1 2025:CGHC:30800-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 445 of 2019 1 - Shekh Shabbir S/o Shekh Usman Aged About 58 Years R/o House Number 60, Ganesh Nagar Malegoan, Police Station Ayashanagar, Nashik, Maharashtra., District : Nashik, Maharashtra 2 - Vijay Mohite S/o Laxman Mohite, Aged About 38 Years R/o Village Kannad, District Aurangabad, Maharashtra., District : Aurangabad, Maharashtra 3 - Nandu Mohite S/o Motiram Mohite Aged About 28 Years R/o Village Malgaon, Police Station Atodol District Jalgaon, Maharashtra., District : Jalgaon, Maharashtra ... Appellants versus State of Chhattisgarh, Through Police Station Kanker, District : Kanker, Chhattisgarh ... Respondent/State ____________________________________________________________ For Appellants : Mr. Rohitashva Singh, Advocate For Respondent/State : Mr. Sakib Ahmad, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 07.07.2025 1. The matter is listed for final hearing today. Digitally signed by AMIT PATEL 2 2. In compliance of the order dated 04.04.2025 passed by a co-ordinate Bench, Shri Rohitashva Singh, learned Advocate was appointed by the High Court Legal Aid Committee as counsel for appellant No. 1. 3. At the outset, it has been pointed out that appellant Nos. 2-Vijay Mohite and Appellant No. 3-Nandu Mohite, who were granted temporary bail for a period of three weeks by co-ordinate Benches of this Court vide orders dated 06.03.2020 and 29.09.2021 respectively, have not surrendered and inspite of best efforts made by the Police for execution of the non- bailable warrants, they could not be traced and arrested till date. 4. As the appellant No. 1-Shekh Shabbir is represented by Shri Rohitashva Singh, Advocate, who is appointed by the High Court Legal Aid Committee and as the appellant No. 1 is languishing in jail since 28.12.2017, this Court is of the opinion that the matter should be heard finally and as such, we requested Mr. Singh to argue the matter on behalf of appellant Nos. 2 & 3, also as Amicus Curiae who has consented for it. Thus, the Court proceed to hear the present appeal. 5. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment and order of sentence dated 22.02.2019 passed by the learned Special Judge of N.D.P.S. Act, 1985 North Bastar Kanker, Kanker (C.G.) in Special N.D.P.S. Case No. 12/2018, whereby and whereunder, the appellants have been held guilty of commission of offence and sentenced as described below:- Conviction Sentence Under Section 20 (b) (II) (C) of NDPS Act, 1985 R.I. for 15 years each, to pay a fine of Rs. 1,50,000/- each and in default of payment of fine, to undergo additional R.I. for 03 years each. 3 6. The case of the prosecution in brief is that while on 28.12.2017 ASI Bhujbal Sahu (PW-13) along with staff was discharging his official duty at Raja Fuels, Pathrri, NH-30 Kanker, at about 12: 15 hours, they intercepted a white colour Toyota Etious Bearing Registration No. CG- 04-KR-8846 coming from Jagdalpur and enquired from the driver and two other persons sat in the vehicle. Since, they could not of heard satisfactory explanation and there was smell of ganja like substance coming from the vehicle, the panchnama was accordingly prepared and information was conveyed to the SDOP, Kanker through Constable Shakti Singh for conducting proceedings under the NDPS Act. After obtaining necessary instructions from SDOP, Kanker, witnesses Vakesh Patel and Narsingh Bhaskar were summoned. On notice being given to the accused regarding possession of the contraband, they did not produce any valid document for transportation of ganja. The accused/appellants were apprised of their legal rights of being search either by the Police or any Gazette Officer, to which they consented for searching by the Police. Prior to search of the accused persons, personal search of the Police personnel, staff and the witnesses was made by the accused persons and nothing objectionable was recovered from them. However, on personal search of the accused persons, mobile phone, Aadhaar cards, ATM etc. were seized from them. Upon search of the said vehicle, 57 packets containing ganja like substance were seized. On weighment being done, the contraband was found to be 111 kg 7975 gram, 2 samples, 50 grams each, were drawn from each of 57 packets and marked as 1-A to A-114 and were sealed. The contraband was identified as ganja by rubbing, smelling and burning it and accordingly panchnama was prepared in presence of the witnesses. After completing necessary formalities, FIR under Crime No. 453/2017 under Section 20 (b) of NDPS Act was registered against the accused persons and the 4 seized articles were deposited in the Malkhana. The report of the entire proceedings under Section 57 of the NDPS Act was forwarded to the SDOP, Kanker. As per FSL report, the contraband was found to be ganja. After completion of due and necessary investigation, charge-sheet under Section 20 (b) of NDPS Act was filed against the accused persons and the learned trial Court framed charge under Section 20 (b) (II) (C) of the NDPS Act against the accused persons, which was abjured by them and they prayed for trial. 7. In order to substantiate its case, the prosecution has examined as many as 13 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. 8. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment dated 22.02.2019 convicted and sentenced them as mentioned in inaugural paragraph of this judgment. Hence, this appeal. 9. Learned counsel for the appellants submits that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court ought to have seen that the mandatory provisions of the NDPS Act have not been complied with by the Investigating Officer while conducting search and seizure proceedings. Further, the search and seizure witnesses namely Narsingh Bhaskar (PW-1) and Vakesh Patel (PW-3) have not supported the prosecution case and have turned hostile. This apart Sunil Patel (PW-2), a witness to the weighment panchnama, has also not supported the prosecution case. The prosecution has also not produced contraband during the trial. In this 5 case, the prosecution has also failed to prove ownership of the said vehicle in which the contraband was being allegedly carried by the appellants. Thus, looking to the overall material available on record, it is clear that the prosecution has failed to prove its case beyond reasonable doubt against the accused/appellants and hence they are liable to be acquitted of the charge by giving them benefit of doubt. 10. Ex adverso, learned counsel for the respondent/State supporting the impugned judgment submits that learned trial Court after minutely appreciating the oral and documentary evidence has rightly convicted and sentenced the appellants under Section 20 (b) (II) (C) of the NDPS Act. So, there is no scope for interference by this Court. This appeal being without any substance is liable to be dismissed. 11. We have heard learned counsel for the parties, considered their rival submissions made hereinabove, and also went through the records with utmost circumspection. 12. Narsingh Bhaskar (PW-1) and Vakesh Patel (PW-3), who are the witnesses to the search and seizure proceedings had not supported the prosecution case, but admitted their signatures on the documents Exs. P/1 to P/22. Sunil Patel (PW-2) who is stated to have weighed the contraband has not supported the prosecution case and has been declared hostile, however, he admitted his signature on the documents Exs. P/8, P/10, P/11, P/14, P/15, P/ 24 & P/25. 13. Sukhuram Dhruv- Head Constable (PW-4) has stated that on 28.12.2017, the ASI- Bhujbal Sahu (PW-13) handed over the seized articles/vehicle/documents to him for keeping him in the malkhana in safe custody. He states that there were 03 sealed plastic bags containing ganja weighing 106.097 kg, 01 plastic bag containing 57 empty packets weighing 2.0400 kg, in 01 plastic bag containing 114 sealed packets of 6 specimen ganja weighing 5.700 kg, one Toyota Etios bearing No. CG 04- KR-8846 with its key and three numbers of mobile phones and three numbers of Aadhaar card as also cash of Rs.1800/- were seized vide Ex. P/31 which bears his signature from A to A Part. He states that the said articles were entered in the Malkhana Register vide Ex. P/32. In para 3, he states that on 30.12.2017, he handed over 114 sample packets to Constable- Nandkumar Ravte (PW-7) for chemical examination in FSL and on 31.12.2017 receipt regarding deposit of the said packets in FSL , Raipur was received from the said constable. In his cross-examination, he states that aforesaid articles were received by him in sealed condition and kept intact in the Malkhana. In cross-examination, he remained firm and nothing could be elicited by the defence from this witness which could make his evidence doubtful or untrustworthy. 14. Devlal Netam (PW-5), who is the Head Constable in the office of Sub- Divisional Officer, Kanker states that on 28.12.2017, he received the document i.e., Ex. P/35 and gave receipt of the same. He states that he placed the document of Ex. P/35 on the table of SDOP. 15. Shakti Singh, Constable (PW-6), Nandkumar Ravte, Constable (PW-7), Sharda Yadav,ASI (PW-8), categorically stated as to the manner in which the vehicle of the accused persons was intercepted on 28.12.2017, they were apprised of their legal right of being searched and upon search being made, 111 kg 7975 gram ganja like substance was recovered from the vehicle and the same were duly seized and sealed. All this witnesses remained firm in their cross-examinations and reiterated the manner in which the contraband was seized from the accused persons. 16. Vijay Rao, ASI (PW-9) states that as per oral instructions, he scratched the chassis and engine number of the seized vehicle. The Chassis and Engine Number was M.B.J.B.49. B.T. 6000971900215 vide Ex. P/40 and 7 admitted his signature from A to A part. In his cross-examination, he admits that in Ex. P/40, he did not mention the name of the vehicle which pertains to the numbers scratched. 17. Purshottam Kurre, S.I. (PW-11) states that during the investigation, the Investigating Officer had sought information from District Transport Officer, Raipur regarding the seized vehicle bearing Registration No. CG- 04-KR-8846 and as per information provided, the said number pertains to Platina motorcycle. He states that thereafter on 14.02.2018, he wrote a letter to Police Inspector, Kanker for scratching the engine and chassis number of the said vehicle vide Ex. P/42. Homchand Nagarchi, ASI (PW- 12), he states that in reply to his letter, RTO, Raipur informed that vehicle number CG-04-KR-8846 is the number of Bajaj Platina Motorcyle, which is owned by one Pawan Kumar Mande vide Ex. P/48. 18. Bhujwal Sahu, ASI (PW-13) has categorically stated about the manner in which the investigation was conducted and contraband was seized from the possession of the accused/appellants, he is duly supported the prosecution case. In his lengthy cross-examination, the defence failed to bring out anything which could show false implication of the appellants in the crime in question. 19. So far as argument of learned counsel for the appellant that there is non- compliance of Sections 42 and 50 of the NDPS Act is concerned, it is relevant to reproduced these Sections, which read as under:- “42. Power of entry, search, seizure and arrest without warrant or authorization. In his lengthy cross-examination, the defence failed to bring out anything which could show false implication of the appellants in the crime in question. 19. So far as argument of learned counsel for the appellant that there is non- compliance of Sections 42 and 50 of the NDPS Act is concerned, it is relevant to reproduced these Sections, which read as under:- “42. Power of entry, search, seizure and arrest without warrant or authorization. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any 8 other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed i1n any building, conveyance or enclosed place, may, between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to suchdrug or substance: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. 9 (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorized under section 42 is about to search any person under the provisions of section 41, section 42 or sections 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the prson to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 to 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof of his immediate official superior.” 10 20. Admittedly, on 28.12.2017 at about 12:15 hour the vehicle of the appellants was intercepted by the Police wherein they were found traveling, upon search being made, 57 packets containing ganja like substance was recovered from the vehicle. Thereafter, PW-6 Shakti Singh (Constable) gave information about the proceedings to the SDOP, Kanker, at the instance of ASI- Bhujwal Sahu (PW-13) and after receiving the instructions from the SDOP, Kanker, witnesses were summoned and in their presence, the accused persons were given notice for producing any valid document for possession of the contraband, but they could not produce any such document. Looking to the oral and documentary evidence available on record, this Court finds that there is no violation of provision of Section 42 by the Police authorities while conducting search and seizure proceedings. 21. So far as compliance of 50 of the Act is concerned, a bare reading of the said section makes it clear that provisions of this section do not apply to any search or seizure where the article was not being carried on the person of the accused. It can be invoked only in cases where the drug/narcotic substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. 22. In the matter of Makhan Singh Vs. State of Haryana reported in (2015) 12 SCC 247, the Supreme Court considering the scope of Section 50 of the Act, held as under: “14. A Constitution Bench of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, while dealing with the scope of Section 50 of the NDPS Act, had emphasized upon the aspect of availability of right of an accused to have 'personal search' conducted before a Gazetted Officer or a Magistrate and held as under: "32...The protection provided in the section to an accused to be intimated that he has the right to have 11 his personal search conducted before a Gazetted Officer or a Magistrate, if he so requires, is sacrosanct and indefeasible- it cannot be disregarded by the prosecution except at its own peril. 33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish at the trial that the provisions of Section 50, and particularly, the safeguards provided in that section were complied with, it would not be advisable to cut short a criminal trial." 15. Compliance with Section 50 of the NDPS Act will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which the accused may be carrying ought to be searched. In State of H.P. v. Pawan Kumar, (2005) 4 SCC 350, this Court in Para (11) has held as under: "11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." The same view was reiterated in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746. 16. In the present case, since the vehicle was searched and the contraband was seized from the vehicle, compliance with Section 50 of the NDPS Act was not required. In the absence of independent evidence connecting the appellant with the fitter- rehra, mere 12 compliance with Section 50 of the NDPS Act by itself would not be sufficient to establish the guilt of the appellant. It is a well-settled principle of the criminal jurisprudence that more stringent the punishment, the more heavy is the burden upon the prosecution to prove the offence. When the independent witnesses PW1 and DW2 have not supported the prosecution case and the recovery of the contraband has not been satisfactorily proved, the conviction of the appellant under Section 15 of the NDPS Act cannot be sustained.” 23. In this case also, indisputably, the contraband was not found from the physical possession of the accused, but from the vehicle in which the appellants were travelling and as such, the question of personal search does not arise. From a plain reading of Section 50 of the Act as also the aforesaid judicial pronouncements it is abundantly clear that Section 50 is applicable only where search of a person is involved and said section is not applicable nor attracted where no search of a person is involved. Thus, search and recovery from a bag, brief case, container, etc. does not come within the ambit of Section 50 of the Act. 24. So far as argument of learned counsel for the appellant that the prosecution has not been able to prove ownership of the vehicle in question is concerned, from the evidence on record, it is proved that the registration No. CG-04-KR-8846 of the seized vehicle is in fact of motorcycle Bajaj Platina as per the information provided by the concerned RTO. When the Said vehicle was intercepted by the Police, three appellants were found in it and there were smell of ganja emanating from the said vehicle. In the preceeding paragraph, we have already held that the contraband was seized from the conscious possession of the 13 appellants. In these circumstances, even if the ownership of the seized vehicle could not be established, it does not affect the credibility of the prosecution case and the culpability of the the complicity of the appellants in the crime in question. 25. It cannot be stated as a rule of law that a police officer can or cannot be a reliable in a criminal case which will always depend upon facts of a given case. If testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, then statement of such witness cannot be discarded only on ground that he is a police officer and may have some interest in success of the case. Only when his interest in success of case is motivated by overzealousness to an extent of his involving innocent people, then, no credibility can be attached to his statement. Presumption that a person acts honestly applies as much in favour of a police officer as in respect of other persons and it is not proper to distrust and suspect him without there being good grounds therefor. 26. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trust worthy, the Court can definitely act upon the same. If, in the course of scrutinizing the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence. [AIR 2013 Supreme Court 3344 between Pramod Kumar v. State (GNCT) of Delhi.]. 27. In the present case, though the independent witnesses have not fully supported the prosecution case but the other witnesses, though police 14 personnel, have unequivocally stated about search and seizure of the contraband, the defence has utterly failed to elicit anything from them which could suggest that they had any interest or enmity with the accused/appellants for their false implication; their evidence appear to be trustworthy and supported by the documentary evidence on record and in these circumstances, there is no reason to suspect the credibility of these witnesses merely on the ground of they being the police personnel. 28. 28. Thus, keeping in mind the principles of law laid down by the Supreme Court referred to in the foregoing paragraphs, if we scrutinize the overall evidence on record, oral and documentary, complicity of the accused/appellants in crime in question stands proved beyond all reasonable doubt. Being so, the findings recorded by the trial Court holding the appellant guilty under Sections 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act and the same are hereby affirmed. 29. Resultantly, the appeal being without any substance is liable to be dismissed and is, accordingly, dismissed. 30. The appellant No. 1- Shekh Shabbir is reported to be in jail. He shall serve out the sentence awarded by the learned trial Court by means of the impugned judgment of conviction and order of sentence dated 22.02.2019. 31. The appellant No. 2-Vijay Mohite and appellant No. 3-Nandu Mohite are absconding after being granted temporary bail by this Court and as such, the trial Court concerned is directed to issue a permanent warrant of arrest against them in accordance with law and after they are arrested, they both shall be sent to jail for serving out the remaining part of their sentence. 15 32. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant No. 1- Shekh Shabbir is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 33. Let a certified copy of this judgment along with the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. 34. Registry is further directed to send a copy of this judgment to the Director General of Police, Chhattisgarh, Raipur, Chhattisgarh for information and necessary action. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) JUDGE CHIEF JUSTICE AMIT PATEL