Doman Mian vs Government of India

Hemant Kumar Srivastava, J.—Heard learned counsel appearing for the appellant as well as learned counsel appearing for Union of India and perused the record. This criminal appeal has been preferred against the judgment of conviction dated 11.05.2001 and order of sentence dated 15.05.2001 passed by 1st Additional Sessions Judge, Bhabua in C.B.N. Case No. 04 of 1998/Trial No. 88 of 2000 by which and whereunder he convicted the sole appellant for the offence punishable u/s 20(b)(i) of N.D.P.S. Act, 1985 and sentenced him to undergo rigorous imprisonment for four years and also imposed a fine of rupees fifty thousand and in default of payment of fine, he was further sentenced to undergo rigorous imprisonment for one year.

In nut shell, the prosecution case, is that P.W. 1, Hari Ram, Inspector, Central Bureau of Narcotic was posted at Central Bureau of Narcotic, Gajipur on 10.06.1998 and on the same day, he got an information that appellant had kept 150 kg. ganja. Having got the aforesaid information, he recorded the aforesaid confidential information and sent the information to his superintendent and his superintendent directed him to proceed for raid after constituting raiding party and, thereafter, he arranged a raiding party and keeping in mind the safety point he also requested the police officials of different police stations to accompany the raiding party. He proceeded to make raid on 11.06.1998 and reached at Mohania at 12:30 P.M. The independent witnesses, namely, Badri Choudhary and Hanuman Tiwari also joined the raiding party at Mohania and after that he along with raiding party and independent witnesses surrounded the house of the appellant and called the appellant who came out of the house. He gave option to the appellant which was available to him u/s 50 of the N.D.P.S. Act and after completing all the formalities he searched the house of appellant and recovered seven bundles ganja from the northern room of house of the appellant. The appellant confessed before P.W. 1 and other members of raiding party that recovered articles were ganja. Furthermore, Rs. 1,02020/- kept in a small bag was also recovered from the above stated room and the appellant confessed that the aforesaid cash was sale proceed of ganja. After weighing the recovered ganja it was found to be 130 kg and 400 gm. The P.W. 1 took two samples of 50 gm. each ganja from the recovered ganja and the said samples were sealed separately whereas remaining recovered ganja were kept in the bag and the said bag was also sealed. Similarly, the recovered cash was kept in the seized recovered bag and the bag was also sealed. He arrested the appellant from the place of occurrence and handed over the copy of seizure list to the appellant and after completing almost all the formalities he submitted recovery report and other relevant documents in the court of Special Judge-cum-Sessions Judge, Sasaram and after that C.B.N. Case No. 04 of 1998 was registered.

P.W. 4, Gauri Shankar took charge of enquiry. The samples were sent to Government Opium Alkaloid Works, Gajipur for chemical examination. P.W. 4, after completing the enquiry filed complaint on 30.07.1998 and after that cognizance of the offence was taken and later on, the appellant was put on trial and accordingly, he was charged for the offence punishable u/s 20 (b) (i) read with Section 8(c) of N.D.P.S. Act, 1985. The appellant denied the charge and claimed to be tried.

In course of trial, altogether, four witnesses were examined on behalf of the prosecution. Besides it, several documentary evidences including chemical examination report were also exhibited. The statement of appellant was recorded u/s 313 of the Cr. P.C. in which he denied the fact of recovery of ganja from his house though he admitted that cash and wrist watch were recovered from his house as well as his possession. Two defence witnesses were also examined on behalf of the appellant. D.W. 1 was examined to show this fact that D.W. 1 had agreed to purchase a parti land from mother of the appellant and had given rupees one lac five thousand as consideration money for the aforesaid land and agreement for sale was executed. This witness proved Exhibit-A, the agreement for sale. Similarly, D.W. 2 proved the agreement for sale dated 05.06.1998 as Exhibit-B.

From perusal of statement of the appellant recorded u/s 313 of the Cr. P.C. as well as trends of cross examination of prosecution witnesses, I find that defence of the appellant is denial of recovery of ganja from his house and so far as recovery of cash is concerned, it was stand of appellant that recovered cash was sale proceed of the land.

The learned trial court having analyzed the materials available on the record and having relied upon the testimonies of prosecution witnesses as well as Exhibit-14, the report of chemical examiner, convicted and sentenced the appellant in the manner as stated above.

Learned counsel appearing for the appellant challenged the impugned judgment of conviction and order of sentence arguing that finding of the learned trial court is erroneous and liable to be set aside. Continuing his submission, he submitted that P.W. 1 did not comply with the mandatory provisions of N.D.P.S. Act, 1985 and, therefore, the trial of the appellant was vitiated but learned trial court in spite of violation of mandatory provisions of N.D.P.S. Act, 1985 convicted and sentenced the appellant in the manner as stated above. Learned counsel appearing for the appellant further submitted that seizure list witnesses were not examined and no independent witness came forward to support the case of the prosecution and almost all the prosecution witnesses are official witnesses and, therefore, no reliance can safely be placed upon the testimonies of prosecution witnesses. Lastly, he submitted that appellant was remanded by learned Sessions Judge, Sasaram on 12.06.1998 and he remained in jail custody for near about three years and lastly, he was released on bail by this Court on 28.08.2001. He also submitted that appellant was convicted and sentenced by the learned trial court under the old provision of N.D.P.S. Act, 1985 and at the time of alleged occurrence the maximum punishment u/s 20(b)(i) of N.D.P.S. Act, 1985 was up to five years with maximum fine of rupees fifty thousand. He further submitted that learned trial court convicted and sentenced the appellant to undergo rigorous imprisonment for four years and imposed rupees fifty thousand as fine but appellant has already remained in jail custody for more than three years and there was nothing before the trial court to come on this conclusion that the appellant was professional or habitual offender and furthermore, the alleged recovery of ganja had been made from joint house and not from conscious possession of the appellant and, therefore, a lenient view should be taken in sentencing the appellant and the period already undergone by him will meet the ends of justice.

On the other hand, learned counsel appearing for Union of India supported the impugned judgment of conviction and order of sentence arguing that prosecution succeeded to prove the fact of recovery of ganja from the house of the appellant and it was found at the time of recovery that appellant was engaged in illegally selling ganja and the recovery of cash corroborates the aforesaid fact and, therefore, the learned trial court rightly convicted and sentenced the appellant. He further submitted that there was nothing before the trial court to come on the conclusion that P.W. 1 violated the mandatory provisions of N.D.P.S. Act, 1985 and as a matter of fact P.W. 1 after completing the entire formalities prescribed in N.D.P.S. Act, 1985 sent the samples of seized ganja for chemical examination and the report of chemical examiner corroborates this fact that the seized article was ganja and, therefore, there is no scope for this Court to interfere with the findings of learned trial court.

Having heard the rival contentions of parties, I went through the record. On perusal of record, I find that in course of trial, altogether, four witnesses were examined on behalf of the prosecution.

P.W. 1 supported the fact of recovery of ganja from the house of the appellant. This witness sealed the seized ganja after taking samples from the seized ganja and also did all the formalities. In course of trial, he proved almost all the relevant documents and there is nothing in the deposition of this witness to disbelieve his testimony.

P.W. 2 and P.W. 3 were members of raiding party and both the aforesaid witnesses stated that ganja as well as cash was recovered from the house of the appellant. Furthermore, both the aforesaid witnesses stated that samples of seized articles were taken and seizure list for recovery of ganja and cash was prepared in their presence. Furthermore, both the aforesaid witnesses stated that samples of recovered ganja were sent for chemical examination.

Similarly, P.W. 4 is an enquiry officer and this witness stated that he received chemical examination report from Gazipur laboratory and after completing the enquiry, he filed complaint petition in the court of learned Sessions Judge-cum-Special Judge, Sasaram.

On perusal of oral evidences of the prosecution witnesses as well as documentary evidences available on the record, I find that prosecution successfully proved its case and there is no ground to disbelieve the prosecution case. So far as non compliance of mandatory provisions of N.D.P.S. Act, 1985 is concerned, learned counsel appearing for the appellant could not succeed to point out the violation of any specific provision of N.D.P.S. Act, 1985. Moreover, I find that none of the provisions of N.D.P.S. Act, 1985 were violated either by P.W. 1 or by P.W. 4.

So far as quantum of sentence is concerned, admittedly, under the old Section of 20 (b) (i) of N.D.P.S. Act the maximum punishment was rigorous imprisonment for the period of five years and fine which may extend to fifty thousand rupees. In the instant case, the appellant has been convicted to undergo rigorous imprisonment for four years and rupees fifty thousand has been imposed upon him as fine. Admittedly, the appellant was remanded by the learned Sessions Judge on 12.06.1998 and in course of trial, he remained in jail custody and after filing of this appeal, he was released by this court on bail on 28.08.2001 and, therefore, it is apparent that appellant has already remained in jail custody for more than three years. Furthermore, in course of trial of the appellant, no material was brought on behalf of the prosecution to show that prior to the alleged occurrence the appellant was involved in similar type of activities and even after conviction as well as filing of this appeal nothing has been brought on the record to show this fact that after being released on bail by this Court the appellant indulged himself in similar type of activities. Admittedly, the ganja has been recovered from the house and not from the conscious possession of the appellant. Moreover, at the time of occurrence, appellant was aged about 25 years and it appears that he was junior member of his family. Therefore, in the aforesaid circumstance, in my view, the learned counsel for the appellant rightly submitted that the period already undergone by the appellant shall meet the ends of justice, but so far as imposition of fine is concerned, I think it proper to reduce the aforesaid amount and accordingly, I am of the opinion that ends of justice will meet, if the appellant is sentenced to period already undergone by him and the fine amount is reduced up to rupees twenty five thousand. Accordingly, he is sentenced to period already undergone by him in course of trial as well as during pendency of this appeal and Rs. 25,000/- is imposed upon him as fine and in default of payment of fine, he shall undergo rigorous imprisonment for nine months. On the basis of aforesaid discussions, this criminal appeal is dismissed with modification in order of sentence to the extent as stated above.