1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 107 of 2016 Judgment Reserved on 04.04.2025 Judgment Delivered on 09.04.2025 • State of Chhattisgarh, Through the Police Station Kotwali, District Rajnandgaon, Chhattisgarh. ...Appellant versus 1. Dinesh Singh, S/o Kamala Singh, aged about 33 Years, R/o Supela, Indira Nagar, District Durg, Chhattisgarh. 2. Santosh Pal, S/o Ramlal Pal, aged about 28 Years, R/o Kosa Nagar, Bhilai Marathi Mohalla, District Durg, Chhattisgarh. 3. Sharad Dehuri, S/o Narayan Dehuri, aged about 44 Years, R/o Dangapal, Post Bamur Police Station Ishwar Nagar, District Angul, Orissa. 4. Deepak Singh Baghel, S/o Santosh Singh, aged about 24 Years, R/o Rampur Nawagaon, Police Station Chhuikhadan, District Rajnandgaon, Chhattisgarh. ... Respondents For Appellant : Mr. Deepak Kumar Singh, Panel Lawyer. For Respondents : Mr. Anuj Kumar Pandey, Advocate. Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal CAV Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal filed by the State/Appellant under Section 378(1) of Cr.P.C. arises out of the judgment dated 24.02.2016 passed by the AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.04.09 14:27:55 +0530 2 Special Judge under NDPS Act, Rajnandgaon, C.G. in Special Case No.04/2015, whereby the learned trial Court acquitted the accused persons / respondent Nos. 1 to 4 herein of the charge under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') on the basis of benefit of doubt. 2. Case of the prosecution, in brief, is that on 07.02.2015, complainant/PW-14 K.C. Das, S.I., Police Chouki, Chikhli, received a secret information from the informant that two four-wheelers cars are carrying illegal contraband i.e. Ganja from Kawardha to Khairagarh Road for sale. On receipt of such information, he along with Constable No.984 and other witnesses, after giving notice and preparing information/panchnama, rushed to the spot for necessary action and also informed about the same to higher official. Thereafter, he reduced the information in Roznamcha Sanha and proceeded for the raid proceedings along with police personnel. After that, at 6:25 pm, the said raid team stopped the two four-wheelers and told them about the information received from informer. In compliance of Section 50 of NDPS Act, a notice vide (Ex.P-13) was given to accused persons. Thereafter, personal search of the police party and the witnesses were also made by the accused persons. As per the consent of the accused persons, Police team searched the accused persons and their vehicles and found ganja like substance. After that, identification panchnama (Ex.P-17), recovery panchnama (Ex.P-18) and physical verification of weight machine (Ex.P-19) were done, seal sample panchnama was prepared vide Ex.P-20 and proceedings of Ganja seizure were made in presence of the witnesses. From accused- Dinesh, one vehicle Tavera white colour bearing registration No.CG07-AS-7212, five packets of 3 ganja kept in polythene near the driver seat and one Nokia Company mobile phone having SIM No.9907416642 were seized. Likewise, from accused-Santosh Pal, 14 packets of Ganja kept in polythene and one Samsung mobile having SIM No.7803049900 were seized from the middle seat of said Tavera Car. Similarly, from accused- Deepak Singh Baghel, one vehicle TATA Zest Grey Colour bearing registration No.CG08-V-7737, 16 packets of Ganja kept in driver seat and one red colour Nokia Company mobile having SIM No.8815214286 were seized. Lastly, from accused- Sharad Dehuri, 50 packets of Ganja kept in polythene under the middle seat of said TATA Zest car and one mobile phone of M-TECH Company having SIM No.7735975790 were seized. Weighment of the same was done and total 85 kg Ganja were recovered. Out of which, 25-25 gms of each ganja were taken out and packets were prepared for testing and total Ganja worth Rs.6,80,000/- were seized by the police and in relation to which, a notice under Section 91 Cr.P.C. was given to the accused persons and asked for valid documents for carrying the seized ganja and in absence thereof, Dehati Nalishi (Ex.P-3A) was lodged by the police against the accused persons at zero number, pursuant to which, FIR (Ex.P-3) was registered against the accused persons and they were taken into custody. Seized samples packets were sent to FSL for chemical examination and as per FSL report (Ex.P-36), the recovered substance was found to be ganja. 3. After completion of investigation, charge sheet was filed against the accused persons / respondent Nos. 1 to 4 before the Special Judge under NDPS Act, Rajnandgaon, C.G. The respondents No.1 to 4 abjured their guilt and prayed for trial. 4 4. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 56 documents in support of case of the prosecution. In their defence, respondent Nos. 1 to 4 have examined none, but exhibited one document i.e. Ex.D-1. 5. The learned trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused persons / respondent Nos. 1 to 4 herein of said charge leveled against them. 6. Learned counsel for the appellant/State would submit that the trial Court is unjustified in acquitting the accused persons / respondent Nos. 1 to 4 herein of said charge by recording perverse findings. He would further submit that there is cogent and clinching evidence available on record to connect the accused persons / respondent Nos. 1 to 4 with the offence alleged against them. He would also submit that mandatory provisions of NDPS Act have been complied with by the prosecution and despite that, the learned trial Court has committed grave error in acquitting the accused persons / respondent Nos.1 to 4 without appreciating the evidence on record in its correct perspective. Thus, the impugned judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside. 7. On the other hand, learned counsel for the respondents No. 1 to 4 / accused persons would support the impugned judgment and submit that there are material contradictions and omissions in the statement of PW-14 K.C. Das, Investigating Officer and his statement does not corroborate with the other witnesses' evidence. He would further submit that seizure witnesses in this case namely PW-10 Abdul Sultan and PW-15 Kantilal Rajput have turned hostile and not supported the 5 prosecution. He would also submit that there is no mention of sign of marks 'A, B' in the seized sample nor the same was sealed and kept in proper manner and that PW-8 Rajesh Sahu, who is said to have conducted weighing proceedings, has also turned hostile and not supported the prosecution case. He would also submit that the trial Court, after appreciating the evidence available on record, has rightly come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt to connect the respondent Nos. 1 to 4 with the crime in question, which resulted into their acquittal. Therefore, the appeal is liable to be dismissed. 8. We have heard learned counsel for the parties and perused the material available on record. 9. The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:- 25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 10. As regards the involvement of the respondents No.1 to 4 in the crime in question, the evidence of Investigating Officer- PW-14 K.C. Das, S.I., is very significant. He has deposed that on 06.02.2015, he received a secret information from the informant that illegal contraband- Ganja is being transported in two four-wheelers from Kawardha to Khairagarh 6 Road for sale. On such information, he along with police personnel and independent witnesses, after giving notice and preparing information/panchnama, rushed to the spot and also informed about the same to higher official. Thereafter, he reduced the information in Roznamcha Sanha and proceeded to Kawardha - Khairagarh Road for raid. After that, the said raid team stopped the above mentioned two four-wheelers in which accused persons were travelling and told them about the information received from informer. Thereafter, in compliance of Section 50 of NDPS Act, a notice vide (Ex.P-13) was given to accused persons. After that, a personal search of the police party and the witnesses was also made by the accused persons and after obtaining their consent, Police team searched the accused persons and the said two four-wheelers and total 85 kg ganja worth Rs.6,80,000/- were recovered from the vehicles vide Ex.P-32 in presence of witnesses namely PW-10 Abdul Sultan and PW-15 Kantilal, however, these witnesses to seizure have turned hostile and not supported the prosecution case by stating that they did not know the accused persons and nothing has been seized by the police before them and the documents, in which, they signed were also not prepared before them. This apart, the statement of this witness (PW-14) would further state that in presence of independent witnesses, he prepared the consent panchnama of accused persons vide Ex.P-14, search panchnama vide Ex.P-15 and vehicle search panchnama vide Ex.P-16, but on the contrary, a perusal of Ex.P-6, notice under Section 160 Cr.P.C. issued to PW-10 Abdul Sultan and PW-15 Kantilal, would show that only after completion of entire proceedings of alleged seizure, notice was given to them and he (PW-14) himself admitted in his cross-examination that 7 when the panch witnesses came to police station, then he prepared the notice and gave it to them at police station itself. Besides above, his statement (PW-14) would further show that he has deposited the seized articles in Malkhana in sealed condition and its receipt is Ex.P-29, however, perusal of Ex.P-29 (receipt of depositing of seized articles) would show that there is no such seal affixed in the said document and receipt (Ex.P-29) would further show that there is also overwriting of digit '2' in the said document nor there is mention of sign of marks 'A, B' in the sample packets. In cross-examination, this witness (PW-14) admitted that no samras panchnama has been prepared by him nor there is mention in Ex.P-17 (narcotic substance identification panchanma) that small quantity of ganja was taken out from each packet of identification. He further admitted that in Ex.P-20 (Narcotic Substance Seal Panchanama), he did not affix any sample seal. He also admitted that while depositing the seized articles in Malkhana, he did not mention the crime number. He also admitted that in spot map Ex.P-55 which was prepared at 10:30 am, he has mentioned the Crime No.96/2015, but Crime Number is recorded at the time of registering FIR and in this case, FIR (Ex.P-3) was registered at 18:50 hours, then, how this witness (PW- 14) could have mentioned crime number in spot map (Ex.P-55) before registering of FIR (Ex.P-3), making the version of this witness (PW-14) doubtful. That apart, PW-12 Hem Singh Sahu, Head Constable, admitted that he had kept the seized articles in the same condition in Malkhana as he received the same from the investigator and in the same condition, he brought the seized articles from the Malkhana to the Court. He further admitted that he did not mention in Malkhana 8 Register about the seized sack (bori) was sealed. He also admitted that crime number was mentioned in the seized articles when he received from the Investigator and gave him a receipt thereof. In cross- examination, he admitted that in Ex.P-26 Malkhana Register, there is mention of receiving the seized articles in sealed condition and when this witness was shown the copy of Malkhana Register verified by the police station In-charge pointing out that there is no mention of seal in the copy of Malkhana Register (Ex.D-1), then he has stated that there is no mention about the seal in Ex.D-1 Malkhana Register which was presented before the Court earlier. However, perusal of Malkhana Registers Exs.P-26 & D-1 would show that the words “lhy can izkIr” have been added in the Ex.P-26 Malkhana Register afterwards intentionally. While recording his statement (PW-12) on 09.11.2015, the trial Court also took a note that the sack (bori) is tied with plastic rope which is not sealed and can be opened and closed. He further admitted that he did not mention in Malkhana Register that he has deposited the sample which was marked as A & B. He also admitted that in the seizure memo (Ex.P-32) also, there is no mention of sign of marks 'A, B'. He also admitted that on 10.02.2015, he had sent the seized articles to FSL for chemical examination through constable, but as per FSL report, the seized articles were received by it on 09.02.2015. 11. Thus, from perusal of the above statements, it is quite vivid that there are major contradictions and omissions in the statement of PW-14 K.C. Das, Investigating Officer & PW-12 Hem Singh Sahu, Head Constable, and their statements do not corroborate with each other and the documents available on record, which makes their version doubtful and untrustworthy. Furthermore, as per Exs.P-26 & D-1, copies of Malkhana 9 Registers, seized articles were deposited on 07.02.2015, but there is no mention that the seized articles were in sealed condition and also there is no sign of marks A & B in the alleged seized packets and that there is no such entry of taking sample packets which was sent to FSL for chemical examination in Malkhana Registers (Exs.P-26 & D-1), which means that the seized articles were not sealed and kept in proper manner/custody. Besides above, a perusal of Ex.P-20, Narcotic Substance Seal Panchnama would show that there is no seal affixed on it to prove that on the date of incident, Ganja like substance was seized. Apart from the above, independent seizure witnesses namely PW-10 Abdul Sultan and PW-15 Kantilal Rajput have turned hostile and did not support the prosecution story. Although PW-14 K.C. Das, I.O. has stated that weighment of seized articles was got done through PW-8 Rajesh Sahu, however, this witness (PW-8) has also turned hostile by stating that he did not conduct any weighment proceeding in Chikhli Police Station or at the spot. The learned trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence led by the prosecution come to the conclusion that there are many irregularities in the proceedings conducted by the prosecution and the mandatory of the provisions of the NDPS Act have also not been complied with by the prosecution, inasmuch, as there are many errors in conducting investigation, which makes the prosecution case doubtful and as such, acquitted accused persons / respondent Nos. 1 to 4 of the said charge leveled against them on the basis of benefit of doubt as the prosecution has failed to prove its case beyond reasonable doubt. 12. After considering the material available on record as well as the 10 elaborate judgment impugned passed by the trial Court, we are of the considered opinion that the judgment impugned acquitting the accused persons / respondent Nos. 1 to 4 herein of the charge under Section 20(b)(ii)(C) of the NDPS Act, is just and proper and does not call for any interference. 13. Accordingly, this acquittal appeal by the appellant/State against the acquittal of the accused persons / respondent Nos. 1 to 4 is hereby dismissed. Sd/- Sd/- (Sanjay S. Agrawal) (Radhakishan Agrawal) Judge Judge Akhilesh