ABDUL RAZZAK, Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) According to the FIR (Ex.P-1) registered on the basis of Dehati Nalishi, the investigating officer namely Alexender Kiro (PW-11) had received a secret information to the effect that on 23.09.2008 the accused/appellant herein and accused Abdul Jaleel (acquitted by the judgment impugned dated 02.09.2009) were carrying Ganja on a motorcycle bearing registration No. CG-08-F-3822 towards Kanker. On receiving the said information, he made an entry thereof in the Rojnamcha Sanha, instructed the constable namely Anil Chandravanshi (PW-2) to intimate the Gazetted Officer about the same and then reach the spot. Thereafter, PW-11 along with his associates also rushed to the spot, stopped the bike borne accused/appellant and the acquitted accused and found a black colour bag containing some Ganja like substance. It is relevant to mention here that the acquitted accused was riding the motorcycle whereas the accused/appellant herein was occupying the pillion seat carrying the bag containing the contraband. Since the SDO (P) was not present in the headquarters, the entry in respect of non availability of search warrant was made and the notice under Section 50 of the NDPS Act (Ex.P-9) was given to the accused/appellant. Police people, after giving their own search, made the search of the accused/appellant with his consent under Panchnama Ex. P-9 and P-10. On examination of the said substance by sniffing, tasting and burning it appeared to be like Ganja which on weighment being done after physical verification of the weighing instruments was found to be 9 Kg. Two samples of 50 gram each marked as Articles A-1 and A-2 were drawn and after being sealed they were sent to the Laboratory for chemical examination under Ex. P-4. Seizure of the contraband was made from the accused/appellant herein whereas that of the motorcycle used for carrying the same was effected from the acquitted accused in presence of the witnesses. The report (Ex.P-5) received from the laboratory says that the articles A-1 and A-2 contained Ganja. Even the seal put on those articles, according to the FSL report Ex. P-5, was found to be intact. Seizure of contraband was made under Ex. P-19 and that of the motorcycle used for commission of crime was made under Ex. P-20. After completion of the procedural formalities required under the NDPS Act, challan was filed against the accused/appellant and the acquitted accused under Section 20 (B) of the NDPS Act followed by framing of charge accordingly.

(2.) On the basis of material on record and the evidence of the witnesses learned Court below acquitted the accused - Abdul Jaleel of the charge levelled against him but convicted the accused appellant herein under Section 20(B) (ii) (B) of the NDPS Act and sentenced him to undergo RI for 5 years and pay fine of Rs.10,000/- plus default stipulation.

(3.) Counsel for the accused/appellant submits that the Court below has erred in law in holding the accused/appellant guilty under Section 20(B) (ii) (B) of the NDPS Act as the independent witnesses PW-4, PW-5 and PW-6 have not supported the case of the prosecution. He further submits that the procedure prescribed under Sections 42 and 50 of the NDPS Act has not been followed properly while holding the accused/appellant guilty as mentioned above. According to him, when the co-accused has been acquitted on the same set of evidence, the present appellant was also required to be dealt with accordingly. It is submitted that as the judgment impugned is replete with enumerable infirmities and illegalities, it cannot be sustained under the law.