Buchhiraju Indukuri And Anr vs State Of Chhattisgarh
2022 Latest Caselaw 3497 Chatt

                                 1

                                                                  AFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

               Criminal Appeal No.965 of 2014

               Judgment reserved on:9.3.2022

              Judgment delivered on:12.5.2022

  1. Buchhiraju Indukuri S/o Venkatraju, 47 years,

  2. Yahan S/o Santiya, 50 years,

    Both R/o Raulpal,         Meralapalem     Atreyapuram,     Distt.
    Kakinada (A.P.)
                                                     ­­­­ Appellants
                                                          (In Jail)
                              Versus

    State of Chhattisgarh Through District Magistrate,
    Jagdalpur, Distt.Bastar (CG)
                                                     ­­­­ Respondent

For Appellants:          Mr.Devershi Thakur, Advocate
For Respondent/State:    Mr.Sudeep Verma, Dy.G.A.

         Hon'ble Shri Justice Sanjay K. Agrawal and
              Hon'ble Smt. Justice Rajani Dubey

                        C.A.V. Judgment

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC

is directed against the judgment of conviction

recorded against the appellants herein for offence

under Section 20(b)(ii)(C) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter called

as 'NDPS Act') and sentence awarded them for rigorous

imprisonment for 15 years and fine of ₹2,00,000/­, in

default of payment of fine to further undergo

rigorous imprisonment for three years each.

2. Case of the prosecution, in brief, is that on

26.8.2010 two appellants herein and one co­accused

Maddal Baji (who died during the pendency of the

trial) at 1 p.m. near forest Naka, Darbha, P.S.

Darbha passing through the truck bearing registration

No.AB 07 x 3859 and on search made by the police, the

appellants were found in possession 24 quintal 68

kilograms ganja (narcotic substance) in 81 bags,

which they transporting and thereby committed the

offence. It is further case of the prosecution that

on 26.8.2010 Inspector Mahendra Kumar Dhruw, who was

posted as Station House Officer of Police Station

Darbha at that point of time (who died during the

pendency of trial) received secret information from

the informant that the accused persons/appellants are

carrying ganja in truck bearing registration No.AB 07

x 3859 via highway passing through Darbha. He entered

the said information into 'Rojnamacha Sanha' of the

said Police Station vide Ex.P­31C at 22.25 p.m., he

sent constable Kailash Bhaskar (PW­7) to call

independent witnesses and entered the same in

Rojnamacha Sanha of the Police Station (Ex.P­34C).

Said constable Kailash Bhaskar came with two

independent witnesses namely Bhuvneshwar Sethiya

(PW­1) and Sumaru Ram Kashyap (PW­2) at police

station at 11 p.m. and entered into Rojnamacha Sanha

vide Ex.P­33C and on the same date, mukhbir suchna

panchnama (Ex.P­1) was prepared. Panchnama was also

prepared regarding the fact of proceeding without

search warrant (Ex.P­21) and thereafter at 23.20 p.m

constable Kaushal Joshi (PW­6) was also directed to

give secrete information to superior officer and said

constable with two sets of Exs.P­1, P­21 and P­21

proceeded towards the office of the SDOP, Jagdalpur

and delivered written information to the Reader of

SDOP, Jagdalpur and took acknowledgement vide Ex.P­1.

All these proceedings were duly entered into

Rojnamacha Sanha of Police Station Darbha vide

Ex.P­34C. Thereafter Inspector Mukesh Kumar Dhruw

proceeded towards the spot along with staff members &

witnesses and at about 6.30 a.m. truck bearing

registration No.AB 07 X 3859 which was proceeded from

Rajmahendri (A.P.) towards Raipur (CG) via Darbha,

was stopped by the police and Inspector Mahendra

Kumar Dhruw asked the names of the persons sitting in

vehicle and in turn, three accused persons disclosed

their names as Buchhiraju Indukuri (Appellant No.1),

Yaham (Appellant No.2 and Madal Baji (Accused No.3

who died during the pendency of trial).

3. It is further case of the prosecution that

investigating officer Mahendra Kumr Dhruw has

informed the accused persons about their right

conferred under Section 50 of the NDPS Act vide Ex.

P­3 and consent of the accused persons were also

recorded and thereafter vehicle was searched, in

which psychotropic substance (later identified as

Ganja) was recovered from the offending truck, in

which 81 bags were recovered, covered by coconut

plants which were 300 in numbers. Search panchnama

(Ex.P­5) was prepared and recovery panchnama (Ex.P­6)

was also prepared. After physical verification, it

was found that the recovered substance was ganja.

Identification panchnama of substance i.e. ganja was

prepared vide Ex.P­7. Thereafter, said substance was

weighed and weighed panchnama was prepared vide Ex.

P­9 and in total 24 quintal 68 kilogram ganja was

recovered. Prior to that, verification panchnama of

scale and weight used for the purpose of weighing the

recovered ganja was also prepared vide Ex.P­8. Samras

panchnama (Ex.P­10) by taking 2­2 samples of 25­25

grams from each bags of the seized ganja was prepared

separately. Sample panchnama was also prepared. On

the same date and same place, recovered and seized

ganja along with other seized articles have been

sealed by using seal bearing reflection of 'Police

Station Darbha' in English and same seal panchnama

was also drawn (Ex.P­12). Seizure memo of the seized

article has also been prepared vide Ex.P­13. Accused

persons were arrested vide Exs.P­16, P­15 and P­14

respectively.

4. Statements of the independent witnesses namely

Bhuvneshwar Sethiya (PW­1) and Sumaru Ram Kashyap

(PW­2) were taken as Exs.P­17 and P­18 respectively

and thereafter FIR was registered against the accused

persons/appelants herein vide Ex.P­30. Seized ganja

and samples were kept in malkhana of Police Station

Darbha and entry has been made in this regard into

japti mal register of Police Station Darbha (Ex.P­19

and certified copy of the same is Ex.P­19C).

Following the procedure as stated above, the action

taken report (Ex.P­23) was prepared and sent to the

SDOP, Jagdalpur. Thereafter, samples of seized ganja

were sent to Forensic Science Laboratory, Raipur vide

Ex.P­41 and receipt of the same is Ex.P­42. The

Forensic Science Laboratory, Raipur in its report

vide Ex.P­43 confirmed the fact that seized substance

is ganja. After completion of investigation, charge­

sheet was filed against the accused persons before

the Special Judge under NDPS Act. The appellants

abjured the guilt and entered into defence. It is

their case that they have falsely been implicated by

the prosecution.

5. In order to bring home the offence, the prosecution

examined as many as 11 witnesses and exhibited 44

documents Exs.P­1 to P­44 in support of case of the

prosecution. The defence examined none and did not

produce any documents in support of their defence.

6. The trial Court upon appreciation of oral and

documentary evidence available on record, by its

judgment dated 28.7.2014, found the prosecution case

proved beyond reasonable doubt and proceed to convict

the appellants for offence under Section 20(b)(ii)(C)

of the NDPS Act and sentenced them as mentioned in

opening paragraph of this judgment.

7. Mr.Devershi Thakur, learned counsel for the

appellants herein, would submit that the trial Court

has committed grave legal error in convicting the

appellants for aforesaid offence. He would further

submit that there is total non­compliance of Section

42 of the NDPS Act regarding search of alleged

narcotic substance from the appellants as independent

witnesses namely Bhuvneshwar Sethiya (PW­1) and

Sumaru Ram Kashyap (PW­2) both have not supported the

case of the prosecution and they have turned hostile,

as such, on this ground, the judgment of conviction

recorded and sentence awarded deserves to be set

aside. He would also submit that samples collected

from seized ganja have not been deposited in Police

Station and there is no entry in Rojnamcha Sanha,

hence, benefit of doubt should be extended in favour

of the appellants as there is all possibility of

tempering with the samples so collected. He would

also submit that there is also complete non­

compliance of Section 55 of the NDPS Act and as such,

the prosecution has failed to prove the sanctity of

the sealed samples. Therefore, FSL report cannot form

the basis for conviction. He would rely upon the

judgment of this Court in the matters of Sidhartha

Gautam v. State of Chhattisgarh1 and Mohd Guddu v.

State of Chhattisgarh through Station In­Charge

Officer2, the judgment of the Orissa High Court in

the matter of Mohammad Awesh Memon and another v.

State of Odisha3, the judgments of the Patna High

Court in the matters of Sona Mati Devi v. State of

Bihar4 and Bhulan Das @ Bhulan Ravidas v. State of

Bihar5, the judgment of the Rajasthan High Court in

the matter of Mithu Singh v. State of Rajasthan6 and

the judgment of the Delhi High Court in the matter of

1 (2009) 2 CGLJ 250 2 (2019) 4 CriCC 598 3 (2020) 4 CRICC 538 4 (2017) 178 AIC 432 5 (2018) 1 Crimes 468 6 (2004) 3 CriCC 520

Radha Kishan v. State7.

8. On the other hand, Mr.Sudeep Verma, learned Deputy

Government Advocate for the respondent/State, would

support the impugned judgment and submit that Section

42 of the NDPS Act has been complied with fully and

its compliance has been proved in accordance with

law. He would further submit that conviction can be

based on sole testimony of official witnesses and

looking to the quantity of seized ganja i.e. 24

quintal 68 kilogram from the conscious possession of

the appellants herein, the conviction of the

appellants is strictly in accordance with law. He

would also submit that no suggestion was put by the

defence to Pramod Shrivastava (PW­10) that the

samples which were sent for the purpose of Forensic

Science Laboratory is not one which was collected

from seized ganja. However, Pramod Shrivastava (PW­

10) has clearly stated that ganja was recovered from

the appellants, which was being illegally transported

from them in truck and which was also covered by the

appellants from the plants of coconut, as such, this

witness has proved the prosecution documents of

seizure of ganja samples vide panchnama memo, which

has been sent to FSL for examination, in which it was

found to be ganja, as such, there is complete

7 (2001) 1 AD(Delhi) 309

compliance of Section 55 of the NDPS Act. He would

rely upon the judgment of the Supreme Court in the

matter of Baldev Singh v. State of Haryana8, Rizwan

Khan v. State of Chhattisgarh9 and Rajesh Dhiman v.

State of Himachal Pradesh10 to buttress his

submission.

9. We have heard the learned appearing for the parties,

considered their rival submissions made herein­above

and also went through the records with utmost

circumspection.

10. Section 20(b)(ii)(C) of the NDPS Act provides as

under:­

"20. Punishment for contravention in relation to cannabis plant and cannabis.­Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,­

(a) xxx xxx xxx

(b) produces, manufactures, possesses, sells, purchases, transports, imports, inter­State, exports inter­State or uses cannabis, shall be punishable­

(i) xxx xxx xxx

(ii) where such contravention relates to sub­ clause (b),­ (A) and (B) xxx xxx xxx (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees.

8 (2015) 17 SCC 554 9 (2020) 9 SCC 627 10 (2020) 10 SCC 740

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

11.A careful perusal of the aforesaid provisions would

show that whoever in contravention of this Act

possesses, transports cannabis shall be punishable

and where the quantity of ganja is commercial

quantity, the accused shall be punishable with

rigorous imprisonment for a term which shall not be

less than ten years but which may extend to twenty

years and shall also be liable to fine which shall

not be less than one lakh rupees but which may extend

to two lakh rupees.

12. It would be appropriate to notice Section 42 of

the NDPS Act, which states as under :­

"42. Power of entry, search, seizure and arrest without warrant or authorisation. ­ (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para­military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon,sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or

psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, ­

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure of freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub­inspector :

Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such

building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub­section (1) or records grounds for his belief under the proviso thereto, he shall within seventy­two hours send a copy thereof to his immediate official superior."

13. Section 42 of the NDPS Act came up for

consideration before the Constitution Bench of

Supreme Court in the matter of Karnail Singh v. State

of Haryana11 in which their Lordships considered the

statutory requirement of writing down and conveying

information to superior officer prior to entry,

search and seizure, while resolving the conflict

between two earlier decisions rendered by the Supreme

Court in the matters of Abdul Rashid Ibrahim Mansuri

v. State of Gujarat12 and Sajan Abraham v. State of

Kerala13 and held that whether there is adequate or

substantial compliance with Section 42 or not is a

question of fact to be decided in each case and while

total non­compliance with requirements of Sections

42(1) and (2) is impermissible, delayed compliance

with satisfactory explanation about the delay will be

acceptable compliance with Section 42. Their

Lordships further held that non­compliance of Section

42 of the Act of 1985 may not vitiate the trial if it 11 (2009) 8 SCC 539 12 (2000) 2 SCC 513 13 (2001) 6 SCC 692

does not cause any prejudice to the accused and

observed in paragraph 35 as under:­

"35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows :

(a) The officer on receiving the information (of the nature referred to in Sub­section (1) of section 42) from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non­compliance of requirements of sub­sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non­ sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001."

14. Their Lordships of the Supreme Court have

clearly held in paragraph 35(d) of Karnail Singh

(supra) that while total non­compliance of

requirements of sub­sections (1) and (2) of section

42 is impermissible, delayed compliance with

satisfactory explanation about the delay will be

acceptable compliance of section 42. If any delay may

result in the accused escaping or the goods or

evidence being destroyed or removed, not recording in

writing the information received, before initiating

action, or non­sending a copy of such information to

the official superior forthwith, may not be treated

as violation of section 42. But if the information

was received when the police officer was in the

police station with sufficient time to take action,

and if the police officer fails to record in writing

the information received, or fails to send a copy

thereof, to the official superior, then it will be a

suspicious circumstance being a clear violation of

section 42 of the Act. The principle of law laid down

in Karnail Singh (supra) has further been followed by

the Supreme Court recently in the matter of Boota

Singh v. State of Haryana14.

15. In the case in hand, it is the finding of the

learned Special Judge that 24 quintal 68 kilograms

ganja was recovered from possession of three accused

persons/appellants herein. It is submission of the

learned counsel for the appellants that Section 42 of

the NDPS Act has not been complied with as two

independent witnesses namely Bhuvneshwar Sethiya (PW­

1) and Somaru Ram Kashyap (PW­2) have not supported

the case of the prosecution and they have turned

hostile. However, it is the case of the

respondent/State that though they have turned

hostile, but it has been proved by the testimony of

14 (2021) SCC Online SC 324

Pramod Shrivastava (PW­10), who has been examined by

prosecution to acknowledge & prove the proceedings

under the NDPS Act and the said witness was posted as

Assistant Sub­Inspector at the same point of time in

Police Station Darbha.

16. It is pertinent to note that investigating

officer Mahendra Kumar Dhruw died during the pendency

of trial and the prosecution has examined Pramod

Shrivastava (PW­10) who was also aware with the

proceedings drawn under the NDPS Act in the present

case. In his statement before the Court, Pramod

Shrivastava (PW­10) has acknowledged and proved the

entire proceeding done by investigating officer

Mahendra Kumar Dhruw. Huge quantity of ganja i.e. 24

qunital 68 kilograms has been recovered from

conscious possession of the appellants herein vide

seizure memo Ex.P­13. Memo of the collected samples

from seized ganja is also proved vide Exs.P­10 & P­11

and thereafter samples were sent to Forensic Science

Laboratory on 28.8.2010 vide Ex.P­41 and

acknowledgement is Ex.P­42 and FSL report which has

come with a finding that samples sent to FSL have

contained prohibited substance ganja vide Ex.P­43.

Though seizure witnesses namely Bhuvneshwar Sethiya

(PW­1) and Somaru Ram Kashyap (PW­2) have not

supported the case of the prosecution, but at the

same time, they have not denied their signatures in

official papers/memos.

17. The question for consideration is, whether

evidence of police officials can be discarded in

absence of support by independent evidence ?

18. The issue so posed has been considered by the

Supreme Court time to time and it has been held that

there is no legal presumption that evidence of the

police officials, unless supported by independent

evidence, is unworthy of acceptance.

19. The Supreme Court in the matter of Girja Prasad

v. State of Madhya Pradesh15 has clearly held that no

infirmity is attached to the testimony of police

officials merely because they belong to police force

and that conviction can be based on the testimony of

police officials.

20. Relying upon Girja Prasad (supra), the Supreme

Court in the matter of Baldev Singh (supra) has held

that mere fact that they are police officials does

not by itself give rise to any doubt about their

creditworthiness. It was observed as under:­

"10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses 15 (2007) 7 SCC 625

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 scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."

21. Similarly, in the matter of Rizwan Khan (supra),

the Supreme Court has held that testimony of official

witnesses cannot be rejected on the ground of non

corroboration by independent witnesses. It was

further held that examination of independent witness

is not an indispensable requirement and such non­

examination is not necessarily fatal to the

prosecution case and relying upon State of H.P. v.

Pardeep Kumar16 held as under:­

"14. Applying the law laid down by this Court on the evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials."

22. Similarly, in the matter of Rajesh Dhiman

(supra) it has been held by the Supreme Court that

non­examination of independent witnesses would not

ipso facto entitle one to seek acquittal. Though a

16 (2018) 13 SCC 808

heightened standard of care is imposed on the court

in such instances.

23. Thus, though independent witnesses namely

Bhuvneshwar Sethiya (PW­1) and Somaru Ram Kashyap

(PW­2) have not supported the case of the

prosecution, but considering the statement of Pramod

Shrivastava (PW­10), compliance of procedure

prescribed under Section 42 of the NDPS Act has been

established and proved by the prosecution.

24. Next submission of the learned counsel for the

appellants is that ganja allegedly seized from the

possession of the appellants herein has not been

deposited in malkhana of Police Station Darbha as

there is no entry in Rojnamcha Sanha and therefore,

it is non­compliance of Section 55 of the NDPS Act

and the benefit should be extended in favour of the

appellants. In this regard, no suggestion has been

made on behalf of the defence to the prosecution

witnesses that the samples which were sent for the

purpose of FSL is not one which was collected from

seized ganja. Pramod Shrivastava (PW­10) in his

statement before the Court has categorically stated

that ganja was recovered from the appellants, which

was unauthorizedly being transported by them in truck

covered by plants of coconut. Huge quantity i.e. 24

qunital 68 kilograms ganja was recovered from

possession of the appellants.

25. At this stage, it would be appropriate to notice

Section 55 of the NDPS Act which provides as under:­

"55. Police to take charge of articles seized and delivered.­An officer­in­charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer­in­ charge of the police station."

26. A careful perusal of the aforesaid provision

would show that officer­in­charge of the police

station shall take charge for safe custody of

articles seized under the Act within his jurisdiction

and which may be delivered to him and shall allow the

officer bringing such articles to affix his seal to

such articles or to take samples and the Officer­in­

charge shall also seal the articles with his own

seal. As such, object of this provision is two folds.

Firstly, actual articles seized are produced at the

time of trial and samples of the said articles are

sent for analysis by expert and secondly, after the

articles are produced before the Officer­in­charge,

these are not substituted by some other articles.

These safeguards have been provided both for

prosecution and the accused and have to be followed

scrupulously. In other words, this provision has to

be complied with strictly.

27. Kamlesh Nirmalkar (PW­8) has clearly stated that

seized ganja was simply kept in Malkhana of Police

Station Darbha and japti mal register has been proved

by him vide Ex.P­19. This witness has also stated

that Constable Kailash Bhaksar (PW­7) has taken

samples of sealed packets to FSL, Raipur and the FSL

laboratory has acknowledged the sealed samples

through its receipt vide Ex.P­42. Though proper entry

in this regard could not be made in Rojnamcha Sanha,

but still factum regarding safe custody of the

recovered ganja is duly proved by testimonies of

Kamlesh Nirmalkar (PW­8) and Kailash Bhakar (PW­7)

and ultimately, in FSL report, seized substance has

been found to be ganja. As such, chain of

circumstances commencing from seizure of ganja and

its chemical analysis was complete in all respect.

Even the defence has not challenged the seal

panchnama which is duly drawn by the police vide

Ex.P­12. The appellants have failed to lay any

reasonable doubt on prosecution case and as such, the

recovery of 24 qunital 68 kilograms ganja from the

possession of the accused much less conscious

possession has been established and once the

possession is established, burden was on the

appellants to prove that they were not in conscious

possession of the offending articles, as such,

learned Special Judge has rightly convicted them for

offence under Section 20(b)(ii)(C) of the NDPS Act.

In view of finding reached herein­above, the

decisions relied upon by the learned counsel for the

appellant in the matters of Sidhartha Gautam (supra),

Mohd Guddu (supra), Mohammad Awesh Memon (supra),

Sona Mati Devi (supra), Bhulan Das (supra), Mithu

Singh (supra) and Radha Kishan (supra) are clearly

distinguishable to the facts of the present case.

28. It was lastly contended by Mr.Devershi Thakur,

learned counsel for the appellants, that the trial

Court has imposed the sentence more than the minimum

sentence as prescribed under Section 21(c) of the

NDPS Act, but failed to advert the factors as

mentioned in Section 32B of the NDPS Act. Therefore,

the sentence awarded more than the minimum sentence

is of 10 years is liable to be set aside.

29. However, it has been contended by Mr.Sudeep

Verma, learned Deputy Government Advocate for the

respondent/State that there is no mandatory

requirement on the part of the Special Court to take

into consideration the factors which are provided in

clauses (a) to (f) of Section 32B of the NDPS Act

while awarding the punishment higher than the minimum

punishment. He would rely upon the judgment of the

Supreme Court in the matter of Rafiq Qureshi v.

Narcotic Control Bureau, Eastern Zonal Unit17.

30. In order to decide the question so raised, it

would be appropriate to notice the provisions

contained in Section 21(c) of the NDPS Act which

states as under:­

"21. Punishment for contravention in relation to manufactured drugs and preparations.­ Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter­State, exports inter­State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable,­

(a) and (b) xxx xxx xxx

(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees which may extend to two lakh rupees.

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

31. Section 32B was inserted by Act 9 of 2001 in the

17 (2019) 6 SCC 492

NDPS Act w.e.f. 02.10.2001 which states as under:­

"32B. Factors to be taken into account for imposing higher than the minimum punishment.­Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:

(a) the use or threat of use of violence or arms by the offender;

(b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence;

(c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence;

(d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities.;

(e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences; and

(f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence."

32. The question raised herein as to whether in

absence of any factors enumerated in clauses (a) to

(f) of Section 32B of the NDPS Act, the trial Court

is justified in awarding punishment higher than the

minimum punishment came­up for consideration before

the Supreme Court in the matter of Rafiq Qureshi

(supra) in which following two issues were framed by

their Lordships:­

7.1 Whether in the absence of any of the factors enumerated in Section 32­B from clauses (a) to (f) whether the trial court could have awarded punishment higher than the minimum term of imprisonment?

7.2 Whether the trial court could not take any other factor into consideration apart from factors mentioned in clauses (a) to (f) while imposing punishment higher than the minimum term of imprisonment?

Their Lordships of the Supreme Court in Rafiq

Qureshi (supra) have held that Section 32­B from

clauses (a) to (f) enumerates various factors for

imposing punishment higher than the minimum term of

imprisonment. However, specific word used in Section

32­B that court may, in addition to such factors as

it may deem fit, clearly indicates that the court's

discretion to take such factor as it may deem fit, is

not fettered by factors which are enumerated in

clauses (a) to (f) of Section 32­B of the NDPS Act.

Quantity of substance with which accused is charged,

is a relevant factor, which can be taken into

consideration while fixing quantum of punishment. It

was further held that clauses (a) to (f) of Section

32­B do not enumerate any factor regarding quantity

of substance as a factor for determining punishment.

It was observed as under:­

"16. The statutory scheme indicates that the decision to impose a punishment higher than the minimum is not confined or limited to the factors enumerated in clauses (a) to (f). The Court's discretion to consider such factors as it may deem fit is not taken away or tinkered. In a case a person is found in possession of a manufactured drug whose quantity is equivalent to commercial quantity, the punishment as per Section 21(c) has to be not less than ten years which may extend to twenty years. But suppose the quantity of manufactured drug is 20 times of the commercial quantity, it may be a relevant factor to impose punishment higher than minimum. Thus, quantity of substance with which an accused is charged is a relevant factor, which can be taken into consideration while fixing quantum of the punishment. Clauses (a) to (f) as enumerated in Section 32B do not enumerate any factor regarding quantity of substance as a factor for determining the punishment. In the event the Court takes into consideration the magnitude of quantity with regard to which an accused is convicted, the said factor is relevant factor and the court cannot be said to have committed an error when taking into consideration any such factor, higher than the minimum term of punishment is awarded.

18. The specific words used in Section 32B that court may, in addition to such factors as it may deem fit clearly indicates that Court's discretion to take such factor as it may deem fit is not fettered by factors which are enumerated in clauses (a) to (f) of Section 32B.

23. In view of the foregoing discussion, we are of the view that punishment awarded by the trial court of a sentence higher than the minimum relying on the quantity of substance cannot be faulted even though the Court had not adverted to the factors mentioned in clauses (a) to (f) as enumerated under Section 32B. However, when taking any factor

into consideration other than the factors enumerated in Section 32B, (a) to (f), the Court imposes a punishment higher than the minimum sentence, it can be examined by higher Courts as to whether factor taken into consideration by the Court is a relevant factor or not. Thus in a case where Court imposes a punishment higher than minimum relying on an irrelevant factor and no other factor as enumerated in Section 32B(a to f) is present, award of sentence higher than minimum can be interfered with.

24. In the present case the High Court held that although gross quantity of 8.175 Kg. of Heroin was alleged to have been recovered from the appellant but actual quantity of Heroine which was found to be in possession was only 609.6 gm. The High Court held that since the appellant was found to be in possession of Narcotic Drugs as per the analysis report to 609.6 gm. which is much higher than the commercial quantity, punishment higher than the minimum is justified. The High Court reduced the punishment from 18 years to 16 years. We, thus, uphold the judgment of the trial court and the High Court awarding the punishment higher than the minimum, however, looking to all the facts and circumstances of the present case including the fact that it was found by the High Court that the appellant was only a carrier, we find that the ends of justice will be sub­served in reducing the sentence from 16 years to 12 years. Thus, while maintaining the conviction of the appellant the appellant is sentenced to undergo 12 years rigorous imprisonment with fine of Rs. 2 lakhs and in default of payment of such fine the appellant shall further undergo for a simple imprisonment for six months. The appeal is partly allowed to the extent as indicated above."

33. Reverting to the facts of the present case in

light of principle of law laid down by the Supreme

Court in Rafiq Qureshi (supra), it is quite vivid

that though factors as mentioned in clauses (a) to

(f) of Section 32B of the NDPS Act have not been

considered while awarding punishment higher than the

minimum (ten years), but gross quantity i.e. 24

quintal 68 kilograms ganja was recovered from the

possession of three accused and commercial quantity

of ganja is 20 k.g. In view of gross commercial

quantity of ganja i.e. 24 quintal 68 kilograms, which

is more than 122 times of the commercial quantity,

which is the relevant factor to impose punishment

higher than the minimum punishment as held by their

Lordships of the Supreme Court in Rafiq Qureshi

(supra). Thus, the trial Court is justified in taking

into consideration the magnitude of quantity of

seized ganja for which the appellants have been

convicted and it cannot be held that the learned

Special Court (NDPS) has committed an error in

imposing the sentence higher than the minimum term of

punishment.

34. We do not find any merit in submission made by

learned counsel for the appellants and it is

accordingly rejected. We hereby affirm the judgment

of the learned Special Judge convicting the

appellants and sentencing them for the period as

noticed in opening paragraph of this judgment.

Accordingly, the criminal appeal deserves to be and

is hereby dismissed.

             Sd/­                              Sd/­

       (Sanjay K. Agrawal)              (Rajani    Dubey)
             Judge                           Judge
B/­