SATYANAND GUPTA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 26-02-2002 passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act'), District Raigarh in Special Criminal Case No. 14/2001 whereby and whereunder, the learned Special Judge under the NDPS Act after holding the appellant guilty for illicit possession of 1 kg. ganja, convicted the appellant under Section 20(b)(i) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 5 months and to pay fine of Rs.100/-, in default of payment of fine, to further undergo rigorous imprisonment for one month.

(2.) Conviction is impugned on the ground that without there being any iota of evidence, court below has convicted and sentenced the appellant as aforesaid mentioned and thereby committed illegality.

(3.) As per case of the prosecution, on 07-10-2001 at about 8.50 p.m., K.PDwivedi (PW-1), SHO, Police Station Tamnar, District Raigarh, received information from informant that at Village Karrapali, Police Station Tamnar, the appellant is engaged in illegal transportation of ganja and he is returning from Orissa with ganja to his home village. K.P.Dwivedi (PW-1) prepared the informer panchnama vide Ex.-P/1 in the presence of two witnesses, he gave notice (Ex.-P/2 and Ex.-P/3) to panch witnesses Kalachand Rathiya (PW-3) and Pardesi Rathiya (PW-2) to remain present at the time of raid with police raiding party. K.P.Dwivedi (PW-1) gave radio message to SDO(P), Kharsiya for information and necessary action vide Ex.-P/4. Along with the panch witnesses and police party he reached to the Village Karrapali, he gave the appellant notice vide Ex.-P/6 and informed regarding the information received through the informer for illegal possession of ganja by the appellant and also intimated him regarding his legal right that he may be searched before any Gazetted Officer or Magistrate or if he wish, search can be conducted by K.P.Dwivedi (PW-1). The appellant agreed that he wants to be searched by the said police officer. He gave his consent in the Ex.-P/6. Thereafter, K.P.Dwivedi (PW-1) and the witnesses and staff were searched by the appellant and nothing objectionable substance noticed in the search. Talashi panchnama was prepared vide Ex.-P/7 and Ex.-P/8. After the search of Investigating Officer and panch witnesses and staff of the Police Station Tamnar, the Investigating Officer conducted search of the appellant. The appellant was having blue colored zipped bag in which ganja like substance about 1 kg. recovered. The search panchnama of the appellant was prepared vide Ex.-P/9. Ganja like substance was physically examined by the Investigating Officer and the witnesses. They confirmed the presence of ganja positive upon physical examination vide Ex.-P/10. After search of the appellant and before taking weight of substance ganja so recovered again the Investigating Officer, his staff and witnesses were searched by the appellant, nothing objectionable substance was found. Search panchnama was prepared vide Ex.-P/11. The panchnama for weighing apparatus (cRTuj) and measurement was prepared vide Ex.-P/5. The weighing instrument and measurement were found to be correct. Ganja so recovered from the appellant with the bag which he was carrying along with him was weighed and found 1 kg. The weightment panchnama of ganja was prepared vide Ex.-P/12. Samples were taken for 25-25 grams. They were sealed separately. The remaining ganja (950 grams) was sealed separately. Impression of the seal marked in the seizure memo, the seizure memo was prepared vide Ex.-P/13. The spot map was prepared by the Investigating Officer vide Ex.-P/14. The appellant was duly arrested vide arrest memo Ex.-P/15. Investigating Officer K.P.Dwivedi (PW-1) recorded the dehati nalishi at the spot vide Ex.-P/17. He along with the appellant, ganja so seized, after completion of the proceedings at the spot, returned to Police Station Tamnar where he lodged the First Information Report (FIR) and registered crime number as 90/2001 under Section 20(b) of the NDPS Act against the appellant vide Ex.-P/18. Ganja so seized and the two samples of 25-25 grams in sealed condition were kept in safe custody of Malkhana Moharrir. He handed over it to Malkhana Moharrir, for which panchnama vide Ex.-P/16 was prepared before the witnesses. Copy of the FIR and necessary documents were sent to Judicial Magistrate First Class, Gharghoda as required by the law. The Investigating Officer wrote the rojnamcha sanha for the information he received regarding the ganja with the appellant vide Ex.-P/20. Rojnamcha sanha for sending the information to the SDO(P) for information and necessary action is recorded in Ex.-P/21. The rojnamcha sanha regarding further proceedings as per information received and for proceedings towards the Village Karrapali was prepared vide Ex.-P/22 and Ex.-P/23. Sanha regarding complete proceedings and further action was written vide Ex.-P/24. Sanha regarding sending the sealed sample for Forensic Science Laboratory (FSL), Raipur was recorded vide Ex.-P/25 and Ex.-P/26. The Investigating Officer sent sample for FSL vide draft Ex.-P/27. The receipt of the said sample at FSL is Ex.-P/28. The FSL, Raipur examined the sample sent by the Investigating Officer and after examination ganja was found positive in the sample so sent. The statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code').