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TMI Blog2024 (5) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... onal jurisdiction and it is accordingly established. In any case, it is important that the drug seized in the case should be kept safe and secure and the process of extracting the sample from it should be done duly and the sample should also be sent to a competent laboratory under proper custody. In the present case, the process of sealing the seized drug and keeping it in a safe in godown and taking out the sample has also been found to be legal and the sample taken out has also been found to be sealed and sent for testing legally. At any stage of the case, no tampering has been found in the drug samples or the seized packets, hence, the entire case cannot be considered unbelievable merely on the basis of samples being taken at the CGST Bhawan. Therefore, this Court is of the view that there has been proper compliance of Section 43 of the NDPS Act and the Investigator on the information of the informant, intercepted the vehicle wherein 6545 Kgs Ganja was kept and appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh were present in the said truck. Thus, in the opinion of this Court, the prosecution has proved its case in respect of appellants K. Dharmara, Surjeet Singh Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce For State : Mr. Nitansh Jaiswal, Panel Lawyer C.A.V JUDGMENT PER ARVIND KUMAR VERMA, J Heard. 1. Since all the appeals have arisen out of one and same judgment dated 15/03/2023 passed in Special Criminal Case No. 88/2018 by the learned Special Judge (NDPS Act), Raipur (C.G.) and since common question of fact and law is involved in all the appeals, they have been heard together and are being disposed of by this common judgment. 2. These criminal appeals preferred under Section 374(2) of the Cr.P.C are against impugned judgment of conviction and order of sentence dated 15/03/2023 passed in Special Criminal Case No. 88/2018 by the learned Special Judge (NDPS Act), Raipur (C.G.), whereby the appellants have been convicted and sentenced as under:- Appellant Conviction Sentences Appellant-Kondru U/s 20(b) (ii) (c) read with Section 29 of the NDPS Act Rigorous imprisonment for 20 years with fine of Rs. 2,00,000/- Appellant-Surjeet Singh U/s 20(b) (ii) (c) read with Section 29 of the NDPS Act Rigorous imprisonment for 20 years with fine of Rs. 2,00,000/- Appellant-Avtar Singh U/s 20(b) (ii) (c) read with Section 29 of the NDPS Act Rigorous imprisonment for 20 years with fine of Rs. 2,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After completing the above proceeding, they came back to CGST Building and the HDPE (Plastic Bags) were counted in front of Panchas and appellants, which were 170 in numbers. The bags were sealed. On the basis of the informant s information received by the Investigation Officer and the confession of the three accused, the said substance weighing 6545 Kgs appeared to be Ganja and under the NDPS Act, 1985 the same were seized. On 24.06.2018, it was given to In-charge of CGST, Abhishek Pandey, Inspector (Preventive) for safekeeping the bags, in relation to which a handover note (Ex. P/4) was prepared. Subsequently, the vehicle was seized. The entire proceedings were recorded in the Panchnama, which was read over to the Panchas and the accused/appellants. Panchnama (Ex. P/1) was prepared. 6. On 24/06/2018, statements of the above three appellants were recorded and subsequently, seizure report of Ganja and truck were given to Shri A.K. Pandit, Superintendent, CGST on 25/06/2018 vide Ex. P/10. Subsequently, in compliance of Section 52 (A) of the NDPS Act, Sandip Kumar Agrawal (PW-5), SDO/SDM has given his report of certifying inventory vide Ex. P/11 on 26/09/2018 and prepared test memo w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner-Dilip Shevere (PW-8), Contingency Employee-Pramod Nag (PW-9), Superintendent Pallav Parganiha (PW-10) and Intelligence Officer- K.V.L Narasimham (PW-11) and exhibited 62 documents Ex. P-1 to P-62. Statement of the accused/appellants were recorded under Section 313 of the CrPC in which they denied guilt. However, they examined none in his defence. 9. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 15/03/2023 convicted and sentenced the appellants as mentioned in paragraph one of this judgment. Hence, this appeal. 10. Ms. Shivali Dubey, learned counsel for appellant Kondru Dharmarao (in Cr.A. No. 1230/2023) submits that the appellant has been falsely implicated in the present case. The mandatory provisions of the NDPS Act has not been followed by the Investigating Officer. The witnesses of memorandum and seizure have not supported the case of the prosecution and have turned hostile. She further submits that the provisions of Sections 42(1)(2), 52(A) 55 of the Act have not been complied with and the IO had proceeded illegally as per Section 43 of the Act which was wholly irrelevant in the present case. She submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to believe from personal knowledge or information. In both these provisions there are two important requirements. One is that the Magistrate or the officers mentioned therein firstly be empowered and they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the provision. So far as the first requirement is concerned, it can be seen that the Legislature intended that only certain Magistrates and certain officers of higher rank and empowered can act to effect the arrest or search. This is a safeguard provided having regard to the deterrent sentences contemplated and with a view that innocent persons are not harassed. Therefore if an arrest or search contemplated under these provisions of NDPS Act has to be carried out, the same can be done only by competent and empowered Magistrates or officers mentioned thereunder. Furthermore, their Lordships in paragraph 14 have held that whether there was such reason to believe and whether the officer empowered acted in a bona fide manner, depends upon the facts and circumstances of the case and will have a bearing in appreciation of the evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the instant case. This version of this witnesses has not been challenged, therefore, it is established that he had proceeded in the instant case after following the provisions of NDPS Act. Even otherwise, as per notice of Central Govt. i.e. S.O 763 (E) dated 27/09/1989, Intelligence Officer has been made entitle to proceed in the matters falls under the NDPS Act. Likewise, Notice No. S.O 824 (E) of the Central Government dated 14/09/1985 specifies that as per subsection 2 of Section 41 of the NDPS Act, Gazetted Officer of Revenue Intelligence Department has been authorized for proceeding in such cases. 18. Perusal of the above notices shows that Central Government has empowered the Intelligence Officer of the Revenue Intelligence Directorate under the crime relating to Act in their regional jurisdiction. In the instant case, K.V.L Narasimham (PW-11) has conducted the proceeding of the case under his regional jurisdiction and it is accordingly established. 19. In the instant case, as per IO (PW-11), the contraband was being transported in a vehicle bearing serial number - C.G. -07/CA-5727, which is type of Cargo Vehicle TATA 3118. As per statement of IO (PW-11), the said truc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer Mr. A.K. Pandit in writing, who gave the said information over phone to Mrs. Vandana, Deputy Director, D.R.I. and, after being verbally ordered by Mrs. Vandana, to take action, A.K. Pandit, K.V.L. Narasimham and Chandraparakash along with staff proceeded to Raipur. He had prepared note-sheet Ex. P/54 in relation to informer s information. 23. Anil Kumar Pandit (PW-4) has categorically deposed in his statement that on 23/06/2018, K.V.L. Narasimham (PW-11) had informed him about the information received from the informant regarding transportation of Ganja in a truck from Odissa and he informed the same information to his superior officer i.e. Chief Senior Officer, Smt. Vandana on telephone. It is evident from the note-sheet Ex. P/54. 24. Som Sonwani (PW-1) is a witness of Panchnama (Ex. P/1). He deposed that when they unloaded the coconut from the intercepted vehicle, there were plastic bags kept beneath the coconut. After opening the bags, there were 6 packets kept in each bag. After opening the packet, it was revealed that the packets were containing Ganja. This witness has subsequently turned hostile. 25. Gowrishankar Jangde (PW-2) has deposed in his statement that he has sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of (narcotic drugs, psychotropic substances, controlled substances or conveyance and any list of samples drawn under sub-section (2) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess of the inventory is Ex. P/11. 28. The Illegally Acquired Property (Receipt, Management and Disposal) Rules, 1989 came into force on 29/05/1989. In the instant case, the date of incident is 23/06/2018. The new Rules of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 ('NDPS Rules 2022' for short) were brought into force on 23/12/2022, therefore, in this case, the Rules, 1989 of the Act would be applicable. 29. Inventory of contraband was made before the SDM (PW-5) and the SDM certified the correctness of the inventory as per the Panchnamas dated 23/24/06/2018 09/08/2018. He also certified the correctness of photographs taken in his presence of the inventory of goods produced before him. The certification is made asper Section 52(A) (2) of the NDPS Act, 1982. The seal and signature of SDM on that is A to A . 30. Inventory report (Ex. P/11) shows that the SDM (PW-5) has gone along with the officers and witnesses to the Godown, situated at the office of Commissioner of CGST CX, CGST Bhawan, Tikrapara, Raipur, Chhattisgarh. The outer collapsible gate of the said Godown was found locked and lac seal bearing inscription Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e test memos in duplicate were placed in 7 light green coloured envelops (4 light green envelops in each of 6 big light green coloured envelop and 2 light green envelops in 1 big light green coloured envelop) and the same were sealed with lac seal bearing inscription Commissioner Central Excise Raipur MP and he and Shri K. V. L. Narsimham, IO, DRI, NRU put their dated signature. On the above said 07 light green coloured envelopes containing the original samples and the test memo, in duplicate, it was mentioned as Secret-Drug sample/Test Memo . Photographs of the said sealed envelope were taken in his presence. 31. Though, it is correct that the samples were not taken from each of the packets and randomly 26 packets were taken, which were kept in 26 different trunks. It is apparent that total packets were 1020 weighing total to 6545 Kgs. If we calculate one packet weight which comes to 6.4166 Kg per packet then total weight of 26 packets would be about 166.66 Kgs. The total weight of 166.66 Kgs still fall under the commercial quantity. The samples of the contraband were sent for its examination to FSL on 03/10/2018 which was received on 05/10/2018. The FSL report of test memo Ex. P/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mportant that the drug seized in the case should be kept safe and secure and the process of extracting the sample from it should be done duly and the sample should also be sent to a competent laboratory under proper custody. In the present case, the process of sealing the seized drug and keeping it in a safe in godown and taking out the sample has also been found to be legal and the sample taken out has also been found to be sealed and sent for testing legally. At any stage of the case, no tampering has been found in the drug samples or the seized packets, hence, the entire case cannot be considered unbelievable merely on the basis of samples being taken at the CGST Bhawan. Therefore, this Court is of the view that there has been proper compliance of Section 43 of the NDPS Act and the Investigator on the information of the informant, intercepted the vehicle wherein 6545 Kgs Ganja was kept and appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh were present in the said truck. Thus, in the opinion of this Court, the prosecution has proved its case in respect of appellants K. Dharmara, Surjeet Singh Randhawa and Avtar Singh. Thus, the trial Court has rightly convicted and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e out the sentenced awarded to them by the Trial Court. 46. So far as Cr.A. No. 1122/2023 filed on behalf of Appellants-Vishnu Bhadra and Premanand is concerned, it is hereby allowed. 47. Accordingly, the conviction and sentence awarded to the Appellants-Vishnu Bhadra and Premanand by the trial Court is hereby set-aside. The Appellants-Vishnu Bhadra and Premanand are acquitted of the charges framed against them. The Appellants-Vishnu Bhadra and Premanand are in jail. They shall be set at liberty forthwith if no longer required in any other criminal case. 48. Keeping in view the provisions of Section 437-A of the CrPC, the Appellants-Vishnu Bhadra and Premanand, are directed to forthwith furnish a personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs. 25,000/- each with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon ble Supreme Court. 49. The trial court record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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