1 2025:CGHC:7266-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 380 of 201 9 (Arising out of judgment of conviction and order of sentence dated 03.01.2019 passed by the learned Special Judge (NDPS Act) Uttar Bastar Kanker (C.G.), in Special Criminal Case No. 26 of 2018) Dipu Gupta, S/o. Gopal Saha, aged about 23 years, R/o Khajuriya, Post Ghamar, Police Station Bhojpur (Bihar) ... Appellant versus State of Chhattisgarh through the Police Station, Korar, District Kanker, Chhattisgarh. ... Respondent For Appellant : Mr. Govind Dewangan, Advocate. For Respondent/State : Mr. Sharad Mishra & Mr. H.A.P.S. Bhatia, Panel Lawyers DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board A ANNAJEE RAO Digitally signed by A ANNAJEE RAO 2 (10.02.2025) Sanjay Kumar Jaiswal, J, 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, appellant Dipu Gupta herein has preferred this criminal appeal challenging the legality, validity and correctness of the judgment of conviction and order of sentence dated 03.01.2019 passed by the learned Special Judge (NDPS Act) Kanker (C.G.), in Special (NDPS Act) Criminal Case No. 26/2018 by which the appellant has been convicted and sentenced as under:- Conviction Sentence & Fine U/s 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 R.I. for 20 years and to pay fine of 1,00,000/-; in default ₹ of payment of fine, additional rigorous imprisonment for 3 years. 2. In this case, on 08.04.2018 the appellant Dipu Gupta along with other accused Ashish Singh was found illegally transporting 628 Kgs of narcotic substance (ganja) in 32 jute bags in Truck No.JH 02 L 9464. 3. The case of prosecution is that on 08.04.2018 at 5.10 a.m., Bhanupratap Sao the Sub-inspector of Police Station Korar received information from the informer that a 10 ten- wheeled truck No. JH-02-L-9464 was transporting illegal cannabis and the said vehicle was going from Bhanupratappur to Rajnandgaon. The said information 3 was recorded in Rosnamcha No. 328 and a duty certificate was given to constable Mahendra Nagraj to issue notice to independent witnesses Mohammad Saddam and Balendra Pandey and a Panchnama was prepared by serving it to the said two witnesses and making them aware of the informer’s information. A report was also prepared to inform the Police Sub-Divisional Officer Kanker and accordingly the information was sent to the SDOP by issuing a duty certificate to constable Mahendra Sinha. On being told that the SDOP was out of the headquarters, the police personnel Assistant Sub-inspector Sanju Rajput; Head Constable Santram Chakradhari; Constables R. Lakesh Raote, Mahendra Nagraj, Mahendra Sinha, Umendra Yadav and R.Umesh Netam and witnesses Balendra Pandey and Mohd. Saddam left for the main road of village Chilhati. After reaching the spot, a barricade was set up and when they were waiting for the offending vehicle as informed by the informer, a truck bearing Regn. No. JH 02/L/9464 arrived from Korar and reached the spot. On intercepting the vehicle and questioning it, the driver told his name as Deepu Gupta. However, the conductor of the vehicle Ashish Sen fled from the spot. Appellant Deepu Gupta was apprised of the informer’s information and a notice was issued to him for searching 4 the vehicle. Before this, a notice was issued to accused Deepu Gupta and he was told that he can get himself and his vehicle searched either by him (Police Officer) or any gazetted officer. The accused then agreed to be searched. Before this, when the accused searched the police officers and the staff, no suspicious object was found with them, a Panchnama was prepared for the same. After that, the accused also searched the witnesses Balendra Pandey and Mohd. Saddam from whom also no suspicious things were found. Thereafter, in presence of witnesses, when the offending vehicle driven by accused Deepu Gupta, was searched, narcotic substance like ganja filled in 32 jute bags were recovered from the container of the said vehicle and a recovery panchnama was prepared vide Ex.P-13 after recovering it in presence of witnesses. Accused Deepu was given notice to produce valid documents for possession of Ganja filled in 32 jute bags, but he could not produce any such documents. 4. The further case of prosecution is that the memorandum statement of accused Deepu Gupta was recorded in front of witnesses Balendra Kumar Pandey and Mohd. Saddam and a drug identification Panchnama was prepared. The Samaras Panchnama of the drug was prepared in presence of witnesses. Notice was issued to constable Mahendra 5 Nagraj and Sujit Kumar Patel u/s 91 CrPC and the said constable was sent with a duty certificate to serve the said notice. On weighing the ganja kept in the vehicle by the weigher Sujit Kumar Patel (P.W.5), in presence of witnesses, the total weight of ganja including 32 bags was found to be 628 kgs and the weight of 32 empty bags without ganja was 17 Kgs & 600 grams and the total weight of ganja was 610 Kg & 400 grams, for which, a drug weighing Panchnama was prepared. The total ganja of 628 Kgs in 32 jute bags produced by accused was seized vide Ex.P-20 and the documents of the offending vehicle, viz, RC Book, insurance papers and pollution certificate were seized in presence of witnesses vide Ex.P-21. 5. The samples of 50-50 grams each were collected separately in 32 packets from the seized 32 bags of contraband and the samples were sealed and packed and in this regard, a Panchnama was prepared in presence of witnesses and the accused was arrested after giving reasons. The site plan of incident was prepared by the Police and Patwari. During the investigation, the statements of witnesses were recorded as narrated by them. Thereafter, Dehati Nalishi was prepared on the spot and on that basis, the FIR was registered against the accused Deepu Gupta (Driver) and Ashish Singh (conductor) in P.S. Korar under section 20(b) 6 NDPS Act in crime No. 25/2018. The report Ex. P-49 was sent to NDPS Store-House In-Charge of Protected Centre, Kanker for safe-guarding the seized property consisting of 32 bags weighing 628 Kgs of Narcotics. In the aforesaid proceeding, Rosnamcha Sanha Ex. P-50 to Ex.P-54 was prepared. The samples of seized narcotics were sent for chemical testing to State Forensic Science Laboratory, Raipur. through the report of Superintendent of Police vide Ex.P-48 and according to the FSL report, the seized substance was found to be Ganja. After completing investigation, charge sheet was filed Under Section 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act. 6. The prosecution in order to prove its case examined in all 12 witnesses and exhibited 54 documents. The statement of the appellants was recorded u/s 313 of Cr.P.C. wherein he denied the guilt and pleaded false implication. However, the appellant in support of his defence neither examined any witness nor exhibited any document. 7. The learned trial Court after appreciating the oral and documentary evidence available on record, by impugned judgment, proceeded to convict the appellant and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred. 7 8. Learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellants for offence u/s 20(b)(ii)(C) of the NDPS Act, as the prosecution has failed to prove the said offence beyond reasonable doubt. He further submits that the independent witnesses namely Balendra Pandey (P.W.3) and Mohd. Saddam (P.W.4) have not supported the prosecution case and even the weigher of contraband ganja namely Sujeet Kumar Patel (P.W.5) has denied to have weighed the seized Ganja. He further vehemently argued that the provisions contained u/ss 42(2) & 50 of the NDPS Act have not been complied with and as such, appellant herein deserves to be acquitted of the charge. Hence, it is prayed by him that sentence of the appellants may also be reduced suitably or the present appeal may be allowed in full or in part. 9. Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that though the independent witnesses have not supported the prosecution case, but the Investigating Officer i.e., Bhanupratap Sao (PW-6) has proved the case of the prosecution beyond doubt and, 8 therefore, the case of the prosecution cannot be said to be vitiated. Learned State counsel further submits that the provisions contained u/ss 42 and 50 of the NDPS Act have satisfactorily been complied with by the prosecution in the present case. As such, the conviction and sentence passed by the learned trial Court against the appellants is well merited and, therefore, present appeal deserves to be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11.In the case on hand, on the date of offence i.e. 08.04.2018, illegal contraband i.e. Ganja was recovered and seized from the possession of the appellant who was the driver of the offending vehicle vide seizure Panchnama (Ex.P-13) and seizure memo Ex.P-20 in presence of independent witnesses P.W.3 Balendra Kumar Pandey & P.W.4 Mohd. Saddam. However, both the said witnesses have not supported the prosecution case. But, Investigating Officer, namely, Bhanu Pratap Sao (PW-6) has duly proved the seizure of Ganja from the appellant vide Ex.P-13 & Ex.P- 20. In this regard, their Lordships of the Supreme Court in the matter of P.P. Fathima v. State of Kerala 1 held that mere fact that a Panch witness did not support the 1 (2003) 8 SCC 726 9 prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made and observed in Para-07 as under: “7. Learned counsel then contended that in view of the fact that the Panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a Panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of PWs. 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails.” 12.The NDPS Act is a complete Code in itself. Once the procedure enumerated in Sections 42, 43, 49 & 50 is scrupulously followed, it was for the accused, from whose possession the substance is recovered, to explain how he came into possession of the same. It has also been held by their Lordships of the Supreme Court in Mukesh Singh v. State (NCT of Delhi) 2 that it is not always necessary to corroborate the testimony of police officials, through the testimony of independent witnesses. 2 (2020) 10SCC 120 10 13.In the matter of Dharampal Singh v. State of Punjab 3 it has been held that lack of independent witness is not fatal to the case of the prosecution. By adopting same analogy, it has further been held in Rizwan Khan v. State of Chhattisgarh 4 that the independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. 14.As such, from above analysis on the point, it is vividly clear that merely because seizure witnesses have not supported the prosecution case, it cannot be said that the entire prosecution’s case stands vitiated. More particularly, in the present case, Investigating Officer, namely, Inspector Bhanu Pratap Sao (PW-12) has duly proved and supported recovery and seizure of Ganja from the appellant vide seizure Panchnama (Ex.P-13) and seizure memo (Ex.P-20). The FSL report (Ex.P-48) also shows that Ganja is found in samples/Articles A to Z, AA, AB, AC, AD, AE & AF which were taken from the contraband seized from the appellant from the spot. Therefore, we do not see any good ground to disbelieve the fact of recovery and seizure of Ganja from the appellant on the date and time of the offence and, as such, the findings recorded by the learned trial Court in this regard, is liable to be and the same is hereby affirmed. We 3 (2010) 09 SCC 608 4 (2020) 09 SCC 627 11 hereby hold accordingly. 15. The another contention that has been raised on behalf of the appellant is that Section 42(2) of the NDPS Act has not been complied with by the prosecution in its letter and spirit. 16. Looking to the evidence of Investigating Officer (P.W.12) and the material available on record, it cannot be said that there is non-compliance of Section 42(2) of the NDPS Act. On the basis of aforesaid evidence available on record, it cannot be held that the prosecution has failed to comply Section 42(2) of the NDPS Act in the present case. Hence, the finding recorded by the trial Court in this regard is just and proper, therefore, the argument put forth in this behalf by the appellant also deserves to be and is hereby rejected. We hereby hold accordingly. 17. Another limb of argument that has been put forth on behalf of the appellant is that Section 50 of the NDPS Act has also not been complied with by the prosecution in the present case. 18. The Trial Court clearly held that from perusal of Section 50 of the NDPS Act, it is clear that the provisions of this section apply only to personal searches. According to the prosecution, the seized cannabis was kept in 32 jute bags which were being carried in the offending vehicle driven by 12 the appellant and thus it was under the control of the accused at the particular time. In the case of Madan Lal & Others vs. State of Himachal Pradesh reported in 2003 AIR SCW 3669, it has been held that the provisions of Section 50 of the NDPS Act do not apply to the search of a vehicle or a bag but only to personal searches. In a mere recent case, State of Kerala Versus Prabhu, Cr.A.No.3434 of 2024 arising out of SLP (Crl.) No.13937 of 2023 decided on 20th August, 2024, Hon’ble the Supreme Court observed that Section 50 of the NDPS Act, which outlines the procedure for conducting search of a person, applies only to personal searches and not to searches of bags carried by the person being searched. Hence, the finding recorded by the trial Court in this regard is also just and proper, therefore, the argument put-forth in this behalf by the appellant also deserves to be and is hereby rejected. We hereby hold accordingly. 19. At this stage, learned counsel for the appellant submits that in view of the decision of the Hon’ble Supreme Court in the matter of Budhiyarin Bai vs. The State of Chhattisgarh, passed in CRA No. 1218/2022 (Arising out of SLP (Criminal) No. 4935/2022), wherein the conviction of the accused-appellant has been upheld, however, considering the old age of the accused (therein), who was a 13 poor illiterate lady, the sentence has been reduced from 15 years of rigorous imprisonment to 12 years of rigorous imprisonment. Therefore, in the present case, the sentence of the appellants herein for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act may also be reduced. 20. In the instant case, the appellant has been sentenced to undergo rigorous imprisonment for 20 years with a fine of Rs. 1,00,000/- for the offence punishable Under Section 20(b)(ii)(C) of NDPS Act, whereas the minimum sentence of 10 years’ imprisonment has been prescribed for the aforesaid offence. The factors to be taken into account for imposing higher than the minimum punishment have been prescribed Under Section 32B of the NDPS Act, 1985 which are as follows:- “32B. Factors to be taken into account for imposing higher than the minimum punishment.- Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:- (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c) the fact that the minors are affected by the 14 offence or the minors are used for the commission of an offence; (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities.; (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence.” 21. As such, in view of discussion made here-in-above, taking into consideration the law laid down by the Hon’ble Supreme Court in the matter of Budhiyarin Bai (supra) and further considering the aforesaid provisions of the Act and also considering facts that the appellant has no criminal antecedents, he is a driver of the vehicle and he is currently aged about 29 years and is facing the lis since 2019 and further looking to his poor educational background while affirming the conviction of appellant for offence under Section 20(b)(ii)(C) of the NDPS Act, we deem it appropriate to reduce his sentence from 20 years’ rigorous imprisonment, to 12 years’ rigorous imprisonment. However, the fine imposed by the learned trial Court shall remain intact, but the sentence of 3 years’ rigorous imprisonment in default of payment of fine amount is also reduced to 6 months’ rigorous 15 imprisonment. 22. Consequently, this criminal appeal is party allowed to the extent indicated herein above. 23. Let a certified copy of this order along with original record be transmitted forthwith to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge Rao