Chattisgarh High Court
Mahesh Kurmi And Anr vs State Of Chhattisgarh on 28 January, 2022
Page 1 of 6
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Judgment on : 18.01.2022
Judgment Delivered on : 28/01/2022
CR.A. No. 1229 of 2013
1. Mahesh Kurmi, S/o. Bhaiyalal Kurmi, aged about 35 years, R/o.
Girwa, P.S. Sanaudha, Civil and Rev. Distt. Sagar (M.P.)
2. Harishankar Aathiya, S/o. Dhaniram Aathiya, aged about 40 years,
R/o. Khejra, P.S. Sanaudha, Civil and Rev. Distt. Sagar (M.P.)
---- Appellants
Versus
State of Chhattisgarh, Through : S.H.O., P.S. Basna, Distt. Mahasamund,
(C.G.)
---- Respondent
For Appellants : Mr. Rishi Rahul Soni, Advocate
For Respondent/State : Mr. Anmol Sharma, P.L.
Hon'ble Shri Justice Rajendra Chandra Singh Samant &
Hon'ble Shri Justice Arvind Singh Chandel
C A V JUDGMENT
Per Rajendra Chandra Singh Samant, J.
1. This appeal has been preferred against the impugned judgment of
conviction and order of sentence dated 29.10.2013, passed in
Special Criminal Case No. 07 of 2012, passed by the learned
Special Judge (Narcotic Drugs Psychotropics Substance Act, 1985),
Mahasamund (C.G.) convicting the appellants for the offence under
Section 20(b) (ii) (C) N.D.P.S. Act, 1985 and sentencing them to
undergo rigorous imprisonment for 12 years and fine of Rs.1,00,000/-
with default stipulations.
2. According to the prosecution case, Station House Officer Vinod
Mandavi (P.W.-2) received confidential information on 16.06.2012 at
09.10 AM regarding transport of contraband. He recorded
Panchnama (Ex.P-8) and not having time to obtain search warrant,
prepared a separate Panchnama (Ex.P-17). Information to the Sub-
Divisional Officer office was immediately dispatched. The
independent witness Mohan Giri Goswami (P.W.-1) and Ved Prakash
Mishra (P.W.-7) were summoned on notice. Blockade was created
near village Ponsara. A Tata Safari LX bearing registration No. M.P-
15-T/2308 was stopped. The appellants were occupants in that car,
who were informed about the statutory right to be searched by
gazetted officer or Magistrate vide (Ex.P-15). The appellants gave
consent to be searched by the Police Officer. The S.H.O., Vinod
Mandavi (P.W.-2) and other members of the team got themselves
searched vide (Ex.P-9) and (Ex.P-10) by the appellants and no
objectionable substance was found of their possession. The search
of the vehicle in possession of the appellants was conducted and
three gunny bags and polythene bags were found inside the car.
Search panchnama (Ex.P-2) was prepared. Seizure of the articles
were made vide Ex.P-3. The articles seized were weighed according
to weighment panchnama (Ex.P-6). Total weight of contraband was
150 Kg. The content of the bags was Ganja, which was homogenized
and nine samples were prepared vide (Ex.P-14). Rs.99,000/- cash
was also found from the possession of the appellants, which was
seized by the (Ex.P-4). Spot map (Ex.P-7) was prepared. The
appellants were arrested on the spot. S.H.O., Vinod Mandavi (P.W.-2)
came back to the police station with seized articles and the
appellants and lodged FIR (Ex.P-20) in the Police Station. The
seized articles were handed over to the Malmoharrir for safe custody
and receipt (Ex.P-21) was obtained. The samples prepared on the
spot were sent for FSL examination. FSL report (Ex.P-28) was
received according to which, seized articles were narcotics
substance Ganja. Statement of the witnesses were recorded. On
completion of investigation, charge-sheet was filed against the
appellants.
3. The appellants/accused persons were charged by the trial Court for
offence under Section 20 (b) (ii) (C) of N.D.P.S. Act. The appellants
denied the charge and pleaded not guilty. The prosecution examined
as many as 8 witnesses on its behalf. On completion of prosecution
witnesses, the appellants/accused persons were examined under
Section 313 of Cr.P.C., in which they denied all the incriminating
evidence present against them and made statement that they are
innocent and they have been falsely implicated in this case. It was
stated that their signatures were obtained by coercion. In their
defence, the appellants have made allegation against the police man
that their vehicle was stopped and they were demanded Rs.5000/- as
they could not give the same, they have been falsely implicated.
Statement has been made regarding their innocence and no
evidence was lead in their defence. The learned trial Court after
giving opportunity of hearing to the prosecution and defence has
delivered the impugned judgment convicting the appellants and
sentencing them as mentioned here-in-above.
4. Learned counsel for the appellants submits that the conviction of the
appellants is erroneous and without the evidence of prosecution
beyond reasonable doubt. There is clear non-compliance of the
mandatory provisions of N.D.P.S. Act. The statement of the witnesses
is full of contradictions and omissions, therefore, is doubtful. The
Investigation Officer Vinod Mandavi (P.W.-2) has made admissions in
his cross-examination regarding lapses in the investigation. The
witness Mohan Giri Goswami (P.W.-1) was admittedly engaged as a
driver by the police, therefore, he was an interested witness. Hence,
his statement was unreliable. Hence, on this basis, the appellants are
entitled for acquittal. In the alternative, it is submitted that in case,
this Court is not inclined to allow this appeal and acquit the
appellants, at least, the sentence imposed upon the appellants be
reduced and the appellants be sentenced with minimum sentence as
prescribed for the offence.
5. Learned State counsel opposes the submissions made by the
learned counsel for the appellants and submits that the prosecution
has very clearly proved its case against the appellants beyond
reasonable doubt. The independent witness of search and seizure
both are fully reliable, who have supported the whole proceeding
taken up by the Vinod Mandavi (P.W.-2). Further the owner of the
vehicle Hargovind Kumo. (P.W.-8) has confirmed that the appellants
were in possession of his vehicle, from which, the contraband has
been recovered. Hence, there is no room for interference in the
impugned judgment. The appeal is liable to be dismissed.
6. We have heard the learned counsel for both the parties at length and
perused the record of the trial Court.
7. On perusal of the evidence present in the record of the case, it is
found that the Inspector, Vinod Mandavi (P.W.-2) has made elaborate
statement regarding the procedure of search and seizure, taking care
of compliance of provisions under the N.D.P.S. Act. His statement
has remained unrebutted in cross-examination. Further the
independent witness of search ans seizure namely Mohan Giri
Goswami (P.W.-1) as well as Ved Prakash Mishra (P.W.-7) have fully
supported the version of the Vinod Mandavi (P.W.-2). Taking into
consideration the other evidence present in the case, we are of the
view that the learned trial Court has not committed any error in
convicting the appellants for the offence under Section 20(b) (ii)(C) of
N.D.P.S. Act on the basis of the proof that both the appellants were in
possession of commercial quantity of Ganja, which was being
transported by them. Hence, we are of this view that the conviction
against the appellant needs no interference.
8. Considered on the alternative arguments made by the counsel for the
appellants praying for reducing the sentence imposed upon the
appellants. The offence under Section 20 (b) (ii) (C) of N.D.P.S. Act
provides for punishment of minimum sentence of 10 years rigorous
imprisonment, which may extend to 20 years and also provides for
minimum fine sentence of Rs.1,00,000/-, which may extend to
Rs.2,00,000/-. Both the appellants in this case have been sentenced
with R.I. for 12 years, therefore, it may be considered for reduction,
however, the fine imposed of Rs.1,00,000/- each upon the appellants
is minimum fine sentence, which can not be reduced.
9. After considering on the facts and circumstances present in this case
and that the appellants are in jail since from the date they were
arrested i.e. 16.06.2012, therefore, we are of the considered view
that the sentence of rigorous imprisonment imposed upon the
appellants can be reduced to the minimum sentence of R.I.
awardable. The appeal is allowed in part. The conviction of the
appellants for the commission of offence under Section 20 (b) (ii) (C)
of the N.D.P.S. Act, 1985 is up-held. The sentence of R.I. for 12 years
imposed by the learned trial Court is reduced to the minimum
sentence of R.I. for 10 years to both the appellants. The fine
sentence as imposed upon the appellants by the trial Court is upheld
as it is including the default stipulations.
10. Accordingly, the appeal is disposed off.
Sd/- Sd/-
(R.C.S. Samant) (Arvind Singh Chandel)
Judge Judge
Balram
