1 2025:CGHC:21797 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1786 of 2024 Judgment Reserved on 24.03.2025 Judgment Delivered on 09.05.2025 1 - Ruppet Sharma S/o Shri Vijay Kumar Sharma Aged About 23 Years R/o Adhan Nagar, Behind, C.T. Center, Kanker, District Kanker, Chhattisgarh. 2 - Dhaneshram Yadav S/o Shri Saturam Yadav Aged About 25 Years R/o Bhoblabahara, P.S. Dubli, Tumgaon, District Dhamtari, Chhattisgarh. --- Appellants versus State of Chhattisgarh Through Police Station- Tumgaon, District Mahasamund, Chhattisgarh. ... Respondent For Appellants : Mr. Akhilesh Mishra, Advocate For State-Respondent : Ms. Priya Sharma, Panel Lawyer WITH Criminal Appeal No. 1307 of 2024 Roopit Sharma S/o Bijay Kumar Sharma Aged About 23 Years R/o Adhan Nagar Behind City Centre Kanker, P.S. Kanker, District- Kanker, Chhattisgarh. --- Appellant Versus State of Chhattisgarh Through P.S. Tumgaon, District- Mahasamund, Chhattisgarh. ... Respondent 2 For Appellant : Mr. Priyank Rathi, Advocate For State-Respondent : Ms. Priya Sharma, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma CAV Judgment 1. Since, both the appeals arise out of a common judgment, they are being heard and decided together. 2. CRA No.1786 of 2024 has been preferred by the appellants under Section 415(2) of the BNSS, 2023 and CRA No.1307 of 2024 has been preferred by the appellant under Section 374(2) of the CrPC, 1973, being aggrieved with the order dated 24.06.2024 (Annexure A-1) passed in Special Criminal NDPS Act Case No. H-39/2023 by the Special Judge (NDPS Act), Mahasamund (C.G.), whereby the trial Court has convicted and sentenced the appellants as under : Conviction Sentence In Default Under Section 21(C) of the Narcotics Drugs and Psychotropic Substances Act RI for 10 years and fine amount of Rs.1,00,000/- Additional RI for 01 year 3. The brief factual background of the prosecution case is that on 28.09.2023, Assistant Sub-Inspector Nilambar Singh Netam (PW-9) of Tumgaon Police Station received information from an informer that two persons are going from Basna to Raipur on a motor cycle Hero Honda 3 Splendor bearing registration No. CG/06/0585 for selling contraband drugs. On the said information, the accompanying staff and witnesses reached the spot. As per the information given by the informer, two persons were seen coming towards Basna on the said motorcycle. When the police staff stopped them and interrogted them, the motorcycle driver told his name to be Rupit Sharma, the person sitting behind told his name to be Dhaneshram and both the persons told that there were contraband narcotic drugs, tablets, syrups and injections in a green, black and pink coloured bag between them. After making them aware of their legal rights, 47 pieces of PENTAZOCINE LACTATE INJECTION IP were found illegally in their joint possession inside a green, black and pink coloured bag and inside a green, black, catechu coloured, pink coloured bag. (01 ml in each) total 47 ml. containing prescribed quantity of PENTAZOCINE and 04 packets containing 100-100 pieces of NITRAZEPAM TABLETS I.P. (Each tablet 10 mg), Total 400 pieces of NITRAZEPAM TABLETS containing prescribed quantity of NITRAZEPAM and 30 pieces of RESOFT GOLD syrup (100 ml in each bottle), Total 3000 ml. containing prescribed quantity of CODEINE and 17 pieces of WINCOREX COUGH SYRUP (100 ml in each bottle), total 1700 pieces of narcotic drug and psychotropic substance named CODEINE Phosphate were found in prescribed quantity. Accused Rupit Sharma and Dhaneshram Yadav were given 4 notice under Section 91 of CrPC to produce valid documents in relation to the said drugs recovered from them, but they stated that they did not have any valid documents. The drugs recovered from the accused were separated for sample and the sample and the remaining drugs were sealed. 4. After necessary action of the incident, a crime was registered against the accused- Rupit Sharma and Dhaneshram Yadav at zero. The seized property in the case was deposited in the outpost malkhana for safekeeping. 5. On the basis of the Zero FIR, Crime No.165/2023 Section 21 NDPS Act was registered. After investigation, the charge sheet has been filed before the jurisdictional Court on 25.01.2023. 6. In order to establish the charge against the appellants, the prosecution has examined as many as 09 witnesses. Statement of the appellants was also recorded under Section 313 Cr.P.C., in which they denied the charge levelled against them and stated that they are innocent and has been falsely implicated in the case. 7. After appreciation of evidence available on record, learned trial Court has convicted and sentenced the appellants as mentioned in paragraph 02 of the appeals. Hence, the appeals. 5 8. Learned counsel appearing for the respective appellants submit that trial Court has wrongly convicted the appellants without there being any sufficient evidence available on record against them. They further submits that as against the appellants the prosecution has miserably failed to prove the charge under Section 21(C) of NDPS Act and committed grave error by convicting and sentencing the appellants/accused therefore, the impugned judgment of conviction and sentence deserves to be set aside. In the charge framed by the trial Court against the accused, there is no mention of commercial quantity anywhere as to how it is commercial quantity, whereas at the end of the first paragraph of the judgment it has been shown to be commercial quantity, while no amendment has been made in the charge. Even in such a situation, the conviction for commercial quantity on the basis of erroneous charge is bad and deserves to be set aside. The independent witnesses namely Pappu Jendre (PW-3) and Laxman Tondon (PW-4) who were stated to be Panch witnesses of the entire search and seizure proceedings by the prosecution have not supported any of the alleged proceedings of the prosecution. After they were declared hostile by the prosecution and they were asked questions pertaining to cross examination, these witnesses have clearly denied any search and seizure being conducted at the spot and have stated other proceedings to be false. This witnesses have stated that they signed Ex. P-3 to P-19 on 6 being asked to do by the police officers. Therefore, when panch witnesses have not supported the investigating officer at all as far as the investigation conducted by him is concerned, the judgment convicting and sentencing the appellant for offence under Section 21(C) of the NDPS Act is liable to be set aside. They further submit that the conviction of the accused by the trial court is mainly based on the evidence of ASI Neelambar Netam (PW-9) and other police witnesses. In such a situation, the trial court needed to carefully scrutinize and independently appreciate their evidence, but the trial court neither scrutinized nor properly appreciated their evidence and their answers given in the cross-examination, which proved the evidence of the investigation and search seizure to be doubtful and unreliable, and such were not considered by the Ld. trial court while evaluating the evidence and convicting and sentencing the appellant in a grave crime such as NDPS, therefore, the impugned judgment deserves to be set aside. It is further submit that the police officer conducting the search and seizure is required to follow various sections of the NDPS Acts and ASI (PW-9) did not follow the mandatory provisions of Sections 42(1) & (2), 50 & 52 of the NDPS Act. It is, therefore, prayed that the Court may kindly allow the appeals and acquit the appellants/accused in the light of submissions made in the memo of appeal, arguments advanced and also in the interest of justice. 7 9. On the other hand, learned Counsel appearing for the State opposes the arguments advanced by learned Counsel for the appellants and submits that on appreciation of the evidence available on record, the trial Court has rightly convicted the appellants. 10. I have heard learned counsel for the respective parties and considered their submissions made herein above and also went through the records with utmost circumspection. 11. Assistant Sub-Inspector, Nilambar Netam (PW-9) has deposed in Para-2 that on 28.09.2023, while being present at Tumgaon police station, he received information from an informer that two persons were carrying a motorcycle Hero Honda Splendor bearing registration No.CG/06/0585 from Basna to Raipur for illegal sale of narcotic drugs. On receiving the information, he made an entry in the diary sanha number and sent Constable No.480- Dinesh Thakur present at the police station with a work certificate and instructions to summon two witnesses. Then, the Constable summoned witnesses Pappu Ram Gendre and Laxman Tandon from village Amavas and brought them to Tumgaon Police Station. When the witnesses appeared at the police station, he informed them about the proceedings by giving notice of Ex.P-3. In the presence of witnesses, the informer information panchnama and search without warrant panchnama, permission to search without warrant document 8 was prepared. Thereafter, the Police staff and witnesses reached NH 53 Tumgaon Chowk and cordoned off the area. After some time, a motorcycle with the number mentioned in the informer's information was seen coming. It was stopped and caught. On questioning, the driver told his name as Rupit Sharma and the person sitting behind him told his name as Dhanesh. On asking about the bag kept with them, he said that it contained banned narcotic drugs, tablets and injections. Then, on the spot, both the accused were made aware of their legal rights by giving them notice Ex.P.10 and Ex.P.11 under Section 50 NDPS Act that they can get thereselves and their vehicle searched by any Gazetted Officer, Magistrate and us policemen, then both the accused gave their consent to them to search of themselves and their vehicle. The notice given in connection with the proceedings is Ex.P.10 and Ex.P.11. 12. In Para-8, this witness has deposed that after the proceedings, on searching the suspects and their vehicle, a green black catechu was found in the motor cycle Hero Honda Splendor number CG/06/0585, 30 pieces of syrup, 17 pieces of cough syrup, 47 pieces of injection, 398 pieces of banned tablets kept in a pink colour bag, and on searching the suspects and the vehicle, panchanama Ex.P.-9 was prepared. After the search proceedings, 47 pieces of Pentazocine lactate injection, 04 packets containing 100 pieces each of Nitrazepem tablet 10 MG, total 398 tablets, 30 pieces of Resoft Gold syrup 100 MG, 17 pieces of 9 Wincerez Cough syrup were recovered and recovery panchnama Ex.P. 12 was prepared. Both the accused were given separate notices under Section 91 of IPC to show valid documents regarding transportation of narcotic drug and the accused signed it by writing that he does not have any documents. Notice under Section 91 IPC is Ex.P. 36 and 37. 13. In Para-10, this witness has deposed that motorcycle Hero Honda Splender bearing registration No.CG/06/0585 and two touch screen mobile phones seized from the accused Rupit Sharma and Dhanesh Ram, 47 pieces of Pentazoc injection, 04 packets containing 100-100 Nitrazepem tablet 10 MG, 30 pieces of Resoft Gold syrup 100 MG, 17 pieces of Wincere Cough syrup and the sample separated for examination were seized and property seizure sheet Ex.P-14. After the proceedings, accused-Rupit Sharma and Dhanesh Ram Yadav were arrested on the spot under Section 21 NDPS Act and arrest panchanama Ex.P. 18 and Ex.P. 19. On the spot, the accused and the medicines/injections and other material recovered from them were taken back to the police station along with the staff and witnesses and a case was registered against both the accused on the basis of the crime registered in the dehati nalshi. 14. In his cross-examination (Para-30), this witness has deposed that the report of the entire proceedings was sent to the Sub-Divisional Police 10 Officer as per Ex.P. 46, in which the place for date is blank, which does not tell on which date the said report was sent to the Sub-Divisional Police Officer. In the said Ex.P-46, there is no mention of the acknowledgement of the Sub-Divisional Police Officer as to on which date Ex.P. 46 was received in his office. In the report of the entire proceedings sent to the Sub-Divisional Police Officer, information has been given about the seizure of Pentrajocine lactate injection and Nitrazenpam tablets. 15. In his cross-examination (Para-32), this witness has deposed that according to paragraph 02 and 03 of serial number 35 of the confiscated goods register, it is mentioned that Nitrazenpam tablets and Pentajocine lactate injections were deposited. In the drug seizure panchnama, drug identification panchnama, property seizure sheet, it is mentioned that Nitrazepam tablets and Pentajocine lactate injections were seized at each place. 16. On perusal of records shows that the samples which were taken out from the seized medicines/injections were examined by the Drugs Testing Laboratory and were found to contain Nitrazepam Tablets IP, Pentazocine Lactate Injection IP, Wincorex Cough Syrup & Resoft Gold Cough Syrup. Hence, the above FSL report also confirms that the accused were transporting the seized goods Nitrazepam, Pentazocine, 11 Codeine phosphate without a valid licence at the date and time of the incident. In the list of narcotic drugs given in the schedule under Section 02 (xxiii) of the Narcotic Drugs and Psychotropic Substances Act, 1985, Pentazocine is mentioned at serial number 27, Nitrazepam at 64 and in the table given under the notification dated 16th July, 1996, which specifies the small quantity and commercial quantity, which has been made under clause (vii-a) and clause (xxiii-a) of Section 2 of the Act, at number 28, the quantity of Codeine is one kilogram and at number 175, the quantity of Pentazocine is 500 grams and at number 221, 500 grams of Nitrazepam has been described as commercial quantity. 17. The next issue that falls for our consideration is with respect to the compliance of Section 42 of the NDPS Act 1985. For the said purposes, an analysis of the bare text of Section 42 of the NDPS Act 1985 is undertaken hereinafter. Section 42 of the NDPS Act 1985 is worded as follows: “42. Power of entry, search, seizure and arrest without warrant or authorisation.— (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence 12 or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— 13 (a)enter into and search any such building, conveyance or place; (b)in case of resistance, break open any door and remove any obstacle to such entry; (c)seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: [Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power 14 shall be exercised by an officer not below the rank of sub-inspector: Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” 18. Section 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985 prescribed as under: “55. Police to take charge of articles seized and delivered.—An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under 15 this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 19. Section 57 of the Narcotic Drugs And Psychotropic Substances Act, 1985 is provides as under : “57. Report of arrest and seizure.—Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 20. The prosecution has duly certified that the mandatory provisions of Sections 42 (1) (2) & 50 of NDPS Act and the provisions of Section 52-A, 55 and 57 of NDPS Act have been followed in the case. In this case, the investigating officer duly followed the mandatory provisions of NDPS Act and conducted search and investigation proceedings and seized banned narcotic tablets, syrup, injections being transported from the joint possession of accused Rupit Sharma, 16 Dhanesh Ram Yadav. Sampling proceedings have been duly conducted. After returning from the scene of the incident, it was kept in a safe condition in the store room. The sample prepared under Section 52-A NDPS Act has been subjected to FSL test in which it has been certified to be banned narcotic cough syrup, tablets, injections. Regarding the action taken by the investigating officer, legal action has been taken by informing the senior officer within the time limit as per the provisions of the NDPS Act. As per seizure memo Ex.P.-14, medicines and injections have been seized from the joint possession of the accused Rupit Sharma, Dhanesh Ram Yadav. The quantity seized was in commercial quantity which is punishable under Section 21(C) of the NDPS Act. 21. From perusal of the evidence, it transpires that on 28.09.2023, Assistant Sub-Inspector Nilambar Singh Netam (PW-9) of PS Tumgaon received a secret information from an informer that two persons are going from Basna to Raipur on a motorcycle bearing registration No.CG/06/0585 for selling contraband drugs. On the said information, police team and witnesses reached the spot. As per the information given by the in- former, two persons were seen coming towards Basna on the said mo- torcycle. When stopped and interrogated them, the motorcycle driver told his name to be Rupit Sharma, person sitting behind told his name to be Dhaneshram and both the persons told that there were contraband 17 narcotic drugs, tablets, syrups and injections in a green, black and pink coloured bag between them as mentioned in Para-3 of this judgment. After following due procedure under the NDPS Act, contraband nar- cotic drugs, tablets, syrups and injections were seized from the joint possession of the appellants. 22. In the present case the entire search and seizure proceeding have been found genuine and correct procedure have been drawn by the police personnel when the police personnel on secret information went on the spot, he found on the spot, he found the appellants along with his mo- torcycle in which psychotropic substance was kept which were seized by police under the procedure and provisions of NDPS Act. Its weigh and sampling were proved by the competent authority and nothing ad- verse could be found to disbelieve the evidence of the prosecution wit- nesses and it is found proved that the appellants were found in posses- sion of such a huge quantity of contraband narcotic drugs, tablets, syrups and injections. The appellant did not able to impute any palpable to make good his case that there has been non-compliance of any mandatory provisions of the NDPS Act. 23. Though the accused Rupeet Sharma and Dhanesh Ram Yadav have taken the defence of maliciously prejudiced the investigating officer, but mere deficiency in investigation or prosecution's case cannot be the 18 basis for prejudice. Accused Rupeet Sharma and Dhanesh Ram Yadav have not claimed at any stage that they had been asked by the investi- gating officer was there any enmity or the police's intention was to de- liberately trap him. Apart from this, no evidence has been presented re- garding any bias or malice against the investigating officer, hence, the basis of false implication of the defense is also not acceptable. The prosecution has been successful in proving all the charges against the accused Rupit Sharma and Dhanesh Ram Yadav beyond reasonable doubt. Therefore, after the above mentioned overall investigation of the evidence in the case, it is found that the prosecution has been successful in proving beyond reasonable doubt that the accused Rupeet Sharma and Dhanesh Ram Yadav on 28.09.2023 at 19:50 O’clock, at Tumgaon Tiraha NH 53 Road under Police Station Tumgaon, together in their joint possession, motorcycle Hero Honda Splendor No.CG/06/0585, il- legally smuggled 47 pieces of PENTRAZOCINE LACTATE INJEC- TION I.P. (01 ml each) total 47 ml, inside a green, black, black, pink colour bag, which contained PENTAZOCINE in prescribed quantity and 04 packets containing 100 pieces of NITRAZEPAM TABLETS I.P. (Each tablet 10 mg) Total 400 pieces of NITRAZEPAM TABLETS con- taining NITRAZEPAM in prescribed quantity and 30 pieces of RE- SOFT GOLD syrup (100 ml in each bottle), total 3000 ml containing CODEINE in prescribed quantity and 17 pieces of WINCEREX 19 COUGH SYRUP (100 ml in each bottle), total 1700 ml containing CODEINE, a narcotic drug and psychotropic substance in prescribed quantity, were being illegally transported by keeping them in their joint possession, which being commercial quantity is punishable under Sec- tion 21(C) NDPS Act. Accordingly, the prosecution has been fully suc- cessful in proving the guilty of offence under Section 21(C) of NDPS Act against the appellants and are convicted of the said offence. 24. There is no material available on record so as to arrive at finding that the accused has been falsely implicated in the case. Section 21 (C ) of the NDPS Act provides that whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, im- ports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable. In the present case, 47 pieces of Pentazoc injection, 04 packets contain- ing 100-100 Nitrazepem tablet 10 MG, 30 pieces of Resoft Gold syrup 100 MG, 17 pieces of Wincorex Cough Syrup were seized from illegal possession of the appellants-accused. It clearly proves that the appel- lants have committed the offence in question. He could not given any suggestion as to how that huge quantity of psychotropic substance came to be found in their possession. 20 25. The FSL report Ex.-P-48 to Ex.P-51 further proves that the sample packets of Nitrazepem tablet, Pentazoc injection, Wincorex Cough Syrup and Resoft Gold Syrup were drawn from the total quantity and in the list prepared for narcotic drugs and psychotropic substances, in which it has been certified to be banned narcotic cough syrup, tablets and injections, which further corroborates the allegation against the ap- pellants. 26. This Court is of the considered view that in the list of narcotic drugs, Pentazocine is mentioned at serial number 27, Nitrazepam at 64, which specifies the small quantity and commercial quantity, which has been made under clause (vii-a) and clause (xxiii-a) of Section 2 of the Act, at number 28, the quantity of Codeine is one kilogram and at number 175, the quantity of Pentazocine is 500 grams and at number 221, 500 grams of Nitrazepam has been described as commercial quantity, therefore, it is crystal clear that the commercial quantity has been found from the joint possession of the appellants. As such the prosecution has estab- lished the case beyond reasonable doubt against the appellants. There- fore, learned trial Court has rightly convicted the appellants under Sec- tion 21 (C) of NDPS in Special Criminal (NDPS Act) Case No. H- 39/2023. Therefore, there is no need for interference in the finding recorded by the Special Judge. 21 27. So far as sentence 10 years of R.I. with fine of Rs. 1,00,000/- each ap- pellant, awarded by the trial Court is concerned, it is a minimum pun- ishment prescribed under the Act, therefore there is no need for interfer- ence on the sentence part also. 28. With the aforesaid observations, the present criminal appeals lacks merit and is accordingly dismissed. 29. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compli- ance. Sd/- (Arvind Kumar Verma) Judge Vasant