1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 406 of 2018 Judgment Reserved on 23.01.2026 Judgment Delivered on 31.01.2026 • The State of Chhattisgarh, Through District Magistrate, District Durg Chhattisgarh. ... Appellant versus • Lakhan Lal Gond, S/o Dadulal Kunjam, aged about 45 Years, R/o Ganjpara Bandhatalab Durg Kotwali Durg, C.G. ... Respondent For Appellant/State : Shri Atanu Ghosh, Deputy Government Advocate. For Respondent : Shri Swapnil Thawaney, Advocate appears on behalf of Shri P.R. Patankar, Advocate. (Hon’ble Shri Justice Radhakishan Agrawal) CAV Judgment 1. This acquittal appeal filed by the Appellant/State arises out of the judgment dated 03.04.2018 passed by the Special Judge under NDPS Act, Durg, C.G. in NDPS Special Case No.02/2018, whereby the learned trial Court acquitted the accused/respondent of the charge under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') by giving him the benefit of doubt. 2. Case of the prosecution, in brief, is that on 28.11.2017, at about 07:55 a.m., PW-7 R.D. Mishra, Sub-Inspector of Police Station Durg received a secret information that accused- Lakhan Gond is illegally possessing and selling ganja near Sheetla Mandir, Bandha Talab, Durg. The information was recorded in the roznamcha sanha and forwarded to superior officers, AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2026.01.31 16:17:46 +0530 2 and thereafter the police party, along with witnesses, reached the spot. The accused was apprehended and after informing him of his rights under Sections 42 & 50 the NDPS Act and obtaining his consent, his personal search was conducted. During the search, 45 packets of ganja and cash amounting to Rs.5,020/- were recovered from his possession. On the memorandum statement of the accused/respondent, further search of a car bearing registration No. CG-04-B-3956 resulted in recovery of 13 packets of ganja kept in an iron box along with a knife. The seized contraband was weighed and found to be 13.10 kilograms. After completing necessary formalities, the accused/respondent was arrested, an FIR was registered against him and upon completion of investigation, a charge-sheet was filed for the offence under the NDPS Act. 3. After completion of investigation, charge sheet was filed against the accused/respondent before the Special judge under NDPS Act, Durg. The respondent abjured the guilt and claimed trial. 4. After appreciation of evidence, oral as well as documentary, the learned trial Court acquitted the respondent of the charge by giving benefit of doubt, as mentioned in opening paragraph of this judgment. 5. Learned counsel for the appellant/State would submit that the trial Court is not justified in acquitting the accused/respondent of the said charge by recording perverse findings. He would further submit that there is cogent and clinching evidence available on record, more particularly the evidence of Investigating Officer, P.W.-7 R.D. Mishra, I.O., which clearly connects the accused/respondent with the crime in question. He would also submit that the mandatory provisions of the NDPS Act were duly complied with and despite the same, the learned trial Court committed a grave error in acquitting the accused/respondent without appreciating the evidence on 3 record in its true perspective. Thus, the impugned judgment of acquittal suffers from perversity and illegality and, therefore, the same is liable to be set aside. 6. On the other hand, learned counsel for the respondent would support the impugned judgment of acquittal. He would further that witnesses to the search and seizure proceedings, namely P.W.-3 Baba Yadav and P.W.-4 Rajesh Gupta, weigher, were declared hostile as they did not support the prosecution case. He would also submit that Jeetu Sahu, another witness to the seizure memo (Ex.P-17) was not examined by the prosecution. On these premises, he would submit that the finding of acquittal recorded by the trial Court does not call for interference by this Court. 7. I have heard learned counsel for the parties and perused the material available on record. 8. The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal in judgment at para 25, which reads as under:- 25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 9. As regards the involvement of the accused-respondent in the crime in question, the testimony of PW-7 R.D. Mishra, Investigating Officer, is significant. He has stated that on 28.11.2017 at about 07:55 a.m., he received secret information that accused- Lakhan Gond is illegally 4 possessing and selling ganja near Sheetla Mandir, Durg. He recorded the said information in roznamcha sanha and forwarded it to the superior officers. Thereafter, he along with police personnel and witnesses reached the spot. He has further stated that the accused/respondent was apprehended and after informing him of his rights under NDPS Act and obtaining his consent, his personal search was conducted. During the search, 45 packets of ganja and cash amounting to Rs.5,020/- were recovered from his possession. He has also stated that on the memorandum statement of the accused/respondent, a further search of a said car was conducted, during which 13 packets of ganja kept in an iron box along with a knife were seized. The seized contraband was weighed and found to be 13.10 kilograms. Thereafter, he completed further proceedings in accordance with the provisions of the NDPS Act. However, on the contrary, in cross-examination, this witness admitted that in complaint (Ex.P-1), it is mentioned that the information received from informant was regarding illegal possession of ganja in the house of the accused/respondent. He further admitted that though the house of the accused/respondent was searched, but no document relating to such search was filed along with the charge-sheet. He also admitted that although Ex.P-17 shows seizure of 12.906 kilograms of ganja from the said vehicle, but the accused/respondent was neither present inside nor near the said vehicle at the time of seizure and no document regarding ownership of the vehicle was produced. He further admitted that in the consent letter (Ex.P-8), the accused himself had not written that he was giving consent for his search. He also admitted that the newspaper in which the alleged ganja packets were stated in Ex.P-11 to have been wrapped was not produced before the Court along with the seized articles. 5 Thus, the evidence of this witness suffers from material omissions and contradictions, which affect the credibility of the prosecution case. 10. Further, the evidence on record would show that the prosecution has failed to prove compliance of Section 50 of the NDPS Act. The notice issued under Section 50 (Ex. P-7) does not bear the signature of the Investigating Officer (P.W.-7). There is also no material on record to show that accused/respondent was informed of his legal right in a clear and meaningful manner. The consent panchnama (Ex.P-8) does not show the consent in the words of the accused/respondent himself and the same has also been admitted by Investigating Officer (PW-7). Further, the search panchnama (Ex. P-17) does not specify from which part of the body the contraband was recovered, nor does it mention the exact number of packets recovered during the personal search. When recovery is alleged to have been made from the personal search of the accused, strict compliance of Section 50 of the NDPS Act is mandatory. In the present case, failure to prove such compliance goes to the root of the matter and vitiates the prosecution case. 11. Moreover, the evidence on record would also show that at the time of the incident, PW-7 R.D. Mishra, Investigating Officer, was posted as a Sub- Inspector at Police Station Durg and was not the Officer-in-Charge of the said police station. In the present case, PW-7 has nowhere stated in his evidence that he informed the Officer-in-Charge of Police Station Durg about the incident, nor has he stated that he produced the accused and the seized articles before the Officer-in-Charge, as required under Section 55 of the NDPS Act. The Investigating Officer (P.W.-7) has merely stated that after registration of First Information Report, the seized articles were handed over to Malkhana Moharrir for safe custody. Thus, from the 6 evidence on record, it is clear that the mandatory provisions of Section 55 of the NDPS Act were not complied with. Such non-compliance creates serious doubt regarding the seizure and the subsequent proceedings. 12. Besides above, the independent witnesses examined by the prosecution have not supported its case. PW-3 Baba Yadav, though a witness to seizure memo Ex.P-17, but admitted in cross-examination that his signatures were obtained on blank papers and printed proformas by the police at the police station. Similarly, PW-4 Rajesh Gupta, weigher, admitted his signatures on Exs. P-15 and P-16, but denied that any weighing proceedings were actually conducted. Both witnesses were declared hostile, creating serious doubt about the place and manner of weighing the seized contraband. Further, another witness to the seizure, namely Jeetu Sahu, was not examined by the prosecution for reasons best known to it. Moreover, P.W.-8 Shankar Prajapati, A.S.I., admitted in his cross-examination that Ex.P-22C (seized material register) does not mention that the seized items were deposited in a sealed condition, nor does it indicate the date on which samples of the seized articles were sent to the F.S.L., Raipur, for examination. Additionally, the Samaras Panchnama (Ex.P-14) shows that the alleged articles seized from wrapped paper packets and those seized from the car were mixed together and then repackaged for sampling, whereas the prosecution ought to have kept them separately. Such irregularity creates serious doubt regarding the seizure and weighing process, as well as the preservation and dispatch of the seized material. 13. So far as recovery from the vehicle is concerned, the Investigating Officer (PW-7) admitted that the accused/respondent was neither sitting in nor standing near the car at the time of seizure. No document regarding ownership of the vehicle was collected or produced before the Court. In 7 absence of proof that the accused/respondent was the owner or in control of the vehicle, conscious and exclusive possession of the contraband allegedly recovered from the car cannot be attributed to the accused/respondent. 14. It is pertinent to mention here that separate cases under the NDPS Act and the Arms Act were registered against the accused/respondent, whereas both offences arising from the same incident ought to have been registered in a single case. Further, the evidence on record reveals serious and material contradictions regarding the timing of the proceedings. In the present case, the time of arrest is shown as 14:10 hours; whereas in the Arms Act case arising from the same incident, the time of arrest is recorded as 15:00 hours. Moreover, the Dehati Nalishi is shown to have been prepared at 14:00 hours, i.e., even prior to the alleged arrest. These inconsistencies cast serious doubt on the genuineness of the arrest and the subsequent proceedings, thereby rendering the entire prosecution case highly suspicious. 15. Thus, from perusal of the evidence on record, it is quite vivid that there are material inconsistencies in the statement of PW-7 R.D. Mishra, Investigating Officer and his statement does not corroborate with the statements of other prosecution witnesses and the documents available on record with respect to search, seizure and investigation, which makes his version doubtful and untrustworthy. Further, the evidence on record shows that the mandatory provisions of the NDPS Act have not been complied with by the prosecution and that the independent witnesses have also turned hostile and not supported the case of the prosecution. Moreover, the prosecution has also failed to establish that the accused/respondent had exclusive possession or conscious control over the alleged contraband. 8 Even if the case of the prosecution is taken as it is, then it appears that the entire proceedings conducted by the prosecution appear to be vitiated and doubtful. 16. The learned trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence came to the conclusion that the prosecution has failed to prove all the facts of the charge leveled against the respondent beyond all reasonable doubt and as such, acquitted the accused/respondent of the aforesaid charge leveled against him on the basis of benefit of doubt. 17. After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court, I am of the considered opinion that the judgment impugned acquitting the accused/respondent of the charge under Section 20(b)(ii)(B) of the NDPS Act, is just and proper and does not call for any interference. 18. Accordingly, this acquittal appeal filed by the appellant/State against the acquittal of the accused/respondent is hereby dismissed. Sd/- (Radhakishan Agrawal) Judge Akhilesh