1 2025:CGHC:3606-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 931 of 201 9 (Arising out of judgment of conviction and order of sentence dated 25.05.2019 passed by the learned Special Judge (NDPS Act) Mahasamund, (C.G.), in Special Criminal Case No. H 16/2018) 1. Raju Khan S/o Pyarelal aged about 44 years R/o Village Ward No. 14, Bazar Para, P.S. Titlagarh, District – Balangir (Odisha). 2. Mo. Shagir (Died And Deleted) As Per Hon'ble Court Order Dated 20-09-2023 And 05-10-2023. ... Appellant versus • State of Chhattisgarh, Through: Station House Officer, Police Station – Komakhan, District – Mahasamund (C.G.) ... Respondent For Appellant : Mr. Malay Shrivastava, Advocate For Respondent/State : Mr. Amit Buxy, Panel Lawyer DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (21.01.2025) Digitally signed by HEERA LAL SAHU Date: 2025.01.30 17:57:45 +0530 2 Sanjay Kumar Jaiswal, J. 1. Since during pendency of this appeal one of the two accused-appellants herein i.e. Mohd. Shahgir (A-2) died and therefore the present appeal stands abated so far as Mohd. Shagir (A-2) is concerned and the appeal is being considered in respected of Raju Khan (A-1). 2. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, appellant Raju Khan (A-1) & Mo. Shagir (A-2) (died during pendency of the appeal) herein have preferred this criminal appeal calling in question legality, validity and correctness of the judgment of conviction and order of sentence dated 25.05.2019 passed by the learned Special Judge (NDPS Act) Mahasamund, District - Mahasamund (C.G.), in Special Criminal Case (N.D.P.S. Act) No. H-16/2018 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 R.I. for 12 years and to pay fine of 1,20,000/-; in default ₹ of payment of fine, additional rigorous imprisonment for 1 year 3. The prosecution case in brief is that on 25.03.2018, the in- charge of Komakhan police station/Deputy Superintendent of Police Ashok Kujur (PW-8) received secret information from an informant that two unknown persons in a white 3 Tata Indigo car, bearing registration No. OR-02-AX/9996 were coming from Odisha to Chhattisgarh with illegal contraband ganja. On the said information, he prepared Mukhbir Suchna panchnama vide Ex.P-5 and also panchnama for obtaining search without warrant vide Ex.P-6. Thereafter, he left for NH 353 Mandinaka Kashibahara with witnesses and accompanying staff. During the blockade at the spot, a white Tata Indigo car was seen coming from Khariyar Road as per the information given by the informant. The barricade was lowered and car was stopped in which two persons were sitting. On asking for their names and addresses, one person told his name Raju Khan (appellant No. 1 herein) and the other person stated his name to be Mohd. Shagir (appellant No.2 herein who died during pendency of appeal). In the presence of witnesses, the accused were given notice under Section 50 NDPS Act vide Ex. P-7 and vide Ex.P-8 they were apprised of their legal rights to have themselves and their vehicle searched in front of a magistrate or a gazetted officer. Their consent was obtained vide Ex.P-9. The search of the police party was made vide Ex.P-10 and when the accused searched the police officer, police staff and witnesses, no objectionable object was found in their possession. In the presence of witnesses, 4 search panchnama was prepared vide Ex.P-11 and the rear trunk of the vehicle Tata Indigo car No. OR-02-AX/9996 which was in possession of the accused, was searched in which 50 packets of illegal narcotic substances like ganja were found kept in 6 bags. Thereafter, recovery panchnama was prepared vide Ex.P-12. The seized substance was identified by smelling, rubbing and burning and was found to be ganja. Identification Panchnama was prepared vide Ex.P-13. Notices were given to the accused persons vide Exs.P-14 & P-15 Under Section 91 of Cr.P.C.. The electronic weighing machine brought to the spot was physically verified, and found to be correct. Panchnama was prepared for physical verification of the scale vide Ex.P- 16. The 50 packets of ganja recovered from the accused were weighed which found to be total be 50 kg vide Ex.P- 17. The seized substance was mixed and Samras Panchnama was prepared vide Ex.P-18. Two sample packets of 100 grams each were prepared vide Ex.P-19 for forensic examination. The recovered ganja and sample packets and other property were seized from the accused and a seizure memo was prepared vide Ex.P-20. Crime Details form was prepared vide Ex.P-22. Both the accused were arrested vide Exs. P-23 & P-24. FIR was registered vide Ex.P-33. During the investigation, the statements of 5 the witnesses were recorded. A report of the entire proceedings was prepared and sent to the SDOP office, Bagbahara. The sample packet of the seized ganja was sent to the Forensic Science Laboratory, Raipur for examination. In FSL report (Ex.P-37), the sample was found to be ganja. After completion of investigation, charge sheet was filed against the appellants. 4. The prosecution in order to prove its case examined as many as 11 witnesses, exhibited 41 documents and 1 Article. The statement of the appellants was recorded under Section 313 of Cr.P.C. wherein they denied their guilt and pleaded false implication. However, the appellants in support of their defence neither examined any witness nor exhibited any document. 5. The learned trial Court after appreciating the oral and documentary evidence available on record, by impugned judgment, proceeded to convict both the accused persons and sentenced them as mentioned in the opening paragraph of this judgment, against which this appeal has been preferred. 6. 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 6 the said offence beyond reasonable doubt. He further submits that the independent witnesses namely Nagendra Singh Thakur (PW-2) and Gyanchand Jain (PW-4) who are witnesses of Mukhbir Panchnama have not supported the case of the prosecution. He further submits that the independent witness namely Santosh Yadav (PW-6) who is said to be the witness of weighment panchnama by prosecution has also not supported the case of the prosecution. He further vehemently argued that the provisions contained under Sections 42(2) & 50 of the NDPS Act have not been complied with and as such, appellant herein deserves to be acquitted of the charge. Hence, it is prayed by him that sentence of the appellant may also be reduced suitably or the present appeal may be allowed in full or in part. 7. 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 independent witnesses Nagendra Singh Thakur (PW-2) and Gyanchand Jain (PW-4) and weigher Santosh Yadav (PW-6) have turned hostile, but Investigating Officer i.e. Deputy Superintendent of Police Ashok Kujur (PW-8) has fully proved the case of the 7 prosecution and, therefore, the case of the prosecution cannot be said to be vitiated. Learned State counsel further submits that the provisions contained under 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. 8. We 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 case at hand, on the date of offence i.e. 25.03.2018, illegal contraband i.e. Ganja was recovered and seized from the possession of the appellant who was sitting in white colour Tata Indigo car bearing registration No. OR-02-AX/9996, vide seizure memo Ex.P-20 in presence of witnesses- Nagendra Singh Thakur (PW-2) and Gyanchand Jain (PW-4). 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, Ashok Kujur (PW-8) has duly proved the seizure of Ganja from the appellants vide Ex.P-20. In this regard, their Lordships of the Supreme Court in the matter of P.P. Fathima v. State 8 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 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.” 10.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 1 (2003) 8 SCC 726 2 (2020) 10SCC 120 9 corroborate the testimony of police officials, through the testimony of independent witnesses. 11.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. 12.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, Ashok Kujur (PW-8) has duly proved and supported recovery and seizure of Ganja from the appellant vide seizure memo Ex.P-20 and, as per FSL report (Ex.P-37) also, it has been opined that Ganja is present in the sample A-1, which was taken from the contraband seized from the appellants 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 Ex.P-20 and, as such, the findings recorded by the learned trial 3 (2010) 09 SCC 608 4 (2020) 09 SCC 627 10 Court in this regard, is liable to be and the same is hereby affirmed. We hereby hold accordingly. 13. The next contention that has been raised on behalf of the appellant is that the sample taken from seized contraband was sent to the FSL with delay. 14. In this regard, on perusal of record it seems that the seizure was made on 25.03.2018 and the sample packet (A1) was sent on 28.03.2018 from the office of Superintendent of Police, Mahasamund, District - Mahasamund (C.G.) to State Forensic Science Laboratory which were received by the State Forensic Science Laboratory on 28.03.2018. Consequently, the argument put forth in this behalf by the appellant deserves to be and is hereby rejected. 15. 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 with by the prosecution in its letter and spirit. 16. Looking to the evidence of Investigating Officer Ashok Kujur (PW-8) 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, 11 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. 17. 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. 18. The Trial Court in paragraphs 13 & 14 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 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. 19. At this stage, learned counsel for the appellant submits 12 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 was 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 appellant Raju Khan for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act may also be reduced. 20. As such, in view of discussion made hereinabove, taking into consideration the law laid down by the Hon’ble Supreme Court in the matter of Budhiyarin Bai (supra) and further considering that Appellant Raju Khan has no criminal antecedents, he is currently aged about 50 years and he is facing the lis since 2018, while affirming the conviction of appellant Raju Khan for offence under Section 20(b)(ii)(C) of the NDPS Act, we deem it appropriate to reduce his sentence from 12 years’ rigorous imprisonment, to 10 years’ rigorous imprisonment. However, the fine imposed by the learned trial Court shall remain intact, but the sentence of 1 year’s rigorous imprisonment in default of payment of fine amount is also reduced to 3 months’ 13 rigorous imprisonment. 21. Consequently, this criminal appeal is party allowed to the extent indicated herein above. 22. 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