1 2025:CGHC:29905 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 865 of 2023 1. Anil Saini S/o Rotaas Saini Aged About 40 Years R/o Ugrakhedi Vidhyanand Colony, P.S. - Chandni Bagh, Panipat, District Panipat (Haryana). 2. Sunil Saini S/o Palaram Saini Aged About 43 Years R/o Street No. 3, Basant Vihar, Karnaal Rural Part - 1, Ps Sadar, District Karanwal (Haryana) 3. Rajesh Saini S/o Kashiram Aged About 42 Years R/o Ugrakhedi, Near Government Hospital, Ps - Chandni Bagh, Panipat District Panipat (Haryana). 4. Umendra Singh Alias Umendra S/o Ramkumar Sanh, Aged About 37 Years R/o Babel, Ps - Chandni Bagh, Panipat, District Panipat (Haryana). ... Appellants versus State Of Chhattisgarh Through The Police Station Kondagaon, District : Kondagaon, Chhattisgarh. ... Respondent For Appellants : Mr. Vivek Kumar Shrivastava, Advocate For Respondent/State : Mr. Amit Buxy, Panel Lawyer HARNEET KAUR Digitally signed by HARNEET KAUR Date: 2025.07.04 10:47:41 +0530 2 SB- Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 02.07 .2025 1. This Criminal Appeal under Section 374(2) of CrPC has been filed by the appellants herein against impugned order of conviction and sentence dated 04/03/2023 (Annexure A-1) passed by the Special Judge (NDPS Act), Kondagaon in Special Criminal Case (NDPS Act) No. 9/2020 whereby they have been convicted for offence punishable under Section 20(b)(ii)(c) of the NDPS Act and has been sentenced to undergo R.I. for 10 years with fine of Rs. 1 lakh each and in default of payment of fine, further R.I. for 1 year to each appellant. 2. Case of the prosecution, in brief, is that on 02/12/2019 at about 09:45 PM at Mardapaal intersection in NH 30 within the ambit of Police Station Kondagaon, the appellants were found in unauthorized possession of 42.400 kgs of ganja and thereby, committed the aforesaid offence. 3. Further case of the prosecution is that information was received by the Police that some persons are travelling with contraband ganja in a Maruti Suzuki Echo Ambulance bearing registration No. HR 67B 5652 pursuant to which summons under Section 160 of CrPC was issued to two 3 independent witnesses namely Harendra Kumar Netam and Yogesh Kumar Sahu vide Ex. P/26 and P/27 and one letter informing the DSP Office with a copy of mukhbir panchnama was sent vide Ex. P/31C which was duly received by the DSP; panchnama regarding non-obtaining of search warrant under Section 42(2) of NDPS Act was prepared vide Ex. P/35; nakabandi panchnama was prepared vide Ex. P/38. Notice under Section 50 of the NDPS Act was given to the appellants/accused persons vide Ex. P/40 and search panchnama was prepared vide Ex. P/46 and search was conducted whereby 8 packets of contraband article was found wrapped in brown cello tape vide Ex. P/49 and Ex. P/50; identification memo of contraband was prepared whereby the test of the contraband was conducted vide Ex. P/54; weight panchnama of 42.800 kgs of contraband was prepared vide Ex. P/60; samras and sample panchnama was prepared and two sample packets of 50-50 grams each were prepared vide Ex. P/65. Thereafter, Dehati Nalishi was prepared vide Ex. P/78 and rojnamcha sanha was prepared vide Ex. P/80 and pursuant thereof, first information report was registered against the appellants for offence punishable under Section 20B of the NDPS Act. The seized samples were sent for forensic examination and 4 as per the FSL report (Ex. P/22), the seized contraband article was found to be ganja. After due investigation, the appellants were charge-sheeted for offence punishable under Section 20(b)(ii)(c) of the NDPS Act which was committed to the Court of Special Judge for trial in accordance with law. The appellants/accused persons abjured their guilt and entered into defence. 4. In order to bring home the offence, prosecution examined as many as 10 witnesses and brought on record 82 documents. The statements of the accused persons were taken under Section 313 of CrPC wherein they denied guilt, however, they examined none in their defence and neither brought any document on record. 5. Learned Special Judge, after consideration of oral and documentary evidence available on record, proceeded to convict the appellants for offence punishable under Section 20(b)(ii)(c) of the NDPS Act and sentenced them as aforesaid. 6. Mr. Vivek Kumar Shrivastava, learned counsel appearing for the appellants, would submit that the Special Court is absolutely unjustified in convicting the appellants for the offence in question as the two independent witnesses namely Harendra Kumar Netam and Yogesh Sahu have not 5 been examined before the Court and the conviction has been made on the self-serving statement of Investigating Officer namely Vivek Sengar (PW-10). He would further submit that appellants are not the owners of the vehicle from which seizure of ganja has been made and at the instance of the owner, the appellants had carried dead body in the Ambulance from Panipat to Patna and when they were returning, they were not aware that there was contraband substance in the vehicle, as such, the appellants are innocent and the appeal be allowed and the appellants be acquitted from the charges levelled against them. 7. Per contra, Mr. Amit Buxy, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt as the owner of the vehicle namely Dheerendra Kumar (PW-1) has clearly stated in his statement before the Court that since his brother Anil Saini (appellant No. 1) was unemployed, he had given his vehicle to him to make some earning and he had taken due care in ensuring that no incriminating material is transported in the vehicle, however, since the vehicle was in possession of Anil Saini (appellant No. 1), he had no information that contraband article was being 6 carried in the said vehicle. As such, the instant appeal is liable to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. In the instant case, on 02/12/2019, contraband substance ganja has been recovered from the possession of the appellants present in the Maruti Suzuki Echo Ambulance bearing registration No. HR 67B 5652 vide Ex. P/50 in the presence of two independent witnesses namely Harendra Kumar Netam and Yogesh Sahu, however, the submission made by learned counsel for the appellants is that the said two independent witnesses have not been examined before the Court, therefore, recovery is unsustainable and bad in law. However, the Investigating Officer namely Vivek Sengar (PW-10) has duly proved the recovery of ganja from the appellants vide Ex. P/50. 10. In this regard, in the matter of P.P. Fathima v. State of Kerala1, their Lordships of the Supreme Court have 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 1 (2003) 8 SCC 726 7 seizing authority that such seizure was genuinely made and observed in paragraph 7 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.” 11. NDPS Act is a complete code in itself. Once the procedure enumerated in Sections 42, 43, 49 and 50 is scrupulously followed, it is 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. 12. In the matter of Dharampal Singh v. State of Punjab3, 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 2 (2020) 10 SCC 120 3 (2010) 9 SCC 608 8 Chhattisgarh4 that the independent witnesses turning hostile cannot be a ground for acquittal under the NDPS Act. 13. As such, from the aforesaid legal discussion, it is vividly clear that merely because seizure the two independent witnesses have not been examined before the Court, it cannot be said that the entire prosecution’s case stands vitiated, particularly, when in the present case, the Investigating Officer namely Vivek Sengar (PW-10) has duly proved and supported the recovery of ganja from the appellants vide Ex. P/49 and P/50 and as per the FSL report (Ex. P/22), it has been found that the contraband article seized from the appellants is ganja, therefore, I do not see any good ground to disbelieve the fact of recovery and seizure of ganja from the appellants vide Ex. P/49 and Ex. P/50 as there is no procedural lapse on the part of the prosecution as per the material available on record. 14. The next contention raised by learned counsel for the appellants is that appellants are not the owners of the vehicle from which seizure of ganja has been made and they were only carrying dead body from Panipat, Haryana to Patna at the instance of the owner. However, in this regard, the statement of Dheerendra Kumar (PW-1) may be 4 (2020) 9 SCC 627 9 noticed herein who has clearly stated before the Court that though he is the registered owner of the vehicle in question but since his brother Anil Saini (appellant No. 1) was unemployed, he had given the said vehicle to him for the purpose of earning and on 03/12/2019, he was informed by Rajesh Saini (appellant No. 3) that his brother Anil Saini (appellant No. 1) along with the other appellants/accused persons has been arrested in connection with Crime No. 0/19 and his vehicle has been seized by the Police. 15. As such, it is quite apparent that the vehicle in question was in exclusive possession of appellant No. 1 namely Anil Saini and appellants No. 2, 3 and 4 were also travelling in the said vehicle along with appellant No. 1 when contraband article was seized vide Ex. P/49 and P/50. Thus, the plea taken by learned counsel for the appellants appears to have no merit in view of the statement of Dheerendra Kumar (PW-1), owner of the vehicle. In view of the aforesaid legal analysis, I do not find any good ground warranting interference in the impugned order (Annexure A-1) passed by learned Special Judge. The appellants have rightly been convicted for the offence punishable under Section 20(b)(ii)(c) of the NDPS Act. 16. Accordingly, this criminal appeal is liable to be and is hereby dismissed. 10 17. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail term, informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution of India before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Sanjay K. Agrawal) Judge Harneet