1 2025:CGHC:7384 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2000 of 2024 1 - Kishan Jhariya, S/o Buddhu Ram Jhariya, Aged About 27 Years R/o Durga Nagar, Near Borig, Ward No. 58, P.S.- New Rajendra Nagar, Raipur, District- Raipur (C.G.) ...Appellant versus 1 - State Of Chhattisgarh Through P.S.-New Rajendra Nagar, District-Raipur (C.G.) ... Respondent For Appellant : Shri Anway Tiwari, Advocate appearing through video conferencing. For the State : Ms. Prabha Sharma, Panel Lawyer. Hon’ble Shri Justice Arvind Kumar Verma Judgment on Board 10/02/2025 1. The instant appeal has been filed against the judgment of conviction and order of sentence dated 10/10/2024 passed by the learned Special Judge (NDPS, Act), Raipur, District- Raipur (C.G.) in Special Criminal Case (NDPS) No.224/2023, whereby the appellant has been convicted under Section 20 (b)(ii)(B) of NDPS Act and sentenced to undergo R.I. for 5 years and fine of Rs.50,000/- in default of payment of fine additional R.I. for one year. 2 2. The prosecution case in brief is that on 25-09-23 at about 14:10 pm one officer of police station New Rajendra Nagar Sub-Inspector Lakhesh Gangesh has received the information from the informant intending that when he has gone for investigation in connection with Crime No. 325/2023 along with police party that Kishan Jharia, Durga Nagar, New Rajendra Nagar Raipur smuggling Ganja near Durga Nagar, behind RDA Building, New Rajendra Nagar Raipur. After receiving the aforementioned information Sub Inspector Lakhesh Gangesh informed the station in charge about the above information through wireless and recorded the above information in the diary and has directed one Constable Pramod Chandel (P.W.-6) to called up two witnesses from the nearby village, who returned back with Sagar Nayak (P.W.-3)and Shani Tandan (P.W.-4), they have given their consent to become member of Police Party. Thereafter S.I. Lakesh Gangesh has prepared the Mukhbir Panchnama and sent the same to the concerned S.D.O.(P). 3. After preparing the Panchanama regarding the reasons of his belief regarding not being able to obtain search warrant was prepared and, constable Amit Yadav was sent off at 15.30 pm after giving him duty certificate to inform CSP Purani Basti through special post. He delivered the post at CSP Office and returned and wrote that due to CSP is busy in L/O duty, he delivered the post to the reader and obtain the acknowledgment, CSP after talking through mobile, directed raiding officer Lakhesh Gangesh to take action. Then, to verify the informer information, he along with Constable Pramod Chandel, Amit Yadav, Santosh Kanwar, and both independent witness Sagar Nayak and Shani Tandon left for the place mentioned by the informer. The police of 3 police station New Rajendra Nagar has seized Ganja bearing 5.100Kg Ganja from the accused person. After seizing above mentioned ganja, along with papers and driving license and after completing all the formalities they came to the police station and lodged FIR under Section 20(b)(ii)(B)of NDPS Act and arrested the accused. Thereafter charge-sheet has been filed before the Special Court, Raipur who framed the charge against the present appellant. The appellant has denied the guilt and stated that he has been falsely implicated in the present case. 4. So as to hold the accused/appellant guilty, prosecution has examined as many as 8 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges leveled against him and pleaded him innocence and false implication in the case. After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offence as mentioned above. Hence this appeal. 5. Learned counsel for the appellant submits that he is not pressing this appeal as far as it relates to the conviction part of the impugned judgment and would have a limited prayer with respect to the sentence part thereof only. He submits that the appellant is in jail since 26/09/2023 i.e. last one year and four months, he would be obliged if he is released immediately. He further submits that it would be in the interest of justice if the sentence imposed on appellant is reduced to the period already undergone by him. 4 6. Per contra, learned State counsel has opposes the submission of learned counsel for the appellant and submits that four previous cases are registered against the present appellant. To this, counsel for the appellant submits that all these previous cases appellant has acquitted from the charges. 7. I have heard learned counsel for the parties at length and perused the evidence. 8. As per the evidence of Lakhesh Gangesh (PW-9) on information given by the informer, for further action I had directed Constable No. 2345 Pramod Chandel (PW-6) to summon two independent witnesses. The departure of the said constable has been recorded in diary Sanha No. 26, dated 25/01/2023, which is Ex.P-34, copy of which is Ex.P-34C. The constable had summoned two independent witnesses Sagar Nayak and Shani Tandon and brought them to the police station. The return of the said constable has been recorded in diary Sanha No. 28, dated 25/01/2023, which is Ex.P 35, copy of which is Ex.P-35C. 9. After receiving informer information the investigating officer of the case summoned two independent witnesses for the proceedings under the NDPS Act, in compliance with which (PW-9) Lakhesh Gangesh summoned two independent witnesses Sagar Nayak (PW-3) and Shani Tandon (PW-4) and informed about the informant's information and in front of them prepared informer information panchnama Ex. P-12, written consent Ex.P-13, Consent Panchnama Ex.P-14, Notice under Section 50 NDPS Act Ex.P-15, Search Panchnama of self, staff and witness Ex.P-16, Search Panchnama of accused Ex.P-17, Recovery Panchnama Ex.P-18, Identification Panchnama Ex.P-19, Physical 5 verification of weighing scale Ex.P-20, weighing Panchnama Ex.P-21, Seizure sheet of property seized from the accused Ex.P-22, Sample Seal Panchnama Ex.P-23. Information regarding reasons for arrest of the accused Ex.P-24, Arrest sheet of accused Ex.P-25, spot map of the place of incident Ex.P-26 was shown and on being asked the witness accepted his signature. When the witness was shown the informer information panchnama Ex.P-05 and questioned, he accepted that his signature was on all its parts. 10. Perusal of the documents and evidence would show that the samples and the report of FSL shows that the seized article is Ganja. The quantity of contraband Ganja is 5.100 kg. Which has been seized from the exclusive possession of the appellant. It is also important fact that Section 42 of the NDPS Act, 1985 provides that search, seizure and arrest a person without warrant if any secret information received by the police officer or authorized person he shall be take down in writing and send forthwith to superior gazetted officer within 72 hours. In this case Investigating Officer has send the information to the Superintendent of Police, therefore, in the considered opinion of this Court that mandatory provision of Section 42 (2) of the NDPS Act, 1985 has been complied with. It is also pertinent to mention here that in compliance of Section 52 A of the NDPS Act, 1985 contraband inventory has been prepared in presence of Judicial Magistrate, therefore, Section 52 A of the NDPS Act has also been complied with. Sealed sample packet send to the FSL and the report is positive, therefore, learned trial Court has rightly convicted the accused/appellant under Section 20 (b)(ii)(B) of NDPS Act, 1985. 6 11. From over all discussion of the evidence and considering the entire facts & circumstances of the case, the trial Court has rightly convicted the appellant under Section 20(b) ii (B) of N.D.P.S. Act, 1985. 12. So far as the sentence part is concerned, the quantity of seized contraband is 5.100 Kg., however, the learned trial Court has sentenced him 5 years R.I. and to pay fine of Rs.50,000/- and in default of payment of fine to further undergo R.I. for one year. Therefore, looking to the quantity of contraband so seized and further considering the fact that the appellant having already remained in jail for about 1 year and 4 months and has thus undergone sentence of about 1 year and 4 months. The above sentence already suffered by the appellant is considered adequate for the offence under Section 20(b) ii (B) of N.D.P.S. Act, 1985. 13. Therefore, taking into consideration totality of circumstances, this Court is of the view that ends of justice would be best met, if the substantive sentence of imprisonment of the appellant is reduced to that already undergone by him and the fine amount is also reduced from Rs.50,000/- to Rs.30,000/-. 14. In the result, the appeal is allowed in part and conviction of the appellants under Section 20(b) ii (B) of N.D.P.S. Act, 1985 is maintained and his substantive sentence of imprisonment is reduced to that already undergone by him. However, remaining part of sentence, i.e. payment of fine of Rs. 50,000/- is reduced to Rs.30,000/-. Sd/- (Arvind Kumar Verma) JUDGE Kamde NARESH KUMAR KAMDE Digitally signed by NARESH KUMAR KAMDE Date: 2025.03.06 10:48:48 +0530