RIZWAN KHAN Vs. STATE OF CHHATTISGARH
SUPREME COURT OF INDIA (FROM: CHHATTISGARH)
STATE OF CHHATTISGARH
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M.R.SHAH, J. -
(2.)Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 01.10.2018 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 881/2012, by which the High Court has dismissed the said appeal preferred by the appellant herein - original accused No.1 and has confirmed the Judgment and Order of Conviction and Sentence passed by the learned Special Court convicting the accused - appellant no. 1 for the offence under Section 20(b)(ii)(B) of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act') and sentencing him to undergo five years rigorous imprisonment and fine of Rs.25,000/-, in default, to undergo further one year's rigorous imprisonment, original accused no.1 has preferred the present appeal.
(3.)The facts leading to the present appeal are, that the appellant - accused no.1 and one another - Pukhraj were charged for the offence under Section 20(b)(ii)(B) of the NDPS Act, having in their possession 20 kg each prohibited Narcotic Substance - Ganja. As per the case of the prosecution, 20 kg of Ganja was recovered from the possession of the appellant from the motor cycle. Nothing objectionable was found from the person of the accused. Accused were informed about Section 50 of the NDPS Act through a notice and were also told about their legal rights that if they want their search was to be done either by a Gazetted Officer or Judicial Magistrate of First Class or any other investigating officer. After giving permission that the search can be conducted by any investigating officer, accused was asked to open the sack kept on his motor cycle and on opening the same, a bag of Ganja weighing 20kg was found. Panchnama was made of seizure. Samples of narcotics recovered from the accused were tested by smelling, burning and tasting it and was found to be Ganja. An identification panchnama was prepared. The Ganja recovered from the accused was about 20 kg, out of which two packets each of about 100 gm were made for sampling and then the weight panchnama was made. The samples were sealed and an entry was made in the seizure list on which sample seal was marked. Samples were marked as 'B1' and 'B2' and rest of the seized substance was marked as 'B'. The accused was arrested along with the other accused from whom also the contraband narcotic substance was found. At this stage, it is required to be noted that ASI J.K. Sen (PW4) received the information and it was recorded by him in Dehati Nalsi and FIR in the police station. However, subsequently, all further investigation was carried out by Police Inspector Ashish Shukla -PW5, who investigated the matter after registration of the FIR and recorded statement of witnesses. The information of the complete investigation was given to Special Judge, NDPS and also the Municipal Police Officer. The packets of the narcotic substance made were sent to the laboratory for testing through constable. The substance seized was found to be Ganja. On completion of the investigation against the accused under the NDPS Act, appellant and one another - Pukhraj were chargesheeted for the offence under Section 20(b)(ii)(B) of the NDPS Act and another co-accused Rakesh Kumar was charged for the offence under Section 20(b)(ii)(C) of the NDPS Act. All the accused pleaded not guilty and therefore they came to be tried for the aforesaid offences. In the present case, we are concerned with original accused no. 1 - Rizwan Khan and therefore we shall consider the case against Rizwan Khan only;
3.1 To prove the case against the accused, the prosecution examined eight witnesses, out of which PW1 - Bholu and PW6 -Kanhaiya are the independent witnesses. PW3 - Sudeep Prasad Mishra is the constable who had taken the samples to FSL. PW4 was the police officer who recorded the information and thereafter the FIR. PW5 - Ashish Shukla investigated the case after registration of the FIR by J.K. Sen, PW4. The prosecution also produced on record the documentary evidence, such as, seizure memo, FSL report, etc. After closure of the evidence on behalf of the prosecution, further statement of the accused under Section 313, Cr.P.C. was recorded. The case on behalf of the appellant - original accused no. 1 was of total denial.
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