Ramratan Tomar vs State of Chhattisgarh

Ravindra Kumar Agrawal, J

Present Criminal Appeal has been filed by the appellant against the impugned judgment of conviction and sentence dated 28-03-2025 passed by the learned Special Judge (N.D.P.S. Act) Raipur, District Raipur (C.G.) in Special Criminal (N.D.P.S. Act) Case No. 69/2024 whereby the appellant has been convicted for the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘N.D.P.S. Act’) and sentenced R.I. for 5 years with fine of Rs.25,000/- in default of payment of fine, additional R.I. for 6 months.

The brief facts of the case are that, on 19-01-2024 Assistant Sub-Inspector Chandrahas Verma (PW-8) received a secret information that a person are is standing near Vidhan Sabha Road, Mandir Hasod having a bag in which Ganja is kept. On being such secret information received two independent witnesses, namely, Mahesh Kumar Dhritlahare and Samar Dhruw were called through constable Gajendra Verma. These independent witnesses were informed about the secret information and secret information panchnama was prepared. The copy of the secret information panchnama was forwarded to CSP Mana Camp, Raipur through the constable. The police party proceeded towards place of incident where the appellant/accused found standing there having a bag with him. On being interrogated he disclosed his name and thereafter, notice under Section 50 of N.D.P.S. Act was given to him and informed that he has right to be searched by any Gazetted Officer or Magistrate or by the Police Officer/Investigating Officer himself. The appellant gave his consent that he is ready to be searched by the Investigating Officer. The police party have also gave their own search to the accused, but nothing incriminating articles were found in their search. On being searched of the bag of the appellant two packets were found which were wrapped with brown colour tape. The contents were physically identified by smelling, rubbing and burning and it was found to be Ganja. The recovery and seizure panchnamas were prepared on the spot. The weighment witness Hussain Ali was also called there and after physical verification of the weighment apparatus the seized Ganja was weighed and it was found 10.380 Kg. The weighment panchnama was also prepared. The notice under Section 91 of the Cr.P.C. was also given to the appellant, but he failed to produce any document with respect to possession of the alleged Ganja. The packets containing the Ganja were marked as ‘A’ and ‘B’ and refilled in the said black colour bag. The appellant was arrested and his arrest was informed to his family members. Dehati Nalisi was recorded on the spot and the police party came back to the police station along with the accused/appellant and seized articles where the FIR has been registered and the seized articles were kept in safe custody of Malkhana. The inventory as required under Section 52A of N.D.P.S. Act was prepared by the Judicial Magistrate First Class, Raipur who has drawn the inventory proceeding and samples were drawn. The sample packets were sent for its chemical examination to FSL Raipur from where the FSL report was obtained in with Ganja was found in the sent articles. After completion of the investigation charge sheet was filed before the learned trial Court for the offence under Section 20(b) of N.D.P.S. Act against the appellant.

The learned trial Court has framed charge for the offence under Section 20(b)(ii)(B) of N.D.P.S. Act. The appellant denied the charge and claimed trial.

In order to prove charge against the appellant the prosecution has examined as many as 8 witnesses. Statement of the appellant under Section 313 of the Cr.P.C. has also been recorded in which he denied the circumstances appearing against him, pleaded innocence and submitted that he has been falsely implicated in the offence.

After appreciation of the oral as well as documentary evidence led by the prosecution the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence, this appeal.

Learned counsel for the appellant would submit that the appellant is not challenging his conviction, but challenging, however, he is praying for reduction of the sentence awarded to him. She would further submit that the appellant was 38 years of age at the time of incident and having various responsibilities of his family. Section 20(b)(ii)(B) of N.D.P.S. Act does not provide any minimum sentence, the appellant has already remained in jail from 19-01-2024 to 25-07-2024 and presently he is jail since 28-03-2025, thereby he has served more than one year of his sentence and looking to the quantity of seized contraband, alleged offence and the entire facts and circumstances of the case, the sentence awarded to the appellant may be reduced to the period already undergone by him.

On the other hand, learned counsel for the State opposes and has submitted that considering the quantity of Ganja and impact of the offence over the society and public at large and the fact that the learned trial Court has already shown leniency while sentencing him, the appellant is not entitled for any further leniency.

I have heard learned counsel for the parties and perused the record of the trial Court.

Although, the appellant is not challenging his conviction, however this Court deems it appropriate to examine the evidence available on record with respect to conviction of the appellant.

PW-8 Chandrahas Verma, ASI, Police Station Mandir Hasod, Raipur has stated in his statement that on 19-01-2024 he received secret information that a person is standing near Ring Road 3 turning at Mandi Hasod having black colour bag with him in which Ganja is kept. He reduced it in writing which is Ex.-P/30. He called two independent witnesses Mahesh Kumar Dhritlahare and Samar Dhruw through Constable Gajendra Verma and his departure was recorded in rojnamcha Ex.-P/31, his arrival to the police station has also been recorded in rojnamcha Ex.-P/32. The notice given to the independent witnesses is Ex.-P/14. In presence of the witnesses he prepared secret information panchnama and necessity to search without warrant panchanama which are Ex.-P/3 and P/2 respectively. Copy of secret information panchnama and necessity to search without warrant panchnama was forwarded to CSP, Mana Camp, Raipur which is Ex.-P/33 and its acknowledgment is Ex.-P/1. He along with the police party proceeded towards the place of incident after recording their departure in rojnamcha Ex.-P/34. On the spot he gave a notice under Section 50 of N.D.P.S. Act to the appellant which is Ex.-P/15 and right to be searched has been informed that he may be searched by them or Magistrate or any Gazetted Officer. The appellant gave his consent that he is ready to be searched by the Investigating Officer, which is Ex.-P/16. The police party have also gave their search and necessary talashi panchnama Ex.-P/17, P/18 and P/19 were prepared. On being searched of the bag of the appellant two packets were found which were wrapped with polythene and talashi panchnama Ex.-P/20 was prepared. The recovery panchnama Ex.-P/21 was also prepared and on being physical examination the contents of the said packets by rubbing, smelling and burning it was found to be Ganja and identification panchnama Ex.-P/22 was prepared. He called the weighment witness through Constable and his weigment apparatus has been verified panchnama of which is Ex.-P/23. After weighment of the recovered contraband it was found to be 10.380 kg. and weighment panchnama Ex.-P/7 was prepared. Notice under Section 91 of the Cr.P.C. Ex.-P/24 was given to the appellant/accused, but he did not produce any document with respect to the possession of the said contraband. The Ganja was seized vide seizure memo Ex.-P/25. The appellant was arrested. The spot map Ex.-P/27 was prepared and Dehati Nalisi Ex.-P/36 was registered. He along with accused and seized articles came back to the police station where their arrival was also recorded in rojnamcha Ex.-P/37. The FIR Ex.-P/38 was registered at the police station and the seized articles were kept in safe custody of the Malkhana and its acknowledgment Ex.-P/8 was obtained. Details of the proceeding was forwarded to the senior official through memo Ex.-P/4. He made his requisition to the Judicial Magistrate First Class, Raipur for inventory and sampling proceeding which is Ex.-P/38, Ex.-P/39 and Ex.-P/40 on which the Judicial Magistrate First Class, Raipur issued the inventory order Ex.-P/41. The photographs of inventory proceedings are Article A1 to Article A9. The samples drawn during the inventory were sent for its FSL examination along with memo of the Superintendent of Police, Raipur and its acknowledgment was obtained which is Ex.-P/12. After the chemical examination the FSL report Ex.-P/42 and Ex.-P/43 have been received in which Ganja contents were found. After completion of the investigation charge sheet was filed.

After detailed cross-examination of this witness by the accused nothing could be elicited to disbelieve his evidence. He being the investigating officer proved the entire process of search and seizure in accordance with law as well as in the manner provided under N.D.P.S. Act and relevant rules.

PW-1, Hemlal Diwan, Reader posted at the office of CSP, Mana Camp, Raipur has proved the acknowledgment Ex.-P/4 and has stated that he received copy of secret information panchnama and necessity to search without warrant panchanama.

PW-2, Khileshwar Sahu, Constable posted at Police Station Mandir Hasod, Raipur has taken the secret information panchnama and search without warrant panchnama to the office of CSP, Mana Camp, Raipur.

PW-3, Hussain Ali is weignment witness, though he has turned hostile and not supported the prosecution's case, however he admitted his signature over documents Ex.-P/6 and Ex.-P/7.

PW-4, Rajendra Sahu, Malkhana Moharrir posted at Police Station Mandir Hasoud has proved the acknowledgment Ex.-P/8 and has stated that he kept the seized articles in safe custody of the police station. He also participated in inventory proceeding and drawing of sample packets. Nothing could be extracted from his cross-examination also so that tampering of the seized articles could be presumed. He remained firm in saying that the articles as well as sample packets were intact and were not tampered.

PW-5, Lukeshwar Verma is another Constable who has taken the sample packets for its chemical examination.

PW-6, Mahesh Dhritlahare and PW-7 Samar Dhruw are independent witnesses, though they have not supported the prosecution’s case, however, they admitted their signature over documents Ex.-P/2 to P/27.

On close scrutiny of the evidence makes it clear that the prosecution has been able to prove the seizure of alleged contraband from the possession of the appellant, but for minor omissions and contradictions the evidence of the witnesses are reliable which has rightly been considered by the learned trial Court for holding conviction of the appellant in the alleged offence. After appreciating the evidence available on record as well as the law laid down by the Hon’ble Supreme Court, the learned trial Court has held the appellant guilty for offence under Section 20(b)(ii)(B) of N.D.P.S. Act in which this Court is in agreement with the finding recorded by the learned trial Court, therefore, conviction of the appellant for the offence under Section 20(b)(ii)(B) of N.D.P.S. Act is affirmed.

So far as the sentence awarded to the appellant is concerned, the submission made by learned counsel for the appellant that the appellant was aged about 38 years at the time of incident, he is having various responsibilities of his family, Section 20(b)(ii)(B) of N.D.P.S. Act does not provide any minimum sentence, the appellant has already undergone more than 1 year of sentence and therefore, his sentence may be reduced to the period already undergone by him, is appealing.

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 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 Nicodotis, 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'.”

Considering the submission made by learned counsel for the appellant, further considering the nature of evidence as well as the sentence provided under Section 20(b)(ii)(B) of N.D.P.S. Act, this Court deems it appropriated to reduce the jail sentence awarded to the appellant.

Consequently, while maintaining conviction of the appellant for the offence under Section 20(b)(ii)(B) of N.D.P.S. Act, his jail sentence is reduced to R.I. for 1 ½ years from R.I. for 5 years. Fine sentence and sentence in default of payment of fine awarded by the trial Court are remained intact.

With the aforesaid modification and alteration, the present appeal is partly allowed.

Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is 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.

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.