1 2025:CGHC:10177 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 79 of 2016 1 - Siyaram S/o Kedarnath Rajoriya Aged About 33 Years R/o Village Khorai, P.S. Khorai, Civil And Rev. Distt. Sagar, Madhya Pradesh., Madhya Pradesh 2 - Rajju S/o Jayram Dixit Aged About 75 Years R/o Village Tevra, Thana Khorai, Civil And Rev. Distt. Sagar, Madhya Pradesh., District : Sagar, Madhya Pradesh (since dead) --- Appellants versus State Of Chhattisgarh Through The Thana Patewa, Mahasamund, Distt. Mahasamund, Chhattisgarh., Chhattisgarh --- Respondent (Cause title taken from Case Information System) For Appellant : Mr. Rajendra Patel, Advocate on behalf of Mr. Sunil Sahu, Advocate For Respondent/State : Mr. Jitendra Shrivastava, Govt. Advocate CRA No. 93 of 2016 1 - Nilesh Tiwari S/o Hariprasad Tiwari Aged About 33 Years R/o Village Dhanger Wrongly Mentioned In Judgement As Chager Tahsil Khurai, Distt. Sagar, Madhya Pradesh., Madhya Pradesh VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.14 17:42:25 +0530 2 2 - Jairam Rawat Incompletely Mentioned In Judgement As Jairam S/o Puranlal Rawat Aged About 30 Years R/o Village Tewri, P.S. Khurai, Distt. Sagar, Madhya Pradesh., District : Sagar, Madhya Pradesh ---Appellants Versus State Of Chhattisgarh Through Police Station Patewa, Distt. Mahasamund, Chhattisgarh., Chhattisgarh ... Respondent (Cause title taken from Case Information System) For Appellant : Mr. Roshan Sharma, Advocate For Respondent/State : Mr. Jitendra Shrivastava, Govt. Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board 28/02/2025 1. Learned counsel for the appellants would submit that in CRA No. 79 of 2016, the appellant No.2, Rajju son of Jairam Dixit has died on 11.08.2018. A copy of his death certificate has also been placed, which is being taken on record. Since, the appellant No.2 Rajju son of Jairam Dixit has died and no application has been filed on behalf of his near relative for permission to continue the appeal, the present appeal against the appellant No.2 Rajju son of Jairam Dixit stands abated. 2. Both these criminal appeals are arising out of the same crime number and the common judgment, therefore, both these appeals are being heard and decided together. 3 3. Both these appeals are arising out of the impugned judgment and conviction and sentence dated 08.01.2016, passed by learned Special Judge (Narcotic Drugs and Psychotropic Substances Act, 1985), Mahasamund, in Special Criminal Case No. H-18/2015, whereby the appellants have 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 R.I. for 05 years with fine of Rs. 50,000/-, in default of payment of fine, additional R.I. for 06 months. 4. The brief facts of the case are that, on 24.05.2015, the Police Sub- Inspector Kapishwar Pushpakar/PW-7 received a secrete information that one Maruti Suzuki 800 Car bearing registration No. MP 15 A 2670 is going to Raipur from Pithora, in which Ganja is being transported. The secrete information was recorded in Rojnamcha Sanha No. 1003 and independent witnesses Purushottam/PW-1 and Nagesh Giri/PW-2 were called through the notice (exhibit P-27 and P-28). The secrete information panchnama (exhibit P-18) was prepared. The necessity to search without warrant panchnama was also prepared and the secrete information panchnama and search without warrant panchnama was forwarded to SDOP Pithora, through constable Santosh Sinha. Thereafter the police party proceeded towards the place of incident by government vehicle along with the necessary stationery and other articles required for search and seizure proceeding. When they reached on the spot, after a few moment, they intercepted the car, which was coming from Pithora side. On being stopped, it was found 4 persons sitting in the car, who disclosed their names as Neelesh Tiwari (Driver), 4 Siyaram Rajoriya, Jairam Rawat and Rajju Dixit. Notice under Section 50 of NDPS Act was given to them, which is exhibit P-1 to P-4. The accused persons have given consent to be searched by the police officer. The police party had also gave their own search and nothing incriminating were seized on their search. When the car of the accused persons was searched, 02 gray colour and 01 black colour bag were found in the dickey of the car, which contains Ganja like substance. The contents of the bags were taken out and it was identified by smelling, testing and rubbing and found to be Ganja. The physical identification panchnama (exhibit P-8) was prepared. The weighment witnesses were also called there and after the verification of weighment machine, the seized Ganja was weighed and it was found 18.700 kgs. The seized ganja was homogenized and 03 samples of 100 grams each were separated and separately sealed. The homogenization panchnama (exhibit P-10), weighment panchnama (exhibit P-11) were prepared. The Ganja, sample packets and car were seized vide seizure memo (exhibit P-12). 04 mobile phones have also been seized from the accused persons. The seized ganja, sample packets and car, mobile phones along with the accused persons were taken to police station and FIR (exhibit P-30) for the offence under Section 20(b) of NDPS Act has been registered against the accuses persons. The seized articles were kept in safe custody of Maalkhana and given it to Maalkhana Moharrir. The details of the search proceedings were sent to the SDOP Saraipali and obtained acknowledgment. Accused persons were arrested and their arrest was informed to their family members. Inventory was prepared under Section 52-A of the NDPS Act by the 5 Nayab Tahsildar Neeta Thakur/PW-8 and the seized ganja was physically verified and samples were drawn. The samples were sent for its chemical examination to State FSL Raipur, from where report (exhibit P-37) was received and ganja was found in the contents of the sample packets. Inventory (exhibit P-39 and P-40) was prepared by the Nayab Tahsildar and the photographs were also taken, which is exhibit P-41. 5. Statement of the witnesses were recorded and after completion of usual investigation, charge sheet was filed against the accused persons before the learned trial Court for the offence under Section 20(b) of NDPS Act. The learned trial Court has framed charge against the accused persons for the offence under Section 20(b)(ii)(B) of NDPS Act. The accused persons denied the charge and claimed trial. 6. In order to prove the offence against the accused persons, the prosecution has examined as many as 09 witnesses. Statement of the accused persons under Section 313 of CRPC have also been recorded, in which they denied the circumstances appears against them, pleaded innocence and has submitted that they 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 the accused persons and sentenced them as mentioned in the earlier part of the judgment. Hence, these appeals. 6 8. Learned counsel for the respective appellants would submit that the prosecution has failed to prove its case beyond reasonable doubt. Although there are non-compliance of mandatory provisions of NDPS Act, yet considering the quantity of ganja, allegedly seized from the joint possession of the accused persons and their incarceration period, the appellants are not challenging their conviction, but challenging the sentence awarded to them and prayed for reduction of sentence for the period already undergone by them. The total quantity of ganja was seized is 18.700 kgs and excessive sentence has been awarded to them. They would further submit that the appellants have been convicted for the offence under Section 20(b)(ii)(B) of NDPS Act and there is no minimum sentence provided for the said offence. The appellants remained in jail for more than 2 ½ years and thereby they have already undergone the sufficient sentence awarded to them. Presently, the appellants are in the age group of 41 years, they are having innumerable responsibilities of their families. They had already underwent prolonged drawn prosecution as the offence is of the year 2015. Therefore, their undergone period may be considered to be sufficient sentence for the alleged offence. 9. On the other hand, learned counsel for the State opposes the prayer made by the learned counsel for the appellants and has submitted that all the mandatory provisions of NDPS Act have duly been complied with. Considering the quantity of ganja as well as other evidences available on record and also the impact upon the society at large by the 7 nature of offence, the trial Court has rightly convicted and sentenced the appellants, which needs no interference. 10. I have heard learned counsel for the parties and perused the record of the trial Court. 11. PW-1, Purushottam Gajendra and PW-2, Nagesh Giri are the independent witnesses. Though they have not supported the entire case of the prosecution, but have admitted their signatures in the seizure memo and various panchnamas that they have signed those documents. 12. PW-3, Dilip Kumar is the constable, who stated in his evidence that he had taken the sample packets of ganja to the State FSL Raipur on 25.05.2015 and it was deposited on 26.05.2015 and obtained acknowledgment which is exhibit P-16. Nothing in his cross examination, which makes his evidence doubtful or suggests any tempering with the samples. 13. PW-4, Diwaker B.C. is the head constable has stated in his evidence that he was posted at SDOP Office, Pithora as his reader and he received the secrete information and search without warrant panchnama and its acknowledgment is exhibit P-20. 14. PW-5, Basant Panigrahi is the Maalkhana Moharrir has proved that he received the seized ganja, sample packets, car and other articles to 8 kept it in safe custody of Maalkhana, which he entered into the Maalkhana Register, which is exhibit P-21. 15. PW-6, Santosh Sinha has taken the secrete information and search without warrant panchnama to the office of SDOP, Pithora. 16. PW-7, Kapishwar Pushpakar is the investigating officer. He duly proved the entire search and seizure procedure and sampling on the spot. He also proved the compliance of the mandatory provisions of NDPS Act. In his entire cross-examination, the defence could not extract any material, so that his evidence could be disbelieved or the entire search and seizure proceedings doubtful. 17. Further, PW-8, Neera Thakur, is the Nayab Tahsildar, who prepared inventory as required under Section 52-A of the NDPS Act and drawn 02 samples of 100 grams each from the seized ganja. 18. Although, the appellants are not challenging their conviction, yet after perusal of entire evidence available on record, the investigating officer/PW-7 and other witnesses have proved the entire search and seizure proceeding, inventory and sampling and also perusal of the evidence, this Court finds that there are sufficient evidence available on record to uphold the conviction of the appellants for the alleged offence and the trial Court has rightly convicted them for the offence under Section 20(b)(ii)(B) of NDPS Act for having illegal possession of 18.700 9 kgs ganja with them. Therefore, the conviction of the appellants for the offence under Section 20(b)(ii)(B) of NDPS Act is hereby affirmed. 19. So far as the sentence awarded to the appellants are concerned, taking into consideration the quantity of ganja i.e. 18.700 kgs seized from the joint possession of 04 accused persons; the fact that the appellants are presently in the age group of 41 years and they must saddled with innumerable responsibility; he offence of Section 20(b)(ii)(B) of NDPS Act does not provided any minimum sentence, and also considering the ratio of law laid down by the Hon’ble Supreme Court, in the matter of “Mohammad Giasuddin v. State of Andhra Pradesh’ 1977 (3) SCC 287, this Court is of the opinion that the ends of justice would meet if the sentence awarded to the appellants is reduced. 20. Accordingly, while maintaining the conviction of the appellants for the offence under Section 20(b)(ii)(B) of NDPS Act, the sentence awarded to them is reduced to R.I. for 02 years and 03 months with fine of Rs. 25,000/- to each of the appellants, in default of payment of fine, they shall undergo further imprisonment for 02 months. 21. The appellant Siyaram (in CRA No. 79 of 2016) is remained in jail from 24.05.2015 to 07.11.2017 and the appellants Neelesh Tiwari and Jairam Rawat (in CRA No. 93 of 2016) are remained in jail from 24.05.2015 to 15.12.2017. The appellants had already undergone the aforesaid sentence awarded by this Court and therefore, they are not required to surrender before the trial Court. Presently, they are on bail. 10 Their bail bond shall continue for further period of 06 months as provided under Section 481 of BNSS, 2023. 22. With the aforesaid modification/alteration in the sentence, both the appeals are partly allowed. 23. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved