1 2025:CGHC:29111 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 337 of 2005 Sanak Sai, S/o Sheelan Sai, aged about 35 years, Occupation: Agriculture, R/o Village Kotba, (Saripara), P. S.- Bagbahar, District- Jashpur (CG) ... Appellant versus State Of Chhattisgarh, Through: P. S.- Bagbahar, Distt. Jashpur (CG) ... Respondent For Appellant : Ms. Vidhi Matlani, Advocate For Respondent(s) : Mr. Sanjeev Kumar Pandey, Dy. A. G. (Hon’ble Shri Justice Sachin Singh Rajput) Judgment on Board 30/06/2025 1. The appellant in this appeal has challenged the validity, correctness and judicial propriety of the judgment dated 29.3.2005 passed in Special Criminal Case No.02/2004 by the learned Special Judge (NDPS Act), Jashpur, CG by which he was convicted under Section 20 (B)(2)(B) of NDPS Act and sentenced to rigorous imprisonment for 10 years with fine of 1,00,000/- in default of payment to undergo RI for 2 and half years separately. 2. As per prosecution case on 12.04.2004 at about 11:00 pm N. B. Singh Sub-Inspector of Police Station Bagbahar received a secret information that the appellant was doing the business of Ganja for sale in his house. After receiving the said information, the concerned officer along with his staff reached at spot i.e. house of the appellant and seized 6 Kg Ganja from one plastic bag and 8 kg Ganja from a suitcase like bag and seized total 14 kg of contraband Ganja. The said articles were seized in the presence of independent witnesses and thereafter the appellant was 2 arrested. After completion of investigation, charge-sheet was filed. The appellant was charged as stated above, however, denied the charge framed against him and claimed for trial. 3. So as to establish its case, the prosecution has examined as many as 7 witnesses and exhibited 31 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. 4. By the judgment impugned learned trial Court has held the accused/appellant guilty and imposed the sentence as described above which is challenged before this Court by the appellant. 5. 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 & 50 of NDPS Act is not complied with, prosecution utterly failed to prove the case beyond reasonable doubt, therefore, the appeal may be allowed. Alternatively he submits that the maximum sentence awarded is 10 years and the appellant has already remained in jail for 4 and half years, therefore, in the event the appeal being dismissed the sentence awarded to the appellant may be reduced to the period already undergone and fine amount may be reduced. 6. On the other hand State counsel supports the impugned judgment and submits that compliance of mandatory provision has been made, therefore, the appeal deserves to be dismissed. 7. Heard learned counsel for the parties and perused the record. 8. As per case of prosecution, a secret information was received to Investigating Officer- N. B. Singh (PW-6) with regard to selling of contraband Ganja from the house where the appellant was residing. According to PW-6- Investigating Officer who categorically deposed that after the secret information was received, he has recorded the same. The factum of receipt of secret information to proceed without the warrant has been received by the Clerk of SDO, Patthalgaon which has been proved 3 by PW-1. After completion of entire proceeding the report was also sent to the Sub- Divisional Officer, therefore, sufficient compliance of Section 42 of NDPS Act has been made. Therefore, in light of judgment of Hon’ble Supreme Court in the case of Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539 this contention is rejected. 9. The 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. 10. Next submission with regard to that the prosecution witnesses have not fully supported the case of prosecution, is liable to be rejected as Budhnath (PW-3) categorically stated that he knows the appellant who had 14 kg of Ganja which was kept by him in his house in a plastic bag. He proved the seizure memo Ex. P-3. He further deposed that the Inspector of Police Station Bagbahar had gone to the house of accused/ appellant and recovered 14 kg Ganja which was kept in a plastic bag and in another bag 6 kg Ganja was there. He also stated that at the time of search, he was present in the house and he has proved the consent search memo Ex. P-6 who put his signature on it. He further stated that search of house of appellant was conducted in front of him which is Ex. P-7 and put his signature. He deposed that the Police has given their search vide Ex. P-8 in which he has put his signature. The information for search of the house was also given under Ex. P-9. He also states that the contraband was identified in front of him vide Ex. P-10 and the contraband so seized was also weighed in front of him vide Ex. P-11 which came to 14 kg. He further states that the sample was drawn in front of him vide Ex. P-12. A seal was also prepared vide Ex. P-13. The appellant was present during the seal panchnama proceeding. Though this witness tried to be cross examined at length but on material particular barring the fact that in one statement he has stated that he has not read the papers and signed over it. 4 Nothing significance is brought on record to disbelieve the same. Apart from this, Investigating Officer in his statement before the Court has deposed about the proceeding in detail. The statement of Investigating Officer inspires confidence and it can be acted upon. In the case in hand, the seizure weighing contraband sampling was proved by statement of Budhnath (PW-3) and Rajju Singh Rathiya (PW-5). The sample was also sent for chemical examination to Forensic Science Laboratory and as per FSL report the contraband contained Ganja. An argument was advanced that Ex. P-26 FSL report does not belong to the appellant is liable to be rejected in light of evidence available on record particularly from the statement of PW-5 who has prepared the spot map Ex. P-4. He also given a map of Khasra No.929/2 patwari Halka No.21 village Kotba in which the house of appellant was marked with red ink. The same is exhibited as Ex. P-17. Therefore, it is proved beyond reasonable doubt that from where the contraband was recovered is of the appellant. Thus taking into consideration the evidence brought on record, the trial Court does not appear to have misdirected itself in convicting the appellant, therefore, the conviction of the appellant under Section 20 (B)(2)(B) of NDPS Act is maintained. 11. The 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. 12. 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. 5 The sentence awarded should be neither excessively harsh nor ridiculously low.” 13. 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.' 14. In order to appreciate this argument, it would be necessary to look into the provision of Section 20-B of NDPS Act which provides a maximum sentence of 10 years for intermediate quantity. In the case in hand, the contraband so seized is 14 kg which falls under intermediate quantity. The maximum sentence of 10 years and maximum 6 fine of Rs.1,00,000/- was imposed upon the appellant. The learned trial Court has not assigned any cogent reasons as to why the maximum sentence and fine was imposed upon the appellant. The incident is of 05.05.2004, the lis is pending for about 21 years and the appellant remained in jail for about 4 and half years. Taking into consideration, this Court in case of Bhojraj Patel Vs. State of Chhattisgarh passed in Criminal Appeal No.199 / 2011 judgment dated 07.10.2024 has reduced the 7 years sentence to 2 years and 6 months, looking to the long pendency of litigation. Keeping 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 and the fine amount is also reduced to Rs.10,000/- and default sentence is reduced to 6 months. 15. Appeal, thus, partly allowed as indicated above. 16. 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. 17. 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 PARUL MITTAL Digitally signed by PARUL MITTAL Date: 2025.07.22 16:11:44 +0530