1 / 13 2025:CGHC:8050 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 97 of 2005 Judgment Reserved on : 09.12.2024 Judgment Delivered on : 14.02.2025  Surendra Rai, S/o Sakaldeep Rai, aged about 48 years, Occupation Hotel Business, resident of Railway Colony, Ahiwara, Thana Nandani, District Durg (C.G.) ... Appellant versus  State of Chhattisgarh, Through : The District Magistrate, Durg (C.G.) ... Respondent For Appellant : Smt. Indira Tripathi, Advocate. For Respondent/State : Ms. M. Asha, P.L. Hon'ble Smt. Justice Rajani Dubey, J (C A V Judgment) 1. The appellant in this appeal under Section 374(2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 29.01.2005 passed by the Special Judge (NDPS Act), Durg 2 / 13 (C.G.) in NDPS Special Case No.4/2004, whereby the appellant stands convicted and sentenced as under: Conviction Sentence Under Section 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985. RI for 05 years and fine of Rs.10,000/-, in default of payment of fine amount to undergo additional R.I for one year. 2. Case of the prosecution, in brief, is that on 18.03.2004 at around 12.30 pm, complainant Satya Prakash Tiwari (PW/5), the then Sub Inspector, Police Station Nandani received a secret information over telephone that the accused/appellant was transporting contraband article ganja in vehicle TVS Victor bearing registration No.CG-07-J-0447, information of which was recorded in Rojnamcha Sanha at 12.30 pm and the witnesses present near the police station namely Komal Prasad Sharma and Suryanarayan were made aware about the secret information and Mukbir Panchanama was prepared before them. Thereafter, information of the same was sent to S.D.O.P., Berla through special messenger Constable No.664 and acknowledgment receipt thereof was obtained and the police staff along with Sub Inspector and witnesses proceeded towards Murmunda Kumhari. Near the place, the accused/appellant was seen 3 / 13 coming on blue colour TVS motorcycle, who was intercepted by police personnel and a notice under Section 50 of the NDPS Act was served upon the accuse/appellant making him aware about his legal right of being searched, on which he consented for search by the Sub Inspector Satyaprakash Tiwari (PW-5). Before searching the clothes and motorcycle of the accused/appellant, the complainant himself, his staff, witnesses and all the investigation material were got searched and no objectionable material was found with anyone and a panchanama to this effect was also prepared. On search being made, substance like ganja was seized from the dickey of the motorcycle of accused/appellant and upon examination of contraband by the Sub Inspector (PW/5) and the witnesses present there by way of smelling, tasting and burning, and on the basis of their experience, they found it to be ganja and recovery panchanama was accordingly prepared. After weighment proceedings being done, 1.525 kg ganja was recovered from the accused/appellant, from which 50-50 grams samples each were withdrawn, sealed and sent for chemical examination to FSL. After completing the usual investigation, charge sheet under Section 20(b) of the NDPS Act was filed against the accused/appellant before the concerned jurisdictional Magistrate. Thereafter, learned 4 / 13 trial Court framed charge under Section 20(b)(ii)(B) of the NDPS Act, to which he abjured his guilt and prayed for trial. 3. In order to prove its case, the prosecution examined as many as 07 witnesses. Statement of the accused was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. 4. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment. 5. Learned counsel for the appellant submits that the impugned judgment is per se illegal and contrary to the evidence available on record. The mandatory provisions of Sections 42 and 50 of the NDPS Act have not been followed while effecting search and seizure proceedings. This apart, the independent witnesses have not supported the prosecution case but the learned trial Court relying the testimony of Sub Inspector Satya Prakash Tiwari (PW/5) convicted the accused/appellant though his evidence was found to be not trustworthy in the light of evidence of Constable J.P. Tripathi (PW/4). Learned counsel further submits that the Komal Prasad Sharma (PW/6) and Surya 5 / 13 Narayan (PW/7), memorandum and seizure witnesses, have not supported the case of the prosecution but the learned trial Court on the basis of conjecture and surmises held the accused/appellant guilty. The learned trial Court has wrongly held that the provision of Section 35 and 51 of the NDPS Act was duly proved against the accused/appellant and wrongly held that he was in possession of 1.525 kg contraband article ganja. Learned counsel also submits that the weighment panchanama was also not duly proved by Sub Inspector Satya Prakash Tiwari (PW/5) and constable J.P. Tripathi (PW/4). The prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant by adducing cogent and reliable evidence, even then the learned trial Court has held the appellant guilty of the above offence. Therefore, the impugned judgment is liable to be set aside. To buttress his submission, he would place reliance on the decision of Hon’ble Apex Court in the matter of Sanjeet Kumar Singh @ Munna Kumar Singh V. State of Chhattisgarh reported in 2022 LiveLaw (SC) 724. 6. Alternatively, learned counsel for the appellant, placing reliance on the decision dated 09.08.2021 passed in Cr.A. No.24/2009 by this Court in the matter of Ayub Khan V. State of C.G. [Neutral Citation No.2021LCGHC:16675] prayed that if this Court comes to the conclusion that the 6 / 13 prosection has proved its case against the appellant, then in such circumstances, considerign the age of the appellant, pendency of the appeal and the fact that the appellant remained in jail for more than one months, he may be sentenced to the period already undergone by him. 7. 7. On the other hand, learned counsel for the State supporting the impugned judgment submits that the investigating officer at the time of effecting search and seizure proceedings has substantially complied with all the mandatory provisions of the NDPS Act. Learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 8. Heard learned counsel for the parties and perused the material available on record. 9. It is apparent from the record of the learned trial Court that the learned trial Court framed charge under Section 20 (b) (ii) (B) of the NDPA Act on this ground that the appellant was in possession of 1.525 kg contraband article ganja in his motorcycle, which is more than the small quantity and less than commercial quantity. 10. In this case, Komal Prasad Verma (PW/6) and Suryanarayan (PW/7) are the independent witnesses, who 7 / 13 have admitted their signature in search (Ex.P/7) and seizure memo (Ex.P/34) but they denied the entire proceeding of NDPS drawn up before them. The prosecution declared these witnesses hostile and cross-examined them but they denied all suggestions of prosecution. As such, it is crystal clear that both the independent witnesses have not supported the prosecution case and the evidence of these witnesses cannot be relied upon for basing the conviction of the appellant. 11. That apart, Satya Prakash Tiwari (PW/5), Investigating Officer, has stated that on 18.03.2004 at around 12.30 pm, he received a secret information over telephone that the accused/appellant was transporting contraband article Ganja in dicky of his motorcycle TVS Victor bearing registration No.CG-07-J-0447. The said information was reduced in writing in Rojnamcha No. 866 under Ex.P/13. He has also stated that panchanama of secret information was sent to S.D.M., Nandini through constable R. Bagasram and he also tried to contact him personally but could not succeed and Rojnamcha of which was also reduced in writing under Ex.P/15. Constable Bagas gave the envelop (daak) to the S.D.M Police office and brought acknowledgment (Ex,.P/9) thereof, its entry was reduced in writing in Rojnamcha under Ex.P/16. This witness has also 8 / 13 stated that he along with police staff and witnesses proceeded to the spot and when they reached near 2 km away from the Hingnadih culvert, he saw the accused/appellant coming on his motorcycle bearing registration No.CG-07-J-0447, who was intercepted by them and told him that they have received information about the ganja being transported by him. Thereafter, after following due procedure, he searched the motorcycle of the accused/appellant and recovered 1.525m kg contraband article ganja from the dicky of his motorcycle. 12. In cross-examination, this witness has admitted in para 21 that the seal with which he sealed the contraband article ganja was the seal of Police Station Nandini and not his special seal. The article was sealed in newspaper. The seal remains with the Police Station in-charge or the Police Clerk, which the investigating officer can obtain giving verbal information and returns it after the proceedings. No record of taking and returning the seal is being maintained. He has also stated that he deposited the sealed articled with Clerk (Moharrir), which was kept in safe custody by him and the same article was sent to FSL for examination. He admitted that the article was sealed by him. 13. This witness in para 22 has also admitted that he did not mentioned the time and place of arrest of accused appellant 9 / 13 in Ex.P/39 and P/42. He has also not mentioned in Ex.P/42 that where the information was served by him. It was also not mentioned in Ex.P/11 that which seal it was. He has admitted that he has written in FIR (Ex.P/36) and Rojnamcha (Ex.P/18) that the article was sealed by seal in the police station. According to the Investigating Officer, the contraband article was kep in maalkhana. 14. J.P. Tripahti (PW/4), Head Constable, has stated that the contraband article was kept safe in Maalkhana. First the sample was sent to F.S.L., Raipur for examination but the same could not be deposited in F.S.L. Raipur due to holiday on 20.03.2004. Thereafter, again on 22.03.2004 the same could not be deposited due to some defect in the form and the article was sent on 23.03.2004 after fulfilling the requirement then the same could be deposited in FSL, Raipur, which was mentioned in Ex.P/12 separately and the report was yet not received. 15. Birendra Tiwari (PW/2), Constable, has supported the statement of Investigating Officer (PW/5) and stated that he along with S.P. Tiwari (PW/5) and other staff had gone raid ganja and near Hinganadih culvert, they intercepted the accused/appellant from whose possession contraband article ganja was seized. 10 / 13 16. Anjor Singh Sahu (PW/3), Reader of S.D.M, has stated that on 18.03.2004 at around 2.50 pm, a original notice (Ex.P/8) was given to him by constable Birendra Tiwari (PW/2) for giving it to his officer and a receipt (Ex.P/9) thereof was given by him. He has also stated that S.D.M. was not available in the office and when his office came to office at around 8.00 PM then he submitted/presented original notice before him. In cross-examination, this witness has admitted that the time in notice (Ex.P/8) was modified from 12 to 14 and he himself stated that mistake was committed which was rectified. This witness had denied that he did not received any paper and gave wrong acknowledgment. 17. It is evident from the record of the learned trial Court that the Maalkhana register was not produced before the Court by the prosecution and from the statement of J.P. Tripathi (PW/4), Maalkhana Clerk (Moharrir), it is clear that from 20.03.2004 to 23.03.2004 they tried to deposit sample packet of contraband to FSL, Raipur for examination but he did not state that who had the sample packet during this period. 18. The Hon’ble Supreme Court in Sanjeet Kumar (supra) held in para 17, 18 and 33-A as under :- “17. At the outset we would take note of some propositions of law on which there can be no controversy. They are, (I) that as per the decision 11 / 13 of the Constitution Bench of this Court in Mukesh Singh (supra), the fact that the informant also happened to be the investigator, may not by itself vitiate the investigation as unfair or biased; (ii) that it is not always necessary that the evidence of the police witnesses have to be corroborated by independent witnesses, as held in Dharampal Singh and Mukesh Singh (supra); (iii) that the independent witnesses turning hostile need not necessarily result in the acquittal of the accused, when the mandatory procedure is followed and the other police witnesses speak in one voice as held in Rizwan Khan (supra); and (iv) that once it is established that the contraband was recovered from the accused’s possession, a presumption arises under Section 54 . 18. But if the Court has -- (I) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the 12 / 13 presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. 19. xxxx 33. xxxxxx 33-A It is true that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused/ The moment a doubt is cast upon the most fundamental aspect, namely the search and seizure, the appellant, in our considered opinion will also be entitled to the same benefit as given by the Special Court to the co-accused. 19. In the light of above dicta of Hon’ble Apex Court, in the present case also it is amply clear that both the independent witnesses Komal Prasad Verma (PW/6) and Suryanarayan (PW/7) have not supported the case of the prosecution and the Investigating Officer (PW/5) utterly failed to prove this fact that he sent proper information to his higher officer, which is evident from the testimony of Anjor Singh Sahu (PW/3), Reader of S.D.O.P Office, who admitted overwriting 13 / 13 in notice (Ex.P/8). That apart, J.P. Tripathi (PW/4), Maalkhana Clerk (Moharrir) has also admitted that sample packet was first sent to FSL for examination on 20.03.2004 but could not be deposited due to holiday, and on 22.03.2004 it was again sent to FSL but on this day also the same could not be deposited due to some flaws and the sample packet could only be deposited on 23.03.2004 after fulfilling due requirement. As such, the whole prosecution story becomes suspicious and doubtful & the benefit of doubt, of course, has to go to the appellant. 20. In the result, the appeal is allowed. Impugned judgment of conviction and order of sentence dated 29.01.2005 is set aside and the appellant is acquitted from the charge under Section 20(b)(ii)(B) of the NDPS Act. 21. The appellant in this appeal is reported to be on bail. His bail bonds shall remain in operation for a period of six months in view of provisions of Section 437A of CrPC. 22. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Rajani Dubey) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE Date: 2025.02.14 16:46:12 +0530