Naman Sonkar vs The State Of Madhya Pradesh
2023 Latest Caselaw 12374 MP

                                                          1
                              IN       THE HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                              ON THE 3 rd OF AUGUST, 2023
                                          CRIMINAL APPEAL No. 11726 of 2022

                          BETWEEN:-
                          NAMAN SONKAR S/O RAJU HAKLA SONKER, AGED
                          ABOUT 25 YEARS, OCCUPATION: PRIVATE WORK R/O
                          SINDHI CAMP, BHANTALAIYYA POLICE STATION
                          HANUMANTAL    DISTRICT   JABALPUR    (MADHYA
                          PRADESH)

                                                                                      .....APPELLANT
                          (BY SHRI SUNIL KUMAR PANDEY-ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH POLICE
                          STATION   HANUMANTAL    DISTRICT  JABALPUR
                          (MADHYA PRADESH)

                                                                                    .....RESPONDENT
                          (BY SHRI S. M. PATEL-PANEL LAWYER)

                                Th is appeal coming on for hearing this day, t h e court passed the
                          following:
                                                       JUDGMENT

This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant against the impugned judgment of conviction and order of sentence dated 11.11.2022 passed by Special Judge, NDPS Act, Jabalpur in SC NDPS No.44/2015 (State of M.P. vs. Naman Sonkar), whereby learned Special Judge has convicted the appellant for commission of offence under Section 8 read with Section 21(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 as appellant was found in possession of 5 grams and 20 milligrams smack. He has been sentenced to Signature Not Verified Signed by: DEEPA MISHRA Signing time: 8/4/2023 3:26:16 PM

under rigorous imprisonment for 1 year and fine of Rs.5000/-. In default of payment of fine, he shall undergo further RI for one month.

2. The case of prosecution, in brief, is that, as per the FIR and documents filed therewith, Sub Inspector Harvachan Singh Kodape (PW-8) posted at police station, Hanumantal received a secret information that near Chhedi Ka Tapra in Sindhi Camp, Naman Sonkar is illegally selling smack in small pouches. The information was recorded in daily diary and a panchnama was prepared before head constable Omkar and constable Pancham Singh. Constable Rajesh was directed to bring independent witnesses. He brought independent witnesses Salim and Kalim. The independent witnesses were made

to understand with the secret information. Information panchnama was prepared. Information was forwarded to City Superintendent of Police Gohalpur through constable Sanjay Shah. A panchnama was also prepared assigning the reasons for not obtaining search warrant. Thereafter, Harvachan Singh Kodape (PW-8) along with police personnel and independent witnesses reached near Chhedi tea hut in Sindhi camp. Naman Sonkar was apprehended. He was made to understand his legal right to be searched before a Magistrate or a Gazetted Officer. However, he refused to exercise the said right and stated that SI Harvachan Singh Kodape could conduct the search. Before making search of accused, accused was asked to take the search of Harvachan Singh Kodape and other police staff and independent witnesses. In the search taken by the accused, no objectionable article was seized. On personal search of the accused, from his left pocket of pant in a plastic pouch white powder, which was looking to be smack powder, was seized. When a small portion of the seized powder was burnt, it converted into a black liquid and as such it was

Signature Not Verified Signed by: DEEPA MISHRA Signing time: 8/4/2023 3:26:16 PM

found to be smack powder. On weighing the same, it was found to be 5 gram and 20 milligrams, weighing panchnama was prepared. Thereafter, two samples were drawn from the recovered smack and were put in two separate lock pouches. Samples and contraband (smack) were sealed in separate packets and seizure memo was prepared. Samples and seized contraband were seized and seizure memo was prepared. Accused was arrested and arrest memo was prepared. After coming over to police station, entry was recorded in daily diary and FIR was registered. Seized contraband along with samples was handed over to Malkhana Mohreer for getting the same kept in safe custody. The seized samples were sent to FSL examination to FSL Bhopal.

3. On completion of investigation, appellant was charge sheeted for commission of offence under Section 8 read with Section 21(b) of NDPS Act.

4. Charges were framed against the appellant. Appellant/accused refused the charges and claimed to be tried.

5. In order to prove its case, prosecution examined eight witnesses namely Salim Panter (PW-1), Dara Singh (PW-2), Bahadur Singh Patel (PW-3), Mansoor Khan (PW-4), Rajkumar Gupta (PW-5), Sub Inspector Bhavna Tiwari (PW-6), Kalim (PW-7) and Harvachan Singh (PW-8). Prosecution adduced and exhibited documents as Ex.P/1 to Ex.P/36. No witness was examined in defence.

6. Learned trial Court after hearing both the parties, found the prosecution case proved in respect of offence under Section 8 read with 21(b) of NDPS Act and convicted the appellant/accused as mentioned hereinabove.

7. I have learned counsel for the parties and perused the entire record.

8. At the very outset, learned counsel for the appellant has submitted that appellant does not want to challenge his conviction for commission of aforesaid Signature Not Verified Signed by: DEEPA MISHRA Signing time: 8/4/2023 3:26:16 PM

offence as recorded by learned trial Court, but has prayed for reduction of jail sentence as appellant has already undergone more than 9 months so far while only one year rigorous imprisonment has been imposed upon him. Therefore, it is prayed that appellant, who has no criminal background, jail sentence may be reduced to the period already undergone by him.

9. Per contra, learned counsel for the State has supported the finding of conviction and order of sentence and has prayed for not reducing the jail sentence as 5 grams and 20 milligrams smack has been seized from the possession of the appellant which is an intermediate quantity. Thus, he has prayed for dismissal of the appeal.

10. In this case, Sub Inspector Harvachan Singh (PW-8) has deposed that o n 17.08.2015 he was posted as Sub Inspector at police station Hanumantal Jabalpur. He had received information from the informer at 05:23 p.m. that Naman Sonkar resident of Bhantalaiyya is selling smack powder in small pouches near Chhedi tea hut in Sindhi Camp. The information was recorded in daily dairy No.31 (Ex.P/25). He was made to understand the information received from the informer to Salim (PW-1) and Kalim (PW-7). He had proved information panchnama Ex.P/26. He had informed his Superior officers under Section 57 of the Act by sending information through constable Sanjay Shah. In this regard, entries were made in daily dairy No.33 (Ex.P/28). In this regard, his evidence finds corroboration from the evidence of Mansoor Khan (PW-4) Reader of CSP Gohalpur, who has admitted that constable had come along with report to CSP office and he had given the receipt of the same to the constable which is Ex.P/21. There are no reasons to disbelieve the evidence of the witness in this regard.

Signature Not Verified Signed by: DEEPA MISHRA Signing time: 8/4/2023 3:26:16 PM

11. Harvachan Singh (PW-8) has deposed that he had apprehended the accused near Chhedi tea hut in Sindhi Camp. He had served a notice under Section 50 of the Act which is at Ex.P/3 and was made to understand his legal right to be searched before the Magistrate or Gazetted Officer. However, accused has refused to exercise the said right and stated that Harvachan Singh could conduct the search and he has recorded his written consent on Ex.P/3 by putting his signature. In this regard, evidence of Harvachan Singh (PW-8) finds corroboration from the evidence of Rajkumar Gupta (PW-5).

12. As per the evidence of Harvachan Singh (PW-8) 5 grams and 20 milligrams contraband (smack) was seized from the left pocket of the pant worn by the accused. Seizure memo Ex.P/7 was prepared. Two samples of half-half gram each were drawn from the recovered contraband and were put in separate envelopes. They were sealed. Seizure memo was prepared and appellant/accused was arrested. The evidence of Harvachan Singh (PW-8) with regard to the seizure of contraband from the appellant does not find corroboration from the evidence of Salim Panter (PW-1) and Kalim (PW-7) as they turned hostile and have deposed that they had put signature on the papers before police but nothing was seized in their presence from the accused.

13. As far the reliability of evidence of Harvachan Singh (PW-8) is concerned, it is apparent that seizure memo was prepared and two samples were drawn. After coming over to police station, samples of seized contraband along with seized contraband were handed over to Dara Singh (PW-3) Incharge Malkhana. FIR was registered. The factum of raiding the accused, seizure of contraband and procedure so adopted was recorded in general diary. The samples of seized contraband with draft Ex.P/18 through constable Bahadur Singh Patel (PW-3) were sent to Forensic Science Laboratory and FSL report Signature Not Verified Signed by: DEEPA MISHRA Signing time: 8/4/2023 3:26:16 PM

is Ex.P/21. It is undisputed that seized item was smack.

14. In the case on hand, the evidence of Harvachan Singh (PW-8) stands corroborated with the evidence of Rajkumar (PW-5), Mansoor Khan (PW-4), Bahadur Singh Patel (PW-3) and Dara Singh (PW-2). Thus, after appreciating and evaluating the evidence, learned trial Court has rightly reached to the conclusion that appellant/accused was found in possession of 5 gram 20 milligrams contraband (smack).

15. Thus, having scanned the entire evidence adduced by the prosecution, this Court finds no illegality, incorrectness or impropriety in the impugned judgment of conviction and order of sentence recorded by the Court below and as such same is upheld. However, taking note of the fact that appellant/accused is first offender and learned trial Court has noted the same in para 22 of the impugned judgment and considering the fact that appellant/accused has already undergone imprisonment for more than 9 months, this Court deems it fit to reduce the sentence from one year to the period already undergone by him.

16. Consequently, this appeal is partly allowed with the modification in the sentence. Appellant is sentenced to imprisonment for the period he has already undergone subject to deposit of fine amount as imposed by learned trial Court.

17. Registry/trial court is directed to prepare Super session warrant/release warrant and the same be sent to the Superintendent of Jail Jabalpur with a direction that if appellant is not required in any other case, he be released in this case forthwith.

18. Registry is directed to immediately sent down the copy of the judgment along with trial Court record through Sessions Judge, Jabalpur.

Signature Not Verified Signed by: DEEPA MISHRA Signing time: 8/4/2023 3:26:16 PM

(DINESH KUMAR PALIWAL) JUDGE b

Signature Not Verified Signed by: DEEPA MISHRA Signing time: 8/4/2023 3:26:16 PM