1 2025:CGHC:9866-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 437 of 2019 (Arising out of judgment of conviction and order of sentence dated 02.03.2019 passed by the learned Special Judge (NDPS Act) North Bastar, Kanker (C.G.), in Special Case No. 40/2018) 1. Smt. Sumitra Gupta W/o Late Tirath Gupta Aged About 38 Years R/o Jaisingh Nagar, Ward No. 7, Rewa Road, District- Shahdol, Madhya Pradesh. 2. Shivshankar @ Umesh S/o Achchhelal Shukla Aged About 25 Years R/o Village- Mudariya, Police Station- Birsingpur, District- Umariya, Madhya Pradesh. 3. Bhupendra Sen S/o Ramnaresh Aged About 27 Years R/o Sohagpur, Patel Nagar Ward No. 16, Police Station- Kotwali, District- Shahdol, Madhya Pradesh. ... Appellants versus • State of Chhattisgarh, Through: Police Station- Kanker, District- North Bastar, Kanker, Chhattisgarh. ... Respondent For Appellants : Mr. Ashok Dixit Advocate and Ms. Kiran Jain, Advocate. For Respondent/State : Mr. Ashish Shukla, Addl. Advocate General. DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board Digitally signed by HEERA LAL SAHU Date: 2025.03.05 16:59:29 +0530 2 (27.02.2025) Sanjay Kumar Jaiswal, J. 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, appellants herein have preferred this criminal appeal challenging the legality, validity and correctness of the judgment of conviction and order of sentence dated 02.03.2019 passed by the learned Special Judge (NDPS Act), North Bastar, Kanker (C.G.), in Special (NDPS Act) Case No. 40/2018 by which the appellants have 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 15 years and to pay fine of 1,50,000/-; in default ₹ of payment of fine, additional rigorous imprisonment for 3 years. 2. In this case, on 14.07.2018 the appellants were found illegally transporting 75 Kgs of narcotic substance (ganja) in 22 packets in Maruti Suzuki Ertiga No.MP-20/C/1573. 3. The case of prosecution is that on 14.07.2018, Radha Borkar (PW-11), posted as Sub-Inspector in Police Station Kanker, received information that a white Maruti Suzuki Ertiga without number in which a woman, and two men were sitting, was going towards Kanker and Raipur from Keshkal to sell drugs ganja in it. The said Mukhbir information was registered in Rojnamcha Sanha No. 1039 3 and duty certificate was issued to constable Ramesh Dhruv (PW-5). Under Section 160 of the Cr.P.C., the witnesses Md. Saddam (PW-2) and Sanjay Meshram (PW-8) were served notices and asked to be present in the police station and on their presence, they were informed about the information of Mukhbir and Panchnama was prepared, after which the Sub-Divisional Officer of Police Office Kanker was informed about the transport of illegal ganja by the accused persons. The acknowledgement was obtained by sending constable Ramesh Dhruv to the office of S.D.O.P., Kanker. Being out of the headquarters of S.D.O.P., the Investigating Officer Radha Borkar prepared the Rojnamcha Sanha and along with his police staff A.S.I. Mohan Singh Kange, R. Ramesh Dhruv, M.R. Kamala Shori, witnesses Mo. Saddam and Sanjay Meshram along with the necessary materials and documents from the police station reached the spot Gilli Chowk, Kanker and vehicles were being checked with the staff on N.H.-30 Main Road, during checking, the vehicle Maruti Suzuki Ertiga white colour without number reached the spot, a woman and two men were found sitting in the vehicle. They stopped and questioned, the woman sitting in the vehicle, who told her name as Smt. Sumitra Gupta W/o late Shri Tirath Gupta, the second person told his name as Shivshankar Shukla @ Umesh S/o Achchhelal and the third person told his name as Bhupendra Sen S/o 4 Ramnaresh Sen all are R/o Madhya Pradesh and are going to Shahdol. Then panchnama was prepared by giving notice under Section 50 of NDPS Act. 4. Further, the case of the prosecution is that before searching the vehicle of the accused persons, the police and witnesses were searched and Panchnama was prepared and thereafter vehicle search panchnama was prepared. On getting information about the presence of drugs in the vehicle, the accused were served with a notice under Section 91 of the Cr.P.C. before the witnesses. A duty certificate was issued to constable Ramesh Kumar Dhruv to serve notice to weigher, Sunil Patel r/o of Subhash Ward to be present with a weighing machine to weigh 22 packets of narcotics received from the vehicle of the accused persons, on which Sunil Kumar Patel (PW-9) came on the spot with electronic scales and the seized ganja was weighed before the witnesses and signature of the accused persons was taken on it. On submission by accused Sumitra Gupta, 06 large packets weighing 30 kg total were seized before witnesses. On submission by accused Shivshankar alias Umesh Shukla, 02 big and 06 medium and 02 small packets whose total weight was presented to be 24 kg were seized before the witnesses. From accused Bhupendra Sen 03 packets of 05-05 kg and 03 medium packets of 02-02 kg which was a total of 21 kg and Maruti Suzuki Ertiga car 5 documents and driving license were seized before witnesses. 5. Further, the case of the prosecution is that out of 22 packets seized at the spot during the investigation, a total of 44 sample packets of 100-100 grams were prepared, sealed and seized before the witnesses and the accused were arrested before the witnesses giving reasons and their arrest was informed to their family through radio message. The Investigating Officer prepared the spot map and recorded the statements of witnesses Md. Saddam and Sanjay Meshram and after the entire action at the spot, the Dehati Nalisi Ex.P-47 was prepared. The accused Smt. Sumitra Gupta, Shivshankar Shukla and Bhupendra Sen were brought to Kanker police station and on the basis of Dehati Nalsi, FIR was registered vide Ex.P-48 under Section 20(b) of NDPS Act and a copy of it was sent to the court in compliance of Section 157 of Cr.P.C. All the seized material was handed over to Malkhana Mohrrir Mahavir Prasad Mishra (PW-1) of Kanker police station to keep it safe in Malkhana. 6. Further, the case is that after recording the statements of Sunil Patel, Assistant Sub-Inspector Mohan Singh Kange, R Ramesh Kumar Dhruv, M.R. Kamala Shori, M. Rafiq and Amit Anadani, the report of the entire proceedings taken on the same date was sent to the Sub-Divisional Officer Police 6 Kanker. After the seizure of the Maruti Suzuki Ertiga No. MP-20-CG-1573, on 29.07.2018, the vehicle owner Niraj Ankesh S/o Jagdish Prasad R/o Shahdol, appeared before the police station Kanker, then he was served with a notice under Section 91 of Cr.P.C. to produce relevant documents of the said vehicle, on which the vehicle owner Niraj Ankesh had produced the original documents of the vehicle and report was filed at the SHO Kotwali, District Shahdol on 14.09.2018 against the driver of the vehicle, accused Bhupendra Sen. On 17.09.2018 a letter was sent to SHO Shahdol to obtain the said report which was received on 20.09.2018 through SHO Shahdol. 7. Further, the case is that the vehicle Maruti Suzuki's R. C. book, insurance certificate, Aadhaar card and the admission card of the Ministry of Madhya Pradesh dated 10.07.2018, 12.07.2018, 13.07.2018 and photocopy of the report made in City Kotwali Shahdol were seized on 29.07.2018, on the submission of vehicle owner Niraj Ankesh and on 06.08.2018, the then Superintendent of Police Dwarika Prasad Srivas wrote a letter to the Superintendent of Police, North Bastar Kanker to obtain the call details of the mobile numbers 9425183404, 6260345218, 9644484312 & 9407834015, which were attached in the case. The Rojnamcha Sanha No. -1040 Ex.P.-60 to No.-1062 Ex.P.-66 registered in the case has 7 been prepared, whose true copy has been certified in the case from Ex.P.-60-C to Ex.P.-66-C. After writing a letter to Tehsildar Kanker regarding the spot map, Patwari prepared a map of the spot and panchnama. The seized sample was taken by Constable Sachin Shori through Superintendent of Police North Bastar Kanker for chemical examination to Forensic Science Laboratory, which was received vide Acknowledgment 1-A. According to FSL report (Ex.P-59), the seized substance was found to be ganja. After completing investigation, charge sheet was filed under Section 20(b) of NDPS Act. 8. The prosecution in order to prove its case examined in all 11 witnesses and exhibited 66 documents. The statements of the appellants were recorded u/s 313 of Cr.P.C. wherein they denied the guilt and pleaded false implication. However, the appellants in support of their defence neither examined any witness nor exhibited any document. 9. The learned trial Court after appreciating the oral and documentary evidence available on record, by impugned judgment, proceeded to convict the appellants and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred. 10.Learned counsel appearing for the appellants submits that 8 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 PW-2 Mohammad Saddam and PW-8 Sanjay Meshram have not identified the appellants in the Court. Therefore, it cannot be said that the contraband was seized from the possession of the appellants. He further vehemently argued that the provisions contained u/s 42(2) & 50 of the NDPS Act have not been complied with. He also submits that Section 57 of NDPS Act has not been complied with as the date of offence is 14.07.2018 and a detailed report of arrest and seizure was received by PW-4 Vinod Kumar Nishad, reader of Superior Officer on 10.10.2018, after a lapse of long time of more than 2 months and it is not proved when the sample packets of the seized contraband have been sent for chemical examination to FSL, as such, appellants herein deserve 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. 11.Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits 9 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 identified the accused persons, but the Investigating Officer i.e., Radha Borkar (PW-11) has proved the case of the prosecution beyond doubt and, therefore, the case of the prosecution cannot be said to be vitiated. Learned State counsel further submits that the provisions contained u/s 42, 50 and 57 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. 12. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 13.In the case on hand, on the date of offence i.e. 14.07.2018, illegal contraband i.e. Ganja was recovered and seized from the possession of the appellants who were sitting in the offending vehicle vide seizure Panchnama (Ex.P-7) in presence of independent witnesses PW-2 Mohammad Saddam & PW-8 Sanjay Meshram. However, both the said witnesses have not identified the appellants before Court. But, Investigating Officer, namely, Radha Borkar (PW-11) 10 has duly proved the seizure of Ganja from the appellants vide Ex.P-7. 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 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.” 14.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 1 (2003) 8 SCC 726 11 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. 15.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. 16.As such, from above analysis on the point, it is vividly clear that merely because seizure witnesses have not identified the accused persons before Court, it cannot be said that the entire prosecution’s case stands vitiated. More particularly, in the present case, Investigating Officer, namely, Radha Borkar (PW-11) has duly proved and supported recovery and seizure of Ganja from the appellants vide seizure Panchnama (Ex.P-7). The FSL report (Ex.P-59) also shows that Ganja is found in samples/Articles A to V which were taken from the contraband seized from the appellants from the spot. Therefore, we do not see any good ground to disbelieve the 2 (2020) 10SCC 120 3 (2010) 09 SCC 608 4 (2020) 09 SCC 627 12 fact of recovery and seizure of Ganja from the appellants 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 hereby hold accordingly. 17. The another contention that has been raised on behalf of the appellants is that Section 42(2) of the NDPS Act has not been complied with by the prosecution in its letter and spirit. 18. Looking to the evidence of Investigating Officer (P.W.11) 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 appellants also deserves to be and is hereby rejected. We hereby hold accordingly. 19. Another limb of argument that has been put forth on behalf of the appellants is that Section 50 of the NDPS Act has also not been complied with by the prosecution in the present case. 20. The Trial Court clearly held in paras 45 to 49 of its judgment that from perusal of Section 50 of the NDPS Act, 13 it is clear that the provisions of this section apply only to personal searches. According to the prosecution, the seized cannabis were kept in 22 packets which were being carried in the offending vehicle and thus it was under the control of the accused persons 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 appellants also deserves to be and is hereby rejected. We hereby hold accordingly. 21. Another limb of argument that has been put forth on behalf of the appellants is that Section 57 of the NDPS Act has also not been complied with by the prosecution in the present case. 22. The statement of Investigating Officer, PW-11 Radha Borkar 14 who has stated in para-10 of his statement that on the same date i.e. 14.07.2018 he had sent a report of the entire proceedings to the Sub-Divisional Police Officer, Kanker vide Ex.P-27, would show that the report of the entire proceedings has been sent on the same day, as such, Section 57 of the NDPS Act has been complied with. Therefore, the argument put-forth in this behalf by the appellants also deserves to be and is hereby rejected. 23. The next contention of the counsel for the appellants is that the sample packets of the seized contraband have not been sent for chemical examination, in this regard, considering the statement of PW-1 Mahavir Prasad Mishra who has clearly stated that on 18.07.2018, out of 44 sealed sample packets, 22 sealed sample packets were sent for chemical examination to FSL, Raipur by Sachin Shori (PW-10) and for which a receipt has been obtained vide Ex.P-1(A) and the entry of all the proceedings were made in Malkhana Register (Ex.P-2-AC). As such, the argument put-forth in this behalf by the appellants also deserves to be and is hereby rejected. 24. At this stage, learned counsel for the appellants 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 15 the accused-appellant has been upheld, however, considering the old age of the accused (therein), who was a 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. 25. In the instant case, the appellants have been sentenced to undergo rigorous imprisonment for 15 years with a fine of Rs. 1,50,000/- 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; 16 (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 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.” 26. 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 appellants have no criminal antecedents, as per arrest memo, appellant No. 1 Smt. Sumitra Gupta studied up to 3rd Class and is a housewife, she is currently aged about 44 years, appellant No. 2 Shivshankar studied up to 10th Class and is a supervisor, he is currently aged about 31 years & appellant No. 3 Bhupendra Sen studied up to 12th Class and is a driver, he is currently aged about 33 years, appellants are facing the lis since 2018 and further looking to their poor educational background while affirming the conviction of 17 appellants for offence under Section 20(b)(ii)(C) of the NDPS Act, we deem it appropriate to reduce their sentence from 15 years’ rigorous imprisonment, to 10 years’ rigorous imprisonment. Further, the fine imposed by the learned trial Court upon each of the appellants is reduced from 1,50,000/- to Rs. 1,00,000/- and the sentence of 3 years’ rigorous imprisonment in default of payment of the fine amount is also reduced to 6 months’ rigorous imprisonment. 27. Consequently, this criminal appeal is party allowed to the extent indicated herein above. 28. 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 appellants are languishing for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu