Firdous Khan vs The State Of Madhya Pradesh
2021 Latest Caselaw 8960 MP

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                                            HIGH COURT OF MADHYA PRADESH : JABALPUR

                                  SINGLE BENCH: HON.SHRI JUSTICE RAJEEV KUMAR DUBEY, J.

                                                                    Cr.A.No.4506/2017

                                                                        Firdous Khan

                                                                            Versus

                                                              The State of Madhya Pradesh

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                                  Shri A.K. Jain, Advocate for the appellant.
                                  Shri Devendra Kumar Shukla, Panel Lawyer for the respondent/State.
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                                                                     JUDGMENT

(Delivered on 20/12/2021)

This criminal appeal has been filed under Section 374 of Cr.P.C. against the judgment of conviction dated 26/09/2017 passed by Special Judge (NDPS Act), Bhopal in Special Case No.9600012/2015, whereby learned Special Judge found the appellant guilty of the offence punishable under Section 8 read with Section 20(II)(b) of the Narcotic Drugs and Psychotropic Substances Act (for brevity hereinafter referred as the NDPS Act) and Section 25(1-B)(A) of the Arms Act and sentenced him to undergo R.I. for ten years with fine of Rs.1,00,000/- and R.I. for three years with fine of Rs.1,000/- respectively with default stipulation.

2. Brief facts of the case are that on 24/04/2015 at around 11:30 AM, R.S. Thakur (PW-9), the then Sub-Inspector, Police Station Tila Jamalpura, District Bhopal received secret information from the informant that appellant was sitting at Christian's Cemetery with charas and illegal arms kept in a yellow bag for illegal sale and waiting for a customer. On that, he wrote the information in the daily diary (Roznamcha) (Ex.P-25) and called two independent witnesses Bhagwan Singh (PW/1) and Shafiq Khan (PW/2) through Constable Ashish Singh (PW/7) and informed them about the same Signature Not Verified SAN

and prepared information memo (Ex.P/1) and sent that information in letter Digitally signed by ANURAG SONI Date: 2021.12.21 19:44:10 IST

(Ex.P/22) to CSP, Shahjahanabad, Bhopal alongwith a copy of informant information (Ex.P-25) through Constable Ashish Singh (PW-7) and that activity was also entered in Daily Dairy (Ex.P-28). Then, he alongwith other members of the Police force viz. Aziz Khan, the then A.S.I. (PW-6), Jagmohan Mishra, Head Constable, Avinash Dubey and both the independent witness i.e. Bhagwan Singh (PW/1) and Shafiq Khan (PW/2) reached the spot i.e. Christian's Cemetery located at Putlighar Chouraha, Bhopal, where he saw appellant Firdous Khan sitting there. He cordoned off the appellant with the help of his colleagues and on being asked he disclosed his name Firdos. He informed the appellant that he had received information that he was kept charas and illegal arms in a yellow coloured bag for selling, so he wanted to search him and also informed him that if he wishes he may be searched in the presence of Gazetted Officer or Magistrate and also gave written notice (Ex.P-3) to the appellant in this regard. After obtaining the consent letters for search (Ex.P-4 & P-5) from the appellant, he gave a personal search of himself and other party members to the appellant and prepared a search memo (Ex.P-6). Then, he searched appellant Firdous Khan. In the personal search of the appellant, he did not find any narcotics substance. Thereafter, he searched the yellow coloured bag, which was kept by the appellant in his possession, wherein he found black material packed in polythene and also found two country made pistols, one 315 bore pistol and one six-round pistol (total four country-made pistols) and three live cartridges. He tasted that material. On being tested, it was found to be Charas and prepared a search memo (Ex.P-7) and testing memo (Ex.P/8). Thereafter, he verified the equipment (weighing machine) and prepared memo (Ex.P/9) and mixed the black material found from the possession of the applicant and prepared mixing memo (Ex.P/10). Thereafter, he weighed that powder. On weighing it was found to be 1.50 Kg (1 Kg. 50 gram). Then he took two samples of 50 grams each from that material and placed the same in two clothes bags (Article A1 & A2), which were stitched and sealed with a slip bearing signatures of panch witnesses and seal of Police Station and the remaining material was also sealed in a separate bags of cloth, which Signature Not Verified SAN was also stitched and sealed with a slip bearing signatures of panch

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witnesses and seal of Police Station as Article-A (exhibited in evidence as Article A1, A2 & A). He also sealed the four country made pistols and three live cartridges found in the yellow coloured bag, which were kept by the applicant in his possession (exhibited in evidence as Article A-1 to A-5 ) and after packing all the articles prepared a seizure memo (Ex.P-13). He also arrested the appellant and prepared an arrest memo (Ex.P-14) and also prepared a spot map (Ex.P-15). Thereafter, he returned to Police Station Tila Jamalpura, District Bhopal and he handed over the appellant and seized material to Dhanraj Singh (PW-3) the then Head Constable, Police Station Tila Jamalpura, who again sealed that packets and prepared a memorandum (Ex.P-18). Dhanraj Singh (PW-3) also entered those articles in Malkhana register (Ex.P-19). R.S. Thakur (PW-9) entered his return in the daily diary (Ex.P-31) and lodged the FIR of the incident (Ex.P-32). On that FIR Crime No.75/2015 for the offence punishable under Section 8/18 of the NDPS Act and Section 25, 27 of the Arms Act was registered against the appellant at Police Station Tila Jamalpura, District Bhopal. R.S. Thakur (PW-9) also sent detailed information of the incident to CSP, Shahjahanabad, Bhopal through Constable Ashish Singh (PW-7) in a letter Ex.P-23. Thereafter, further investigation of the crime was carried out by Purnendra Singh, the then Inspector (PW-10). During the investigation he recorded the statements of Bhagwan Singh (PW-1), Shafiq Khan (PW-2), Dhanraj Singh (PW-3), Baby Chourasiya (PW-5), Aziz Khan (PW-6), and Ashish Singh (PW-7) and also sent the seized samples (Article A1) to FSL, Bhopal for chemical analysis through S.P. Bhopal along with draft (Ex.P-34). On that report (Ex.P-36) was received, wherein it is mentioned that Charas was found in the seized material. He also sent the seized country made pistols and cartridges alongwith a letter (Ex.P-20) for examination to Police Line, Bhopal, where S.L. Pateriya (PW/4) examined these country made pistols and cartridges and found that the seized guns were in working condition and could have fired and gave the report (Ex.P-21) to that effect. After investigation police filed a charge-sheet against appellant Firdous Khan in the Special Court at Bhopal.

Signature Not Verified SAN

3. On that, charge-sheet learned Special Judge, Bhopal registered Special

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Case No.12/2015 and framed charges against the appellant for the offence punishable under Section 8/20(II)(B) of the NDPS Act and Section 25(1-B) (A) of the Arms Act and tried the case against the appellant. The appellant denied the charges and took the defence that he is innocent and has falsely been implicated in the case. The bag in which Charas, country made pistols and cartridges were found did not belong to the appellant.

4. The prosecution produced as many as ten witnesses for proving its case.:-

(i) Dhanraj Singh (PW-3) for proving the fact that he deposited seized contraband, four country made pistols and three life cartridges after sealing them in malkhana of Police Station, Tila Jamalpura, Bhopal.

(ii) S.L. Pateriya (PW-4) for proving the fact that he examined the seized country made pistols and cartridges and gave a report (Ex.P-21).

(iii) Baby Chourasiya (PW-5) the then Reader of CSP, Shahjahanabad, Bhopal for proving the fact that R.S. Thakur (PW-9) before leaving the spot sent informant information to CSP, Bhopal and after returning from the spot he sent detailed information about the incident to the then CSP, Shahjahanabad, Bhopal and compiled the provisions of Section 55 and 57 of the NDPS Act.

(iv) Aziz Khan (PW-6) & Ashish Singh (PW-7) for proving that after receipt of information Sub-Inspector R.S. Thakur (PW-9) entered said information in a daily diary and sent to CSP, Shahjahanabad and complied with the provisions of Section 42 of the NDPS Act.

(v) Punendra Singh (PW-10) for proving the fact that the sample of seized contraband (Charas) was sent to FSL, Bhopal alongwith the draft (Ex.P-34) for chemical examination and seized arms and ammunition were sent to Police Line Bhopal for examination. F.S.L. report (Ex.P-36) of contraband Signature Not Verified SAN (Charas) was received from the F.S.L. Bhopal and recording

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the case diary statements of prosecution witnesses.

(vi) R.S. Thakur (PW-9) seizing officer, Aziz Khan (PW-6) and Independent witnesses i.e. Bhagwan Singh (PW-1) & Shafiq Khan (PW-2) for proving the seizure of Charas, four country made pistols and three cartridges from the possession of the appellant and Punendra Singh (PW-10) for recording the case diary statements of prosecution witnesses.

(vii) Harish Sitlani (PW-8) for proving the permission of prosecution (Ex.P-24) given by the Collector, Bhopal regarding the prosecution of the appellant under the Arms Act.

5. Relying on the evidence of R.S. Thakur (PW-9) and other prosecution witnesses learned Special Judge held the appellant guilty and sentenced him as aforesaid. Being aggrieved with the same, the appellant has filed this criminal appeal.

6. Learned counsel for the appellant submitted that there are many contradictions and omissions in the statement of prosecution witnesses. From the prosecution evidence, it is clear that the provisions of Sections 42 and 50 of the NDPS Act, which is mandatory, had not been complied with by Seizing Officer R.S. Thakur (PW-9). Regarding seizure of contraband, four country made pistols and three live cartridges, the statements of R.S. Thakur (PW-9) do not corroborate from the statements of independent witnesses of the seizure memo i.e. Bhagwan Singh (PW-1) & Shafiq Khan (PW-2), From the prosecution evidence, it was also not proved that the bag in which Charas, four country-made pistol and three live cartridges were found was in possession of the appellant. The compliance of Sections 50, 55 and 57 of the NDPS Act is also not proved. It is also not proved that the substance, which was sent for analysis, was the same as seized from the possession of the appellant. In absence of the same, the conviction of the appellant is not sustainable. Learned trial Court without appreciating all these facts wrongly found the appellant guilty for the aforesaid offence.

7. On the other hand, learned Panel Lawyer opposed the prayer and submitted that the statement of R.S. Thakur (PW-9) is reliable. His statement Signature Not Verified SAN is corroborated by the statement of Aziz Khan (PW-6) and seizure memo

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and other documents (Ex.P-1 to Ex.P-38) and report (Ex.P-35), whereby it was confirmed that the seized article was charas and firearms. The charas was not recovered from personal possession of the appellant, but the same was seized from a bag carried by the appellant at the time of the incident. In that case, provisions of Section 50 of the Act are not applicable in the case. So, learned trial Court did not commit any mistake in finding the appellant guilty for the aforesaid offences.

8. The point for determination, in this appeal is whether the sentence awarded to the appellant under Section 8 read with Section 20(II)(b) of the NDPS Act and Section 25(1-B)(A) of the Arms Act is liable to be set aside for the reasons stated in the appeal memo and raised during the argument.

9. In this regard, R.S. Thakur (PW-9) deposed that on 24/04/2015 he was posted as Sub-Inspector at Police Station Tila Jamalpura, Bhopal and on that day he received secret information from an informant that appellant is wearing one grey colour shirt and blue jeans and was sitting in the Christian's Cemetery, located near Putlighar Chouraha, Bhopal with a yellow colour bag. On that, he wrote the information in the daily diary (rojnamcha) (Ex.P-25) and called two independent witnesses namely Bhagwan Singh (PW-1) and Shafiq Khan (PW-2) through Constable Ashish Singh (PW-7) and informed them about the same and made information memorandum (Ex.P-28) and that activity was also entered in a daily diary (Ex.P-29). Then he alongwith other members of the police force and independent witnesses reached the spot, where he saw the appellant sitting there. On being asked he told his name as Firdous Khan, resident of village Congress Nagar, Purana Naka, Berasia Road, Bhopal. The appellant was carrying a yellow bag. He informed the appellant that he has received the information that he was kept illegal charas and illegal arms and wanted to search him and also informed him that if he wished he may be searched in the presence of Gazetted Officer or Magistrate and also gave written notice (Ex.P-3) to the appellant in this regard. After obtaining the consent from the appellant he prepared a memo (Ex.P-4) and consent memorandum (Ex.P-5). He gave his personal search and search of other party members to the Signature Not Verified SAN appellant and prepared a search memo (Ex.P-6). Then, he searched the

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appellant. In the personal search of the appellant, he did not find any objectionable article. Then he searched a yellow coloured bag which was in the possession of the appellant and on searching that bag he found some material packed in a plastic polythene, four country made pistols and three live cartridges (articles A-1 to A-5) and prepared a seizure memo (Ex.P-13). He tasted that material. On being tested, it was found to be charas. Then, he mixed the material found packed in polythene and prepared a mixing memorandum (Ex.P-10) and thereafter he weighted that material through an electronic weighing machine. On weight, it was found to be 1.50 Kg (1 Kg. 50 gram). Then he took two samples of 50 grams each from the material and placed the same in two clothes bags (Article A-1 & A-), which were stitched and sealed with a slip bearing signatures of panch witnesses and seal of Police Station and the remaining material was also sealed in separate bags of cloth, which was also stitched and sealed with a slip bearing signatures of panch witnesses and seal of Police Station as Article-A. He also sealed country made pistols and live cartridges found in the bag in a packet (Articles A-1 to A-5) and also prepared a memo of the impression of seal which was used in packing of seized material / articles (Ex.P-12). He also arrested the appellant and prepared an arrest memo (Ex.P-14) and also prepared a spot map (Ex.P-15). Then, he returned to Police Station Tila Jamalpura. Bhopal and entered his return in the daily diary (Ex.P-31), he also lodged the F.I.R. (Ex.P-32) and registered Crime No.75/15 for the offence under Section 8/18 of the NDPS Act and Section 25, 27 of the Arms Act and also sent the detailed report of the incident (Ex.P-23) to CSP Shahjahanabad, Bhopal through constable Ashish Singh (PW-7) and handed over the seized material to Dhanraj Singh (PW-3) for keeping the same in safe custody. Dhanraj Singh (PW-3) again sealed that material and prepared the memo (Ex.P-18).

10. The statement of R.S. Thakur (PW-9) was also corroborated by FIR (Ex.P-32) and other documents prepared by him during the operation of seizure of said charas from the possession of the appellant and his statement is also corroborated by the statement of Aziz Khan (PW-6) who went on the Signature Not Verified SAN spot alongwith R.S. Thakur (PW-9).

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11. Learned counsel for the appellant submitted that the statement of R.S. Thakur (PW-9) do not corroborate from the statements of both the independent witnesses of the seizure memo i.e. Bhagwan Singh (PW/1) and Shafiq Khan (PW/2). Prosecution declared them hostile and cross-examined at length, but nothing came out from their cross-examination to support the prosecution story. Aziz Khan (PW-6) is a police personal, so the statement of R.S. Thakur (PW-9) and Aziz Khan (PW-6) cannot be believed. But this argument has no force. Only on the basis that the statements of R.S. Thakur (PW-9) does not corroborate from the statements of independent witnesses, his statements cannot be discarded.

12. Hon'ble Apex Court in the case of Modan Singh Vs. State of Rajasthan, AIR 1978 SC 1511 held that if the evidence of investigating officer, who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. In the case of Sanjay Vs. State, 2001 Cr. L.J. 1231 (SC) held that it is well settled that evidence of search or seizure made by the police will not be vitiated solely for the reason that independent witnesses do not support the prosecution case. In the case of Karamjeet Vs. State, AIR 2003 page 1311 held "The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be accepted" and in the case of Ashok alias Dangra Jaiswal Vs. State of Madhya Pradesh, (2011) 5 SCC 123, Hon'ble Apex Court also held that the seizure witnesses turning hostile may not be very significant, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act. So, on the ground that panch witnesses did not support the statement of R.S. Thakur (PW-9), his statement can not be discarded.

13. Appellant also took the defence that Police did not arrest him from the Christian's Cemetery located at Putlighar Chouraha, Bhopal. In this regard, he also produced Mohammad Sharif (DW-1) in his defence, who deposed that he is employed as Watchman at Christian's Cemetery located at Signature Not Verified SAN Putlighar Chouraha, Bhopal. The cemetery is covered by a boundary wall

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and to enter into the cemetery there is only one gate. He use to remain on his duty from 08:00 A.M. to 05:00 P.M. and during his duty, no police officer came in the cemetery. But Aziz Khan (PW-6) and R.S. Thakur (PW-9) clearly denied from the fact that when they reached the spot any Watchman was present in the cemetery and deposed that at the time of the incident the gate of the cemetery was already opened and nobody was present there, except the appellant. Mohammad Sharif (DW-1) did not produce any document to show that he was employed as a Watchman in the said cemetery, Even in the cross-examination, he admitted that he did not remain present on duty all the time. In the noon and evening, he used to go for prayer (Nawaz). So only on the basis of the statement of Mohammad Sharif (DW-1), it cannot be said that R.S. Thakur (PW-9) did not arrest the appellant from the Christian's Cemetery located at Putlighar Chouraha, Bhopal,

14. The statement of R.S. Thakur (PW-9) is corroborated from the statement of Aziz Khan (PW-6), who went with him at the spot. The Special Judge also examined the statement of R.S. Thakur (PW-9) in detail and found it trustworthy. There is no material contradiction or omissions in the statement of R.S. Thakur (PW-9) on the basis of which his statement can be assumed as false.

15. So, from the statement of R.S. Thakur (PW-9), which is corroborated by the statement of Aziz Khan (PW-6) and other evidence also it is proved that on 24/04/15 at about 12:00 P.M. he found appellant sitting in Christian's Cemetery located near Putlighar Chouraha, Bhopal alongwith a yellow bag in which he was illegally kept 1050 grams Chars like substance and four country made pistols and three cartridges. He apprehend the appellant and seized those articles from the possession of the appellant.

16. Learned counsel for the appellant also submitted that it is clear from the statement of Baby Chourasiya (PW-5) the then reader of CSP, Shahjahanabad, Bhopal that R.S. Thakur (PW-9) did not inform the higher Police Officers about the information received by him from the informant. The information sent by R.S. Thakur (PW/9) to CSP, Shahjahanabad, Bhopal Signature Not Verified SAN was not received by him but by his reader Baby Chourasiya (PW/5), which

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is not in compliance with the provisions of Sections 41 and 42 of the NDPS Act.

17. But those arguments have no force. R.S. Thakur (PW-9) clearly deposed that on 24/04/2015 after receiving the information from an informant, he sent that information in a letter (Ex.P-22) to CSP Shahjahanabad, Bhopal through Constable Ashish Singh (PW-7) and that activity was also entered in Daily Dairy (Ex.P-29). In this regard, the statement of R.S. Thakur (PW-9) is also corroborated from the statement of Ashish Singh (PW-7) and Baby Chourasiya (PW-5), who clearly deposed that on 24/04/2015 she was posted as a reader at the Office of CSP, Shahjahanabad, Bhopal. On that date, Constable Ashish Singh came to her and gave a report (Ex.P-22). After receiving that envelope, he gave the receipt (Ex.P-22C) to Ashish Singh (PW-7). She further deposed that at that time CSP, Shahjahanabad, Bhopal was not present in the Office, so she received the information. This proved substantial compliance of Section 42 of the NDPS Act.

18. Even otherwise, Section 42 of the NDPS Act only provides that if any officer authorized under section 42 of the Act had reason to believe from personal knowledge or the information given by any person, he had to take down in writing that the offence punishable under the provisions of NDPS Act has been committed. Under the provision of Sub-Section (2) of Section 42, it is also incumbent on the investigating officer to send a copy of the information taken down by him to his immediate superior official. It is not incumbent on the investigating officer that before receipt of information to his immediate superior official he would not proceed to the spot and from bare reading of the provisions of Sections 41 to 43 of the Act, it appears that in searching any person in a public place for any search and seizure of the narcotic drug the provisions of Sections 41 and 42 of NDPS Act, are not applicable, but the provisions of Section 43 of NDPS Act are applicable and that the provisions of Section 43 of NDPS Act, are not violated.

19. Learned counsel for the appellant also submitted that from the prosecution evidence compliance of mandatory provisions of Section 50 of Signature Not Verified SAN NDPS Act is not proved and in the absence of compliance of provisions of

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Section 50 of the act, the conviction cannot be sustained. Learned trial Court committed a mistake in holding that the provisions of Section 50 of the NDPS Act do not apply in the case. In this regard, he also placed reliance on the judgment passed by Hon'ble Apex Court in the case of Arif Khan @ Agha Khan Vs. State of Uttarakhand, (2018) 18 SCC 380.

20. But that judgement i.e. Arif Khan @ Agha Khan (supra) does not assist the appellant because in that case, Police seized Charas from the body of the appellant, while in the instant case charas was seized from the bag of the appellant, not in his personal search. A three Judge Bench of the Apex Court in the case of State of Punjab Vs. Baljinder Singh, (2019) 10 SCC 473 held as under :-

"15. As regards the applicability of the requirements under Section 50 of the Act is concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises.

16. The conclusion (3) as recorded by the Constitution Bench in para 57 of its judgment in Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172: 1999 SCC (Cri) 1080] clearly states that the conviction may not be based "only" on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act, but if there be other evidence on record, such material can certainly be looked into.

17. In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle."

21. In the light of the abovementioned judgment of the Hon'ble Apex Court, the statement of R.S. Thakur (PW-9) regarding the seizure of contraband from the bag which was kept by the appellant in his possession can not be discarded, because the search of a bag kept by the accused is not the search of the person.

22. Learned counsel for the appellant also submitted that it is not proved from the prosecution evidence as to where was the material kept after being seized from the possession of the appellant and before sending it for analysis and the substance which was sent for analysis was the same as seized from Signature Not Verified SAN

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the possession of the appellant. So compliance of Section 55 of the NDPS Act is also not proved. So, it cannot be said that the report Ex.P-36 produced by the prosecution in evidence is regarding the same material which was seized from the possession of the appellant. But, these arguments also have no force. In this case, the prosecution adduced evidence to prove that these provisions have been substantially complied with.

23. Dhanraj Singh (PW-3) deposed that on 24/04/2015 he was posted as Head Constable at Police Station, Tila Jamalpura Bhopal, on that day R.S. Thakur (PW-9), the then Sub Inspector, Police Station, Tila Jamalpura Bhopal gave seized Chars, four country made pistols and 3 live cartridges in a sealed state. He after sealing them again deposited them in the Makhna (strong room) of the Police Station. He also entered this information in the Malkhana register (Ex.P-19). Purnendra Singh (PW-10) deposed that on 24/04/2015. He sent the sample of contraband seized in Crime No.75/2015 alongwith draft (Ex.P-34) to FSL for analysis from where receipt (Ex.P-35) was received. From FSL, an analysis report (Ex.P-36) was received. In the report (Ex.P-36), it is mentioned that Chars was found in Article A-1.

24. From the statement of R.S. Thakur (PW-9), Dhanraj Singh (PW-3), and Purnendra Singh (PW/10) as discussed above it is clearly proved that the aforesaid material was seized and sealed by R.S.Thakur (PW-9) on the spot, and thereafter he brought all the articles at Police Station Tila Jamalpura, Bhopal and handed over them to Dhanraj Singh (PW-3), who again sealed these articles and deposited them in the Malkhan. From that material, Article A-1 was sent for analysis to FSL, Bhopal. FSL report (Ex.P-36) dated 29/04/2015 states that a letter along with a sealed packet was received with seals intact. The said report further mentions that on the opening of the packet, the examiner found a brown-coloured semi-solid substance, on examination which was found to be Charas. The seal was intact and was found similar to the seal impression. Under these circumstances, it is clearly proved and established that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same substance which was recovered from the Signature Not Verified SAN possession of the appellant.

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25. R.S.Thakur (PW-9) also deposed that after investigation, he sent a detailed information report (Ex.P-23) of Crime No.75/2015 registered for the offence punishable under Section 8/18 of NDPS Act to CSP Shahjahanabad Bhopal through Constable Ashish Singh (PW-7). This fact is also corroborated by the statement of Baby Chourasiya (PW-5), who clearly deposed that on 24/04/2015 Ashish Singh (PW-7) gave a detailed report (Ex.P-23) of Crime No.75/2015 registered at Police Station, Tila Jamalpura, Bhopal. After receiving that report he gave the receipt (Ex.P/23C) to Ashish Singh (PW-7). So, the compliance of Section 57 of the NDPS Act also proved therefrom.

26. S.L.Pateria (PW-4) deposed that on 02/05/2015 he was posted as Sub- Inspector Arms at Police Line, Bhopal. On that day he examined four country made pistols and three cartridges, which were deposited by Head Constable Avinash Dubey in the armoury of Police Line, Bhopal in a sealed condition alongwith the letter of Station House Officer, Police Station, Tila Jamalpura, Bhopal (Ex.P-20). On examining them he found that all the four pistols (Article A1 to A4) were country made pistols and these were in working condition and also found that all the three cartridges were live cartridges and gave the report (Ex.P-21). So it is also proved that the country made pistols, which were seized by the R.S. Thakur (PW-9) from the possession of the appellant were in working condition and come under the category of firearms. Appellant did not produce any document to show that he was having any valid licence to possess the firearms, which were seized by the police from his possession.

27. The prosecution also produced prosecution sanction (Ex.P-24) given by the Collector, Bhopal against the appellant to prosecute him under the provisions of the Arms Act, which has duly been proved by Haris Sitlani (PW-8), Arms Clerk, Collector Office, Bhopal. So in the considered opinion of this Court learned trial Court did not commit any mistake in finding the appellant guilty for the offences punishable under Section 8 read with Section 20(II)(b) of the NDPS Act and Section 25(1-B)(A) of the Arms Act.

28. On the point of sentence learned counsel for the appellant submitted Signature Not Verified SAN that under Section 8/20(II)(B) of the NDPS Act, the maximum sentence is

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prescribed as 10 years. Learned trial Court without assigning any reason awarded maximum sentence to the appellant as prescribed in Section 8/20(II)(B) of the NDPS Act. Appellant is the first offender, so the sentence should be reduced.

29. In this regard also arguments of learned counsel for the appellant do not appear to be correct, because from the evidence as discussed above it is clearly proved that Police seized 1050 grams charas from the possession of the appellant, which comes under the purview of commercial quantity. Learned trial Court instead of framing charge under Section 8/18 (c) of NDPS Act framed charge against appellant under Section 8/20(II)(b) of the NDPS Act. Under Section 8/18(c) of the NDPS Act, the minimum sentence is prescribed as 10 years R.I. and Rs.1,00,000/- fine. So the sentence for ten years R.I. with a fine of Rs.1,00,000/- is also adequate, there is no need to interfere in the sentence as awarded by the trial Court. Hence, the appeal filed by the appellant/accused stands dismissed.

30. The appellant, who is in the custody, shall serve the remaining part of the sentence, in accordance with law. Both jail sentences shall run concurrently. The period already undergone shall be set off from the period of the substantive jail sentence.

(Rajeev Kumar Dubey) Judge

as/-

Signature Not Verified SAN

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