Page No.1 of 13 2025:CGHC:48931-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Acquittal Appeal No. 104 of 2011 State of Chhattisgarh, through- District Magistrate, District – Bastar (CG) --- Appellant Versus 1. Bhagwan Singh, S/o Khem Singh Chauhan, aged about 34 years, Occupation – Labourer, R/o Telibandha, Sukhram Bada, Near Masjid, Parasnagar, Raipur (CG), 2. Azaz Ahmad, S/o Mustaque Ahmad, aged about – 21 years, Occupation – Labourer, R/o Raja Talab, Nurani Chowk, Civil Lines, Raipur (C.G.) --- Respondents --------------------------------------------------------------------------------------------- For Appellant/State : Mr. Amit Buxy, Panel Lawyer For Respondents : Mr. Gagan Tiwari, Advocate ---------------------------------------------------------------------------------------------- Division Bench Hon'ble Mr. Justice Sanjay K. Agrawal and Hon'ble Mr. Justice Radhakishan Agrawal Judgment on Board (24.09.2025) (1) By this acquittal appeal filed under Section 378(1) of the Code of Criminal Procedure (for short the “CrPC”), the appellant/State has called in question the legality, validity and correctness of impugned judgment of acquittal dated 02.12.2010, passed in N.D.P.S. Special Case No.02 of 2008 (State of Chhattisgarh vs. Bhagwan Singh and PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.09.26 14:38:14 +0530 Page No.2 of 13 Anr.) by the Special Judge, N.D.P.S. Act, 1985, Jagdalpur (CG), whereby the learned trial Court has acquitted both the accused/respondents No.01 and 02 of the charge under Section 20 (b) (ii) (C) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act of 1985’). (2) According to the case of the prosecution, on 18.11.2007 at about 08:30 AM, at police station within the territory of Vishrampur, District – Bastar, the accused/respondents No.1 & 2 were found in possession of total 130 Kg of narcotics drug ganja in the Maruti 800 Car bearing registration No.CG04-JP-4921. Immediately, at 08:30 AM, Rojnamcha Sanha was recorded vide Ex.P26C and Badrinath Sori (PW-04) was sent to bring independent witnesses Bhuwanlal Soni (PW-05) and Shivlal (PW-01), thereafter, Mukhbir Panchnama vide Ex.P-1 was prepared wherein secret information was received through Om Prakash Kujur (PW-06) that two persons (respondents herein) were travelling with contraband article ganja from Orissa towards Nagri, Dhamtari. Acting upon the said tip off, after completing the mandatory formalities as required under the N.D.P.S. Act, the police party reached the spot and found the accused persons at the spot. After following the procedure prescribed under the N.D.P.S. Act, the police party made a search and found the accused persons to be in possession of total 130 kg of contraband ganja and after preparing recovery panchnama, identification panchnama, weighment panchnama, sample panchnama and completing other formalities, the accused persons were arrested for having committed offence under the provisions of the N.D.P.S. Act. Page No.3 of 13 (3) Learned Special Judge framed charge under Section 20 (b) (ii) (C) of N.D.P.S. Act against the accused persons, which they denied and claimed to be tried. During trial, in order to bring home the offence, the prosecution examined as many as 06 witnesses as PW-01 to PW-06 and exhibited documents vide Exbts. P-1 to P-39 in support of the case. After closure of the prosecution evidence, statements of the accused persons were recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the prosecution evidence, pleaded innocence and false implication. (4) On completion of trial, learned Special Judge, upon appreciation of the oral and documentary evidence available on record, by the impugned judgment and order dated 02.12.2010, acquitted the accused persons of the charge levelled against them, which led to the filing of the present acquittal appeal by the State calling in question the legality, validity and correctness of the impugned judgment passed by learned Special Judge. (5) Mr. Amit Buxy, learned State Counsel submits that learned Special Judge is absolutely unjustified in acquitting the accused persons, as there is ample evidence available on record to connect them with the offence in question. He further submits that the mandatory provisions of Section 42(2) and Section 57 of the N.D.P.S. Act have been duly complied with by the investigating officer. The prosecution has proved its case beyond all reasonable doubts against the accused persons. Therefore, it is not a case where the accused persons were entitled for acquittal and the learned trial Court has Page No.4 of 13 committed grave legal error in acquitting the accused persons. Hence, in exercise of appellate power, the acquittal appeal preferred by the appellant-State deserves to be allowed and, further, the accused persons (respondents No.01 and 02) are liable to be punished for offence under Section 20 (b) (ii) (C) of the N.D.P.S. Act. (6) Mr. Gagan Tiwari, learned counsel appearing for the acquitted accused/respondents by relying upon the decision of the Supreme Court in the matter of Constable 907 Surendra Singh and another v. State of Uttarakhand 1 submits that the scope of interference in an appeal against the judgment of acquittal is extremely limited. He further submits that the learned Special Judge has clearly recorded the finding in paragraphs 16 and 17 of the judgment of acquittal that the prosecution has failed to prove that there is proper compliance of Section 42(2) of the Act of 1985. This apart the prosecution has also failed to comply Section 57 of the N.D.P.S. Act. Further, there is total non-compliance of Section 57 of the Act of 1985. To support his contentions, learned counsel relied upon the judgment passed by the Hon’ble Supreme Court in the matter of Karnail Singh vs. State of Haryana 2 Accordingly, in view of the above, the findings recorded by the learned trial Court in acquitting both the accused persons are well merited and, no interference by this Court is called for in it. Hence, the present acquittal appeal is liable to be dismissed. (7) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records 1 2025 INSC 114 2 (2009) 8 SCC 539 Page No.5 of 13 with utmost circumspection. (8) At the very outset, we would firstly consider the scope of interference in an appeal against the judgment of acquittal, for which, it would be profitable to notice the relevant principle of law laid down by their Lordships of the Supreme Court in the matter of Constable 907 Surendra Singh and another (supra), whereby in Para-11 & 12 it has been held that the High Court should interfere in the order of acquittal, if the same suffers from perversity and is based on misreading of material evidence etc. and observed as under: “11. Recently, in the case of Babu Sahebagouda Rudragoudar and others v. State of Karnataka, (2024) 8 SCC 149, a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus: “38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court. 39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29) 6 (2024) 8 SCC 149 “29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , SCC p. 432, para 42) ‘42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Page No.6 of 13 court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however,must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by Page No.7 of 13 the trial court.’ ” 40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8) “8. … 8.1. The acquittal of the accused further strengthens the presumption of innocence; 8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence; 8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record; 8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.” 41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles: 41.1. That the judgment of acquittal suffers from patent perversity; 41.2. That the same is based on a misreading/omission to consider material evidence on record; and Page No.8 of 13 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” 12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.” (9) Thus, in light of the above quoted guidelines, we have to examine whether the findings recorded by the learned trial Court suffer from patent perversity or the same is based on misreading/omission to consider material evidence on record and whether two reasonable views are possible or only the view consistent with the guilt of the accused is possible from the evidence available on record. (10) The learned Special Judge has acquitted the accused/respondents by recording following grounds: (i) Non-compliance of Section 42(2) of the N.D.P.S. Act, 1985; (ii) Non-compliance of Section 57 of the N.D.P.S. Act, 1985 and, (iii) The seizure witnesses, namely, Shivlal (PW-01) and Bhuwanlal Soni (PW-05) have not supported the case of the prosecution and turned hostile. (iv) Hamid Khan (PW-02), who is said to have weighed the alleged contraband, has not supported the case of the prosecution. (v) Police constable, Badrinath Sori (PW-04) has also Page No.9 of 13 not supported the case of the prosecution. (vi) The investigating officer, namely, Om Prakash Kujur (PW-06) has registered the offence against the accused/respondents prior to the lodging of the FIR. Non-compliance of Section 42(2) of the Act, 1985 (11) So far as non-compliance of Section 42(2) of NDPS Act is concerned, the alleged incident took place on 18.11.2007, however, it is apparent from paragraphs 16 & 17 of the impugned judgment that the entry regarding the alleged information was made in Roznamcha Sanha vide Ex.P29C and after giving duty certificate, police constable Badrinath Sori (PW-04) was sent to office of SDOP, Kondagaon to submit the information in writing. However, in order to prove the receipt of the information under Section 42(2) of the Act, Ramesh Nag, reader in the office of SDOP was also present before the trial Court on 11.09.2009, but he was not examined and discharged by the prosecution. This apart, the information is said to have been received in writing vide Talashi Panchnama vide Ex.P-02 and Ex.P-30, but in absence of any examination of any officer from the office of SDOP, it could not proved that such information was sent to the office of SDOP, and even, there is no seal of the office of SDOP in the document Ex.P- 30 (Talashi Panchnama). (12) Section 42 of NDPS Act came up for consideration before the Constitution Bench of the Supreme Court in the matter of Karnail Singh v. State of Haryana 3 in which their Lordships considered the statutory requirement of writing down and conveying information to 3 (2009) 8 SCC 539 Page No.10 of 13 superior officer prior to entry, search and seizure, while resolving the conflict between two earlier decisions rendered by the Supreme Court in the matters of Abdul Rashid Ibrahim Mansuri v. State of Gujarat 4 and Sajan Abraham v. State of Kerala 5 and held that whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case and while total non-compliance with requirements of Section 42(1)&(2) is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. Their Lordships further held that non-compliance of Section 42 of NDPS Act may not vitiate the trial if it does not cause any prejudice to the accused and observed in paragraph 35 as under:- “35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows : (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. 4 (2000) 2 SCC 513 5 (2001) 6 SCC 692 Page No.11 of 13 But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.” (13) Their Lordships of the Supreme Court have clearly held in paragraph 35(d) of Karnail Singh (supra) that while total non- compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. If any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. The principle of law laid down in Karnail Singh (supra) has further been followed by the Page No.12 of 13 Supreme Court in the matter of Boota Singh v. State of Haryana6. (14) Present is a case, which is total non-compliance of Section 42(2) of the Act as said information never reached to the superior officer, and the prosecution has failed to discharge its burden of showing due compliance with Section 42(2) of the NDPS Act. The finding of the learned Trial Court that there is total non-compliance with Section 42(2) of the NDPS Act is, therefore, affirmed being correct finding of fact. (15) So far as non-compliance of Section 57 of NDPS Act is concerned, the investigating officer, Om Prakash Kujur (PW-06) in paragraph 37 of his cross-examination has admitted that he has not sent the information regarding the arrest and seizure made from the accused/respondent within 48 hours, which the trial Court has also recorded in paragraph 30 of the impugned judgment of acquittal. (16) Further, the trial Court has recorded the finding that the independent witnesses, namely, Shivlal (PW-01), Bhuwanlal Soni (PW- 05) and weigher Hamid Khan (PW-02) have not supported the case of the prosecution. Similarly, police constable, Badrinath Sori (PW-04) who accompanied with the investigating officer, has admitted in his cross-examination that he did not see the accused persons in the car and no seizure was made in front of him. (17) Consequently, in view of the above detailed analysis, we are of the considered opinion that the prosecution has failed to comply with the provisions under Sections 42(2) and 57 of the Act of 1985, further, the independent witnesses have not supported the case of the 6 (2021) SCC OnLine SC 324 Page No.13 of 13 prosecution, this apart, the offence has been registered prior to registering of the FIR, thus, there is no legal evidence available to convict the accused persons under the aforesaid offence. Thus, the learned trial Court is absolutely justified in acquitting both the accused persons (private respondents herein) for offence under Section 20 (b) (ii) (C) of the Act of 1985. (18) Concludingly, we are unable to hold that the accused persons (private respondents herein) are the authors of the crime and, therefore, they are liable to be convicted for the offence in question. The learned trial Court has rightly held that the accused persons are entitled for acquittal for offence under Section 20 (b) (ii) (C) of N.D.P.S. Act on the basis of finding recorded in the impugned judgment dated 02.12.2010, as we do not find that the findings recorded by the learned trial Court suffer from patent perversity or the same is based on misreading/omission to consider material evidence on record and two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. (19) Accordingly, the appeal filed by the State against the acquittal of the accused persons/respondents, is hereby dismissed. Sd/- Sd/- (Sanjay K. Agrawal) (Radhakishan Agrawal) Judge Judge Prakash