TaxTMI 
TaxTMI 
2024 (5) TMI 270
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....her 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. 2,00,000/- Appellant-Vishnu Bhadra U/s 29 read with Section 20(b) (ii) (c) of the NDPS Act Rigorous imprisonment for 20 years with fine of Rs. 2,00,000/- Appellant-Premanand U/s 29 read with Section 20(b) (ii) (c) of the NDPS Act Rigorous imprisonment for 20 years with fine of Rs. 2,00,000/- 3. Case of the prosecution in brief is that on 23.06.2018 at ....
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.... 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 which are Ex. P/12 to Ex. P/37 of the samples. Thereafter, on 05/07/2018, notices (Ex. P/45 and Ex. P/46) were sent to other appellants Premanand Bhadra and Vishnu Kalicharan. The statement of these two appellants were recorded vide Ex. P/47 and Ex. P/48 and they were arrested vide Ex. P/49 and Ex. P/50. In relation to informant's information, n....
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....n 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 the trial Court has failed to appreciate the statement recorded under Section 67 of the Act is akin to Section of the Indian Evidence Act and therefore, the same could not be used for being inadmissible. 11. Mr. Vikas Pradhan, learned counsel for Appellant-Vishnu Bhadra and Premanand Bhadra (in Cr.A No. 1122/2023) submits that the ap....
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....ticle 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 punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable unde....
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....r 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 evidence. 16. Even in Baldev Singh's case (supra), their Lordships of the Constitution Bench of the Supreme Court with regard to Section 42(1) of the NDPS Act have held in paragraphs 9 & 10 as under: - "9. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given ....
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....ficer 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 truck was transporting cannabis from Odisha to Milan and seizure of contraband was done on main road, Santoshi Nagar Chowk, Dhamtari Road, Raipur which is a public place, therefore, it is well established from the evidence of prosecution that the cannabis being transported, was seized at a publ....
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....epared 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 signed the Panchnama (Ex. P/1). He deposed that when the coconut were unloaded from the vehicle and there were packets of Ganja kept beneath the Coconut. This witness has subsequently turned hostile. 26. Abhishek Pandey (PW-3) was the incharge of Godown, in Preventive Branch, Ce....
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....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 certified by the Magistrate, as primary evidence in respect of such offence. 27. In this regard, statement of Sandip Kumar Agrawal (PW-5) is relevant. He deposed that he has been posted as Sub Divisional Officer (Revenue), Raipur during the period....
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.... 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 "Commissioner Central Excise Raipur MP" applied on the lock was found intact and in order. In his presence, the lac seal so applied on the lock was removed and then the collapsible gate was opened. Further, the inner door of the said godown w....
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....d 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/12-Ex. P/37 shows that "the sample is in the form of greenish brown flowering and fruiting tops and bits of leaves, stem and stalks along with seed of the plant. On the basis of chemical and chromatographic examination, it is co....
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....dy. 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 sentenced them. 38. Now the questions remains whether Appellant Vishnu Bhadra and Premanand were involved in the said crime or not? 39. Mr. Vikas Pradhan, learned counsel for Appellant Vishnu Bhadra and Premanand has sub....