Nandlal Pradhan Padhan v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.614 of 2016 Nandlal Pradhan (Padhan), S/o. Devarchand, Aged 45 years, R/o. Village Kanvar, Thana Barpali, Distt. Bargarh (Orissa) ----Appellant

Versus

State of Chhattisgarh, Through District Magistrate Bilaspur, District Bilaspur (CG) --- Respondent For the Appellant : Shri Sunil Sahu, Advocate.

For the Respondent : Shri Arvind Dubey, Panel Lawyer Hon'ble Shri Justice Chandra Bhushan Bajpai Judgment On Board 13.7.2016.

Challenge in this appeal is to the judgment of conviction and order of sentence dated 04.4.2016 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'The NDPS Act'), Bilapsur, (CG) in Special Case No.348/2015 whereby and whereunder the learned Special Judge after holding the appellant guilty for illicit possession of 04 kg of contraband article ganja, convicted him under Section 20(b)(ii)(B) of the NDPS Act and sentenced him to undergo rigorous imprisonment for five years and to pay fine of Rs.15,000/-, in default of payment of fine, to further undergo RI for four months. 2.

Conviction is impugned on the ground that without there being an iota of evidence, the trial Court has convicted and

sentenced the appellant as aforementioned, thereby committed illegality.

3.

As per the case of the prosecution, on 03.10.2015 at about 3.15 Incharge GRP Outpost, Pendra Road LN Pradhan (PW-6) received information that a suspect, who sitting in Bilapur Railway Station Platform No.01 towards Bilaspur end is keeping ganja in an airbag for the illegal purpose of sale. The investigating officer recorded this information in the rojnamchasanha and thereafter prepared panchnama. Panch witnesses were requisitioned and thereafter he also prepared search without warrant panchnama and also informed the superior officials regarding this fact. Thereafter he reached to the spot, gave notice under Section 50 of the Act (Ex-P/16) to the suspect-accused/appellant regarding his search and informed him about his legal rights that he may be searched before the Executive Magistrate or Gazetted Officer if he wish so.

The accused appellant vide consent memo Ex-P/17 gave consent to be searched by investigating officer (PW-6) itself. Thereafter the investigating officer searched the accused appellant who was in exclusive possession of the air bag. In the said air bag one packet of some objectionable substance was noticed which was primarily confirmed as ganja during physical examination (Ex-P/20). Thereafter the said ganja was weighed, weight of the ganja was 4 kg. The IO also prepared two samples 50-50 gram each (A/1 and A/2) of the said ganja. Thereafter he seized and sealed the entire ganja, samples and the said air bag.

He also wrote the unnumbered First Information Report (Ex-P/29) which was registered at Police Station. The accused appellant was duly arrested. Samples of the Ganja was kept in malkhana under safe custody. Thereafter he informed the entire proceedings to his superior officials. The samples were sent for chemical analysis. The FSL confirmed the presence of ganja vide Ex-P/35. After due investigation, charge sheet has been filed before the Special Judge, Bilaspur.

4.

The appellant was charged for the offence under Section 20(b)(ii)(B) of the Act. During the trial, in order to prove the guilt of the appellant, the prosecution has examined as many as 8 witnesses in all. The appellant was examined under Section 313 of the Code, wherein he denied the circumstances appearing against him, pleaded innocence and false implication in crime in question.

5.

After affording opportunity of hearing to the parties, the learned Special Judge convicted and sentenced the appellant as aforementioned.

6.

I have heard counsel for the parties and perused the record of the court below.

7.

Learned counsel for the appellant vehemently argued that the appellant is the first offender, arrested along with 4 kg ganja. He is in jail since 03.10.2015 for which the trial Court gave him the benefit of set of and he will not commit any similar offence in future. He is resident of district Bargarh, Orissa and by profession

he is a labour, illiterate and hardly manages his bread, he may be given opportunity. As instructed, he is not assailing this criminal appeal regarding conviction part. Only the above facts may be considered for the sentence as the sentence awarded to him is on higher side, hence, he may be sentenced accordingly. 8.

Learned counsel for the respondent/State duly supported the impugned judgment of conviction and sentence and would submits that the judgment of conviction and sentence are well founded. There may not be any scope of interference, hence, instant criminal appeal may be dismissed.

9.

In order to appreciate the arguments advanced on behalf of the parties, I have perused the evidence adduced by the prosecution during the trial.

10.

As the appellant is not assailing this criminal appeal on its merits, even otherwise on perusal of the statement of IO (PW-6) and other witnesses including the chemical analysis report and other facts, this Court is of the considered view that the trial Court had rightly convicted the appellant, hence conviction awarded to the appellant does not require any interference. Consequently, judgment of conviction against the appellant passed by the trial Court is hereby affirmed.

11.

So far as the quantum of sentence are concerned, looking to the quantity of contraband article seized, the fine amount awarded cannot be said as on higher side and it appears to be just and proper. Hence the fine sentence awarded by the trial

Court also does not require any interference and the same is affirmed.

12.

So far as the substantive jail sentences are concerned, the appellant has been sentenced RI for five years. Looking to the fact that the appellant is the first offender, illiterate labour, resident of Distt. Balgarh (Orissa), not having any criminal antecedent and also as prayed he may be given opportunity to remain in the society without committing any offence likewise, I am inclined to modify the substantive jail sentence as the same is excessive. In the considered view of this Court, substantive jail sentence of RI for one year would serve the purpose in the matter. 13.

Consequently, the instant appeal is partly allowed. Conviction of the appellant under Section 20(b)(ii)(B) of the Act is hereby affirmed. Fine sentence awarded by the trial Court to the appellant is also affirmed. So far as the substantive jail sentence awarded to the accused/appellant by the trial Court is concerned, the same is reduced and modified and instead of RI for five years, the accused/appellant is sentenced to undergo for RI for one year. The authorities are directed to serve the substantive jail sentence modified and reduced by this Court, also directed to serve the fine sentence affirmed by Court and in default he may be served with default sentence.

14.

The appeal partly allowed.

Sd/- (Chandra Bhushan Bajpai) JUDGE Bini