1 2025:CGHC:21788 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 197 of 2005 Surendra Mishra S/o. Baldau Mishra, aged about 21-22 Years R/o. Chakarbhata. P.S. Mungeli, District Bilaspur, CG. ... Appellant versus State Of Chhattisgarh Through P.S. Nagarnar, District (Bastar), Jagdalpur, CG. ... Respondent For Appellant : Mr. Santosh Kumar Verma, Advocate For State : Ms. M. Asha, PL Hon’ble Shri Justice Sachin Singh Rajput Judgment on Board 09/05/2025 This appeal under Section 374(2) of Criminal Procedure Code, 1973 (for short CrPC) has been filed by the appellant being aggrieved by the impugned judgment of conviction and order of sentence dated 30.11.2004 passed by the Special Judge, NDPS Act, Head Quarter Bastar, Jagdalpur, CG in Special Case No. 23/04. By the impugned judgment, the appellant has been convicted and sentenced as mentioned below: Conviction Sentence Under Section 20(b)(ii) NDPS Act RI for 5 years and fine of Rs. 10,000/- in default of payment of fine a further RI for one year 2. Case of the prosecution in nutshell is that on 28.03.2004 the Station House Officer of the concerned police station received a secrete information to the effect that near Dhanpunji Mandi Naka one young man wearing brown color shirt was waiting for a conveyance for 2 going somewhere holding an attache with him. Suspecting the ganja to be contain in the said attache, the said information was entered into rojnamchasana, Panchnama to that effect, he along with the staff members proceeded towards the spot at about 7:50 AM and on the place so informed, the accused-appellant was found to be wandering over there. On a question being put as to the content of the attache, he could not give any satisfactory answer whereupon the same was subjected to search in presence of the witnesses and the ganja was seized from his possession which on weighment was found to be 5 Kg. Two samples of 30 grams each were taken out, they were sealed, spot map was prepared and after completing necessary procedural formalities as per provision of the NDPS Act the accused-appellant was arrested followed by the contraband being deposited in the Maalkhana. All the entries as to the proceedings drawn were made followed by registration of FIR for the offence under Section 20 (b) of the NDPS Act. After completion of investigation, charge-sheet was filed followed by framing of charge accordingly. 3. The prosecution examined 5 witnesses in support of its case. Statements of the accused/appellant under Section 313 CrPC was also recorded where he pleaded his innocence and false implication in the case. 4. After hearing the parties, the learned trial Court convicted and sentenced the accused/appellant as mentioned above. Hence this appeal. 5. Learned counsel for the appellant submits that the learned trial Court has committed an error of law and fact in convicting and sentencing the accused/appellant as described here-in-above. He submits that the mandatory provisions of Sections 42 and 50 of NDPS Act have not been complied with. He submits that the contraband was not recovered from the exclusive possession of the accused/appellant, therefore, the appeal may be allowed and the appellant may be acquitted. Alternatively, he submits that the out of the total sentence imposed by learned trial Court of 5 years he has already remained in jail for about three years and seven months, that the incident took place in the year 2004 and therefore, in the event this Court is not inclined to set aside the conviction, the sentence imposed may be reduced to the period already undergone by him. He also submits that the sentence of fine being exorbitant may also be reduced suitably. 3 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits the same to be in accordance with law and on due appreciation of the evidence led by the parties, and being so, no interference with the same is required in this appeal. She submits that the contraband was recovered from the exclusive possession of the accused/appellant, after complying the mandatory provisions of Sections 42 and 50 of NDPS Act. She further submits that as the findings recorded by the learned trial Court are based on the proper appreciation of the evidence the conviction of the accused-appellant cannot be said to be at fault calling for interference in this appeal. She thus submits that the appeal therefore, is liable to be dismissed being absolutely merit-less. 7. I have heard learned counsel for the parties and perused the record. 8. Haffez Ahmed (PW-1) is the witness to search, seizure and weighment of the contraband has supported the case of the prosecution stating that the concerned station house officer had undertaken all the procedural formalities such as search, seizure and weighment of the contraband and it was found to be 5 kg. As per his past experience he identified by sniffing the said contraband to be ganja. Booti (PW-2) has also stated in almost the same line as PW-1. He has clarified that after the bag held by the accused-appellant was opened, it was found to contain ganja which he confirmed it by sniffing. Jaanpuch Toppo – the head constable (PW-3) has also supported the case of the prosecution stating that he was told by the station house officer of Nagarnaar police station about the seizure of 5 kg of ganja from the accused-appellant contained in an attache along with certain currency note of different denomination. He has also stated about drawing two samples of 30 gram each and thereafter the same being sent to the laboratory for chemical examination. Sub-inspector M.B. Patel (PW-4) is the investigating officer who has dully supported the case of the prosecution stating that on receipt of a secrete information he proceeded to the spot as per the description so intimated about the stature of the suspect, he found the accused-appellant on the spot waiting for a conveyance to go somewhere. He then intimated to the superior officer about the secrete information and adhering to the mandatory legal provisions, called the witnesses, effected search, seizure and weighment of the contraband which eventually was found to be 5 kg. Two samples of 30 grams each were drawn, sealing was done and the samples so 4 drawn were sent for chemical examination. He has also stated that the report Ex. P-19 received from the laboratory also confirmed the said contraband to be ganja. Prakash Shukla – head constable (PW-5) is the witness who assisted in the investigation has also supported the case of the prosecution. 9. Having thus heard counsel for the parties and gone through the evidence of the witnesses including the independent once, it becomes apparent that after receiving a secrete information, SHO PW-4 after entering the same into the rojnamchasana and also after forwarding the same to his superior, he proceeded to the spot, apprehended the accused- appellant who was waiting for a vehicle for going somewhere, called the witnesses, and after complying with mandatory provisions of NDPS Act effected search and seizure of the same in presence of the witnesses which on being weighed was found to be 5 kg. As regards the argument of the counsel for the appellant that the mandatory legal provisions have not been followed by the concerned SHO while making the search and seizure, appears to be absolutely baseless as from the evidence of the witnesses it is manifest that the SHO made search and seizure of the contraband strictly in accordance with mandatory legal provisions and after drawing the samples of 30 grams each the same were sent to the laboratory for the chemical examination and ultimately the report Ex.P-19 received also confirmed the same ganja. Thus, the finding of conviction recorded by learned trial Court cannot be said to be without appreciation of evidence on record as argued by counsel for the appellant. The judgment under challenge in this appeal has been gone through carefully and it cannot be said that the eviden of the witnesses has not been dealt with in accordance with law. Being this, there does not appear to be any palpable illegality or perversity in the findings so recorded holding the accused-appellant guilty under Section 20(b) of NDPS Act. Accordingly, the judgment impugned is hereby maintained so far as it pertains to conviction part thereof. 10. As regards the sentence, looking to the fact that the case is quite old, that at the relevant time the accused-appellant was a lad of 21 years, that by now he must be leading a settled life and no useful purpose would be served in again sending him behind the bar, that the accused-appellant has already remained in jail for about 3 and half year, and also keeping 5 in mind the fact that no minimum sentence has been prescribed for the offence attributed against the accused-appellant, this Court is of the considered opinion that the ends of justice would be met if the reduction of the same is made to the period already undergone. Likewise, the sentence of fine imposed on the accused-appellant to pay Rs. 10,000/- also appears to be a bit on the higher side which is hereby reduced to Rs. 5,000/-. Order accordingly. This reduced amount of fine has to be deposited by the appellant within a period of 90 days from the date of receipt of copy of this judgment or else he would be required to go inside for a period of three months. 11. Appeal thus succeeds in part. Sd/- (Sachin Singh Rajput) JUDGE Pawan