereas the other seizure witness Dayanidhi has not been examined by the prosecution.

Replying to the argument of learned counsel for the appellant, it has been argued by Shri Praveen Das, learned Dy. Govt. Advocate that the mandatory provisions have been duly complied with by the prosecution. He submits that though notice u/s 50 was also given vide Ex. P-1 to the appellant but it is not significant in the case in hand because the contraband has been seized from the plastic bag being carried by the accused/appellant in his motorcycle. He further submits that though Puran Singh (PW-2) has been declared hostile but in cross-examination, he has accepted the seizure as well as the fact that accused/appellant was carrying a bag in his motorcycle. Further, this witness has accepted his signature on the notice Ex. P-2, P-3 and weighment Panchnama Ex. P-4. He further submits that this witness has categorically admitted the fact that the entire procedure has been carried out in front of the shop of Vidyadhar who has been examined as PW-4 and he has categorically supported the prosecution case.

Learned State counsel has further argued that during patrolling, information was received by N. Kujur (PW-3) and Vijaynath Singh (PW-1) and thereafter they immediately reached the spot and after completion of all the formalities, F.I.R. Ex. P-6 was registered in the Police Station. It has been further argued that notice u/s 50 of the NDPS Act was given by N. Kujur (PW-3) and likewise notice Ex. P-2 was also given by him. Further, it has been argued that Ex. P-5 and F.I.R. Ex. P-6 were recorded by N. Kujur (PW-3). He further argues that the rest of the investigation has been done by Vijaynath Singh (PW-1) and thus it cannot be said that any prejudice has been caused to the appellant if two persons have carried out the investigation and ultimately challan was filed by Vijaynath Singh (PW-1). It has been further argued that even if the samples have not been drawn at the place of incident, it will not adversely affect the case of the prosecution because the entire plastic bag was sealed and was sent as it is to the Forensic-Science Laboratory which was duly received by it on 14.06.1995. It has also been argued that once the entire contraband was duly sealed by the Police after affixing the seal of Police Station, it is not required for the Station House Officer to affix his own seal especially when the sealing part is not disputed. It has been further argued that under the law, it is not required that the Investigating Officer has to put his personal seal. Further, it has been argued that the radio message Ex. P-7 was promptly sent to the Superintendent of Police, Bastar giving information to D.I.G., Bastar also and this detailed message makes it clear that the provisions of Section 57 have been duly complied with. It has been further argued that the Investigating Officer Vijaynath Singh (PW-1) and N. Kujur (PW-3), seizure witnesses Vidyadhar (PW-4) and Shekharlal (PW-5) have duly supported the case of the prosecution and though Puran Singh (PW-2) has been declared hostile but in cross-examination, he too has ably supported the case of the prosecution. Learned State counsel has further argued that even in absence of independent witness, the accused/appellant can be convicted solely on the basis of the statement of Vijaynath Singh (PW-1) and N. Kujur (PW-3).

ASI namely Vijaynath Singh (PW-1) has stated that on 31.5.1995 he was posted at police station, Nagarnar and that on the date of incident when he was on his patrolling duty at village Kosmi along with SHO namely N. Kujur, information was received by him that from Orissa border some persons were coming carrying ganja with them. He has further stated that he reached the spot with his staff members, put barricades on the road and in between 1 and 1.30 in the night saw one motorcycle coming from Orissa in which two persons were sitting. Said vehicle was stopped and when he enquired from the driver of the motorcycle, he disclosed his name as Bhawar Lai and the other person as Panch Ram. He has stated that these two persons were carrying bags with them and on being asked they informed that the bags contained ganja. Notice u/s 50 of the Act was given, after obtaining their consent search was made, vide Ex. P-2 they were asked whether they were having the licence for carrying ganja to which they informed him that they were not having any such licence. 10 Kg. of Ganja was seized from the possession of the accused Panchram and 15 Kg. from accused Bhawarlal and after being sealed the same was sent for chemical examination. According to this witness, rest of investigation was carried out by N. Kujur. In cross examination this witness has categorically stated that after completing the formalities, ganja was handed over to head constable Shekhar Lai to be kept in safe custody. However, no time was mentioned in Ex. P-1 and P-2. He has stated that weighment was done in his presence but no signature of the accused persons was obtained. In paragraph 9, he has clarified that as from the same vehicle two bags containing ganja were seized from two different persons, two separate cases were registered against them. He has denied that the entire act was done just to harass the accused persons. Pooran Singh (PW-2) - the witness to seizure of contraband has not supported the case of the prosecution and has been declared hostile. He however has admitted his signature on the seizure memo as also on weighment Panchnama Ex. P-4 and stated that two bags were found in the vehicle in question. N. Kujur-Station House Officer (PW-3) while supporting the case of the prosecution has stated that on the date of incident he along with Vijaynath Singh (PW-1) and other staff members went to village Kosmi and in the night one vehicle was intercepted and on being questioned the driver and pillion rider had disclosed their name as Panchram and Bhawarlal. According to him, they were carrying ganja in bags. Thereafter, notice was given to them by Vijaynath Singh (PW-1) and after completion of the formalities, cases were registered against them. On weighment being done ganja in possession of Panchram came out to be 10 Kg and that of Bhawarlal 15 Kg, which was handed over to Shekhar Lai (PW-5) for being kept in safe custody vide acknowledgement Ex. P-8. Then after putting the seal of police station, ganja was sent for chemical examination. Vidyadhar (PW-4) - the witness to weighment Panchnama Ex. P-4 has supported the case of the prosecution. Shekhar Lai (PW-5) has stated that in crime No. 85/1995 15 Kg. of ganja was handed over to him for being kept in the safe custody vide acknowledgment Ex. P-8.

This Court finds no force in the argument of counsel for the appellant that as investigation was carried out by two persons, entire trial gets vitiated It is clear from the record that part of investigation was done by N. Kujur (PW-3) and thereafter PW-1 namely Vijaynath Singh took it ahead, and there is no legal prohibition that investigation in a case cannot be undertaken by two persons. Even otherwise, the defence has not been able to show anything as to what prejudice has been caused to its case if the investigation initially undertaken by one person was later carried forward by the other one. This Court also finds no force in the argument of the counsel for the appellant that seizure was not made from the spot and the samples were also not drawn there because it is clear from the record that after seizure of the contraband it was sealed as a whole and sent for chemical examination and thereafter a positive report was received from the Laboratory. This Court also does not find any force in the argument of the counsel for the appellant that sending of radio message to the higher authorities is not enough to ensure compliance of Section 57 of the NDPS Act. It is apparent from the record that prosecution has completed all the procedural formalities contained in the mandatory provision of Section 57 of the Act. Thus from the material available on record it is evident that the prosecution has discharged its statutory obligation under the provisions of this special Act and after completing all the requisite formalities 15 Kg. of ganja has been seized from the accused/appellant. There appears to be no lacunae on the part of the prosecution on the basis of which the accused/appellant can derive any benefit. Findings of the Court below are based on due appreciation of the evidence of the witnesses calling for no interference with the same in this appeal. Accordingly, the appeal being without merit is liable to. be dismissed and it is dismissed as such. Appeal is reported to be on bail. His bail bonds stand cancelled. He be sent to jail forthwith to serve out remaining part of the sentence.