1 2025:CGHC:49944 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1645 of 2025 1 - Mahendra Kunjam S/o Hiralal Kujam Aged About 21 Years R/o Village Jaisakara, Thana - Charama, District - Kanker Chhattisgarh 2 - Noman Kumar Turre @ Lomu S/o Hariram Turre Aged About 20 Years R/o Village Dallirajhara, Ward No. 12 Demside, At Present Address Golmunda, Thana - Charama, District - Kanker Chhattisgarh ... Appellant(s) versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Kondagaon, District - Kondagaon Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Vikash Pradhan, Advocate. For Respondent(s) : Mr. Sanjeev Kumar Pandey, Dy. Advocate General. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 07/10/2025 1. The matter has been listed for consideration on I.A. No. 01/2025, however, with the consent of the parties, the matter has been heard finally. 2. The present appeal has been filed by the appellants under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the impugned judgment of conviction and sentence dated 25.11.2024 passed by Learned Special Judge (N.D.P.S. Act) Kondagaon, District Kondagaon (C.G.), in Special Criminal Case (NDPS Act, 1985) No. 14/2020, whereby the appellants have been convicted for the offence under Section 20(b)(ii)(B) of ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.10.10 17:59:27 +0530 2 the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced him for R.I. for 02 years with fine of Rs. 40,000/- 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 PW-11, Kailash Kesharwani is the Sub Inspector of Police, who was posted at Police Station, Kondagaon, received a secret information on 08.05.2020 that two persons in unnumbered jupiter scooty coming from Jagdalpur side towards Kondagaon having Ganja in their possession kept in a plastic bag. The secret information was recorded in writing and in the independent witnesses Jagendra Manikpuri and Yogesh Sahu were called through the constable Lokesh Sori. The independent witnesses were informed about the secret information and obtained their consent to be the witness. The secret information panchnama were forwarded to SDOP, Kondagaon. The search without warrant panchnama also prepared and thereafter the police party proceeded towards the place of incident along with the independent witnesses. They reached near Narayanpur tri-junction, Kondagaon. After sometime they found the appellants coming from Jagdalpur side in unnumbered Jupiter scooty having green colour bag with them. They apprehended by the police and then they disclosed their names. The person who was driving the scooty has disclosed his name as Mahendra Kunjam and the pillion ridor is Noman Kumar Turre @ Lomu. The secret information and right to search by the Magistrate, Gazetted Officer or the Police have been informed to them and then they gave their consent to be searched by PW-11 Kailash Kesharwani. The police party have also gave their own search to the appellants but nothing incriminating have been recovered from them. On being search of the accused person, from the accused Mahendra Kunjan Rs. 500/- cash and from the appellant Noman Kumar Turre @ Lomu two mobile phones have been recovered. On being search of the plastic bags, it was found contained with six packets wrapped 3 with cello tape. The contents of the packets were physically identified by its rubbing, smelling and burning and it was identified to be of Ganja. The notice under Section 67 of the NDPS Act were also given to the appellants to produce the valid documents with respect to the possession of the said Ganja but they failed to produce any document. The weighment witness Manish Baghel were also called through constable Ram Krishna Som and after weighing the Ganja it was found total 12.440 kg, the packets were marked as A-1 to A-6. The Ganja were homogenized on the spot and two samples packets of 50 gm each were separated which were marked as X-1 and X-2 and it was separately sealed. The remaining Ganja was also seized in a gunny bag and it was also sealed and marked as B-1. The empty bag, and cello tape were also re-filled in a bag and sealed which were marked as B-2. The Ganja were seized and seizure memo were prepared various panchnamas have been prepared on the spot. The Dehati Nalishi have also recorded on the spot and then the police party came back to Police Station along with the appellants and seized articles. The articles were kept in safe custody of Malkhana and on the basis of Dehati Nalishi the FIR has been registered. The spot map have also been prepared, the inventory was also conducted by the Executive Magistrate, Kondagaon and photography was also done. The sample packets X-1 and X-2 were sent to chemical examination to FSL, Raipur along with the memo of Superintendent of Police, Kondagaon and obtained the FSL report in which the Ganja contents were found. After completion of investigation charge-sheet was filed against the present appellants for the offence under Section 20(b) of the NDPS Act. 4. The learned trial Court has framed charge against the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act. The appellants denied the charge and claimed trial. 5. In order to prove the charge against the appellants, the prosecution has examined as many as 11 witnesses. Statement of the appellants under 4 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 have been falsely implicated in the offence and they are innocent. 6. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced them as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellants would submit that the appellants are not challenging the conviction part, however, looking to the quantity of Ganja allegedly seized from them they are challenging the sentence awarded to the appellants. He would further submits that the appellant have been convicted for the offence under Section 20(b)(ii)(B) of the NDPS Act, which does not provide any minimum sentence but may extend to 10 years. The appellants are young boy of 20 to 21 years of their age on the date of incident. They have already undergone for more then one year of their sentence. Therefore, looking to the quantity of Ganja and their age and other surrounding circumstances, their sentence may be reduced for the period already undergone by them. 8. On the other hand, learned counsel for the State opposes and have submitted that the appellants were found in possession of about 6 kg Ganja to each of the appellants (total 12.440 kg) and they were in process of trafficking the same. Considering the gravity of the offence and impact of the offence in the society and public at large, the learned trial Court has awarded the appropriate sentence to each of the appellants which is just and proper and under the facts and circumstances of the case, the appellants are not entitled for any leniency. 9. I have heard learned counsel for the parties and perused the record of the trial Court. 10. Although the appellants are not challenging their conviction for the offence under Section 20(b)(ii)(B) of NDPS Act, for possession of 12.440 kg of Ganja. 5 However, this Court deem it appropriate to examine the evidence available on record. 11. PW-11, Kailash Kesharwani who is the Sub Inspector of Police and Investigating Officer have stated in his evidence that on 08.05.2020, he received a secret information that two persons are coming from Jagdalpur side in unnumbered Jupiter scooty having Ganja in their possession. The said secret information was recorded in Rojnamcha Sanha Ex.P/25 and thereafter he sent constable Lokesh Sori to call two independent witnesses. The duty certificate issued to the constable is Ex.P/8. He came with the two independent witnesses Jagendra Manikpuri and Yogesh Sahu. The departure of the constable was recorded in Rojnamcha Ex.P/26 and his arrival is also recorded in Rojnamcha Ex.P/27. The notice issued to the independent witnesses is Ex.P/28 and Ex.P/29 and they gave their consent in the said notices. The secret information panchnama was recorded in writing which is Ex.P/31, and it has also been recorded in Rojnamcha Ex.P/32. The request letter to appear in the search proceeding have been issued to SDOP, which has also been reduced in Rojnamcha Ex.P/33 and sent it to SDOP through the constable. When the SDOP was not found in his office he telephonically informed the constable Lokesh Sori to give it to the Reader to SDOP in the Office and this proceeding has also been recorded in Rojnamcha Ex.P/35. The duty certificate issued to Lokesh Sori is Ex.P/9. The necessity to search without warrant panchnama Ex.P/36 was also prepared and it was recorded in Rojnamcha Ex.P/37. The acknowledgment obtained from the Reader of SDOP is Ex.P/1. They proceeded towards the place of incident and reached at Narayanpur tri-junction main road NH-30, Kondagaon and their departure has also been recorded in Rojnamcha Ex.P/39. After sometime two persons came from Jagdalpur side in unnumbered Jupiter scooty having green colour bag between the driver and pillion rider, the driver disclosed his name as Mahendra Kujam and pillion rider disclosed his name as Noman Kumar Turre 6 @ Lomu. They informed them about their right to be searched that they are having right to be searched by any Magistrate, Gazetted Officer or by himself. The appellants gave their consent to be searched by him and relevant panchnamas was prepared. The Talashi panchnama Ex.P/42, was also prepared and their consent were obtained. The police party have also gave their own search but nothing incriminating were recovered and panchnama Ex.P/3 was prepared. The Talashi panchnama of independent witnesses was also prepared Ex.P/45. On being search of the appellant Mahendra Kunjam Rs. 500/- cash and from Naman Kumar Turre @ Lomu two mobile phones have been seized and Talashi panchnama Ex.P/46 was prepared. The seizure panchnama Ex.P/47 was also prepared. On being search of greeen colour bag, six packets was found which was wrapped by brown colour cello tape and Talashi panchnama Ex.P/48 was prepared. The contents of the bags were identified by its rubbing, smelling and burning and it was identified to be of Ganja. The notice under Section 67 of NDPS Act were also given to the appellants but they could not produce any document of its possession. The relevant notices Ex.P/49 and Ex.P/50 were also drawn. All the packets were marked as Article A-1 to A-6 and panchnama Ex.P/51 was prepared. The weighment witnesses Manish Baghel were called and notice Ex.P/52 was also given to him. His weighment machine were physically verified and certificate Ex.P/53 and Ex.P/54 was issued. On being weight of each packets, the packet of A-1 was found to 2.065 kg, A-2 was found to be 2.045 kg, A-3 was found to be 2.070 kg, A-4 was found to be of 2.090 kg, A-5 was found to be 2.080kg and the packet of A-6 was found to be 2.090 kg and the total quantity of Ganja was found to be of 12.440 kg the weighment panchnama Ex.P/55 was prepared in presence of the witnesses. The contents of the packets were homogenized on the spot and two sample packets of 50gm each were separated and marked as X-1 and X-2. The remaining Ganja were re-filled in a plastic bag in which the net weight of 7 Ganja was 12.156 kg and including the bag its weight was 12.254kg. The empty bag and cello tape were also re-filled in a carry bag. The homogenization and sampling panchnama Ex.P/56 was prepared. After homogenization the seized articles were again weighed and it was found to be 12.548 kg. The sample packets were separately sealed and specimen seal panchnama Ex.P/59 was prepared and seizure memo Ex.P/60 was also prepared. The appellants were arrested and their arrest memo Ex.P/62 and Ex.P/63 were prepared. Another Talashi panchnama Ex.P/64 was also prepared. The information about arrest of the appellants were given to their family members and panchnama Ex.P/65 was prepared. Dehati Nalasi Ex.P/11 was also recorded on the spot. The police party along with the appellants and the seized articles came back to the police station and their arrival were recorded in Ex.P/66. Based on the Dehati Nalasi the FIR Ex.P/12 was registered under Section 20 (b) of the NDPS Act the seized articles were kept in safe custody of Malkhana and obtained acknowledgment Ex.P/67. The detail of proceeding were sent to SDOP, Kondagaon through the constable and its acknowledgment is Ex.P/2. The spot map Ex.P/14 was prepared the sample packets of Ganja were also sent to FSL, Raipur for its chemical examination and obtained FSL report Ex.P/68. As per the FSL report Ganja contents were found in sample packets. In the detailed cross-examination of this witnesses by the appellants, nothing could be extracted to disbelieve the evidence of this witness about search and seizure proceedings conducted by him and he remained firm in all the procedure which he drawn during the search and seizure proceedings as per the mandatory requirement under the NDPS Act. 12. PW-1, Umashanker Netam, is the Reader posted at SDOP, Office Kondagaon, he received the secret information panchnama and issued acknowledgment Ex.P/1. He also received another envelope and issued acknowledgment Ex.P/2. 8 13. PW-2, Ramkrishna Som, is the Head constable posted at Police Station, Kondagaon and member of the search party. He also proved the entire process of search and seizure proceedings which has been drawn in his presence. Nothing could be extracted from this witness also in his cross- examination to disbelieve his evidence. Merely he being the police person, his evidence cannot be disbelieve particularly when he duly proved the entire search and seizure proceedings. 14. PW-3, R. Farsuram Vaidh, is another constable who had taken the sample packets X-1 and X-2 to the FSL, Raipur he denied any tempering with the sample packets and remained firm in saying that the sample packets were deposited in the FSL, Raipur in its original condition. 15. PW-4, R. Lokesh Sori, is another constable posted at Police Station and also the part of the search and seizure proceedings. He also duly proved the entire search and seizure proceeding which has been conducted in his presence. 16. PW-5, R. Rakesh Giri, is also a constable had taken the sample packets and FSL report from FSL, Raipur and deposited it at Police Station, Kondagaon. 17. PW-6, Pitambar Kathar is Assistant Sub Inspector posted at Police Station, Kondagaon, registered the FIR Ex.P/12 on the basis of Dehati Nalasi Ex.P/11. He also informed the trial Court about the proceeding vide memo Ex.P/13. He also part of the inventory proceeding and proved the same. He proved the document Ex.P/16, Ex.P/17 and Ex.P/18 which are the relevant documents about the inventory proceeding. He too have remained firm in his cross-examination in the inventory proceedings. 18. PW-7, Ramesh Chandra Dewangan, is the Patwari who prepared the spot map Ex.P/19, Ex.P/20 and Ex.P/21. 19. PW-8, Uisayani K. Mankar, is the Tehsildar posted at Kondagaon who conducted the inventory proceeding and drawn the panchnama Ex.P/23. He also proved the order-sheet for drawing the inventory proceeding which is 9 Ex.P/22, certificate issued to the weighment witness Ex.P/24 and the photographs taken during the inventory proceeding Article A-1 to A-4. This witness has also remained firm in his cross-examination with respect to drawing of the inventory proceeding as required under Section 52-A of the NDPS Act. 20. PW-9, R. Ajay Baghel, is the Head constable also the member of the search party who also proved the entire search and seizure proceedings which has been done in his presence. 21. PW-10, R. Jayaluram Markam, is also Head constable posted at Police Station, Kondagaon and witness of homogenization of the panchnama and photography during inventory proceeding. 22. From the overall evidence of the witnesses as well as documents produced by the prosecution, the guilt of the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act, is found proved by the learned trial Court after the meticulous examination of the evidence available on record. This Court is also in agreement with the finding recorded by the learned trial Court and in view to uphold their conviction for the alleged offence. 23. So far as the sentence awarded to the appellants is concerned, the submissions made by learned counsel for the appellants that the appellants were aged about 20 – 21 years at the time of incident and young boys. The offence of Section 20(b)(ii)(B) of the NDPS Act, does not provide any minimum sentence which may extend to R.I. for 10 years. The appellants are already remained in jail for more than one year. The total period of sentence awarded to the appellants is of two years and looking to the quantity of Ganja and the manner and nature of offence, their sentence may be reduced for the period already undergone by them is appealing. 24. 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 retributively, you must injure him. If you are to 10 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.” 25. Considering the submissions made by learned counsel for the parties 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. 26. Consequently, while maintaining the conviction of the appellants for the offence under Section 20(b)(ii)(B) of the NDPS Act, their sentence is reduced for the period already undergone by them from R.I. for 02 years. The fine sentence and default stipulations are remain intact. 27. With the aforesaid modification/alteration of their sentence, the appeal is 11 partly allowed. 28. The appellants are reported to be in jail. They be released forthwith if not required in any other case, subject to complying the fine sentence and default stipulation. 29. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 30. 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