1 2025:CGHC:3961-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 207 of 201 7 (Arising out of judgment of conviction and order of sentence dated 06.12.2016 passed by the learned Special Judge (NDPS Act) Mahasamund (C.G.), in Special Criminal Case No. H 12/2015) • Indrapal Mishra S/o Kanhaiya Lal Mishra, aged about 32 years, R/o Barsar, Police Station – Kotra, District – Jalaun (U.P.). ... Appellant versus • State of Chhattisgarh, Through Police Station Sankra, District – Mahasamund, Chhattisgarh. ... Respondent For Appellant : Ms. Nirupama Bajpai, Advocate For Respondent/State : Mr. Amit Buxy, Panel Lawyer Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (20.01.2025) Sanjay Kumar Jaiswal, J. Digitally signed by HEERA LAL SAHU Date: 2025.01.22 16:56:14 +0530 2 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 06.12.2016 passed by the learned Special Judge (NDPS Act) Mahasamund, District - Mahasamund (C.G.), in Special Criminal Case No. H 12/2015 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 RI for 20 years and to pay fine of ₹1,00,000/-; in default of payment of fine, additional rigorous imprisonment for 5 years 2. The prosecution case in brief is that on 06.04.2015, when Deepak Kumar Sahu was posted as Sub Inspector in Sankara Police Station at about 16:30 hours, he received information from an informer that two persons are coming from Basna towards Sankara in a silver coloured car bearing registration number MP-04-HH-7722, who are carrying Ganja in two-three plastic bags for sale. Upon receiving this information, the information was recorded in Rojnamcha Sanha and witnesses Sachin Yadav (PW-9) and Narayan Agrawal (PW-8) were served notice. After preparing the Panchnama of the reasons for not being able to obtain the search warrant, he himself along with his staff went to the spot and barricade the road in front of NH-53 Main 3 Road Sankara, he stopped the vehicle No. MP-04-HA-7722 and asked the name and address of the two persons sitting in the car, they told their names to be Saurabh Mishra and Indrapal Mishra (appellant herein). The accused were served a notice under Section 50 of N.D.P.S. Act vide Ex.P- 15. Then after obtaining consent from the accused persons vide Ex.P-16, search Panchnama of ASI, Deepak Kumar and witnesses by the accused persons was prepared vide Ex.P-17. When the vehicle of the accused was searched, the drug ganja was found in three plastic bags in the rear seat and trunk of the vehicle, which were 82 packets in total in polythene packets of 1 kg each. Panchnama of recovery of ganja was prepared on the spot vide Ex.P-20. The recovered ganja was identified by looking, smelling, tasting and burning it and Identification Panchnama was prepared vide Ex.P-21. To weigh the ganja, weigher Bhojo alias Prahlad (PW-7) was called to the spot with an electronic scale by sending an employee. Weigher Bhojo alias Prahlad (PW-7) reached the spot at 18:50 hours with an electronic scale. When the electronic scale was physically verified, it was found to be correct. When the ganja recovered on the spot was weighed by weigher Bhojo alias Prahlad, all 82 packets were found to contain 1 kg each of ganja. A total of 82 kg of ganja was recovered from the said vehicle vide Ex.P-23. All the packets of the recovered ganja were opened and mixed 4 together. A sample of 100 grams was weighed and separated from the said mixed ganja. It was wrapped in paper and sealed. The remaining ganja was again packed in polythene packets and three plastic bags and sealed and the sample was marked as A-1. On the spot itself, in front of witnesses, 82 kg of ganja including a sample packet of ganja recovered from the accused, a mobile of Lava company and vehicle number MP-04-HA-7722 were seized and two seizure memos were prepared vide Exs.P-25 & P- 26. The seized material and the accused were returned to the police station along with the accompanying staff and a Rojnamcha Sanha was registered. Seized material was handed over to Mohan Lal Sahu (PW-2) for safekeeping. FIR under Crime No. 58/2015 was lodged vide Ex.P-27 in the police station. The accused were arrested vide Exs. P-28 & P-29. Statements of witnesses were recorded. Information of the entire proceedings was sent to the Sub-Divisional Officer Pithora. On 07.04.2015, the seized sample packet A- 1 of ganja was sent for chemical examination to FSL through constable No. 742 Lemon Sahu (PW-4). In FSL report (Ex.P-32), the contents of the said sealed packet were found to be ganja. After completion of investigation, charge sheet was filed against the appellant. 3. The prosecution in order to prove its case examined as many as 9 witnesses and exhibited 36 documents. The 5 statements of the appellant and other co-accused under Section 313 of Cr.P.C. were recorded wherein they denied guilt. However, the appellant in support of his defence neither examined any witness nor exhibited any document. 4. The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant and sentenced him as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence. 5. Learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offence under Section 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 Narayan Agrawal (PW-8) and Sachin Yadav (PW-9) who are witnesses of Mukhbir Panchnama have not supported the case of the prosecution. He further submits that the independent witness namely Prahlad (PW-7) who was said to be weighing witness by prosecution has also not supported the case of the prosecution. He further vehemently argued that the provisions contained in Sections 42(2) & 50 of the NDPS Act have not been complied, as such, appellant 6 herein deserves to be acquitted of the charge. Hence, it is prayed by him that sentence of the appellant may also be reduced suitably. Thus, the present appeal may be allowed in full or in part. 6. 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 seizure and recovery witnesses Narayan Agrawal (PW-8) and Sachin Yadav (PW- 9) and weigher Prahlad (PW-7) have turned hostile, but Investigating Officer i.e. Assistant Sub-Inspector Deepak Kumar Sahu (PW-5) has fully proved the case of the prosecution and, therefore, the case of the prosecution cannot be said to be vitiated. Learned State counsel further submits that the provisions contained in Sections 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 appellant is well merited and, therefore, present appeal deserves to be dismissed. 7. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 7 8. In the case at hand, on the date of offence i.e. 06.04.2015, illegal contraband i.e. Ganja was recovered and seized from the possession of the appellant, present in his silver colour car bearing registration number MP-04-HH-7722, vide seizure memo Exs.P25 and P-26 in presence of witnesses- Narayan Agrawal (PW-8) and Sachin Yadav (PW-9). However, both the said witnesses have turned hostile and not supported the case of the prosecution. Indeed, they have only stated that they have signed the seizure memo. But, Investigating Officer, namely, Deepak Kumar Sahu (PW-5) has duly proved the seizure of Ganja from the appellant vide Ex.P-25 & P-26. 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 1 (2003) 8 SCC 726 8 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.” 9. 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. 10.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. 2 (2020) 10SCC 120 3 (2010) 09 SCC 608 4 (2020) 09 SCC 627 9 11.As such, from above analysis on the point, it is vividly clear that merely because seizure witnesses have not supported the case of the prosecution, it cannot be said that the entire prosecution’s case stands vitiated. More particularly, in the present case, Investigating Officer, namely, Deepak Kumar Sahu (PW-5) has duly proved and supported recovery and seizure of Ganja from the appellant vide seizure memo (Exs.P-25 & P-26) and, as per FSL report (Ex.P-32) also, it has been opined that Ganja is present in the sample A-1, 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 vide Exs.P-25 & P-26 and, as such, the findings recorded by the learned trial Court in this regard, is liable to be and is hereby affirmed. We hereby hold accordingly. 12. The next contention that has been raised on behalf of the appellant is that the sample taken from seized contraband were sent to the FSL with delay. 13. In this regard, on perusal of record it seems that the seizure was made on 06.04.2015 and the sample packet (A1) was sent on 07.04.2015 from the office of Superintendent of Police, Mahasamund, District - 10 Mahasamund (C.G.) to State Forensic Science Laboratory which were received by the State Forensic Science Laboratory on 08.04.2015. Consequently, the argument put forth in this behalf by the appellant deserves to be and is hereby rejected. 14. 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 by the prosecution in its letter and spirit. 15. Looking to the evidence of Investigating Officer Deepak Kumar Sahu (PW-5) and the material available on record, it cannot be deemed as non-compliance with 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. 16. 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. 17. The Trial Court in paragraph 15 of its judgment clearly held that from the perusal of Section 50 of the NDPS Act, it is clear that the provisions of this section apply only to 11 personal searches. According to the prosecution, the seized cannabis was kept in the car vehicle, which 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. 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. 18. 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 is 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 appellant for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act may also be reduced. 19. 19. As such, in view of discussion made hereinabove, taking into consideration the law laid down by the Hon’ble 12 Supreme Court in the matter of Budhiyarin Bai (supra) and further considering that the Appellant has no criminal antecedents, he is currently aged about 41 years and he is facing the lis since 2015, in the considered opinion of this Court, while affirming the conviction of the appellant for offence under Section 20(b)(ii)(C) of the NDPS Act, we deem it appropriate to reduce his sentence of 20 years’ rigorous imprisonment, as awarded to him by the learned trial Court, to 10 years’ rigorous imprisonment. However, the fine imposed by the learned trial Court shall remain intact but the sentence of 5 years’ rigorous imprisonment in default of payment of fine amount is also reduced to 6 months’ rigorous imprisonment. 20. Consequently, this criminal appeal is party allowed to the extent indicated herein above. 21. 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 H.L. Sahu