RAJA NAYKAR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) On 05.06.2004 at about 10.00 AM when Sub-Inspector M.K. Dhruw (PW-9) along with other constables was on patrolling duty, he received a secret information to the effect that the accusedappellant herein along with his brother-in-law Nutta was selling Ganja near a canal in contravention of the legal provisions. After reducing the secret information to writing he forwarded the same to City Superintendent of Police, Chhavni through constable No.369 namely Rohit, which was received by his reader as at the relevant time concerned City Superintendent of Police was not present in his office. Two persons namely Javed Khan (PW-5) and Naseer Ahmad (not examined) were called by PW-9. Subsequently, they all went to the spot, but on seeing the police party the accused-appellant tried to run away carrying the bag which he was keeping with him. The appellant was however apprehended by laying a siege. PW-9, thereafter, apprised the accused-appellant of the secret information received by him and also gave him a notice under Section 50 of the Narcotic Drugs & Psychotropic Substances Act (for brevity the "NDPS Act") vide Ex-P/11. The appellant was also informed about his right to give search either to the Gazetted Officer or to the Magistrate or to PW-9 himself vide Ex-P/12. On this being done, the accused-appellant gave his consent for being examined by the PW9 himself. Sub-inspector and other constables first gave their own search, but nothing objectionable was found in their possession, which is evident from Ex-P/13. Thereafter, the appellant was also searched in presence of witnesses. During search, some Ganja like substance was found in the bag carried by the accused-appellant vide Ex-P/15; weighing instruments were called by the constable No.347 and on weighment being done 2.500 grams of contraband being found in his possession, which is evident from Ex-P/16. There upon, two samples of 50 grams each were taken out for sampling, they were properly sealed and the seizure of the contraband was effected under Ex-P/18 followed by arrest of the accused under ExP/19. Accused-appellant along with the contraband so seized was brought to the police station where FIR (Ex-P/21) was registered against him for the offence under Section 20(B) of the NDPS Act. Contraband was kept in safe custody, the samples were sealed and sent to Forensic Science Laboratory for chemical examination vide report Ex-P/6. As per the report of the Chemical Examiner, the contraband was confirmed to be Ganja, and after completion of investigation charge-sheet under the said Section was laid against the accused-appellant.

(2.) After going through the evidence adduced by the prosecution learned Court below found the accused-appellant guilty under Section 20(B) of the NDPS Act and sentence him to undergo R.I. for two years with fine of Rs.3,000/-, plus default stipulation. Hence this appeal.

(3.) Counsel for the accused-appellant submits that though as many as 10 witnesses have been examined by the prosecution yet some of them who were material to the case in hand have been given up for the reasons best known to it. He further submits that the findings recorded by the Court below are not based on the evidence given by the independent witnesses and the conviction rests merely on the testimony of the police people who happen to be the interested witnesses to the case of the prosecution. He further submits that from the evidence of M.K. Dhruw (PW-9), it is evident that the house in question where the accused-appellant resided was occupied by his mother, sister and brother-in-law, and therefore, it cannot be said that the contraband was in the exclusive possession of the accused-appellant. According to the counsel for the appellant, two persons were called by PW-9 for conducting the prosecution but out of them only Javed Khan has been examined by the prosecution and the other one namely Naseer Ahmad has been left out, which also creates doubt in the case of the prosecution.