APPU @ BHUVANLAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of conviction and order of sentence dated 04-01-2010 passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act"), Janjgir, District JanjgirChampa (C.G.) in Special Criminal Case No.07/2009 whereby and whereunder the learned Special Judge after holding the appellant guilty for illicit possession of 1 Kg. 300 grams of psychotropic substance ganja, the cannabis, convicted him under Section 20 (b)(ii)B of the NDPS Act and sentenced him to undergo R.I. for 5 years and to pay fine of Rs. 5,000/-, in default of payment of fine to undergo additional R.I. for 6 months.

(2.) The conviction is impugned on the ground that without there being any iota of evidence, the Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality.

(3.) As per case of the prosecution on 01-04-2009, ASI posted in P.S. Bamhanidih B.P.Kaushik (PW-7) posted in the P.S. Bamhanidih received information from the informer that the appellant is in illegal possession of ganja and going towards Champa in a motorcycle. The Investigating Officer B.P.Kaushik (PW-7) recorded the information received by the informer and sent a copy to his superior official, called for the panch witnesses and along with Police staff and panch witnesses reached to the spot and he saw the appellant coming on a motorcycle, he stopped him and asked regarding his name and address and thereafter informed the appellant regarding his right to be searched before a Gazette Officer or Magistrate. After notice under Section 50 of the NDPS Act, the appellant gave consent to be searched by the Investigating Officer itself. Thereafter, the Investigating Officer searched the bag found in the motorcycle and in the possession of the appellant wherein he noticed some objectionable substance; on physical examination the same was confirmed as ganja. Thereafter, the Investigating Officer took the weight of the ganja, the weight of the said ganja was 1 kg. 300 grams, out of which 50 grams of ganja was taken out as sample. The sample and remaining ganja were duly sealed and seized. The motorcycle was also seized. The appellant was arrested and after their return to the police station, the F.I.R. was lodged and the seized ganja and sample were deposited in safe custody of the police station in malkhana. The copy of the F.I.R., arrest memo were sent to the Special Court. The entire proceeding was duly informed to his superior official. The sample was sent for chemical analysis to F.S.L., Raipur. After chemical analysis, presence of ganja was confirmed. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code'). After completion of the investigation, charge-sheet was filed before the Court below. The learned trial Court framed charges for the offence under Section 20(b)(ii)(B) the NDPS Act. The appellant denied the charges and prayed for regular trial.