Teej Ram Sahu vs State Of Chhattisgarh

Sanjay K. Agrawal, J

Teejram Sahu – sole appellant in Cr.A.No.1585/2017 and two appellants in Cr.A.No.1046/2013 namely Veer Pradhan & Nakul Bag have preferred these two criminal appeals under Section 374(2) of the CrPC against their conviction by the impugned judgment dated 3-10-2013 by which they have been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’) and sentenced to undergo rigorous imprisonment for twelve years and pay fine of ₹ 1,25,000/- each, in default of payment of fine to further undergo additional rigorous imprisonment for three years.

Since both the criminal appeals have arisen out of one and same judgment dated 3-10-2013 passed by the Special Judge (NDPS Act), Raigarh, in one Special Case No.2/2010 and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment.

Case of the prosecution, in short, is that on 24-1-2010 at 3.45 a.m., during night patrolling, ASI R.K. Patel informed Inspector H.P. Singh (PW-7) that during night patrolling near Nagar Palika Sarangarh Square, they apprehended a white Ambassador Car containing illegal contraband and tried to stop the same, however, the car driver took the car towards Sarsiva Road upon which the car was chased with the apprehension of containing some illegal contraband and the said car was halted by overtaking near Rani Sagar and interrogation was conducted suspecting transportation of Narcotic drug. The Constable and the Head Constable, who were on town patrolling, came to the place of incident along with two witnesses namely Sher Bahadur (PW-2) & Ramesh Bahadur (PW-3) in front of whom driver of the car namely Nakul Bag and other accused Babulal, who was sitting inside the car bearing registration No.OR-15/A-6726, were interrogated and the car boot was opened by Babulal and was thereafter searched on which two white colour plastic bags were found containing contraband substance which were opened in front of the witnesses and the accused persons and the same was seized vide Ex.P-1. Thereafter, at 4.10 a.m., in front of the seizure witnesses namely Sher Bahadur (PW-2) & Ramesh Bahadur (PW-3), the said contraband was identified as Ganja vide Ex.P-2. Thereafter, at 4.30 a.m., weighing machine of Bodhram (PW-4) was physically verified vide Ex.P-3 and at 4.35 a.m., the contraband was weighed vide Ex.P-4 on which it was found that the first bag was containing 31.400 Kgs. of Ganja and the second bag was containing 7.900 Kgs. of Ganja, total weighing about 39.300 Kgs.. Thereafter, the seized material was identified as contraband by sniffing and by burning and the identification panchnama was recorded vide Ex.P-2 out of which 100 gms. of sample was taken out from each bag and sealed separately and sent for chemical analysis to the Forensic Science Laboratory vide Ex.P-26 through the Office of the Superintendent of Police, Raigarh on 25-1-2010. Report received from the FSL – Ex.P-29 clearly confirms the contraband article as Ganja. On the same day i.e. 24-1-2010 at 4.50 a.m., a small diary was seized from accused Teejram Sahu vide Ex.P-6 wherein certain information regarding supply of Ganja and rate was mentioned which was duly recorded in the seizure memo. From accused Veer Pradhan, a pocket diary was seized vide Ex.P-8 in which some phone numbers were written in Oriya Language. Thereafter, at 5.40 a.m., first information report (FIR) Ex.P-19 was registered and information of offence was sent to the Judicial Magistrate First Class, Sarangarh vide Ex.P-20. The report of the FSL was received vide Ex.P-29 wherein the contraband material was found to be Ganja and thus proved to be contraband. Thereafter, after usual and due investigation, the appellants were charge-sheeted for offence under Section 20(b)(ii)(C) of the NDPS Act before the Special Court (NDPS Act), Raigarh for hearing and disposal in accordance with law.

The prosecution, in order to bring home the offence, has examined as many as 7 witnesses and exhibited 29 documents Exs.P-1 to P-

The appellants abjured the guilt and entered into defence. They did not examine any witness and exhibited no document at their instance.

The Special Court after considering ocular, oral and documentary evidence on record, proceeded to convict and sentence the appellants in the manner mentioned in the opening paragraph of this judgment against which these appeals have been preferred holding that the appellants were found in conscious possession of 39.300 Kgs. of Ganja and the provisions contained in the NDPS Act have been religiously and consciously complied with.

Mr. Satya Prakash Verma, learned counsel appearing in Cr.A. No.1585/2017 on behalf of appellant Teejram Sahu, would submit that Section 25 of the NDPS Act has not been complied with and the prosecution has not proceeded with the owner of the vehicle, similarly Section 42 has not been complied with. He would further submit that no independent proceeding has been initiated and the Sub-Divisional Officer (Police) has not been informed about the proceeding so conducted, similarly, Sections 54 & 55 of the NDPS Act have not been complied with. He would lastly submit that panch witnesses Sher Bahadur (PW-2) & Ramesh Bahadur (PW-3), who are material panch witnesses of seizure, measurement, examination of the Narcotic drug and identification, have turned hostile and they have not supported the case of the prosecution, therefore, the appeal of Teejram Sahu deserves to be allowed and conviction & sentences imposed upon him are liable to be set aside.

Mr. Manoj Kumar Jaiswal, learned counsel appearing for appellants Veer Pradhan & Nakul Bag in Cr.A.No.1046/2013, would submit that Sher Bahadur (PW-2), Ramesh Bahadur (PW-3) & Bodhram (PW-4) have turned hostile and have not supported the case of the prosecution, therefore, the prosecution has failed to prove the case beyond reasonable doubt and as such, the appeal deserves to be dismissed.

Mr. Verma and Mr. Jaiswal, learned counsel appearing for the appellants, would rely upon the decisions of the Supreme Court in the matters of Kishan Chand v. State of Haryana (2013) 2 SCC 502, Khekh Ram v. State of H.P. (2018) 1 SCC 202, Avtar Singh and others v. State of Punjab (2002) 7 SCC 419, and Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609, in support of their contentions.

Mr. Ashish Tiwari and Mr. Soumya Rai, learned State counsel, would support the impugned judgment and submit that the prosecution has been able to prove the case against the appellants beyond reasonable doubt and the trial Court has rightly convicted and sentenced them, as such, the appeals deserve to be dismissed. They would rely upon the decisions of the Supreme Court in the matters of Mohan Lal v. State of Rajasthan (2015) 6 SCC 222, Makhan Singh v. State of Haryana (2015) 12 SCC 247, and Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627, to buttress their submission.

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

It is pertinent to mention here that Babulal (A-1) had preferred Cr.A. No.550/2014 which stood abated on account of his death by order dated 2-12-2022.

Section 20(b)(ii)(C) of the NDPS Act provides as under:-

“20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,-

(a) xxx xxx xxx

(b) produces, manufactures, possesses, sells, purchases, transports, imports, inter-State, exports inter-State or uses cannabis, shall be punishable-

(i) xxx xxx xxx

(ii) where such contravention relates to sub-clause (b),-

(A) and (B) xxx xxx xxx

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.”

A careful perusal of the aforesaid provisions would show that whoever in contravention of this Act possesses, transports cannabis shall be punishable and where the quantity of ganja is commercial quantity, the accused shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

It would be appropriate to notice Section 42 of the NDPS Act, which states as under :-

“42. Power of entry, search, seizure and arrest without warrant or authorisation. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon,sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, -

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure of freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector :

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.”

Section 42 of the NDPS Act came up for consideration before the Constitution Bench of the Supreme Court in the matter of Karnail Singh v. State of Haryana (2009) 8 SCC 539 in which their Lordships considered the statutory requirement of writing down and conveying information to superior officer prior to entry, search and seizure, while resolving the conflict between two earlier decisions rendered by the Supreme Court in the matters of Abdul Rashid Ibrahim Mansuri v. State of Gujarat (2000) 2 SCC 513 and Sajan Abraham v. State of Kerala (2001) 6 SCC 692 and held that whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case and while total non-compliance with requirements of Sections 42(1) and (2) is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. Their Lordships further held that non-compliance of Section 42 of the NDPS Act may not vitiate the trial if it does not cause any prejudice to the accused and observed in paragraph 35 as under:-

“35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :

(a) The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.”

Their Lordships of the Supreme Court have clearly held in paragraph 35(d) of Karnail Singh (supra) that while total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. If any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. The principle of law laid down in Karnail Singh (supra) has further been followed by the Supreme Court in the matter of Boota Singh v. State of Haryana (2021) SCC OnLine SC 324.

Reverting to the facts of the case in light of the aforesaid principles of law laid down by the Supreme Court, so far as non-compliance of Section 42(2) of the NDPS Act is concerned, it has been brought to our notice by the learned State counsel that vide Ex.P-12C, which is the copy of roznamcha sanha and which has been proved by Narendra Kumar Tiwari (PW-5), that information has been sent to the Sub-Divisional Officer (Police) with regard to seizure and proceeding conducted by the police and in the statement before the Court, Investigating Officer H.P. Singh (PW-7) has also proved the fact that vide Ex.P-12C, information received by him on telephone has been made over to the SDO (P). As such, compliance of Section 42(2) of the NDPS Act has been proved on behalf of the prosecution.

The next submission that has been raised on behalf of learned counsel for the appellants is, Section 50 of the NDPS Act has not been complied with, whereas it is the argument of the learned State counsel that compliance of Section 50 only applies in case of personal search of the accused and would not apply in case of search of baggage like bag, article, container, etc.. In the instant case, admittedly, the vehicle on which the appellants were travelling / driving was searched and from inside the car boot, the Ganja in question was seized.

It is well settled that Section 50 of the NDPS Act is applicable only where search of a person is involved and is not applicable where no search of a person is to be conducted. The Supreme Court in the matter of Krishna Kumar v. State of Haryana 2014 AIR SCW 3667 in which Ajmer Singh v. State of Haryana (2010) 3 SCC 746 has been followed by their Lordships, held as under: -

“12. It is clear from the reading of the aforesaid provision that it is applicable only where search of a person is involved. It is not made applicable in those cases where no search of a person is to be conducted. In the instant case the appellant was carrying a bag which was to be searched and on his request Chet Ram was summoned in whose presence search was conducted which pertained to a bag. In Ajmer Singh v. State of Haryana; (2010) 3 SCC 746 this aspect is specifically considered and dealt with. Following earlier Constitution Bench judgment, the Court held that when search and recovery from a bag, brief case, container etc. is to be made, provisions of Section 50 of the Act are not attracted.”

Furthermore, Ajmer Singh (supra) has been followed in the matter of Makhan Singh v. State of Haryana (2015) 12 SCC 247. Admittedly, present case is not the case of personal search of the appellants, it was the case of search of vehicle which was being driven by accused Nakul Bag – one of the appellants herein and remaining three accused persons were sitting inside the vehicle, and from whom the contraband article was seized from two plastic bags kept in the car boot.

In that view of the matter, the provisions contained in the NDPS Act regarding personal search would not be attracted as the search of vehicle is different from search of person. Accordingly, this argument is also rejected.

Now, the next submission raised on behalf of the appellants is, Section 25 of the NDPS Act has not been complied with.

Section 25 of the NDPS Act states as under: -

“25. Punishment for allowing premises, etc., to be used for commission of an offence.—Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.”

Section 25 of the NDPS Act prescribes punishment for allowing premises or vehicle to be used for commission of an offence. It provides that whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence. Admittedly, no question has been asked with regard to this provision from investigating officer H.P. Singh (PW-7), therefore, altogether a new plea has been taken by the appellants before this Court, even otherwise, this plea would not absolve the appellants from commission of offence, if any. Therefore, the argument based on Section 25 of the NDPS Act is of no help to the appellants and it is accordingly rejected.

Next submission on behalf of the appellants is with regard to Section 57 of the NDPS Act that the same has not been complied with and information with regard to arrest and seizure within 48 hours next after such arrest or seizure has not been made to the immediate superior officer {SDO(P)} which has been replied by the State that vide Exs.P-12C, 14C & 15C, report regarding arrest and seizure has been made to the immediate superior which is substantial compliance.

The Supreme Court in Mohan Lal (supra), in paragraph 34, relying upon its earlier decisions in the matters of Sajan Abraham v. State of Kerala (2001) 6 SCC 692 and State of Punjab v. Balbir Singh (1994) 3 SCC 299, has held that Section 57 is not mandatory in nature and when substantial compliance is made, it would not vitiate the prosecution case.

In the instant case, the prosecution has been able to demonstrate vide Exs.P-12C, 14C & 15C that substantial compliance of the provision contained in Section 57 of the NDPS Act has been made. Therefore, the argument raised on the basis of Section 57 is also rejected.

Now, the next and final attack that has been made by Mr. Jaiswal and Mr. Verma, learned counsel for the appellants, vehemently is that three witnesses namely, Sher Bahadur (PW-2), Ramesh Bahadur (PW-3) & Bodhram (PW-4) have been examined as seizure witnesses, but they have turned hostile and have not supported the prosecution case, therefore, the prosecution case is vitiated. According to the learned State counsel, even if the aforesaid prosecution witnesses have not supported the case of the prosecution and have not turned hostile, the investigating officer has supported the case of the prosecution, therefore, the prosecution case cannot be thrown out.

The question for consideration would be, whether the evidence of police officials can be discarded in absence of support by independent evidence?

The issue so posed has been considered by the Supreme Court from time to time and it has been held that there is no legal presumption that evidence of the police officials, unless supported by independent evidence, is unworthy of acceptance.

The Supreme Court in the matter of Girja Prasad v. State of Madhya Pradesh (2007) 7 SCC 625 has clearly held that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials.

Relying upon Girja Prasad (supra), the Supreme Court in the matter of Baldev Singh v. State of Haryana (2015) 17 SCC 554 has held that mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. It was observed as under:-

“10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.”

Similarly, in Rizwan Khan (supra), the Supreme Court has held that testimony of official witnesses cannot be rejected on the ground of non-corroboration by independent witnesses. It was further held that examination of independent witness is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case, and relying upon State of H.P. v. Pardeep Kumar (2018) 13 SCC 808 it has been held as under:-

“14. Applying the law laid down by this Court on the evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials.”

Similarly, in the matter of Rajesh Dhiman v. State of Himachal Pradesh (2020) 10 SCC 740 it has been held by the Supreme Court that non-examination of independent witnesses would not ipso facto entitle one to seek acquittal. Though a heightened standard of care is imposed on the court in such instances.

Reverting to the facts of the case finally, though independent witnesses namely, Sher Bahadur (PW-2), Ramesh Bahadur (PW-3) & Bodhram (PW-4) could have proved seizure, measurement, etc., and they have not supported the case of the prosecution, but considering the statement of investigating officer H.P. Singh (PW-7), it cannot be held that the prosecution has not been able to prove the offence against the appellants beyond reasonable doubt. A careful perusal of the statement of the investigating officer would show that compliance of seizure of the contraband article vide Exs.P-5, P-6, P-7 & P-8 has been made and he has informed the proceeding to the SDO(P).

In that view of the matter, we are of the considered opinion that the learned Special Judge is absolutely justified in convicting and sentencing the appellants. Therefore, we do not find any merit in both these appeals and they are accordingly dismissed.