1 2025:CGHC:7132 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 64 of 2016 Mahesh Pande S/o Govind Pande Aged About 20 Years R/o Village Petla, Police Station Sitapur, District Surguja Chhattisgarh. , Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through The Incharge, Arakshi Ambikapur, District Surguja Chhattisgarh. , Chhattisgarh ... Respondent(s) (Cause title taken from Case Information System) For Appellant : Ms. Sameeksha Gupta, Advocate For Respondent/State : Mr. Atanu Ghosh, Dy. Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 07/02/2025 1. The present appeal has been filed by the appellant against the impugned judgment of conviction and sentence dated 27.11.2015 passed by learned Special Judge (NDPS Act) Ambikapur, District Surguja, in Special Criminal Case No. 34 of 2011, whereby the appellant has been convicted for the offence under Section 20(b)(ii) (B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) and sentenced for R.I. for 5 years with fine of Rs. 50,000/-, in default of payment of fine further R.I. for 3 months. Digitally signed by VEDPRAKASH DEWANGAN 2 2. Brief facts of the case are that the PW-5 Kailash Mirre, who was the Sub-Inspector of Police and posted at Ambikapur Police Station received a secret information on 20.07.2011 that the appellant is carrying ganja with him and is coming from village Petla to Ambikapur in the motorcycle. The secret information Panchanama/ Exhibit P-1 was prepared and it has been informed to the independent witnesses. The intimation about the secret information was sent to the City Superintendent of Police, Ambikapur and considering the necessity to search without warrant, the investigating officer constituted a search party including the constables of the police station as well as the independent witnesses and weighment witness and proceeded towards the place of incident. *******At the place of incident he intercepted the motorcycle coming from village Petla, who disclosed his name as Mahesh Pandey. The intimation of secret information was disclosed to him and his right to search was also informed. The police has obtained his consent to be searched by the police officer. The police party have also gave their own search to the appellant, but no incriminating article were seized from their possession. On being searched of the bag of the appellant, ganja-like substance were found inside the bag which was kept in pink colour polythene. The seized article was physically identified by rubbing, smelling and burning and found it to be the ganja. The entire quantity of ganja was homogenised and panchanama was prepared. Weighment witness were called and after physical verification of weighment apparatus, it was found to be 8 kg 150 gm of ganja including the polythene. 3 *******After homogenisation, the total weight of ganja was found 8 kg. Two samples of 100 gm each were separated and the remaining quantity of ganja i.e. 7 kg 800 gm were separately packed and sealed. The specimen seal panchanama was prepared separately. The appellant, his motorcycle and seized ganja and sample packets were taken to police station, where FIR has been registered. The seized sample of ganja sent for its chemical examination to FSL Raipur and after completion of usual investigation, charge sheet was filed before the learned trial Court for the offence under Section 20-B of NDPS Act. 3. Learned trial Court has framed charge against the appellant for the offence under Section 20(b)(ii)(B) of NDPS Act. He abjured his guilt and claimed trial. In order to prove the charge against the appellant, the prosecution has examined as many as 7 witnesses. Statement of the appellant under Section 313 of CRPC has also been recorded, in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 4. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellant and sentenced him as mentioned in earlier part of the judgment. Hence this appeal. 5. Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omission and contradiction in the evidence of prosecution 4 witnesses. The prosecution has failed to prove the mandatory provisions of Sections 42, 50, 52, 52A, 55 and 57 of the NDPS Act and thereby the case of the prosecution suffers with non-compliance of mandatory provisions and the appellant is entitled for benefit of doubt. She would further submit that the appellant has already remained in jail for about 2 years and 8 months. The 8 kg ganja is said to have been seized from the appellant, which is more than small quantity and less than commercial quantity and his act, if any, comes under the definition of Section 20(b)(ii)(B) of NDPS Act, for which minimum sentence of 6 months is provided, which may extend to 10 years. Looking to the quantity of ganja and his undergone period, the same may be considered to be sufficient sentence for the alleged offence. 6. On the other hand, the learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt, but for minor omission or contradictions their evidence are fully reliable. There is no reason for the prosecution to false implication of the appellant. The offence of NDPS Act affects the large people and vicinity and its impact is very serious. Although minimum sentence of 6 years have been provided under Section 20(b)(ii)(B) of NDPS Act, but considering the quantity of ganja and nature of offence, the appellant is not entitled for any leniency as the learned trial Court has already shown their leniency in sentencing the appellant. Therefore, there is no merits in the appeal filed by the appellant and the same is liable to be dismissed. 7. I have heard learned counsel for the parties and perused the record. 5 8. PW-5 Kailash Mirre is the investigating officer of the case, who stated in his evidence that on 20.07.2011, he received a secret information that the appellant is coming from Petla to Ambikapur in his motorcycle having ganja with him. He forwarded the intimation of secret information to the City Superintendent of Police, Ambikapur vide memo Exhibit P-13. He called the independent witnesses and also sent a memo regarding necessity to search without warrant. He immediately constituted the search party and proceeded towards the place of incident. On the place of incident, the appellant found there coming by his motorcycle from Petla side. They stopped him and then he disclosed his name. The police party informed his right to be searched by Magistrate or any Gazetted officer or by the police. He has given him the notice under Section 50 of NDPS Act, which is Exhibit P-1. *******The appellant has given his consent to be searched by PW-5 and his consent is taken in writing in Exhibit P-1. The police party has also given their own search to the appellant and the Panchnama/Exhibit P-2 was prepared. The search Panchnama of the witness, Govind Manwani and Rakesh Gupta was also prepared vide Exhibit P-3. When he has taken the talashi of the appellant and his bag, 7 packets wrapped in pink polythene was recovered from his bag, in which ganja like substance were there. Talashi Panchnama/ Exhibit P-4 was prepared. The said 7 packets were opened and its contents were physically identified by rubbing, smelling and burning and thereafter it was found to be ganja. The identification Panchnama/Exhibit P-5 was prepared. 6 *******Notice under Section 91 of CRPC was also given to the appellant to submit the document authorised him to carry the said ganja, but he failed to do so. The copy of the said notice is Exhibit P- 17. By the notice/Exhibit P-6, he called the weighment witness Suresh Verma. The physical verification Panchnama of weighment apparatus (exhibit P-7) was prepared. All the packets were opened on the spot and homogenised and homogenisation Panchnama (exhibit P-8) was prepared. The said ganja was weighed and it was found 8 kg 150 gm including polythene and total 8 kg excluding polythene. Two samples of 100 gm each were separated and weighment Panchnama (exhibit P-9) was prepared. *******The seizure memo (exhibit P-10) was prepared, by which the ganja, sample packets and motorcycle were seized. The specimen sealed Panchnama (exhibit P-11) was also prepared and the appellant, motorcycle, seized ganja and sample packets were taken to Ambikapur police station, where the FIR (exhibit P-18) was registered. The registration of the FIR was intimated to the Special Judge, Ambikapur and its acknowledgment is Exhibit P-18A. The appellant was arrested and his arrest was informed to his family members. The seized article was handed over to Malkhana Moharrir for keeping it in safe custody of Malkhana and its acknowledgment is Exhibit P-19. The entire incident was also reported to Senior Officer City Superintendent of Police, Ambikapur and its acknowledgment is Exhibit P-15. *******The sample packets were sent to FSL Raipur along with the memo of Superintendent of Police, Surguja and its acknowledgment 7 is Exhibit P-21. The FSL report (exhibit P-22) was received, in which the sample packets were found to be contained with ganja. The entire proceedings were also recorded in Rojnamcha (exhibit P-6, 8, 38, 39, 40, 41, 54, 63 and 64). He recorded the statement of the witnesses and after completion of investigation charge has been filed. In cross-examination, this witness has remained firm in search and seizure proceedings and duly proved the procedure, which he had drawn during the entire process of search and seizure of ganja from the appellant. 9. PW-1 Govind Manwani is the independent witness. Though he has turned hostile and not supported the prosecution's case, but has admitted his signature in the various panchanamas (exhibit P-1 to P- 12). 10. PW-2 Surajmen Singh is the witness, who has taken the secret information to the Office of City Superintendent of Police, Ambikapur and obtained its acknowledgment (exhibit P-13), Panchanama (exhibit P-14) and duly proved the same. 11. PW-3 Suresh Verma is the weighment witness. Though he too has turned hostile, but admitted his signature in the document (exhibit P- 6 to P-9). 12. PW-4 Rakesh Gupta is also an independent witness. He also turned hostile, but has admitted his signature over the document (exhibit P-2 to P-12). 13. PW-6 Bholaram is the Head Constable at Police Station Ambikapur and Malkhana Moharrir. He proved the acknowledgment (exhibit P- 8 19 and P-31). He stated in his evidence that on 20.07.2011, he received the motorcycle, ganja and sample packets of ganja from the Station House Officer, Police Station, Ambikapur to keep it in safe custody of Police Station. On 21.07.2011, he took out the two sample packets of ganja for sending it to FSL and given it to the Constable Nihali Sahu. There is nothing in his cross-examination brought by the defence to disbelieve his evidence or to presume that there would be any tampering with the samples and this witness has also remained firm in his evidence. 14. PW-7 Nihali Sahu is the Constable, who has taken the sample packets from Police Station Ambikapur to FSL Raipur. He deposited the sample packets to FSL Raipur on 22.07.2011 and obtained Acknowledgment (exhibit P-21). *******From all these evidence, particularly from the evidence of PW- 5, Kailash Mirre, who is the investigating officer, who duly proved the entire process of investigation and search and seizure of ganja from the appellant, I do not find any irregularity or illegality committed by the witness PW-5 during search and seizure proceeding. It is found proved that on the date of incident, the appellant was found in possession of 8 kg of ganja, which he was kept in his bag. Therefore, the conviction of the appellant for the offence under Section 20(b)(ii) (B) of NDPS Act is upheld. 15. So far as sentence part is concerned, the appellant has been convicted for the offence under Section 20(b)(ii)(B) of NDPS Act. The sentence provided for the offence under Section 20(b)(ii)(B) is not 9 less than 6 months, which may extend to 10 years with fine. The quantity of ganja which has been seized from the appellant is 8 kg, which is the quantity more than small and less than commercial. Therefore, considering the quantity of ganja, the nature of allegation and the age of the appellant, further considering that the offence is of the year 2011, the appellant was aged about 20 years at that time and he presently might have been engaged in numerous responsibilities of his family, this Court deem it proper to reduce the sentence awarded to the appellant for the offence under Section 20(b)(ii)(B) of NDPS Act. 16. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh, (1977) 3 SCC 287, Hon'ble Supreme Court has observed that 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 and held in Para 9 as follows: "9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel 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 Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If 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 reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is 10 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." 17. Considering the peculiar facts and circumstances of the present case as also in view of the law laid down by the Hon’ble Supreme Court in the matter of Giasuddin (supra), while maintaining the conviction of the appellant for the offence under section 20(b)(ii)(B) of NDPS Act, his sentence is reduced and he has been sentenced for R.I. for 2 years with fine of Rs. 25,000/-, in default of payment of fine, he shall undergo further R.I. for 6 months. 18. The appellant remained in jail during trial from 21.07.2011 to 26.09.2011 and thereafter from the date of judgement i.e. 27.11.2015 to 29.06.2018. He is entitled for set-off of his undergone period during the trial as well as during pendency of the present appeal. 11 19. With this modification of the sentence awarded to the appellant, the appeal is partly allowed. 20. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. 21. This Court appreciates the valuable assistance rendered by the learned counsel appearing for the appellant Ms. Sameeksha Gupta in a short span of time. Sd/- (Ravindra Kumar Agrawal) Judge ved