Chattisgarh High Court
Harkesh Gupta vs State Of Chhattisgarh on 28 March, 2025
1
2025:CGHC:15156
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 26 of 2016
1 - Harkesh Gupta S/o Shri Harvansh Gupta @ Hanuman Gupta Aged About
50 Years R/o Village Ghobahar, Police Station Pendra, Bilaspur, Civil And Rev.
Distt. Bilaspur, Chhattisgarh.
... appellant
versus
1 - State Of Chhattisgarh Through The Station House Officer, Police Station
Pendra, Bilaspur, Civil And Rev. Distt. Bilaspur, Chhattisgarh.
... Respondent
For Appellant : Ms. Aakansha Mishra, Advocate holding brief of
Mr. Dhriendra Prasad Mishra, Advocate
For Res./State : Mr. Shailendra Sharma, Panel Lawyer
Hon’ble Shri Justice Ravindra Kumar Agrawal
Judgment on Board
28.03.2025
1. This appeal arises of the judgment of conviction and order of sentence
dated 02.01.2016 passed by the Special Judge (the Narcotic Drugs and
Psychotropic Substance Act, 1985), Bilaspur (C.G.) in Special Criminal Case
No.96/2014 convicting the appellant under Section 20(b)(ii) (B) of the Narcotic
2
Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS Act‘) and
sentencing him to undergo R.I. for 4 years with fine Rs.20,000/- in default of
payment of fine, to further undergo R.I. for 6 months.
2. The case of the prosecution, in brief, is this, on 25.01.2014, the sub-
Inspector of Police, Lalit Sahu (PW09), received a secret information that the
appellant is engaged in selling of illegal contraband article Ganja. The secret
information was reduced in writing in Roznamchasana and called two
independent witnesses through the constable No. 34. When the independent
witnesses came to the Police Station, they informed about the secrete
information and the copy of secrete information was forwarded to the Sub
Divisional Officer (Police), Bilaspur through the document Ex. P/49-C. The
panchanama of necessity to search without warrant (Ex. P/16) of the appellant
has also been prepared and the same has also been forwarded to the SDOP
Office Bilaspur. After completion of primary requirement the police party
proceeded to the place of incident and their departure has also been recorded in
the Roznamchasana (Ex. P/51). On the spot, he informed about the secrete
information to the appellant and served a notice under Sections 42(2) & 50 of the
NDPS Act to the appellant and his right to be searched has been informed that
he may be searched by any Magistrate / Gazetted Officer or the Police Officer,
which is Ex. P/25. The appellant has given his consent for his search by the said
police Officer and his consent is marked as Ex. P/26. The Police party have also
given their own search and a panchanama Ex. P/27 is prepared. Thereafter, in
presence of the independent witnesses the appellant was searched and from his
left pocket of Jacket, total 36 pouches and from right pocket of Jacket total 19
pouches Ganja like substance was found and total 215/- of cash amount were
recovered and a panchanama Ex.P/8 was prepared. The seizure memo Ex.
P/29 was also prepared in presence of the independent witnesses. The seized
pouches were opened and physically verified its’ content by smelling and rubbing
3
and found to be ganja and a panchanama Ex. P/36 to that effect was prepared.
The weighment witness was called alongwith the weighment apparatus and the
said weighment apparatus was physically identified and physical panchanama
Ex. P/31 was prepared. On being weighed, the said contraband ganja was found
to be 150.00gram. Out of total 150.00 gram Ganja, two samples of 50 grams
each were taken out for its sample and the sample was sealed separately and
the remaining Ganja was also sealed and weighment panchanama Ex. P/20 was
also prepared. The seizure memo of the said contraband and the amount
recovered from the appellant, was also prepared which is Ex. P/22. On the spot,
the appellant was interrogated and then he disclosed that he has kept the more
Ganja in his house then another notice under Section 50 of the NDPS Act vide
Ex. P/34 was given to him and obtained the consent in the document Ex. P/35
from the appellant, the police party again gave their own search to the appellant
but nothing could be found from the police party and the panchanama Ex. P/36
was prepared. On being searched of the house of the appellant, from the steel
Almira two white polythene packets were seized in which Ganja like substance
were there and the Talasi Panchnama Ex. P/37 was prepared. The said
contraband was also physically verified by smelling and rubbing and taste and by
burning its found to be ganja and a panchanama Ex. P/37 to that effect was
prepared. On being weighed, the said contraband Ganja was found to be
2.5.00kg. two samples of 100 grams each were taken out for its sample and the
sample was sealed separately and the remaining Ganja was also sealed and
weighment panchanama Ex. P/39 was also prepared. The samples packets
were marked as B1 and B2. The said 2.5.00kg contraband Ganja seized from the
spot and seizure memo Ex. P/23 was prepared. After the arrest of the appellant
the seized ganja, samples and the appellant were taken to the police station and
his arrest was informed to his family members which is Ex. P/55. The return to
the Police Station has also been endorsed in the Roznamcha which is Ex. P/56.
4
Dehati Nalshi Ex. P/57 was recorded on the spot and spot map Ex. P/32 and Ex.
P/33 were also prepared. The FIR Ex. P/58 was registered for the offence under
Section 20(b) of the NDPS act and wireless massage was sent to the SDOP
Office, Bilaspur with respect to the proceeding of search and seizure. The seized
Ganja and samples packets were kept in safe custody in Malkhana through
Malkhana Muharrir and obtained acknowledgment Ex. P/1. The inventory was
sent to the Office of SDOP, Pendra Road and the relevant document is Ex. P/18.
The sample packets were sent for its chemical examination to the State FSL,
Raipur through the Constable No. 34 from where FSL report Ex. P/65 was
received.
3. Statement of the witnesses under Section 161 of Cr.P.C. have been
recorded and after completion of usual investigation, charge-sheet was filed
against the appellant and another co-accused, Munna Sahu @ Dhaniram Sahu
who was absconding for the offence under Section 20(b) of the NDPS Act.
4. The learned trial Court has framed charge against the present appellant
for the offence under Section 20(b)(ii)(B) of the NDPS Act. The appellant abjured
his guilt and pleaded innocence & false implication and claimed trial.
5. In order to establish the charge against the appellant the prosecution has
examined as many as 9 witnesses. The statement under Section 313 of the
Cr.P.C. has been recorded in which the appellant denied the material appeared
against him in the case and he pleaded innocence and stated that he has been
falsely implicated in the case.
6. After appreciation of the evidence available on record, the trial Court has
convicted and sentenced the appellant as mentioned in earlier part of this
judgment. Hence this appeal.
7. Learned counsel for the appellant would submit that he is not
challenging the conviction part of the impugned judgment, however, he is
confined his arguments to the sentence part thereof only. He submits that
5
quantity of the seized contraband Ganja is 2.500 Kg whereas the appellant has
been awarded total sentence of R.I. for 4 years and he has already remained in
jail for about 1 year and for the offence under Section 20(b)(ii)(B) of the NDPS
Act, the minimum sentence of 6 months is provided. Therefore, considering the
quantity of contraband Ganja seized from the appellant and considering his age,
his undergone period may be considered to be sufficient sentence for the alleged
offence.
8. On the other hand, learned counsel for the State opposes the
submissions made by learned counsel for the appellant and submits that
considering the nature of offence and the fact that total 52 pouches of Ganja have
been seized from the pocket of the appellant prima facie proves that he was
engaged in selling the contraband Ganja. He also submits that such nature of
offence does affect the society and having large impact therefore, the appellant
is not entitled for any further leniency in view of the nature of the offence.
9. I have heard learned counsel for the parties and perused the record.
10. Although the learned counsel for the appellant is not challenging the
conviction for the offence under Section 20(b)(ii)(B) of the NDPS Act, yet this
Court considered the evidence of Lalit Sahu (PW09) who is the Investigating
Officer of the present case and has proved the search and seizure proceeding
right from receiving the secrete information till the FSL report received by him. He
proved the manner in which he conducted the entire search and seizure,
prepared the various Panchanamas during the proceeding and the information
given to the Senior Officer and also the seizure of the Ganja and its sampling in
presence of the appellant. In total contraband Ganja, 150.00gram, which was in
52 pouches, seized from the pocket of the Jacket of the appellant and 2.5.00kg
Ganja was also seized from the house of the appellant. There is no explanation
given by the appellant as to how he was found in possession of the said quantity
of Ganja but for minor omission and contradiction in procedural aspect of the
6
search and seizure, nothing could be extracted from his evidence by the defence
so that entire search and seizure proceeding can be doubted.
11. Dukulharam Khande (PW01) is the head-Constable who is Malkhana
Muhhrrir, Pendra Road has proved the Roznamcha Exs. P/2, P/3, P/4 and Ex.
P/5 by which he received the contraband Ganja from the Investigating Officer for
keeping it into the safe custody. He has not been cross-examined by the defence
though opportunity was given to him.
12. Baishiakhuram Uraon (PW03) is also a Constable, posted at SDOP
office, Pendra has proved the document Ex. P/16 by which he received the
information from the Investigating Officer about the offence. He also proved the
documents Ex./ P/16 and Ex. P/17 and he also has not been cross-examined by
the defence though the opportunity was given.
13. Aalok Kumar Soni (PW05) is the weighment witness though he has not
supported the case of the prosecution but he weighed the seized Ganja and has
admitted his signature in the document Ex. P/20 which is the weighment
panchanama
14. Bhaiyalal Dahariya (PW06) and Rajju Rajak are the independent
witnesses though they have fully not supported the prosecution’s case but both
the independent witnesses have admitted their signature in the various memos
prepared by the Investigating Officer during the search and seizure. They have
stated that the police has seized 2.5.00kg contraband Ganja from the appellant in
his possession and seizure memo Ex. P/23 was prepared. The total 2.600kg of
Ganja was seized from the appellant.
15. Narendra Patre (PW07) is a constable who has taken a copy of the
secrete information Ex. P/16 to the SDOP Office, Pendra and proved the same.
He also proved the document Ex. P/18 and the document Ex. P/43 which are the
documents of the search and seizure proceeding. He is the persons who has
taken the samples packets to the State FSL, Raipur and he also proved the
7
acknowledgment Ex. P/44, P/45 and P/47.
16. From all these evidences it is found proved that the seizure of total 2.650
Kg Ganja from the possession of the appellant has been found proved by the
learned trial Court and this Court is also of the opinion that the learned trial Court
has rightly comes into conclusion that the appellant is found in possession of total
2.650 kg of Ganja on the date of incident which has been seized from him by the
police Officers, therefore, the conviction of the appellant under Section 20(b)(ii)
(B) of the NDPS Act is found to be in accordance with law.
17. So far as the sentence part of the appellant is concerned, the learned
counsel for the appellant contended that presently the appellant is aged about 60
years , the offence is of the year 2014, only 2.650 Kg Ganja was seized from him
and the appellant was remained in jail during trial from 26.01.2014 till 14.05.2014
and further from the date of judgment i.e. 16.09.2016 and thereby he has
completed almost about 366 days and the Offence of Section 20(b)(ii)(B) of the
NDPS Act provides minimum sentence of six months which may extent to 10
years .
18. In the matter of Mohammad Giasuddin Vs State of Andhra Pradesh,
(1977) 3 SCC 287, their Lordships of the Supreme Court hvave held as under :-
“9. Western jurisdiction and ‘sociologists, from their
own angle have struck a like note. Sir Samual 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 Centre, Athens, Greece,
maintains that ‘Crime is the result of the lack of the right
kind of education.’ 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
8by re-culturisation. Therefore, the focus of interest in
penology is the individual, and 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.’
19. Therefore, considering Considering the quantity of Ganja, his age and
his financial condition, and further considering that he has already remained
in jail for about 1 year and also the view taken by the Hon’ble Supreme Court
in the matter of Giasuddin (Supra), ends of justice would meet if the
sentence of the appellant is reduced for the period already undergone by
him. Therefore, while maintaining the conviction under Section 20(b)(ii)(B) of
the NDPS Act his sentence is reduced for the period already undergone by
him. The fine sentence imposed by the learned trial Court remains intact.
However, on 16.09.2016, while granting the bail to the appellant by this
Court, it has been observed that fine amount of Rs. 20,000/-has already been
paid.
20. In the result, the appeal filed by the appellant is partly allowed. The
appellant is reported to be on bail. His bail bonds are continued for a period of six
9
months as provided under Section 481 of BNSS, 2023.
21. The trial court record along with a copy of this judgment be sent back
immediately to the trial Court concerned for compliance and necessary action.
Sd/-
(Ravindra Kumar Agrawal)
JUDGE
amita
Digitally signed by AMITA DUBEY
Date: 2025.04.25 10:39:57 +0530
[ad_1]
Source link