1 2025:CGHC:8751 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1797 of 2017 1 - Bhamochan Dubey S/o Gharau Dubey Aged About 32 Years R/o Purani Basti Ward No. 66, Near Sheetala Mandir, Raipur Presently R/o Chhatona, Chakarbhata Distt. Bilaspur Chhattisgarh, Chhattisgarh --- Appellant(s) versus 1 - State of Chhattisgarh Through Police Station Komakhan, District Mahasamund Chhattisgarh, Chhattisgarh --- Respondent(s) CRA No. 1630 of 2017 1 - Dinesh Tandan And Another S/o Shri Ramdayal Tandan, Aged About 34 Years R/o Village Bhoring, Police Station Tumgaon, District Mahasamund Chhattisgarh., Chhattisgarh 2 - Kaushal Singh Tandan S/o Shri Rameshwar Tandan, Aged About 28 Years R/o Village Bhoring, Police Station Tumgaon, District Mahasamund Chhattisgarh., District : Mahasamund, Chhattisgarh ---Appellant(s) Versus 2 1 - State of Chhattisgarh Through The Station House Officer, Police Station Komakhan, District Mahasamund Chhattisgarh., Chhattisgarh --- Respondent(s) For Appellant(s) : Mr. Bharat Lal Demra, Advocate. For Respondent/State : Mr. Atanu Ghosh, Dy. Govt. Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 18/02/2025 1. Both these appeals are arising out of the same crime number, same sessions trial and by a common judgment, therefore, these appeals are being heard and decided together. 2. Both these appeals are arising out of the impugned judgment of conviction and sentence dated 12.09.2017 passed by Learned Special Judge (N.D.P.S. Act) Mahasamund, District Mahasamund (C.G.), in Special (N.D.P.S.) Case No. H-2/2017, whereby the appellants have been convicted for the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced him for R.I. for 10 years with fine of Rs. 50,000/- in default of payment of fine further RI for 06 months to each of the appellants. 3. The brief facts of the case are that on 16.12.2016 the Police Inspector Komal Netam PW-8, of Police Station Komakhan was in vehicle checking duty at Temri Naka. While checking the vehicles at NH-353, at about 19:20 hours a car bearing No. CG-04HB-2250 came from Khariyar Road side which was being stopped. The inmates of the car have disclosed their names as Dinesh Tandon, Bhamlochan Dubey and Kaushal. On being checking of the vehicle, 18 packets of 01 kg each was found from the back dikki of the car which was kept in white plastic bag. On being physically 3 identified by smelling rubbing and testing, it was identified as Ganja. The notice under Section 91 of Cr.P.C. was given to the accused persons but they could not produced any valid documents of transporting the said Ganja. The weighment witness was called along with the electronic weighing machine and on being weight of the recovered Ganja it was found 01 kg in each packets. The panchnamas of all the proceedings were prepared, the polythene packets were opened and the Ganja was homogenized and after its homogenization, 4 samples of 50 gm each were separated. It was marked as Article A-1 and A-2, B-1 and B-2 and separately sealed. The dehati nalisi was recorded on the spot. The seized Ganja, its sample packets, vehicle and the accused persons were taken to police station where the FIR was registered but accused persons were arrested and seized Ganja was kept in safe custody of Malkhana of police station. The seized sample of Ganja were sent to FSL, Raipur for its chemical examination from where report Ex.P/40 was received and Ganja was found in the sample packets. 4. Statement of the witnesses under Section 161 of Cr.P.C. were recorded and after completion of usual investigation charge-sheet was filed before the learned trial Court for the offence under Section 20(b) of the NDPS Act, against the appellants. 5. The learned trial Court has framed charge against the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act and on 10.03.2017. Subsequently on 11.08.2017 the charge were amended and by adding a charge of Section 34 the amended charge under Section 20(b)(ii)(B) of the NDPS Act, read with Section 34 of the IPC have been framed by the learned trial Court. 6. In order to prove the charge against the appellants, the prosecution has examined as many as 9 witnesses. Statement of the accused/appellants 4 under Section 313 of the Cr.P.C. have also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they are innocent and have been falsely implicated in the offence. 7. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellants as mentioned in the earlier part of this judgment. Hence this appeal. 8. Learned counsel for the appellants would submit that the appellants are innocent and have been falsely implicated in the offence. Although there are ample chance of their acquittal yet considering their detention period, the appellants are not challenging their conviction but challenging the sentence awarded to them for the offence under Section 20(b)(ii)(B) of the NDPS Act being excessive. 9. The offence is of the year 2017, the appellants were the age group of 34 years , 32 years and 28 years and the appellants are presently in the age group of 42, 40, 36 years respectively and engaged in innumerable responsibilities of their family. The appellants have already remained in jail for about 04 years. The offence of Section 20(b)(ii)(B) of the NDPS Act does not provide any minimum sentence but may extend to 10 years and the maximum sentence has been awarded by the learned trial Court, therefore, considering the peculiar facts and circumstances of the case their undergone period may be considered to be the sufficient sentence for the alleged offence. 10. On the other hand, learned counsel for the State opposes and have submitted that the appellants were found in possession of 18 kg of Ganja, they were travelling together in a car and found in possession of the said Ganja for which there is no explanation from them. Considering the gravity 5 of the offence and impact of the offence in the society and public at large, the learned trial Court has awarded the sentence for RI for 10 years with fine of Rs. 50,000/- to each of the appellants and the sentence awarded to them under the facts and circumstances of the case are appropriate and the appellants are not entitled for any leniency. 11. I have heard learned counsel for the parties and perused the record of the trial Court. 12. Although the appellants are not challenging their conviction for the offence under Section 20(b)(ii)(B) for possession of 18 kg of Ganja in the car in which they were travelling. The investigating officer PW-8 Komal Netam, has duly proved the entire search and seizure proceedings including the talashi panchnama Ex.P/4 and Ex.P/5, recovery panchnama Ex.P/6, identification panchnama Ex.P/7, weighment panchnama Ex.P/9 and Ex.P/10, homogenization panchnama Ex.P/11 and sample panchnama Ex.P/12, seizure memo Ex.P/13, seal panchnama Ex.P/14. Dehati Nalsi Ex.P/36, FIR Ex.P/37. Malkhana acknowledgment Ex.P/23 FSL report Ex.P/40 and inventory proceedings Ex.P/21, Ex.P/31 and Ex.P/32 but for the procedural minor contradictions nothing could be extracted from the evidence of this witness so that he can be disbelieved. The evidence of PW-8 investigating officer has been supported by other witnesses who were members of the search party. 13. PW-1 Virendra Kumar Netam, is the constable who was the member of search party who duly supported the entire search and seizure proceedings and despite his detailed cross-examination, he was not deviated from the evidence that on the date of incident 18 kg Ganja was seized from the possession of the appellants. 14. PW-2 Sukhdev Kumar Yadav, is the independent witness though he has not supported the prosecution case and turned hostile and he admitted his 6 signature over the various panchnamas and memos. 15. PW-4, Kartik Ram Dhruw, is the Head Constable who was the Malkhana incharge who also duly proved that seized articles were kept in safe custody of Malkhana and made necessary endorsement in the Malkhana register. 16. PW-6, A. K. Bhoi is the Tahsildar, who conducted the inventory and sampling proceedings and prepared the inventory Ex.P/32. He also proved the photographs Ex.P/33. 17. PW-7, Kanti Kumar Yadav is the Patwari who prepared the spot map Ex.P/34. 18. PW-9 Aghantu Markam, is the Constable who has taken the sample packets to FSL, Raipur along with the memo of Superintendent of Police and obtained acknowledgment Ex.P/38. From the overall evidence the guilt of the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act, and is found proved, in which this Court is also in agreement with the finding recorded by the learned trial Court and I uphold the conviction of the appellants for the alleged offences. 19. So far as the sentence is concerned, the submissions made by learned counsel for the appellants that presently the appellants are the same age group of 42 years, 40 years and 36 years and are having innumerable responsibilities of their family. The offence of Section 20(b)(ii)(B) does not provide any minimum sentence which may extend to RI for 10 years, the appellants are already remained in jail for about 04 years and thus considering the quantity of Ganja and the manner in which they have been found in possession of the 18 kg Ganja, their sentence may be reduced for the period already undergone by them, is appealing. 20. Now, so far as the sentence part is concerned in the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 Hon’ble Supreme Court has observed that If you are to punish a man 7 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 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.” 21. Considering the submissions made by learned counsel for the appellants and also in view of the law laid down by Hon’ble Supreme Court in the matter of Mohammad Giasuddin (Supra), this Court is of the opinion that ends of justice would meet if the sentence awarded to the appellant is to be reduced. 22. Consequently, while maintaining the conviction of the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act, they are sentence for RI for 3½ years with fine of Rs. 25,000/- to each of the appellants. In default of 8 payment of fine, they shall undergo further RI for 05 months. The sentence awarded by the learned trial Court is reduced to the extent indicated hereinabove. 23. With this aforesaid modification/alteration of their sentence both these appeals are partly allowed. 24. The appellants are reported to be on bail. Their bail bond shall continue for the further period of 06 months as provided under Section 481 of BNSS, 2023. 25. The record of the trial Court along with copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.05.05 20:21:20 +0530