1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 811 of 2003 Bisoee Konda Babu S/o Bisoee Bhojjeya Aged About 33 Years, resident of Boddhakut District Vishakhapattnam (Andhra Pradesh) ... Appellant versus State Of Chhattisgarh through the District Magistrate Bastar at Jagdalpur (CG) ... Respondent For Appellant : Mr. P. K. Tulsyan, Advocate For Respondent / State : Mr. Dilman Rati Minj, G. A. along with Ms. Neeta Tulsani Thawani, P. L. (Hon’ble Shri Justice Sachin Singh Rajput) Judgment on Board 30/06/2025 1. This appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short “CrPC”) has been filed challenging the judgment dated 25.04.2005 passed in Special Criminal Case No.74/2003 by the Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, Bilaspur (CG) by which the appellant has been convicted under Section 20 (B) (ii) B of NDPS Act and sentenced to undergo RI for 3 years and 6 months and fine of Rs.10,000/- with default stipulations. 2. The appellant was charged for an offence punishable under Section 20 (B) (ii) B of NDPS Act that on 11.10.2002 at village Markel Tiraha NH Road, he was found illegally keeping 5 kg of contraband Ganja for the purposes of sale. 2 3. The case of the prosecution in nutshell is that the Sub-Inspector Aalim Khan (PW-2) posted as SHO in Police Station-Nagarnar. On 11.10.2002 he received a secret information that the appellant is standing at NH-43 in Markel Tri junction keeping contraband Ganja with him is waiting for vehicle. The information was recorded in Rojnamcha Sanha No.322 (Ex.P-2), Panchnama Ex.P-3 was prepared. Secret information was sent to Superintendent of Police, Jagdalpur through constable No.216 Prahlad Singh and by recording Rojnamcha (Ex.P-5) he along with the staff proceeded towards the incident. The appellant was found there and a notice under Section 50 of NDPS Act (Ex.P-6) was given and he was apprised with the right to be searched through Gazetted Officer or Magistrate. The appellant consented to be searched by Sub-Inspector Aalim khan and after receiving consent from the appellant, police party search was given to the appellant. The appellant was searched and one bag inside the lungi of the appellant was found under which, a Ganja like substance was found. Search Panchnama (Ex.P-8) was prepared vide Ex.P-9, identification Panchnama of contraband was prepared. It was weighed and found to be 5 kg and weighing Panchnama (Ex.P-1) was prepared. Two samples of 30-30 gms was prepared which was sealed and the contraband Ganja was sealed vide Ex.P-11 and thereafter, the appellant was arrested vide (Ex.P-12). Dehati Nalishi (Ex.P-14) was recorded. The appellant was brought to the Police Station, Nagarnar along with the contraband. The seized ganja and samples were deposited in the Malkhana and First Information Report No.135/2002 was recorded. Detailed report of proceedings drawn against the appellant was sent to Additional Superintendent of Police, Jagdalpur. Vide Ex.P-22 the samples were sent to FSL, Raipur from where its report Ex. P-23 was received according to which the samples were containing contraband Ganja. After completion of investigation, charge-sheet was prepared and filed before the learned trial Court. The appellant was charged as stated above, however, denied the charge framed against him and claimed for trial. 4. So as to establish its case, the prosecution has examined as many as 4 witnesses and exhibited 28 documents. The statement of the accused/appellant under Section 313 CrPC was also recorded where he pleaded his innocence and false implication in the case. 3 5. By the judgment impugned, learned Court below held the accused/appellant guilty and imposed the sentence as described above which is challenged before this Court by the appellant. 6. Learned counsel for the appellant submits that the findings recorded by the trial Court convicting and sentencing the accused/appellant as referred to above are not based on proper appreciation of evidence on record. He submits that the mandatory provision of Section 42 and 50 of NDPS Act is not complied with, therefore, the appellant deserves acquittal. Alternatively, he submits that the appellant is the first offender and there is no previous antecedent. He was granted bail during trial and thereafter, his sentence was also suspended. The incident is of 11.10.2002. By the flux of time, he must have reformed in the society and his premature release is not detrimental to the society at large. Learned counsel placed reliance upon the judgment of this Court in the case of Bhojraj Patel Vs. State of Chhattisgarh passed in Criminal Appeal No.199 / 2011 judgment dated 07.10.2024 to buttress his submission, that in the case of Bhojraj Patel (Supra), the conviction of 7 years for keeping the Ganja of 15.4 kg was reduced to already undergone i.e. 2 years 6 months. In the case of present appellant, the maximum sentence awarded is 3 years 6 months and the appellant has already remained in jail for 1 year 2 months 7 days, therefore, in the event the appeal being dismissed the sentence awarded to the appellant may be reduced to the period already undergone. 7. On the other hand, State counsel supports the judgment impugned and opposed the submissions made by learned counsel for the appellant. 8. Heard learned counsel for the parties and perused the record. 9. The first contention of learned counsel for the appellant is that Section 42 of NDPS Act has not been complied with. This contention is liable to be rejected in the light of statement of Investigating Officer (PW-2). In his statement, he categorically stated that he received a secret information which was recorded in Rojnamcha Sanha No.322 (Ex.P-2) and Panchnama was prepared. It was informed to witnesses Pratap and Amit Pandey. Secret information was sent to Additional Superintendent of Police, Jagdalpur through Constable No.216 Prahlad Singh Gagda which is recorded in Ex.P-2 Rojnamchasanha. The said information was also received by the reader Prakash Shukla 4 which is Ex.P-4. Even otherwise the Ganja was recovered from a public place, therefore, this submission is also liable to be rejected on this count that in the case in hand, Section 43 of NDPS Act would be applicable. Therefore, the contention is rejected. Apart from this, relevant paragraphs of the following judgment are to be noticed from applicability of Section 43 of NDPS Act. 10. In the matter of State of Haryana Vs. Jarnail Singh and Ors. reported in 2004 (5) SCC 188 in Para 9 and 10 of its judgment the Hon'ble Supreme Court has held that: "9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise. 10. In the instant case there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police 11 was also a member of the searching party. It has been held by this Court in M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence : (2003) 8 SCC 449 that where a search is conducted by a gazetted officer himself acting under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42. For this reason also, in the facts of this case, it was not necessary to comply with the requirement of the proviso to Section 42 of the NDPS Act." 11. In the matter of Firdoskhan Khurshidkhan Vs. State of Gujarat and Another dated 30.04.2024 reported in 2024 SCC OnLine SC 680 has held in para 18 as under: "18. Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is 5 effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected." 12. The second contention with regard to non-compliance of Section 50 of NDPS Act is also liable to be rejected on the ground that when the accused was apprehended from the spot, he was given a notice of Section 50 of NDPS Act i.e. Ex. P-6 informing and apprising him with a right of search by Gazetted Officer or Magistrate. Perusal of Ex.P-6 clearly indicates that the appellant gave his consent to be searched through the Investigating Officer, therefore, the contention is also liable to be rejected. The recovery of contraband as stated above has also been proved by the statement of witness I.O. (PW-2) and Amit Pandey (PW-4) which is a witness of entire proceedings carried out. As per the FSL report the sample which was drawn was found to be contraband Ganja and therefore, the findings recorded by learned trial Court does not appear to be perverse or contrary to record and no illegality has been committed. Therefore, the conviction of appellant is well merited and does not require interference. 13. The second submission which is placed before this Court whether the sentence of appellant can be reduced to period already undergone or what would be adequate sentence to be imposed in the facts and circumstances of the case. The Hon’ble Supreme Court in case of Deo Narain Mandal Vs. State of UP reported in (2004) 7 SCC 257 observed in paragraph 8 as under : “8. This brings us to the next question in regard to the reduction of sentence made by the High Court. In criminal cases awarding of sentence is not a mere formality. Where the statute has given the court a choice of sentence with maximum and minimum limit presented then an element of discretion is vested with the court. This discretion can not be exercised arbitrarily or whimsically. It will have to be exercised taking into consideration the gravity of offence, the manner in which it is committed, the age, the sex of the accused, in other words, the sentence to be awarded will have to be considered in the background of the fact of each case and the court while doing so should bear in mind the principle of proportionality. The sentence awarded should be neither excessively harsh nor ridiculously low.” 6 14. In the same breath, I am persuaded to mention herein below few lines from the judgment authored by Justice V.R. Krishna Iyer in the case of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in AIR 1977 SC 1926 :- “Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'” 15. While determining the quantum of punishment various factors needs to be considered. Nature and gravity of offence, penalty provided for the offence, manner of commission of offence, proportionality between crime & punishment, character of the offender, age and sex of the offender, antecedents if any, possibility of reforms, impact of crime on society etc. are some of the relevant consideration in determining the quantum of punishment. Court has to strike a balance between crime and punishment. Possibility of reform is an important mitigating factor while imposing appropriate sentence. Undue 7 sympathy should not be given only because of long drawn pendency of criminal proceedings. In the light of the above broad principles, the facts of the instant case is examined. 16. The mitigating circumstances appearing in this case are that the appellant was aged about 33 years at the time of incident and the incident is of 11.10.2002. 23 years have already been passed and from perusal of arrest memo (Ex.P-12), it does not infer that the appellant has any previous criminal antecedent. Apart from this, it is not brought to the notice of this Court that during trial when the appellant was on bail and he was indulged in any of these kind of unsocial activities. Apart from this, it is to be seen that 5 kg of Ganja was recovered and the appellant has already served 1 year 2 months and 7 days of sentence. Taking into consideration all the aspects, this Court in the case of Bhojraj Patel (supra) reduced the sentence of 7 years to 2 years and 6 months looking to the long pendency of litigation. Keeping in view overall scenario, this Court is of the opinion that ends of justice would be met if the sentence awarded to the appellant is reduced to the period already undergone by him. However, the fine amount is maintained and default sentence is reduced to 3 months. 17. Appeal, thus, partly allowed as indicated above. 18. The appellant is reported to be on bail. His bail bonds shall remain in force for a period of 6 months in view of Section 481 of the BNSS, 2023. The record be sent back with copy of this Judgment forthwith for necessary action and compliance. Consequence to follow. 19. A copy of this order along with the records be sent back to the trial Court for necessary compliance and information. Sd/- (Sachin Singh Rajput) JUDGE Parul/Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.07.03 10:55:07 +0530