1 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. 2026:CGHC:937-DB The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 07.10.2025 07.01.2026 -- 07.01.2026 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 8 of 2018 1. Dharmendra Sahu, S/o Kedar Sahu, Aged About 23 Years, R/o Village Bartola, P. S. Bhalumada, District Anuppur, Madhya Pradesh 2. Ramesh Kenwat, S/o Bhandari Kenwat, Aged About 32 Years, R/o Village Danganiya Chot, P. S. Bijri, District : Anuppur, Madhya Pradesh … Appellants versus • State of Chhattisgarh Through the P. S. Mainpur, District- Gariyaband, Chhattisgarh ... Respondent/State ____________________________________________________________ For Appellant No. 1 : Mr. Goutam Khetrapal, Advocate For Appellant No. 2 : Mr. Vikash Pradhan, Advocate. For Respondent/State : Mr. Ashish Shukla, Addl. A.G. Hon'ble Smt Justice Rajani Dubey J. & Hon’ble Shri Justice Amitendra Kishore Prasad, J. C A V Judgement Per, Rajani Dubey , Judge 2 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment and order of sentence dated 12.12.2017 passed by the learned Special Judge of N.D.P.S. Act, 1985, Raipur, District- Raipur (C.G.) in Special N.D.P.S. Case No. 43/2017 whereby and whereunder, the appellants have been held guilty of commission of offence and sentenced as described below:- Conviction Sentence Under Section 20 (II) (C) of NDPS Act, 1985 R.I. for 15 years each, to pay a fine of Rs. 1,00,000/- each and in default of payment of fine, to undergo additional R.I. for 01 year each. Under Section 468 of IPC R.I. for 03 years each, to pay a fine of Rs.1000/- each and in default of payment of fine, to undergo additional R.I. for 02 months each. (Both sentences are directed to run concurrently) 2. The case of the prosecution in brief is that on 04.12.2016 at about 9:00 am in- charge officer of Police Outpost- Bindra Navagarh of Police Station- Mainpur, Assistant Sub-Inspector Ravikant Verma (PW-08) along with staff and witnesses was discharging his official duty and he received the secret information from an informer that two persons were transporting narcotic substance ganja in TATA Safari car bearing Registration No. MP 65-T-3999, which is coming from Deobhog- Raipur in which two persons viz., appellants Dharmendra Sahu & Ramesh Kewat were sitting and going towards Gariyaband. The aforementioned information was recorded in the Rojnamcha Sanha and on receiving the information, the witnesses namely Sukhchand Netam (PW-2) and Keshiram (PW-3) were made about the secret information and a 3 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. panchanama to this effect was prepared on the spot vide Ex. P/6 and a copy of it was sent to Sub-Divisional Officer Police, Mainpur by giving a duty certificate to Constable Pankaj Dugga (PW-4) for conducting proceedings under the N.D.P.S. Act. Constable Khamlesh Markam was sent with a duty certificate to summon two independent witnesses. Both the witnesses were made aware about the secret information and gave them summon under Section 160 of the Cr.P.C. and were asked to co-operate in the proceedings. Thereafter, a panchanama was prepared in front of witnesses regarding non-receipt of search warrant. Investigating Officer- Ravikant Verma, Assistant Sub-Inspector (PW-8), in-charge of Police Outpost- Bindra Navagarh of Police Station- Mainpur along with staff and witnesses, then went to main road in front of police station and barricaded the road. After some time, a vehicle Safari Car bearing registration No. CG-04-CW- 5100 came at high speed, broke through the barrier and moved ahead. Following the pursuit, the vehicle was cordoned off and stopped on Bhainstara road near the drain beyond Satdhar. There were two persons sitting in the said car. On questioning, the persons sitting on the driver’s seat told his name as Dharmendra Sahu and Ramesh Kewat. The accused/ appellants were informed about the secret information and were told that he wanted to search them and their car. It was also told to the accused persons that they can also get themselves searched by any gazetted officer or the nearest Magistrate. In this regard, notice was given to the accused persons and they agreed to search themselves by Investigating Officer-Ravikant Verma (PW-8), Assistant Sub Inspector and the police party was searched in front of witnesses in which no objectionable item was found from the police party and a search 4 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. panchanama was prepared accordingly. After obtaining consent of the accused/appellants in presence of witnesses for search of their person and the vehicle, when search was made by Ravikant Verma (A.S.I.) he found total 24 packets containing Ganja like substance which were kept. After seeing, smelling, tasting, burning and rubbing, it was found to be Ganja. Thereafter, through notice Hemant Kumar Sinha was called for weighment with electronic weighing machine and after physical verification, the said machine was found to be working properly. On weighment being done, it was found to be 117 kg 400 gm, out of which one sample of 100 gm was drawn, which was marked as Article A-1 and sealed. Thereafter, ASI Ravikant Verma (PW-8) issued a notice to the accused persons under Section 91 of Cr.P.C. to produce valid documents regarding possession, sale or transportation of the recovered ganja and documents related to the ownership of the vehicle Safari car, on which the suspects admitted that they did not have any documents regarding the narcotic substance ganja. Safari Car and two number plates in which MP-65-T-3999 was written, vehicle RC’s book, a stamped agreement, a sale certificate, a copy of the permit and mobile were seized from the accused Ramesh Kewat and ganja, sample and mobile were seized from the accused Dharmendra Sahu. Information regarding arrest of the appellants was sent to them through written information. Upon being found the involvement of the accused persons in the crime, they were arrested in presence of the witnesses. Thereafter, the spot map of the incident, dehati nalishi and statements of witnesses were recorded on the spot itself. Thereafter, the seized property and the accused were taken to concerned police station and a numbered crime was registered. The seized ganja was 5 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. duly deposited in the maalkhana and the sample packet was sent to the Forensic Science Laboratory, Raipur for its chemical examination through Superintendent of Police, Gariyaband from where a report was obtained which reveals the seized items to be ganja. An unnumbered crime was registered on the spot, on the basis of which, a First Information Report (FIR) was registered against the accused persons at Police Station Mainpur under Sections 467, 468, 34 of IPC and Section 20 (b) of the NDPS Act. After completion of due and necessary investigation, charge-sheet was led before the concerned jurisdictional Magistrate who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellants for alleged commission of offence under Section 20 (ii) (C) of NDPS Act and Section 468 of IPC. The appellants having abjured guilt were subjected to trial. 3. In order to substantiate its case, the prosecution has examined as many as 12 witnesses. Statement of accused/ appellants were also recorded under Section 313 of Cr.P.C. in which they denied the incriminating circumstances appearing against them and pleaded their innocence and false implication in the case. However, no witness was examined by them in their defence. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment dated 12.12.2017 convicted and sentenced them as mentioned in inaugural paragraph of this judgment. Hence, this appeal. 5. Learned counsel for the respective appellants submits that the submits that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court ought to have seen 6 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. that the mandatory provisions of the NDPS Act have not been complied with by the Investigating Officer while conducting search and seizure proceedings. Learned counsel further submits that the two independent seizure witnesses namely Sukhchand Sahu and Keshiram Netam have given up the case of the prosecution in respect of any of the proceedings including search, seizure etc., which clearly shows that the entire case of the prosecution is a concocted and is a case of false implication of the appellants. Further, major contradictions and omissions in the statement of the Investigating Officer (PW-8) have been overlooked. As per Ex. P/5 notice to search vehicle was prepared at 9:30 and in notice of secret information (Ex P/24) was prepared at 8:40, in Rojnamcha Sanha (Ex. P/54), time mentioned of the secret information as 9:00. Without search warrant (Ex. P/7) was prepared after 2 hours when they reached at the place of incident at 9:30, that too without search warrant. All two witnesses were jointly served with the notice under Section 50 of the Act and also no separate notices were given to the accused prior to the search. All the documents i.e., sample panchnama (Ex. P/4), consent letter (Ex. P/8) staff search panchanama (Ex.P/9), ganja search panchnama (Ex. P/10), search panchnama (Ex. P/11), identification panchnama (Ex. P/13), samrash panchnama (Ex. P/14), seal namuna panchnama (Ex. P/15), all have been made together in a conjoint manner. Further submit that it has been admitted by the I.O PW-8 Ravikant Verma that in Exs. P/2, P/3, P/4, P/11, P/12, P/13, P/15, more than one pen was used endorsed along with different writing in these exhibits. In search panchanama (Ex. P/11) and seizure panchanama (Ex. P/12), details of the Mobile and RC Book of the seized vehicle were not mentioned and 7 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. it is clear that overwriting was done in Ex.P/12 in F to F part. In the notice (Ex.P/1) timing of the secret information is mentioned as 9:00 am. There are non-compliance of the mandatory provisions of Section 42 (2), 50, 52, 52-A, 55 and 57 of the NDPS Act. There is overwriting in Summons (Ex.P/35) from D to D part and no signatures of the witnesses clearing the picture of false implication in the case. In the consent panchanama of the accused, it is nowhere mentioned whether they were apprised of their legal right of being searched by the Magistrate. It is clear that all documents were prepared by Investigating Officer Ravikant Verma (PW-8) on different times and only to falsely implicate the appellants. Thus, the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellants by adducing cogent and reliable evidence, even then the learned trial Court has held the appellants guilty of the above offence. Therefore, the impugned judgment is liable to be set aside. In support of their contentions, learned counsel placed reliance upon the decisions of the Hon’ble Apex Court in the matters of Nadeem Ahamed vs. State of West Bengal1, Surepally Srinivas vs. State of Andhra Pradesh2, Prakash Chand vs. State of C.G.3, Mohammed Khalid and anr. vs. State of Telangana4Mangilal vs. State of M.P. 5 , Sanjeet Kumar vs. State of C.G. 6 , Simranjit Singh vs. State of Punjab 7 , State of Chhattisgarh vs. Devendra Singh 8, 1 2025 SCC OnLine SC 1779 2 2025 SCC OnLine SC 683 3 2024 SCC OnLine Chh 10025 4 AIR 2024 SC 134 5 2023 SCC Online SC 862 6 2022 SCC Online SC 1117 7 2023 SCC Online SC 906 8 AIR Online 2022 SHH 1113 8 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. Boota Singh and ors. vs. State of Haryana9, Union of India vs. Leen Martin and another10, Union of India vs. Jarooparam11 State of Rajasthan vs. Jagraj Singh @ Hansa12, Union of India vs. Mohanlal13, State of Rajasthan vs. Tara Singh14, State of Rajasthan vs. Bher Singh15, Union of India vs. Balmukund and ors.16, State of Rajasthan vs. Gurmail Singh17 and in the matters of Hemant Singh and another vs. State of C.G.18 & Rinku Kumar and another vs. State of C.G. 19 passed by this Court. 6. Ex adverso, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the learned trial Court minutely appreciated oral and documentary evidence and the prosecution has proved its case beyond reasonable doubt. Learned State counsel also submits that it is well settled principle of law that when prosecution duly complied with mandatory provisions of NDPS Act, mere not supporting independent witnesses would not be fatal to the prosecution case, if the other material on record adduced by the prosecution inspires confidence and satisfy the Court as regards recovery as well as cautious possession of the contraband from the accused persons. The Court can proceed further to hold the accused guilty. 9 2021 (19) SCC 606 10 2018 (4) SCC 490 11 AIR 2018 SC 1927 12 2016 (11) SCC 687 13 2016 (3) SCC 379 14 2011 AIR SCW 6651 15 2009 16 SCC 293 16 2009 (12) SCC 161 17 AIR 2005 SC 1578 18 CRA No. 1697 of 2018 19 CRA No. 1899 of 2017 9 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. In support of his contention, learned State counsel placed reliance on the decision of the Hon’ble Apex Court in the matter of Bharat Aambale Vs. State of Chhattisgarh 20 & Madan Lal & Others vs. State of H.P. 21 . 7. We have heard learned counsel for the parties, considered their rival submissions made hereinabove, and also went through the records with utmost circumspection. 8. It is evident from record of learned Trial Court that it framed charges against the appellants for offence under Section 20 (ii) (C) of NDPS Act and Section 468 of IPC. Learned trial Court after appreciating the oral and documentary evidence convicted the accused persons for the aforesaid offences. 9. PW-1 Hemant Kumar Sinha is said to have weighed the contraband, but he did not support the prosecution case. Though, he admitted his signature on the notice (Ex.P/1), physical verification memo of weighment (Ex.P/2), weight panchnama (Ex.P/3) and in sample panchanama (Ex. P/4). This witness has been declared hostile. In cross-examination by the defence, he denied this suggestion that he weighed the contraband from his weightment. 10. PW-2 Sukhchand Netam and PW-3 Keshiram Netam are the independent witnesses of search and seizure, though they have only admitted their signatures on Ex. P/5 to Ex.P/20 from A to A part and B to B part respectively, but did not support the prosecution case. They have been declared hostile by the prosecution and cross-examined them, but they denied all the suggestions of the prosecution and they denied any search and seizure before them and stated that they signed 20 2025 SCC OnLine SC 110 21 2003 (7) SCC 465 10 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. these documents at the instance of police in the police station and they know nothing about the incident or the seizure. 11. PW-8 Investigating Officer- Ravikant Verma, Assistant Sub- Inspector has stated that he received information on 04.12.2016 at 09:00 from an informant that a Safari Vehicle Bearing Registration No. MP-65-T-3999 was illegally transporting the narcotic substance like ganja. Based on this information, issued notice to the witnesses vide Ex. P/5 and secret information memo was prepared vide Ex. P/6 at 9:35 am and he was sent to the S.D.O.P Office, Mainpur vide Ex.P/24 and he departured for the spot along with accompanying staff and witnesses and they stopped the said vehicle on Bhainstara road near the drain beyond Satdhar. He prepared search memo without warrant vide Ex. P/7, he gave notice to both the appellants and then prepared consent memo vide Ex. P/8. Search memo was prepared vide Ex. P/10 and the accused persons got the police party and the witnesses searched vide Ex.P/9. During search, from TATA Safari Vehicle bearing Registration No. CG-04-CW- 5100 total 24 packets of contraband substance like ganja were recovered and prepared search memo vide Ex. P/11 and also recovery memo vide Ex. P/12. After seeing, smelling, tasting, rubbing and burning, the contraband article was found to be Ganja and prepared identification memo vide Ex. P/13. He issued notice to the appellants for legal documents vide Ex. P/35 and seized 24 packets of Ganja, in which, 117.400 kg Ganja was found and he also seized TATA Safari Vehicle Bearing Registration No. CG-04-CW-5100, in which two number plates were found, one is belonged to MP-65-T-3999. He lodged dehati nalishi vide Ex.P/34 at 16:00 on the spot and arrested both the appellants vide Ex. P/36 and Ex. P/37 respectively. He 11 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. deposited all the contraband article ganja in the police station’s store room/maalkhana and acknowledged receipt is Ex. P/38 and he sent full report to S.D.O.P. Office, Mainpur on 07.12.2016 vide Ex. P/40. He also sent an application to Tahsildar, Gariaband for preparing of spot map vide Ex. P/41 to Ex. P/44. FSL report of sample is Ex.P/45, memo is Ex. P/46 and return receipt is Ex. P/47. He also wrote a letter to R.T.O., Raipur for particulars of the seized vehicle’s owner vide Ex. P/48 and thereafter he received details of the seized vehicle from the R.T.O. vide Ex. P/49. He again sent notice to Shyam Lal Shrivastava vide Ex. P/50 and Shyam Lal has filed a sale deed vide Article-A/2. He also lodged a Rojnamcha Sanha vide Ex. P/53. In his cross-examination, he admitted that in notice (Ex. P/5), he written that he received secret information at 09:30 and in report of secret information (Ex. P/24), he written time as 8:40. 12. Ex. P/5, Notice under Section 160 of Cr.P.C was issued to the witnesses namely PW-2 Sukhchand Netam and PW-3 Kesiram Netam. Relevant part of Ex. P/5 reads as under:- " आपको/ आप लोगो को इस नोटिस के जरिये सूचित टिकया जाता है की टिनाक 04.12.16 के 9:30 ……” बजे जरिये मुखटिब से सुना प्राप्त हुआ है की 13. Full report (Ex. P/24) is sent to S.D.O.P. Office, Gariaband by Investigating Officer- Ravikant Verma (PW-8), in which he written the time as under:- “…. उप टिनीक्षक टि#कांत #मा% को आज टिo 04.12.16 को 8:40 जरिये सुना मुखटिब टिमली की…… ..” 14. Ex. P/7 is panchnama of without search warrant, PW-8 stated that he reached the spot at 9:30 and he prepared this memo at 11:30. 12 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. 15. Ex. P/8 is consent memo under Section 50 of NDPS Act. It is evident that both the accused persons gave their consent jointly. Ex. P/11 is search memo of both the accused persons. 16. In para 12 of statement of PW-8 Investigating Officer- Ravikant Verma, he admitted as under:- " यह कहना सही हैं टिक प्रर्श% पी-4, प्रर्श% पी-8 # प्रर्श% पी-9 प्रर्श% पी-10, प्रर्श% पी- 11, प्रर्श% पी-13, प्रर्श% पी-14, प्रर्श% पी-15 के पंनामा ोनों आोपीगण के संबंध में संयुक्त रूप से बनाया हूँ, पृथक- पृथक नहीं बनाया हूँ। यह कहना सही हैं टिक मैंने प्रर्श% पी- 11. औ प्रर्श% पी-13 में ए से ए भाग में तथा प्रर्श% पी-2, प्रर्श% पी-3, प्रर्श% पी-12 में इ से इ भाग में तथा प्रर्श% पी-4, प्रर्श% पी-15 के जी से जी भाग में इन स्ता#ेज को तैया कते समय अलग पेन से लिलखा हूँ। यह कहना गलत हैं टिक मैंने सब स्ता#ेज तैया कने के बा अपने टिहसाब से समय लिलख लिलया हूँ। यह कहना सही हैं टिक उक्त समय अलग ाईटिंग से लेख है। स्#तः कहा टिक मेी ाईटिंग में समय लिलखा हूँ, टिकन्तु जल्बाजी में अलग ाईटिंग हो गयी है। " In para 15, he admitted as under:- यह कहना सही हैं टिक प्रर्श% पी-3 में गांजा समस क तौल कना नहीं लिलखा हूँ। यह कहना सही हैं टिक प्रर्श% पी-4 का सेम्पल पंनामा तैया कते समय मैंने 100 ग्राम का सेम्पल टिनकाल लिलया था। यह कहना सही है टिक प्रर्श% पी-35 का नोटिस ोनों आोपीगण को संयुक्त रूप से टिया हूँ औ इसमें समय # स्थान का उल्लेख नहीं टिकया हूँ। यह कहना सही हैं टिक प्रर्श% पी-35 में डी से डी भाग में गांजा के #जन में ओव्ह ाईटिंग है, जिजसमें संचिक्षप्त हस्ताक्ष नहीं टिकया हूँ। स्#तः कहा टिक मैंने पहले 20 लिलख टिया था, जिजसे उसी समय में ओव्ह ाईटिंग क 117 लिलखा हूँ औ टिF उसके बा आोपीगण का हस्ताक्ष काया हूँ। In para 16, he admitted this fact that no contraband article substance like ganja was seized from the accused Ramesh Kewat. 17. PW-10 Guruwar Singh, Head Constable, he stated that the entry was made by him in original Rojnamcha Sanha vide Ex. P/54 at 9:00 am and he issued notice to the witnesses at 9:05 am, Rojanamcha Sanha 13 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. is Ex. P/55. On the same day, at 9:20 am, the two witnesses were brought by Constable Khamlesh Markam (PW-5) namely Sukhchand Netam (PW-2) and Keshiram Netam (PW-3) as per Ex. P/56 and at 9:30 am, secret information memo was prepared before the witnesses vide Ex. P/57. PW-8- Investigating Officer- Ravikant Verma informed the said information to S.D.O.P. Office, Mainpur through mobile phone at 9:35 am and the entry was made in the Rojnamcha Sanha vide Ex. P/58 and at 9:40 am secret information report was sent to S.D.O.P. Office, Mainpur, Rojanmacha Sanha is Ex. P/59. All the police party went for barricading near in front of Police Outpost main road and the entry of Rojnamcha is Ex. P/60. He deposited 117.400 kg ganja, TATA Safari Vehicle Bearing Registration No. MP 65-T-3999 and two number plates and he entered Rojnamcha vide Ex. P/61. He also filed malkhana register vide Ex. P/62 and acknowledgment of malkhana is Ex. P/38. 18. As per this witness, he deposited contraband in malkhana on 04.12.2016 and sample packets were sent to F.S.L. on 07.12.2016. In para 11, he stated as under:- टिनांक 7.12.2016 को 100 ग्राम गांजा का सेंपल पीक्षण हेतु एFएसएल के लिलये भेजा गया था। इसी टिन संपलिG के साथ भेजे गये ड्राफ् में खामी होने के काण सेंपल #ापस मालखाने में जमा हुआ था। टिनांक 8.12.2016 को आक्षक कमांक 561 से गांजा का सैंपल ड्राफ् के साथ एFएसएल भेजा गया था। टिनांक 9.12.2016 को आक्षक कमांक 561 ने पा#ती प्रर्श% पी-31 लाक टिया था। टिनांक 1.1.2017 को एFएसएल रिपो% प्रर्श% पी-45 ज्ञापन प्रर्श% पी-46 सटिहत प्राप्त हुई थी। टिनांक 5.2.2017 को गांजा का सेंपल नमूना सीलबं #ापसी सी प्रर्श% पी-47 सटिहत एFएसएल काया%लय से प्राप्त हुआ था। In paras 13 & 14 of his cross-examination, he stated as under:- 14 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. 13." यह कहना सही है टिक मैंने जप्ती पत्र ेखक मालखाना जिजस् प्रर्श% पी- 62 में इंद्राज टिकया हूं। यह कहना सही है टिक घना टिनांक 4.12.2016 की है औ सेंपल पा टिन बा जां के लिलये एFएसएल में जमा हुआ था। साक्षी स्#तः कहा टिक पू#% में सेंपल भेजा गया था टिंकतु ड्राफ् में खामी होने से #ापस आया था। यह कहना सही है टिक मैंने गांजा की बोरियों को ेखक जिजस् में इद्राज नहीं टिकया था। यह कहना सही है टिक सभी बोरियों में लगी स्लीपों में 24 पैके ों का उल्लेख है। यह कहना गलत है टिक सभी बोरियों में कु ल 120 पैके  है। साक्षी स्#त कहा टिक सभी बोरियों में कु ल 24 पैके  में गांजा है। यह कहना सही है टिक सभी बोी की स्लीप में सेंपल पैके ए-1 लिलखा है। यह कहना गलत है टिक पां सेंपल पैके  थे। साक्षी स्#तः कहा टिक जिसF% एक सेंपल बनाये थे" 14. " यह कहना सही है टिक मैंने उपटिनीक्षक टि#कांत #मा% के बताये अनुसा ोजनामा सान्हा लिलखा हूं। यह कहना सही है टिक ोजनामा सान्हा में #ाहन का नंब एम पी 65 ी 3999 लिलख#ाया गया था। " 19. PW-11 Thanu Ram Sahu, Retired Head Constable, who was Reader of S.D.O.P. Office, Mainpur, stated that he received report of secret information (Ex. P/24) on 04.12.2016 at 10:20 am and full report was received on 07.12.2016 vide Ex. P/40. 20. It has been held by the Hon’ble Apex Court in the matter of Surepally Srinivas (supra) in paras 13, 14 and 15 as under:- 13. In Bharat Aambale (supra), this Court held that the purport of Section 52- A, NDPS Act read with Standing Order No. 1/89 extends beyond mere disposal and destruction of seized contraband and serves a broader purpose of strengthening the evidentiary framework under the NDPS Act. This decision stresses upon the fact that what is to be seen is whether there has been substantial compliance with the mandate of Section 52-A 15 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. and if not, the prosecution must satisfy the court that such non-compliance does not affect its case against the accused. This is also what has been held in Kashif (supra). 14.In the present case, from the evidence on record, it can be seen and it is clear that the seized contraband was not properly sealed. Coupled with this is the fact of the seized contraband not being produced before the trial court prior to 3rd July, 2010. It is difficult to accept the prosecution case that though there may not have been strict compliance of Standing Order No.1/89, the seized contraband was not tampered at all. Keeping of the seized contraband by PW-3 in a separate room in his office for fifteen days could give rise to an allegation that the seized contraband was by itself substituted and some other items planted to falsely implicate the accused. To avoid suspicious circumstances and to ensure fair procedure in respect of search and seizure, it is always desirable to follow the standing order which provides suitable guidance for the officers investigating crimes under the NDPS Act. Should there be any departure, the same must be based on justifiable and reasonable grounds. We are, satisfied, on appreciation of the evidence on record, that the possibility of tampering during this fifteen-day period cannot be totally ruled out and that not only has there been no substantial compliance of the standing order, the departure has also 16 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. not been justified. 15.We have also found from the materials on record that there has been clear non-compliance with the provisions contained in Section 52-A of the NDPS Act. Either possibly due to lack of experience of the investigating officer or his lack of knowledge of the relevant provisions of the NDPS Act, there were lapses which were duly noted by the Sessions Judge. Thus, we are unable to hold that there was primary and reliable evidence before the trial court in respect of the offence committed. The onus of proving that compliance 7 of 7 with Section 52-A did not affect the case of the prosecution has not been duly discharged by the prosecution. 21. It has been held by the Hon’ble Apex Court in the matter of Boota Singh (supra) in paras 12, 13 & 14 as under:- 12.In Karnail Singh , the Constitution Bench of this Court concluded:- “35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to 17 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d)While total non-compliance with requirements of sub- sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information 18 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001.” (Emphasis added) 13.In Jagraj Singh alias Hansa , the facts were more or less identical. In that case, the vehicle (as observed in para 5.3 of the decision) was not a public transport vehicle. After considering the relevant provisions and some of the decisions of this Court including the decision in Karnail Singh , it was observed:- “14. What Section 42(2) requires is that where an officer takes down an information in writing under sub-section (1) he shall send a copy thereof to his immediate officer senior. The communication Ext. P-15 which was sent to the Circle Officer, Nohar was not as per the information recorded in Ext. P- 14 and Ext. P-21. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2). 19 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. 16. In this context, it is relevant to note that before the Special Judge also the breach of Sections 42(1) and 42(2) was contended on behalf of the defence. In para 12 of the judgment the Special Judge noted the above arguments of defence. However, the arguments based on non-compliance with Section 42(2) were brushed aside by observing that discrepancy in Ext. P-14 and Ext. P-15 is totally due to clerical mistake and there was compliance with Section 42(2). The Special Judge coming to compliance with the proviso to Section 42(1) held that the vehicle searched was being used to transport passengers as has been clearly stated by its owner Vira Ram, hence, as per the Explanation to Section 43 of the Act, the vehicle was a public transport vehicle and there was no need of any warrant or authority to search such a vehicle. The High Court has reversed the above findings of the Special Judge. We thus, proceed to examine as to whether Section 43 was attracted in the present case which obviated the requirement of Section 42(1) proviso. 29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance with requirement of Sections 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance with Section 42. The Constitution Bench noted the effect of the aforesaid two decisions in para 5. The present is not a case where insofar as compliance with Section 42(1) proviso even an argument based on substantial compliance is raised there is total non-compliance with Section 42(1) proviso. As observed above, Section 43 being not attracted, search was to be conducted after complying with the provisions of 20 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. Section 42. We thus, conclude that the High Court has rightly held that non-compliance with Section 42(1) and Section 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order.” (Emphasis added) 14.The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa , the relevant provision would not be Section 43 of the NDPS Act but the case would come under Section 42 of the NDPS Act. 22. PW-10 Guruwar Singh, Head Constable/Maalkhana Mohrrir has admitted that 100 gm ganja sample was taken out on 07.12.2016 and sent to F.S.L. after five days. He himself stated that the sample had been sent earlier, but the same was returned due to a defect in the draft. 23. the sample was sent, but the same was returned to the malkhana on the same day itself due to a defect in the draft sent with the property. 24. Section 57 of The Narcotic Drugs And Psychotropic Substances Act, 1985 provides as under:- 57. Report of arrest and seizure.— “ Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such 21 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. arrest or seizure to his immediate official superior.” 25. In this case, it is evident that PW-8 Ravikant Verma, Investigating Officer admitted that all the proceedings were done on 04.12.2016 and as per Ex. P/40, report was sent to S.D.O.P. Office, Mainpur on 07.12.2016, thus it is clear that full report was sent to superior officer after 48 hours. So, non-compliance of Section 57 of NDPS Act is clearly established and in this regard, no satisfactory explanation offered by the investigating officer (PW-8). It is also quite evident that mandatory provision of Sections 42, 50 and 43 of NDPS Act were not complied by the prosecution agency. 26. PW-8, Investigating Officer- Ravikant Verma has admitted that in all documents, he used different pens and different inks. 27. It has been held by the Hon’ble Apex Court in the matter Mangilal (supra) in para 11 as under:- “ 11. The memorandum of informer’s information dated 20.05.2010 exhibited under P-3 indicates signature of two witnesses, P.W.2 and P.W.6, both of them turned hostile. Though they admitted their signature it was clearly deposed that they were not present at the scene of occurrence. In our considered view the Court below have wrongly construed the evidence, in fact these two witnesses were party to most of the exhibits running upto 13. Search warrant under Exhibit P-4 acknowledge the fact that procedure contemplated under the NDPS Act has not been followed. As noted, one of the witnesses to the seizure memo has not been examined while the other turned hostile. Both the witnesses to the 22 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. arrest memo have not been examined. On the issue of non-production of narcotic substance and panch witnesses turning hostile we wish to reiterate the decision of this Court in Jitendra v. State of M.P., (2004) 10 SCC 562: “5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub- Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. 23 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, “non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced”. The High Court relied on Section 465 CrPC to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused….” 6.In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized 24 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs,the conviction under the NDPS Act can still be sustained, is far- fetched.” 25 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. (emphasis supplied) 28. In the light of above judgments and other guidelines of the Hon’ble Apex Court and statement of prosecution witnesses, it is quite evident that independent witnesses have not supported the prosecution case. PW- 8, Investigating Officer- Ravikant Verma and PW-10 Guruwar Singh, Malkhana Mohrir have admitted that there are too many material irregularities, which creates a serious doubt on all the proceedings of the prosecution and also mandatory provisions were not complied by the Investigating Officer. It is also evident that in notice under Section 160 of Cr.P.C. (Ex. P/5), memo of without search warrant (Ex.P/7) and in Rojnamcha Sanha (Ex. P/54), the time of entry were different, which also creates serious doubt and full report (Ex.P/40) was sent by Investigating Officer (PW-8) to S.D.O.P. Office, Mainpur after 48 hours of the incident i.e., does not fall under the ambit of Section 57 of NDPS Act and regarding this no satisfactory explanation has been offered by the prosecution. Thus, it is clear that prosecution has utterly failed to comply with all mandatory provisions. We are of the opinion that the prosecution has not been able to prove guilt of the appellants beyond all reasonable doubt. Being so, the learned trial Court was not justified in recording conviction of the appellants under Section 20 (ii) (C) of the NDPS Act and Section 468 of IPC. 29. For the foregoing reasons, this appeal is allowed and the impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted of the charge under Section 20 (ii)(C) of the NDPS Act & Section 468 of IPC. The appellants are in jail. They be set at liberty forthwith if no longer required in any other case. 30. However, observation/condition made by the learned trial Court in para 26 CRA No. 8 of 2018 Dharmendra Sahu and another vs. State of C.G. 37 of its impugned judgment is hereby affirmed. 31. Keeping in view the provisions of Section 481 of BNSS 2023, the appellants are directed to furnish a personal bond for a sum of Rs.25,000/- each before the Court concerned forthwith, which shall be effective for a period fo 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 appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 32. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) JUDGE JUDGE AMIT PATEL