1 2025:CGHC:15156 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 26 of 2016 1 - Harkesh Gupta S/o Shri Harvansh Gupta @ Hanuman Gupta Aged About 50 Years R/o Village Ghobahar, Police Station Pendra, Bilaspur, Civil And Rev. Distt. Bilaspur, Chhattisgarh. ... appellant versus 1 - State Of Chhattisgarh Through The Station House OfÏcer, Police Station Pendra, Bilaspur, Civil And Rev. Distt. Bilaspur, Chhattisgarh. ... Respondent For Appellant : Ms. Aakansha Mishra, Advocate holding brief of Mr. Dhriendra Prasad Mishra, Advocate For Res./State : Mr. Shailendra Sharma, Panel Lawyer Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 28.03.2025 1. This appeal arises of the judgment of conviction and order of sentence dated 02.01.2016 passed by the Special Judge (the Narcotic Drugs and Psychotropic Substance Act, 1985), Bilaspur (C.G.) in Special Criminal Case No.96/2014 convicting the appellant under Section 20(b)(ii) (B) of the Narcotic 2 Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and sentencing him to undergo R.I. for 4 years with fine Rs.20,000/- in default of payment of fine, to further undergo R.I. for 6 months. 2. The case of the prosecution, in brief, is this, on 25.01.2014, the sub- Inspector of Police, Lalit Sahu (PW09), received a secret information that the appellant is engaged in selling of illegal contraband article Ganja. The secret information was reduced in writing in Roznamchasana and called two independent witnesses through the constable No. 34. When the independent witnesses came to the Police Station, they informed about the secrete information and the copy of secrete information was forwarded to the Sub Divisional OfÏcer (Police), Bilaspur through the document Ex. P/49-C. The panchanama of necessity to search without warrant (Ex. P/16) of the appellant has also been prepared and the same has also been forwarded to the SDOP OfÏce Bilaspur. After completion of primary requirement the police party proceeded to the place of incident and their departure has also been recorded in the Roznamchasana (Ex. P/51). On the spot, he informed about the secrete information to the appellant and served a notice under Sections 42(2) & 50 of the NDPS Act to the appellant and his right to be searched has been informed that he may be searched by any Magistrate / Gazetted OfÏcer or the Police OfÏcer, which is Ex. P/25. The appellant has given his consent for his search by the said police OfÏcer and his consent is marked as Ex. P/26. The Police party have also given their own search and a panchanama Ex. P/27 is prepared. Thereafter, in presence of the independent witnesses the appellant was searched and from his left pocket of Jacket, total 36 pouches and from right pocket of Jacket total 19 pouches Ganja like substance was found and total 215/- of cash amount were recovered and a panchanama Ex.P/8 was prepared. The seizure memo Ex. P/29 was also prepared in presence of the independent witnesses. The seized pouches were opened and physically verified its’ content by smelling and rubbing 3 and found to be ganja and a panchanama Ex. P/36 to that effect was prepared. The weighment witness was called alongwith the weighment apparatus and the said weighment apparatus was physically identified and physical panchanama Ex. P/31 was prepared. On being weighed, the said contraband ganja was found to be 150.00gram. Out of total 150.00 gram Ganja, two samples of 50 grams each were taken out for its sample and the sample was sealed separately and the remaining Ganja was also sealed and weighment panchanama Ex. P/20 was also prepared. The seizure memo of the said contraband and the amount recovered from the appellant, was also prepared which is Ex. P/22. On the spot, the appellant was interrogated and then he disclosed that he has kept the more Ganja in his house then another notice under Section 50 of the NDPS Act vide Ex. P/34 was given to him and obtained the consent in the document Ex. P/35 from the appellant, the police party again gave their own search to the appellant but nothing could be found from the police party and the panchanama Ex. P/36 was prepared. On being searched of the house of the appellant, from the steel Almira two white polythene packets were seized in which Ganja like substance were there and the Talasi Panchnama Ex. P/37 was prepared. The said contraband was also physically verified by smelling and rubbing and taste and by burning its found to be ganja and a panchanama Ex. P/37 to that effect was prepared. On being weighed, the said contraband Ganja was found to be 2.5.00kg. two samples of 100 grams each were taken out for its sample and the sample was sealed separately and the remaining Ganja was also sealed and weighment panchanama Ex. P/39 was also prepared. The samples packets were marked as B1 and B2. The said 2.5.00kg contraband Ganja seized from the spot and seizure memo Ex. P/23 was prepared. After the arrest of the appellant the seized ganja, samples and the appellant were taken to the police station and his arrest was informed to his family members which is Ex. P/55. The return to the Police Station has also been endorsed in the Roznamcha which is Ex. P/56. 4 Dehati Nalshi Ex. P/57 was recorded on the spot and spot map Ex. P/32 and Ex. P/33 were also prepared. The FIR Ex. P/58 was registered for the offence under Section 20(b) of the NDPS act and wireless massage was sent to the SDOP OfÏce, Bilaspur with respect to the proceeding of search and seizure. The seized Ganja and samples packets were kept in safe custody in Malkhana through Malkhana Muharrir and obtained acknowledgment Ex. P/1. The inventory was sent to the OfÏce of SDOP, Pendra Road and the relevant document is Ex. P/18. The sample packets were sent for its chemical examination to the State FSL, Raipur through the Constable No. 34 from where FSL report Ex. P/65 was received. 3. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and after completion of usual investigation, charge-sheet was filed against the appellant and another co-accused, Munna Sahu @ Dhaniram Sahu who was absconding for the offence under Section 20(b) of the NDPS Act. 4. The learned trial Court has framed charge against the present appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act. The appellant abjured his guilt and pleaded innocence & false implication and claimed trial. 5. In order to establish the charge against the appellant the prosecution has examined as many as 9 witnesses. The statement under Section 313 of the Cr.P.C. has been recorded in which the appellant denied the material appeared against him in the case and he pleaded innocence and stated that he has been falsely implicated in the case. 6. After appreciation of the evidence available on record, the trial Court has convicted and sentenced the appellant as mentioned in earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant would submit that he is not challenging the conviction part of the impugned judgment, however, he is confined his arguments to the sentence part thereof only. He submits that 5 quantity of the seized contraband Ganja is 2.500 Kg whereas the appellant has been awarded total sentence of R.I. for 4 years and he has already remained in jail for about 1 year and for the offence under Section 20(b)(ii)(B) of the NDPS Act, the minimum sentence of 6 months is provided. Therefore, considering the quantity of contraband Ganja seized from the appellant and considering his age, his undergone period may be considered to be sufÏcient sentence for the alleged offence. 8. On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that considering the nature of offence and the fact that total 52 pouches of Ganja have been seized from the pocket of the appellant prima facie proves that he was engaged in selling the contraband Ganja. He also submits that such nature of offence does affect the society and having large impact therefore, the appellant is not entitled for any further leniency in view of the nature of the offence. 9. I have heard learned counsel for the parties and perused the record. 10. Although the learned counsel for the appellant is not challenging the conviction for the offence under Section 20(b)(ii)(B) of the NDPS Act, yet this Court considered the evidence of Lalit Sahu (PW09) who is the Investigating OfÏcer of the present case and has proved the search and seizure proceeding right from receiving the secrete information till the FSL report received by him. He proved the manner in which he conducted the entire search and seizure, prepared the various Panchanamas during the proceeding and the information given to the Senior OfÏcer and also the seizure of the Ganja and its sampling in presence of the appellant. In total contraband Ganja, 150.00gram, which was in 52 pouches, seized from the pocket of the Jacket of the appellant and 2.5.00kg Ganja was also seized from the house of the appellant. There is no explanation given by the appellant as to how he was found in possession of the said quantity of Ganja but for minor omission and contradiction in procedural aspect of the 6 search and seizure, nothing could be extracted from his evidence by the defence so that entire search and seizure proceeding can be doubted. 11. Dukulharam Khande (PW01) is the head-Constable who is Malkhana Muhhrrir, Pendra Road has proved the Roznamcha Exs. P/2, P/3, P/4 and Ex. P/5 by which he received the contraband Ganja from the Investigating OfÏcer for keeping it into the safe custody. He has not been cross-examined by the defence though opportunity was given to him. 12. Baishiakhuram Uraon (PW03) is also a Constable, posted at SDOP ofÏce, Pendra has proved the document Ex. P/16 by which he received the information from the Investigating OfÏcer about the offence. He also proved the documents Ex./ P/16 and Ex. P/17 and he also has not been cross-examined by the defence though the opportunity was given. 13. Aalok Kumar Soni (PW05) is the weighment witness though he has not supported the case of the prosecution but he weighed the seized Ganja and has admitted his signature in the document Ex. P/20 which is the weighment panchanama 14. Bhaiyalal Dahariya (PW06) and Rajju Rajak are the independent witnesses though they have fully not supported the prosecution’s case but both the independent witnesses have admitted their signature in the various memos prepared by the Investigating OfÏcer during the search and seizure. They have stated that the police has seized 2.5.00kg contraband Ganja from the appellant in his possession and seizure memo Ex. P/23 was prepared. The total 2.600kg of Ganja was seized from the appellant. 15. Narendra Patre (PW07) is a constable who has taken a copy of the secrete information Ex. P/16 to the SDOP OfÏce, Pendra and proved the same. He also proved the document Ex. P/18 and the document Ex. P/43 which are the documents of the search and seizure proceeding. He is the persons who has taken the samples packets to the State FSL, Raipur and he also proved the 7 acknowledgment Ex. P/44, P/45 and P/47. 16. From all these evidences it is found proved that the seizure of total 2.650 Kg Ganja from the possession of the appellant has been found proved by the learned trial Court and this Court is also of the opinion that the learned trial Court has rightly comes into conclusion that the appellant is found in possession of total 2.650 kg of Ganja on the date of incident which has been seized from him by the police OfÏcers, therefore, the conviction of the appellant under Section 20(b)(ii) (B) of the NDPS Act is found to be in accordance with law. 17. 17. So far as the sentence part of the appellant is concerned, the learned counsel for the appellant contended that presently the appellant is aged about 60 years , the offence is of the year 2014, only 2.650 Kg Ganja was seized from him and the appellant was remained in jail during trial from 26.01.2014 till 14.05.2014 and further from the date of judgment i.e. 16.09.2016 and thereby he has completed almost about 366 days and the Offence of Section 20(b)(ii)(B) of the NDPS Act provides minimum sentence of six months which may extent to 10 years . 18. In the matter of Mohammad Giasuddin Vs State of Andhra Pradesh, (1977) 3 SCC 287, their Lordships of the Supreme Court hvave held as under :- “9. 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 8 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.' 19. Therefore, considering Considering the quantity of Ganja, his age and his financial condition, and further considering that he has already remained in jail for about 1 year and also the view taken by the Hon'ble Supreme Court in the matter of Giasuddin (Supra), ends of justice would meet if the sentence of the appellant is reduced for the period already undergone by him. Therefore, while maintaining the conviction under Section 20(b)(ii)(B) of the NDPS Act his sentence is reduced for the period already undergone by him. The fine sentence imposed by the learned trial Court remains intact. However, on 16.09.2016, while granting the bail to the appellant by this Court, it has been observed that fine amount of Rs. 20,000/-has already been paid. 20. In the result, the appeal filed by the appellant is partly allowed. The appellant is reported to be on bail. His bail bonds are continued for a period of six 9 months as provided under Section 481 of BNSS, 2023. 21. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE amita Digitally signed by AMITA DUBEY Date: 2025.04.25 10:39:57 +0530