ANIL @ KALU Vs. STATE OF C G

JUDGEMENT

(1.) Both the appeals arise out of the Judgment/order dated 19.10.2011 passed in Special Criminal Proceedings No. 04/2010 by Special Judge, Dhamtari, whereby the appellants have been convicted under Section 15(c) of the Narcotic Drugs Psychotropic Substance Act, 1985 (for short 'the NDPS Act') and sentenced to under go R.I. for 10 years and fine of Rs. 1,00,000/- each, in default of payment of fine, to further undergo R.I. for 3 years. Since the issues involved in both the cases are one and same and further looking to the identical evidence which has come on record, these appeals are being disposed of by this common order. The prosecution case in brief is that on 01.04.2010 at about 18.08 hours one Ramesh Sahu, who was working with District Crime Branch, Dhamtari as Assistant Sub Inspector was on his duty on patrolling at Dhamtari. During such patrolling, he received an information that Vimalchand Jain and Anil Wadhwani, were grinding Opium Poppy, Doda (Posta) in the house/mill of Vimalchand Jain. Having received such information, the panchnama was prepared as Ex./P-1 and the information was sent to Sub Divisional Officer (Police), Dhamtari by Ex./P-17. Thereafter, since search warrant could not be procured considering the urgency in the matter as such panchnama was prepared to this effect. The said Panchnama thereafter was sent through one constable Jamwant Deshmukh with a duty certificate to Sub Divisional Officer (Police) Office, Dhamtari. Thereafter, notice under Section 160 of Cr.P.C. was prepared and was sent through the Constable No. 51, Ghenuram Verma, to summon the independent witnesses at Panchwati Ratnabandha Basti. After sometime, Ghenuram came back and gave written notice that no independent witnesses were available. Therefore, the available staff i.e. Constable, Pradeep Singh, Ghenuram Verma, Jagdish Mirdha, Prahlad Banchor and Chottelal Sahu were prepared for raid. Subsequent to it, the house of Vimalchand Jain was cordoned and at the main door, the accused were called for. On such call, Vimalchand Jain and Anil Wadhwani came out of a room upto the main door. Then both the accused disclosed their name and thereafter they were apprised with the secret news that they are in illegal possession of Narcotic Drug of Doda (Posta) for sale.

(2.) The accused thereafter were apprised that the Police wanted to search the house and were explained about such search and notice was given. On such information, the accused agreed to get themselves searched by Shri Ramesh Sahu and had given a written consent for that and to this effect Panchnama was prepared. During the search in person of accused, no contraband materials were recovered in person, however, one mobile phone was found from Vimalchand Jain which was returned to him immediately. Thereafter, the accused were questioned and admitted the fact that inside the room near the grinder machine, 7 plastic bags of Doda (Posta) were kept which was being grinded to powder. On search of the room, 7 plastic bags of Doda (Posta) were recovered. The goods were immediately tested by smell, oral test and by burn and prima facie they were found to be Doda (Posta). Thereafter, the said Doda (Posta) was recorded in panchnama and was weighed and when they had measured, it was found that the total weight of the contraband Doda (Posta) kept in 7 bags was 101.450 kgs. worth Rs. 2,00,000/-. The accused were thereafter given a notice under Section 91 of Cr.P.C. so as to produce any license or permission for that. But the accused admitted that they don't have any document for same. The subject material then was seized. Subsequent to it, out of the bags, 50 gms. sample were taken out and were sealed and panchnama was prepared which was marked as A-A-1 to G-1-1 and all goods were taken into possession. Since, at that time, independent witness was not available as such the staff as ASI, Ramesh Sahu, Constable, Pradeep Singh & Prahlad Banchor were witnessed to the entire evidence and documentation.

(3.) The appellants/accused, Vimalchand Jain and Anil @ Kalu were arrested on 1.4.2010 at about 21.40 and 21.45 hours respectively. The reasons for arrest were explained to them and the map of the site was also prepared and in the spot itself the crime was registered without number so as to take cognizance of it. At the spot Dehati Nalishi Ex./P-28 was registered and the crime was numbered as 125/2010 under Section 15(c) of the NDPS Act. Thereafter, the FIR was prepared as Ex./P-20 and the seized sample were sent for examination to FSL at Raipur. The sample were deposited on 8.4.2010 subsequent to it notice was served to Rakesh Jain Lunia, the younger brother of Vimalchand Jain with particulars of the crime committed and he was asked to disclose the fact who is the owner of such land. After such notice to Rakesh Jain, notice was given to the Tehsildar by Ex./P-34 and as against such notice, the Tehsildar vide its report dated 10.05.2010 had given a copy of B-1 and Khasra. Subsequently, the license which was given to run the flour mill (Attachakki) to Arihant Jain and Vimalchand Jain was proved to be of Vimalchand Jain. The FSL report about the Doda was received by Ex./P-36 from Forensic Science Laboratory, Raipur. Lastly, after completing the investigation, the charge-sheet was filed under Section 15(c) of the NDPS Act.