Nazir Khan vs State

Present is an appeal preferred by the appellant assailing the judgment of conviction and sentence dated 29.3.2001 passed by the Special Judge,

N.D.P.S. Act, Rajnandgaon at Kawardha, in Special Case No. 17/2000.

Vide the impugned judgment, the learned Court below has convicted the appellant for the offence punishable under Section 20(b)(i) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act') and sentenced him to undergo R.I. for 5 years with fine

of Rs.5000/- and in case of default of payment of fine amount, he was further ordered to undergo additional R.I. for one year.

Case of the prosecution in brief is that on the date of incident a telephonic information was received by the Station House Officer of Police Station-

Rajanandgaon that two persons having Ganja kept in a bag were caught hold and surrounded by the public at Dau Chawl near BNC Mill,

Rajnandgaon. Immediately thereafter the police authorities at Police Station- Rajnandgaon initiated proceedings under the provisions of the N.D.P.S.

Act and as per the mandatory requirements, registered the case in their Rojnamcha Sanha and also informed in this regard to the office of the City

Superintendent of Police. Subsequently, the police team including the C.S.P. went to the place of incident where they found the appellant holding a bag

in his possession and when he was inquired about what is kept in the bag he had replied that it was Ganja that was kept in a bag which was of brown

colour. After due compliance of the mandatory provisions of the N.D.P.S. Act, the appellant was searched where he was found carrying 3 kilogram

of Ganja in the bag that he had. Immediately thereafter, further proceedings under the provisions of the N.D.P.S. Act was initiated and the case was

registered against the appellant and the matter was put to trial before the Special Judge, N.D.P.S. Act, Rajnandgaon where the case was registered

as Special Case No. 17/2000.

During trial, the prosecution examined as many as 9 witnesses and there was no witness examined in defence.

After conclusion of the trial, the learned Court below, vide the impugned judgment, convicted the appellant for the offence punishable under Section

20(b)(i) of the N.D.P.S. Act and ordered him to undergo the sentence as mentioned in the second paragraph of this judgment.

It is this judgement of conviction and sentence which has been assailed by the appellant in the present appeal which has been filed on behalf of the

High Court Legal Aid Committee, Bilaspur.

Learned counsel for the appellant assailing the impugned judgment submits that it is a case where the prosecution has miserably failed to prove its

case as is required under the provisions of the N.D.P.S. Act. He submits that the mandatory statutory requirements under the provisions of Sections

42, 50 and 57 of the N.D.P.S. Act have not been complied with by the prosecution. It was also the contention of the learned Counsel for the Appellant

that the case of the prosecution does not seem to have been established as it is not supported with any evidence from independent witnesses, instead

they have turned hostile and have not supported the case of the prosecution and therefore the judgment of conviction and sentence is liable to be set

aside and the appellant be acquitted of the charges.

Learned counsel for the State however opposing the appeal submits that it is in fact a case where the prosecution has led sufficient evidence to

prove its case beyond all reasonable doubts and that all necessary mandatory requirements under the provisions of the N.D.P.S. Act have been

complied with. He further submitted that the statement of the prosecution witnesses particularly PW-5 V.S. Dwivedi, Investigating Officer, and PW-8

Rohit Kumar Kurre, C.S.P., and other prosecution witnesses fully establishes the case of the prosecution and that there is also sufficient evidence in

the statement of these these witnesses, which proves that mandatory requirement under Sections 42, 50 57 of the N.D.P.S. Act and the other

provisions of the said Act have been duly complied with. He thus prayed for the rejection of the appeal.

Having heard the contentions put forth on either side and on perusal of record, the statement of PW-5 V.S. Dwivedi, T.I. at Police Station

Rajnandgaon, who is the Investigating Officer of the case also, and PW-8 Rohit Kumar Kurre, C.S.P. Rajnandgaon, itself would reflect the manner in

which the statutory and mandatory compliance under the provisions of the N.D.P.S. Act has been followed. Likewise, the statement of PW-2 A.S.

Sahu, Head Constable at Police Station Rajnandgaon, who had registered the information in the Rojnamcha Sanha. Further, PW-1 Ashwini Kumar

Baghel, Malkhana Incharge at Police Station Rajnandgaon, also has deposed before the Court below in respect of the seized contraband being kept in

his possession so as to ensure the safety of the contraband which was seized from the possession of the appellant. In addition to the aforesaid, there is

also the evidence of PW-3 B. Mahanand, Constable at Police Station Rajnandgaon, who had deposited the contraband seized from the possession of

the appellant in the Chemical Laboratory at Raipur, the receipt of which is Exhibit-5, which further establishes the fact that the contraband seized from

the possession of the appellant was in fact Ganja.

Further, on perusal of record what also clearly reflects is that PW-4 Shatruhan and PW-7 Sadashiv, the two seizure witnesses, as well as PW-9

Dharmendra, the weighment witness, have turned hostile and have not supported the case of the prosecution in its entirety. However, in the cross-

examination of these witnesses they have clearly admitted of having signed the panchanama prepared at the time of seizure proceeding and they have

acknowledged their signature available at the seizure panchanama and weighment panchnama. This acceptance on the part of PW-4 and PW-7 of

their signatures in the seizure panchnama so also the PW-9 in the weighment panchnama, gives sufficient strength to the statement recorded on behalf

of the prosecution.

Moreover, the case of the prosecution stands fully proved from the statement of the Investigating Officer V.S. Dwivedi (PW-3) and C.S.P. Rohit

Kumar Kurre (PW-8). The said witnesses have in very categorical terms stated the procedure to have been complied by the search team consisting

of police personnels, which establishes the compliances that are required under the provisions of the N.D.P.S. Act, particularly pre-search and the

post-search formalities including the intimation and permission which are required to be sought from the higher authorities so also providing of

opportunity to the appellant to get himself searched in the presence of a Magistrate in case he has doubt so far as search team is concerned.

Given the evidence which have been narrated in the preceding paragraph, this Court has no hesitation in holding that the Court below has rightly

found the appellant to be guilty of having committed the offence punishable under Section 20(b)(i) of the N.D.P.S. Act and that there is sufficient

evidence led by the prosecution to show that the mandatory compliance under the provisions of the N.D.P.S. Act to have been followed.

The appeal thus being devoid of merits fails and the same deserves to be and is accordingly dismissed.

Since the appellant in this appeal has not filed any application under Section 389 of CrPC for suspension of sentence during pendency of the

appeal and that the present was a legal aid appeal pending since 2001 and the maximum sentence being 5 years, it is presumed that the appellant has

since been released from jail on his completing the entire jail sentence. Hence, no steps are required to be taken in this matter.