Saban Bastirai vs State of Chhattisgarh

Ravindra Kumar Agrawal, J

Though the matter was listed for consideration on application for suspension of sentence and grant of bail, however, with the consent of the parties, the matter is heard finally.

The present appeal has been filed against the impugned judgment of conviction and order of sentence dated 02.06.2025 passed by the Special Judge (Narcotics Drugs And Psychotropic Substances Act, 1985) (in short, NDPS Act) Raipur, in Special Criminal Case No.34/2021, whereby the appellant have been convicted for the offence under Section 20(b)(ii)(B) of the NDPS Act and sentenced to undergo RI for 3 years with fine of Rs.25,000/-, in default of payment of fine, additional RI for three months.

Brief facts of the case are that, on 22.01.2021 the Inspector of Police Raipur posted at GRP Police Station, Raipur, received a secret information that the appellant, having Ganja in his possession, is coming from Odisha to Raipur by Puri-Durg Express Train. The secret information was recorded in Rojnamcha. He called independent witnesses. The witnesses were informed about secret information. Necessary Panchnamas were prepared. The police party proceeded towards Railway Platform No.2-3 at Raipur Railway Station and found the appellant near over bridge at Railway Station. A notice under Section 50 of NDPS Act was served upon the appellant and he was informed about his right to be searched either by police party, Gazetted Officer or any Magistrate. He gave his consent to be search by the police party. The Police party also gave their own search to the accused on which nothing incriminating articles were found. On being searched the bag of the appellant, one packet of Ganja was seized which was wrapped in blue coloured polythene and cello tape. Recovery Panchnama was prepared. The contraband was physically verified by its smell, taste and rubbing and identification Panchnama was also prepared. Weighment witness was also called along with weighment machine and after physical verification Panchnama of weighing machine, the seized Ganja was weight and it was found 8 KG. Two samples of 50 gram each were separated and marked as Ex.A/-1 & A/2. Ganja and sample packets were sealed separately. Specimen seal Panchnama was also prepared. Spot map was prepared. The appellant was arrested. The appellant and seized Ganja were taken to police station where FIR was registered against the appellant and seized Ganja was kept in safe custody of Malkhana and acknowledgment was obtained. The inventory was prepared. The sample packets were sent to FSL for its chemical examination from where report was obtained and it was found that sample packets were contained with Ganja.

Statement of witnesses were recorded and after completion of investigation charge sheet was filed against the appellant before the trial court for the offence under Sections 20(b) of the NDPS Act. The trial court framed charge for the offence under Sections 20(b)(ii)(B) of the NDPS Act. The appellant denied the charge and claimed trial.

In order to prove the offence against the appellant, the prosecution has examined as many as 6 witnesses. Statement of appellant under Section 313 CrPC was also recorded in which he denied the circumstances appears against him, plead innocence and submitted that he has been falsely implicated in the offence.

After appreciation of oral as well as documentary evidence led by the prosecution, the Trial Court has convicted the appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act and sentenced as mentioned in the earlier part of this judgment. Hence this appeal.

Learned counsel for the appellant would submit that the prosecution has failed to prove its case beyond reasonable doubt. Although there are non compliance of mandatory provisions of the NDPS Act, yet considering the quantity of Ganja allegedly seized from the possession of appellant and his incarceration period, the appellant is not challenging his conviction, but challenging the reduction of sentence awarded to him for the period already undergone as total 8 KG of Ganja was seized from him and excessive sentence has been awarded as compared to quantity of Ganja seized. He would further submit that the appellant has 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 appellant remained in jail for about ten months and and thereby he has undergone sufficient sentence awarded. The appellant is a young boy of 27 years and engaged in responsibility of family life. Therefore, his undergone period may be considered to be sufficient sentence for the alleged offence.

On the other hand, the counsel for the State opposes the prayer made by the counsel for the appellant and would submit 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 nature of offence, the trial court has rightly convicted and sentence him which needs no interference.

I have heard the counsel for the parties and perused the materials available on record.

Although the appellant is not challenging his conviction, yet this court deem it appropriate to examine the evidence available on record. PW-6, Rajkumar, investigating Officer of the case, have stated that on 22.01.2021 he received a secret information that the appellant having Ganja in his possession in coming from Odisha to Raipur by Puri-Durg Express Train. The secret information was recorded in Rojnamcha. The information was forwarded to higher authorities and obtained necessary approval. He called two independent witnesses through Constable Moradhwaj. The witnesses were informed about secret information. They proceeded at Platform No.2-3 of Raipur Railway Station where he intercepted the appellant. A notice under Section 50 of NDPS Act was served upon the appellant and he was informed about his right to be searched either by police party, Gazetted Officer or any Magistrate to which he gave his consent to be search by the police party. On being searched the bag of the appellant, one packet of Ganja was seized which was wrapped in blue coloured polythene and cello tape. Recovery Panchnama was prepared. It was physically verified by its smell, taste and rubbing and identification Panchnama was also prepared. Weighment witness was also called along with weighment machine and after physical verification Panchnama of weighing machine, the seized Ganja was weight and it was found 8 KG. Two samples of 50 gram each were separated and marked. Ganja and sample packets were sealed separately. Specimen seal Panchnama was also prepared. The appellant was arrested. The appellant and seized Ganja were taken to police station where FIR was registered against the appellant and seized Ganja was kept in safe custody of Malkhana and acknowledgment was obtained. The inventory was prepared. The samples were sent to FSL for its chemical examination from where report was obtained and it was found that sample packets were contained with Ganja. In cross examination nothing could be extracted which makes his evidence doubtful or any infirmity or illegality in search and seizure proceeding. He remain firm in search and seizure proceeding and recovery of Ganja from the appellant.

PW-1 Bhojram Sahu is the independent witness. Though he turned hostile, however, he admits his signature over documents Ex.P/1 to P/14. PW-2, Mordhwaj Verma, is the person who called independent witnesses. PW-3, Purn Prakash Yadav, is the Constable who had taken the envelop (Dak) to the office of SRP, Raipur. PW-4, Suresh Kumar, is also a Constable who took sample packets to Raipur and obtained acknowledgment. He denied tampering of sample packets. In his cross examination also nothing could be extracted to disbelieve his evidence.

Thus, from the consideration of entire evidence, this court finds that there are sufficient evidence available on record to uphold conviction of the appellant for the alleged offence and the trial court has rightly convicted the appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act for having illegal possession of Ganja with him. Therefore, conviction of the appellant for the offence under Section 20(b)(ii)(B) of NDPS Act is hereby affirmed.

So far as sentence awarded to appellants are concerned, taking into consideration the quantity of Ganja i.e. 8 KG seized from the possession of appellant; the fact that appellant is young boy of aged about 27 years and must be saddled with innumerable family responsibilities; the offence of Section 20(b)(ii)(B) of NDPS Act does not provide any minimum sentence and also considering the ratio of law laid down by the Supreme Court in Mohammad Giasuddin Vs. State of Andhra Pradesh, 1977 (3) SCC 287, this court is of the opinion that ends of justice would meet if the sentence awarded to the appellant is reduced.

Accordingly, while maintaining conviction of the appellant for the offence under Section 20(b)(ii)(B) of the NDPS Act, the sentence awarded to him is reduced for the period already undergone by him. The fine sentence and default stipulation shall remain intact. The appellant is reported to be in jail since 02.06.2025. He be released forthwith, if not required in any other case, subject to compliance of fine sentence and default stipulation.

With the aforesaid alteration/modification, the appeal is partly allowed.

Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.