Hajarilal vs State Of Chhattisgarh
2022 Latest Caselaw 873 Chatt

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                                                                 NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

               Proceeding Through Video Conferencing

                 Judgment Reserved on : 01/02/2022

                 Judgment Delivered on : 21/02/2022

                           CRA No. 773 of 2014

1.   Narayan S/o Lakhiram, Aged About 22 Years, R/o Village Pushpal,
     P.S. Tongpal. Revenue And Civil District South Bastar
     Dantewada (C.G.).

                                                          ---- Appellant
                                 Versus

1.   State Of Chhattisgarh, Through P.S. Frezurpur, District Bastar
     (C.G.).

                                                        ---- Respondent

For Appellant : Mr. Pravin Kumar Tulsyan, Advocate. For Respondent/State : Ms. Deepti Shukla, Panel Lawyer.

CRA No. 911 of 2014

1. Hajarilal S/o Gariba, Aged About 40 Years, R/o Village Madhopur Marartola, P.S. Bramhani Revenue And Civil District Mandala, (M.P.)

---- Appellant Versus

2. State Of Chhattisgarh, Through P.S. Frezurpur, District Bastar (C.G.).

---- Respondent For Appellant : Mr. Pravin Kumar Tulsyan, Advocate. For Respondent/State : Ms. Deepti Shukla, Panel Lawyer.

Hon'ble Shri Justice Gautam Chourdiya CAV Judgment

1) Since both these appeals arise out of the same judgment of conviction and order or sentence, they are being disposed of by this common order.

2) Both these appeals have been filed under Section 374(2) of Code of Criminal Procedure, 1973 against the judgment of conviction and order of sentence dated 30/07/2014 passed by Special Judge (N.D.P.S. Act), Bastar, at Jagdalpur (C.G.) in Special Case No. 05/2013; whereby the appellants stands convicted and sentenced as under:-

              Conviction                         Sentences
     U/s 20(b)(ii)(C) of Narcotic    R.I. for 10 years with fine of Rs.
     Drugs and Psychotropic          1,00,000/- and in default of payment

Substances Act (in short "the of fine amount additional R.I. for 2 NDPS Act") years.

3) Case of the prosecution, in brief is that G.P. Pandey, Sub Inspector of Police Station Frezurpur received secret information on 10/02/2013 at around 15:45 hours that one person is driving vehicle Mahindra Jeep bearing registration No. CG10 3618 and another person is also with him, they have kept Ganja in five bags under the seat of the Jeep and moving towards Jagdalpur. Thereafter, independent witnesses Avinash and Sadhuram were called, they were informed about the secret information, secret information panchnama (Ex. P-4) was prepared in presence of these witnesses, panchnama regarding non-obtaining of search warrant Ex. P-19 were prepared and the same were forwarded to SDOP Keshlur and entry regarding the same was made in the Rojnamchasanha vide Ex. P-28. Thereafter, G.P. Pandey alongwith staff and the independent witnesses proceeded for the place of occurrence, seized vehicle Jeep bearing registration No. CG10 3618, gave notice under Section 50 of the Act to the appellants vide Ex. P-5, they were made aware of their legal rights of being searched either by the Gazetted Officer or by Magistrate or by the Police, on which they consented for their personal search as well as search of the vehicle by the Police. Before search of the Police and their vehicle, the appellants were allowed to make personal search of the Police staff, however, no objectionable substance was seized from them vide Ex. P-6. Thereafter, Ganja like substance kept in five packets were seized from the vehicle of the appellants which were kept under the seat vide Ex. P-7 & Ex. P-8.

The said contraband was identified by smelling and burning by the witnesses and they identified the same to be Ganja vide Ex. P-9. Verification Panchnama of the electronic weighing machine was made vide Ex. P-2. On weighment being done, total 46 KG of Ganja from 23 packets kept in five different bags was seized vide Ex. P-3. Two samples from 23 packets each i.e. 46 samples were drawn and rest of the Ganja was sealed vide Ex. P-12. Sample panchnama of Ganja is Ex. P-11 and sample specimen panchnama of the seal is Ex. P-12. As per seizure memo Ex. P-13 one Mahindra Jeep bearing registration No. CG10 3618 and cash of Rs. 190/- from appellant Hajarilal were seized. The accused appellants were arrested vide Ex. P-14 & Ex. P-15 and information regarding their arrest was sent through Radio message to SHO Bamhani, District Mandla (M.P.). Dehati Naleshi was registered on the spot against the appellants under Crime No. 0/2013 vide Ex. P- 30 and spot map Ex. P-16 was prepared. After completing the necessary proceeding on the spot, investigating officer G.P. Pandey alongwith staff seized articles, returned to Police Station Frezurpur and made entry to this effect in Rojnamchasanha vide Ex. P-31. Seized articles alongwith samples were deposited in the Malkhana. The detailed report vide Ex. P-33 of the entire proceeding was forwarded to the higher authority SDOP Jagdalpur and the samples were sent for examination to FSL vide Ex. P-35. As per FSL report Ex. P-37, the contraband seized from the appellants were confirmed to be Ganja. Statements of the witnesses were recorded and after completion of the investigation charge sheet was filed against the appellants/accused for offence under Section 20(b) of NDPS, Act.

4) The Trial Court framed charge against the accused/appellants under Section 20(b)(ii-C) of NDPS Act. The accused/appellants denied their charge and prayed for trial.

5) The prosecution in support of its case examined as many as 10 witnesses namely PW-01 Meena Yadav (Head Constable), PW-02 Krishna Kumar Sahu, PW-03 Avinash Deshmukh, PW-04 Sadhuram (Kotwar), PW-05 Tulsiram Sahu, PW-06 Nilambar Sahu

(Head Constable), PW-07 Cherangaram, PW-08 Ramdayal Badoti (Teacher), PW-09 G.P. Pandey (Sub Inspector/IO) and PW-10 William Toppo (Inspector). The statements of the accused were also recorded under section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case and pleaded innocence and false implication. No defence witness was examined by the accused in their defence.

6) Learned Trial Court considering the material available on record by the impugned judgment convicted and sentenced the accused appellants as mentioned in para 1 of this judgment.

7) Learned counsel for the appellants submits that there is total non-

compliance of mandatory provisions of Sections 42 to 58 of NDPS Act. There is no independent witness who supported the prosecution case. The prosecution has failed to prove offence against the appellants. Only on the basis of evidence of the Investigating Officer and other official witnesses who were interested in the case, conviction of the accused cannot be sustained.

8) The Trial Court has failed to consider the omissions and contradictions in the evidence of Investigating Officer and Malkhana staff as also the overwriting in the document of FIR and other documents which makes the whole prosecution case doubtful. In this case PW-02 Krishna Kumar Sahu, a witness of weighment of the contraband, has not supported the prosecution case. PW-03 Avinash Deshmukh and PW-04 Sadhuram (Kotwar) witness of documents of Ex. P-4 to Ex. P-16 have also turned hostile. Likewise, PW-07 Cherangaram and PW-08 Ramdayal Badoti (Teacher) have also not supported the prosecution case. In these circumstances the impugned judgment of the Trial court is liable to be set aside and the appellants be acquitted of the charge.

9) Alternatively, learned counsel for the appellants submits that if this Court ultimately confirms the conviction of the appellants and the jail sentence imposed thereunder, considering the fact that the appellants are very poor persons, despite being granted bail by the

Co-ordinate Bench of this Court vide order dated 15.11.2018, they are still in jail due to non-furnishing of bail bonds; till date they have already completed about 9 years jail sentence; the default sentence may be reduced suitably.

10) On the other hand learned counsel for the respondent/State supporting the impugned judgment submits that the Trial Court considering the overall evidence available on record has rightly convicted and sentenced the appellants by the impugned judgment which calls for no interference by this Court.

11) Heard counsel for the parties and perused the material available on record.

12) It is not in dispute that as per FSL report Ex.P/37, the seized contraband was found to be Ganja. As per Ex.P/1, the Ganja seized from the appellants including the samples was kept in the safe custody of Malkhana by the investigating officer.

13) So far as argument of counsel for the appellants that no any page numbering is mentioned in the document of Ex.P/1, which makes it doubtful, is concerned, a bare perusal of the said document it is evident that entry is mentioned as per serial number in Ex.P/1 and the articles A-1 to W-2 were deposited in sealed condition. PW-1 Meena Yadav, Head Constable, has duly proved the above fact and there is no reason to disbelieve his evidence. Therefore, it is proved by the prosecution that the seized articles were kept in safe custody of Malkhana.

14) PW-09 G.P. Pandey, investigating officer, has categorically stated in his deposition that upon receipt of secret information on 10.2.2013, he prepared secret information panchanama Ex.P/4 and made entry to this effect in the Rojnamchasanha Ex.P/23 immediately. Thereafter, the independent witnesses Sadhuram and Avinash Deshmukh were called, panchanama regarding non-obtaining of search warrant was prepared vide Ex.P/19 as delay in obtaining search warrant may have facilitated the appellants in escaping from the spot, and same was forwarded to SDOP, Keshlur and entry was

made in Rojnamchasanha vide Ex.P/28.

15) The investigating officer states that having reached the indicated place with the police staff and witnesses, the vehicle Jeep bearing registration No. CG 10/3618 was intercepted, the appellants were given notice under Section 50 of the Act vide Ex.P/5 and on their consent to be searched by the police, when the search of the vehicle was made, Ganja like substance kept in five packets under the seat was seized. He states that before search of the appellants and their vehicle, the police party and the witnesses gave their personal search to the accused/appellants on which nothing objectionable was recovered from them vide Ex.P/6.

16) PW-2 Krishna Kumar Sahu has stated that on the date of incident, the police party came to his shop, demanded the electronic weighing machine for weighing the contraband Ganja and upon weighment being done by him, the contraband was found to be 46 kg vide Ex.P/3. However, he states that for the first time, he saw the appellants with the police and before that he had not seen them. He states that the police obtained his signature on blank papers Ex.P/2 & P/3. This witness does not dispute the fact that total Ganja was 46 kg and it was weighed without bags and sacks.

17) PW-6 Neelambar Sahu, Head Constable, has proved the fact that secret information panchanama and panchanama regarding non- obtaining of search warrant were brought to him by Bhupesh Kumar Yadav (Constable No.1729) which were acknowledged by him vide Ex.P/4 & P/19 and entry to this effect was made in the register vide Ex.P/20. He states that report of the entire proceedings was also received by him which was recorded in the register vide EX.P/21, copy of which is Ex.P/21C.

18) PW-5 Tulsiram Sahu, Assistant Sub Inspector, while supporting the prosecution case states that he alongwith the investigating officer and other police personnel went to the spot and thereafter, from the possession of the appellants, 45 kg of Ganja kept in the vehicle in five bags was recovered. This witness has duly proved the search and seizure proceedings.

19) PW-3 Avinash Deshmukh, independent witness, has though turned hostile but has admitted his signatures on the documents of Ex.P/2 to P/16. Likewise, PW-4 Sadhuram has though turned hostile but admitted his signatures on the documents of Ex.P/2 to P/15.

20) So far as overwriting in the document of Ex.P/20C and P/21C is concerned, PW-6 Neelambar Sahu has admitted this fact that there is overwriting in the above document and that he did not make his initials on the said overwriting. As per document of Rojnamchasanha from Ex.P/23C to P/29C and Ex.P/31C, the document of Ex.P/20C and P/21C, the entire search and seizure proceedings including weighment of the contraband, its sampling etc. were conducted by the investigating officer within time and as per Ex.P/33, a detailed report of the entire proceedings was forwarded to the superior officer within time and the seized articles were deposited in the Malkhana in safe custody.

21) True it is that in the document of Ex.P/1 (Malkhana register), the time is mentioned 21:40 hours and in the FIR (Ex.P/32) there is overwriting in the time of incident as 22:00 hours, but it is not disputed that in the Dehatinalishi (Ex.P/30), time of the incident is specifically mentioned as 22:00 hours, secret information panchanama bears time 16:25 hours (Ex.P/4), search of the appellants and their vehicle was made vide search panchanama Ex.P/7 at 18:30 hours, thereafter, recovery panchanama Ex.P/8 was made at 19:00 hours, identification panchanama of contraband was made at 19:20 hours vide Ex.P/9, weighment of Ganja was done at 20:30 hours (Ex.P/3), homogeneous panchanama was prepared at 20:45 hours vide Ex.P/10 and at 21:00 hours sample panchanama of Ganja was prepared vide Ex.P/11. Though there is little difference in the timing in some of the documents, but that is not so fatal as to demolish the whole otherwise reliable prosecution case or affect the credibility of the entire proceedings which have been duly proved by the official witnesses.

22) It cannot be stated as a rule of law that a police officer can or cannot be a reliable in a criminal case which will always depend

upon facts of a given case. If testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then statement of such witness cannot be discarded only on ground that he is a police officer and may have some interest in success of the case. Only when his interest in success of case is motivated by overzealousness to an extent of his involving innocent people, then, no credibility can be attached to is statement. Presumption that a person acts honestly applies as much in favour of a police officer as in respect of other persons and it is not proper to distrust and suspect him without there being good grounds therefor.

23) Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police Officer is found to be reliable and trust worthy, the Court can definitely act upon the same. If, in the course of scrutinizing the evidence, the Court finds the evidence of the police officer as unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence. [Pramod Kumar V. State (GNCT) of Delhi reported in AIR 2013 Supreme Court 3344]. The same principle of law has been reiterated by the Supreme Court Judgment in the matter of Baldev Singh Vs. State of Haryana reported in (2015) 17 SCC 554 and in paragraph 10 it has been observed as under:

"10. There is no legal proposition that evidence of police officialsunless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact

that they are police officials does not by itself give rise to any doubt about their creditworthiness."

24) In the matter of Rajesh Dhiman Vs. State of Himachal Pradesh and connected matter Gulshan Rana vs State of Himachal Pradesh, (2020) 10 SCC 740, where the accused/appellants were acquitted of the charge under Section 20 of the NDPS Act by the trial Court and later convicted under the said Section by the High Court, affirming the judgment of conviction of the High Court, the Apex Court referring to its earlier various judgments holding the field, held that non-examination of the independent witnesses or independent witnesses turning hostile would not ipso facto be fatal to the prosecution case if the evidence of the official witnesses/ police personnel remain impeccable and free from the suspicion of falsity.

25) In the present case, though the independent witness PW-03 Avianash Deshmukh and PW-04 Sadhuram have not supported the prosecution case but they have admitted their signature on the relevant documents as mentioned above. However, the investigating officer PW-09 G.P. Pandey and other official witnesses i.e. PW-01 Meena Yadav, PW-05 Tulsiram Sahu, PW-06 Nilambar Sahu and PW-10 William Toppo have duly supported the prosecution case and unequivocally stated about the search and seizure of the contraband from the possession of the appellants. As per evidence available on record, defence has utterly failed to elicit anything from them which could suggest that they were in any manner inimical to the accused or were interested in false implication of the accused in the said crime; their evidence appear to be trustworthy and supported by the documentary evidence on record. In these circumstances, there is no reason to suspect the credibility of these witnesses merely on the ground of they being the Police personnel.

26) Thus, regard being had to the overall evidence on record, oral and documentary, complicity of the accused/appellants in crime in question stands proved beyond all reasonable doubt. Being so,

conviction of the appellants under Section 20(b)(ii)(C) of the NDPS Act as well as the jail sentence and fine amount imposed by the Special Judge appears to be just and proper warranting no interference and the same are hereby affirmed.

27) As regards the default sentence, considering the poor financial condition of the appellants, the fact that though they were granted bail by the Co-ordinate Bench of this Court on 15.11.2018 but they could not furnish bail bonds and are still languishing in jail for the last more than 09 years, this Court deems it fit to reduce the sentence in default of payment of fine of Rs. 1 lac from two years' R.I. to six months' R.I.

28) In the result, both the appeals are allowed in part. While maintaining conviction of the appellants under Section 20(b)(ii)(C) of the NDPS Act as also the jail sentence and fine of Rs.1 lac awarded by the trial Court, their default sentence is hereby reduced from two years' R.I. to six months' R.I.

29) As per report dated 18/02/2022 received from Jail Superintendent, Central Jail, Jagdalpur, District Bastar (CG.), the appellants are still in jail, therefore, no need to pass any further order regarding their arrest or surrender etc.

-Sd/-

(Gautam Chourdiya) Judge Chandrakant