Delan Singh Patel vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellants herein against the impugned judgment dated 20/06/2019 passed by learned Special Judge (NDPS Act), North Bastar Kanker in Special Criminal (NDPS) Case No. 42/2018 whereby they have been convicted for offence punishable under Section 20(B)(ii)(c) of the NDPS Act read with Section 34 of IPC and each of them has been sentenced to undergo R.I. for 15 years with fine of Rs. 1,50,000/- in default of payment of fine, additional R.I. for 3 years.

Case of the prosecution, in brief, is that on 18/07/2018, Sub-Inspector Bhujbal Sahu (P.W.-10) along with other staff of Police Station Charama went to village Machandur for M.C.P. action and on the left side of the road near Machandur junction, the police personnel, who were on duty, checked the vehicles on the spot and during the course of said checking, they spotted white coloured Hyndai Verna car bearing registration No. MP-04-CK-6333 and checked the same from which smell of intoxicant like ganja was coming. On suspicion, the driver and two other persons sitting in the vehicle introduced themselves as Delan Singh Patel (A-1), Badal Singh Lodhi (A-2) and Rajendra Singh Lodhi (A-3) and stated that were residents of Sagar. On being enquired, the driver Delan Singh Patel (A-1) informed the police that they were proceeding to Puri whereas the two other persons sitting in the vehicle (A-2 and A-3) informed them that they were proceeding to Jagdalpur. On the basis of contradictory statements, the police personnel suspected them and found that they were transporting ganja. Thereafter, panchnama was prepared and 31.360 kg of ganja was recovered from the possession of the appellants.

Further case of the prosecution is that in the presence of the witnesses, appellants were given notice under Section 91 of CrPC in connection with the transportation of ganja and demanded valid documents, upon which, the appellants could not produce any such document. In order to weigh the quantity of recovered substance, a certificate was issued to Constable Bhojram Netam (P.W.-2) and thereafter, the recovered substance was weighed and sealed. Sample packet of 200 gms each was taken from the recovered substance and thereafter, sample panchnama was prepared vide Ex. P/19. After weighing the remaining ganja after extracting, its total weight was 30 kgs and 530 grams, which was sealed and another panchnama was prepared. On weighing the emply plastic packets in which ganja was kept, its weight was measured to be 600 grams, which was kept in a sealed bag and after weighing it, panchnama was prepared in front of the witnesses. Sealed packets were sent for forensic examination and as per the FSL report (Ex. P/40), it was found to be ganja. After due investigation, the appellants were charge-sheeted for offence punishable under Section Section 20(B)(ii)(c) of the NDPS Act read with Section 34 of IPC which was committed to the Court of Special Judge (NDPS Act) for trial in accordance with law. The appellants abjured their guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 10 witnesses and brought on record 42 documents. Statements of the appellants were taken under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence and did not bring any document on record.

Learned trial Court, after appreciation of oral and documentary evidence on record, proceeded to convict the appellants for offence punishable under Section 20(B)(ii)(c) of the NDPS Act read with Section 34 of IPC and sentenced them as aforesaid.

We have heard learned counsel for the parties, considered their submissions made herein-above and went through the records with utmost circumspection.

The first contention raised by learned counsel for the appellant is that as per the definition of ganja as mentioned in Section 2(iii)(b) of the NDPS Act, seeds and leaves ought to have been excluded while weighing the quantity of ganja seized and if that was the case, the quantity of ganja would be less than commercial quantity which is allegedly seized from the possession of the appellants.

The definition of 'ganja' as provided under Section 2(iii)(b) of the NDPS Act, provides as under :-

“2. Definitions – In this Act, unless the context otherwise requires, -

(iii) “cannabis (hemp)” means -

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;

(b) ganja, that is, the flowering of fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;”

The argument raised by learned counsel for the appellants deserves to be rejected, firstly, for the reason that no specific defence was taken by the appellants in this regard during the course of the trial and this new ground cannot be raised before this Court for the first time and secondly, because the seizure memo was prepared by taking entire quantity of the contraband articles found in the possession of the appellants which looked like ganja and later on, it was also confirmed by the FSL report (Ex. P/40), therefore, the flowering tops and fruits which were found along with leaves and seeds also form the part of ganja as mentioned in Section 2 of the NDPS Act. Accordingly, this argument raised by learned counsel for the appellants is hereby rejected.

The second argument raised by learned counsel for the appellants is that the independent witnesses in the present case have turned hostile and have not supported the case of the prosecution, therefore, in light of the judgment rendered by the Supreme Court in the matter of Sanjeet Kumar Singh v. State of Chhattisgarh AIR 2022 SC 4051, the appellants are entitled for acquittal.

The said argument raised by learned counsel for the appellants is not acceptable as it is well-settled law that even if the independent witnesses have not supported the case of the prosecution, the conviction can be based on the testimony of the official witnesses i.e. Investigating Officer. In the instant case, the Investigating Officer namley Bhujbal Sahu (P.W.-10) has categorically stated in his deposition before the Court regarding the involvement of the appellants in the crime and it has duly been corroborated by the other official witnesses namely Keshav Nag (P.W.-4) and Tirath Kumar Gandharv (P.W.-5), therefore, the said argument raised by learned counsel for the appellants also deserves to be and is hereby rejected.

Faced with this situation, learned counsel for the appellants argues that the seized contraband has not been produced before the trial Court and on this ground the appellants deserve to be acquitted in light of the decision rendered by the Supreme Court in Gorakhnath Prasad v. State of Bihar AIR 2018 SC 704.

This argument raised by learned counsel for the appellants seems to be insubstantial as in the present case, prosecution has clearly established the guilt of the accused persons, right from the recovery of the contraband upto the chemical examination of the seized contraband. This specific question came up for consideration before the Supreme Court in the matter of State of Rajasthan v. Sahi Ram (2019) 10 SCC 649 wherein it has been held as under :-

“18. If the seizure of the material is otherwise proved on record and is not even doubted or disputed the entire contraband material need not be placed before this Court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court. At times, the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out.”

In that view of the matter, it is not mandatory that the seized contraband article must be produced before the trial Court to show possession and recovery of the same from the accused persons. Moreover, it is evident from the statements of the Investigating Officer Bhujbal Sahu (P.W.-10) and Keshav Nag (P.w.-4) that the seized ganja was kept in the Malkhana of the Police Station, Charama vide Ex. P/7. Thus, this contention raised by learned counsel for the appellants is rejected as well.

It has now been argued by learned counsel for the appellants that police has not complied with the general procedure contained in the standing orders of the Central Government for the purpose of sampling of the seized contraband.

The said argument put forth by learned counsel for the appellants does not have any force as in the matter of Noor Aaga v. State of Uttar Pradesh (2008) 16 SCC 417, the Supreme Court has clearly held that the standing orders cannot be blatantly floated and if there is substantial compliance of the procedure that alone is sufficient. In the present case, the substantial compliance of the sampling and storage made by the police authorities and the appellants have failed to show any material defect or illegality in that compliance and therefore, this argument is also rejected.

Lastly, learned counsel for the appellants would submit that there is unexplained delay in sending the seized contraband articles for FSL examination, hence the same is fatal for the case of the prosecution.

A careful perusal of the record would show that from Ex. P/7C which is a copy of the Malkhana Register as well as from the statements of Keshav Nag (P.W.-4) and Tirath Kumar Gandharv (P.W.-5), it is evident that on 18/07/2018 at about 3 PM, the seized and sealed contraband was kept in the malkhana i.e. on the same day of recovery and on 20/07/2018, the same was sent for FSL but due to non-availability of officers in FSL, the same could not be received by the Forensic Laboratory and it was kept in malkhana again and finally on 23/07/2018, the seized and sealed contraband was received by the Forensic Laboratory for its examination. FSL report was given on 28/7/2018 vide Ex. P/40 and thereafter, on 09/08/2018, the said contraband was sent back to malkhana which is supported by Tirath Kumar Gandharv (P.W.-5). As such, this argument also deserves to be rejected for the reason that the appellants have not confronted the Investigating Officer Bhujbal Sahu (P.W.-10) about the delay in sending the seized contraband articles for FSL.

In view of the aforesaid legal discussion, we do not find any merit in this criminal appeal and it deserves to be and is accordingly dismissed. The three appellants are stated to be in jail. They shall serve out the sentence as awarded by the trial Court by means of the impugned judgment and order dated 20/06/2019.

Office is directed to transmit the lower court record along with certified copy of this judgment to the court concerned forthwith for necessary information and compliance.