1 2025:CGHC:7777 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No. 1470 of 2024 Bhagwat Sahu, S/o. Shankar Lal Sahu, Aged About 28 Years R/o. Village - Kikirmeta, P.S. Jamgaon-R, District - Durg (C.G.). ... Appellant versus State Of Chhattisgarh Through Its Police Station - Jamgaon-R, District - Durg (C.G.). ---- Respondent ----------------------------------------------------------------------------------------------- For Appellant : Mr. Rahil Arun Kochar, Advocate For Respondent-State : Ms. Sunita Manikpuri, Dy. G.A. ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 13.02.2025 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. The appellant has filed the instant appeal under Section 415(2) of the BNSS questioning the judgment of conviction and order of sentence dated 11.07.2024 passed in the Court of Special Judge (NDPS Act) & 4th Additional District & Sessions Judge, Durg (C.G.), in Special Case NDPS No.58/2023 (Annexure A/1), whereby the appellant stands 2 convicted and sentenced as under: Conviction Sentence In Default of Payment of Fine Under Section 20(b) (ii) B of the Narcotic Drugs and Psychotropic Substances Act, 1985 RI for 10 years and fine amount of Rs.50,000/- Additional RI for 03 months 3. Case of the prosecution in brief is that on 28.09.2023, the police of Police Station Jamgaon-R, District Durg received a secret information from the informant that Accused-Bhagwat Sahu in front of his house at village Kikirmeta kept a total of 12.965 Kg of narcotic substance Ganja in a white colour plastic bag inside the rear trunk of the vehicle Pickup bearing registration No. CG- 05-AN-9904 in his possession without any licence, in violation of the provisions of the NDPS Act and the rules and orders made thereunder. After due formalities, the police has conducted the raid and has seized total 12.965 Kg Ganja from the possession of the appellant. Panchnama was prepared in presence of witness, and the notices were issued and the appellant and he was arrested. 4. After completion of investigation, charge-sheet was filed by the police against the appellant. 5. In order to prove the charge against the appellant (accused), prosecution examined as many as 13 witnesses. Statement of appellant was recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. 3 6. After appreciation of evidence available on record, learned trial Court has convicted and sentenced the appellant under Section 20(b)(ii)(B) of the NDPS Act as mentioned in paragraph two of this judgment. Hence, this appeal. 7. Learned counsel appearing for the appellant contended that the learned trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellant. He further contended that the prosecution had not complied with the mandatory provisions of Sections 42, 50, 52 and 57 of the N.D.P.S. Act, 1985 in respect of seizer of the contraband Ganja from the exclusive possession of the appellant, it has only fulfill the formalities of the above said mandatory provisions which makes the entire case suspicious and false. The learned trial court in absence of comply of mandatory provision of NDPS Act the appellant cannot be convicted. He further contended that the learned trial Court has failed to appreciate that there is material contradiction in the statement of the prosecution story recorded under Section 161 and Court statement. which makes the prosecution story very suspicious and false. He further contended that the evidence led by the prosecution lacks requisite proof required to convict the appellant under Section 20(b)(ii)(B) of the NDPS Act and the seized contraband Ganja is less than commercial quantity. He lastly contended that the appellant was on bail during trial and at present he is in jail. Learned counsel further contended that prosecution has failed to 4 adduce any cogent and reliable piece of evidence to prove the guilt of appellant. Without there being any sufficient, cogent and clinching evidence/material available on record, therefore, conviction of appellant is not sustainable. 8. On the other hand, learned counsel for the State supporting the impugned judgment would submit 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. 9. I have heard learned counsel appearing for the parties and perused the record of the trial Court and other material available on record with utmost circumspection. 10.Constable- Mahendra Banjare (PW-2) stated in his Court statement that on the date of incident, i.e., 28.09.2023, Inspector Ambika Prasad Dhruv of Jamgaon (R) Police Station directed him to bring two independent witnesses after receiving information from an informer regarding drugs. He was given a notice by the investigating officer to serve on the independent witnesses, then on his instructions, he went to village Kikirmeta and served notice to both the independent witnesses Umashankar Sharma and Bhima Nishad, obtained the acknowledgment (Ex.P/4) and took both the independent witnesses 5 with him and returned to the police station and handed it over to the investigating officer. 11. This witness has stated in his cross-examination that that when the notice of Ex.P. 04 was given to him by the investigating officer, the names of both the witnesses, their father's name, mobile number were already written on it. He was directed by the investigating officer to bring both the witnesses mentioned in Ex.P. 04 to the police station to make them witnesses. No consent or agreement was obtained by him in writing from the witnesses regarding their participation in the proceedings in Ex.P. 04. 12.Inspector- Ambika Prasad has stated in his Court statement that on the date of incident, i.e., on 28.09.2023, he received information from an informer that a person named Bhagwat Sahu, resident of village Kikirmeta, has illegally brought ganja from Orissa in a sack covered in a plastic membrane inside the rear compartment of his vehicle pickup number CG 05 AN 9904 and has parked it in front of his house for sale. On receiving the information, he first made an entry in the diary Sanha No. 07 which is Ex.P. 36, whose verified copy is Ex.P. 36C. After that, for further action, he ordered Constable Mahendra Banjare to summon two independent witnesses to join the proceedings. In this regard, an entry was made in the diary Sanha No. 08, which is Ex.P. 37, whose attested copy is Ex.P. 37C. On his instructions, Constable Mahendra Banjare, while serving the order, came to the police station with two witnesses Umashankar and Bhima. Then he told both the witnesses 6 about the informer's information about the drug and asked them to cooperate in the proceedings, to which they agreed. Then he gave them notice of Ex.P. 04 under Section 160 in Jamgaon-R police station itself, whose acknowledgment is Ex.P. 04. Regarding bringing the witnesses to the police station, it has been done in Indraj Sanha No. 09, which is Ex.P. 38. 13. In order to examine the above facts and submissions/evidences, it would be appropriate to refer to the mandatory provisions of the NDPS Act. 14. On perusal of the records, it transpires that there is violation of Standing Order No.1 of 1989 as well as provisions of Section 52-A of the NDPS Act, which prescribes the procedure to be followed while conducting seizure of the contraband. It is also found that samples of the seized contraband Ganja were not taken in presence of the Magistrate and it is also pertinent to mention that entries has not been made before the Magistrate and also no photographs have been taken of the contraband in presence of the Magistrate. 15. Standing Order 1/89 Section-II, General Procedure For Sampling, Storage, Etc.- “Whereas the Central Government considers it necessary and expedient to determine the manner in which the narcotic drugs and psychotropic substances shall as soon as may after their seizure, be disposed of having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space.” 7 16. Relevant Sections of the NDPS Act read as under :- “52-A. Disposal of seized narcotic drugs and psychotropic substances.- [(1)…… (2)…...Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, 8 photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence]. 17. In the case at hand, date of incident is of 28.09.2023 and, therefore, as per provision of Section 52A(2), (3) & (4) of the NDPS Act when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application 9 to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. 18. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. 19. In the matter of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379, the Supreme Court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial. 20. Recently, the Supreme Court in the matter of Yusuf @ Asif versus 10 State (Criminal Appeal No.3191/2023), decided on 13.10.2023, has held as under:- “16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. 17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.” 21. The Supreme Court in the matter of Sanjeet Kumar v. State of C.G. reported in 2022 SCC OnLine (SC) 1117, has held as under:- “18. But if the Court has - (i) to completely disregard the lack of corroboration of the testimony of police witnesses 11 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 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. 31. Therefore, it is clear that the I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in those documents. 32. In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. But 12 unfortunately, both the Special Court and the High Court went by the law in theory, without applying the same to the facts of the case.” 22. The Supreme Court in the matter of State of Rajasthan versus Bher Singh reported in (2009) 16 SCC 293 has held as under:- “2. We have perused the evidence of PW 7 who seized the opium in question, as also the evidence of PW 9 who was the officer in charge of the malkhana and from their evidence, we find that it is not possible to hold that the seal allegedly put by PW 7 while taking the sample opium remained intact right through the time it reached the forensic science laboratory. This being a mandatory requirement to establish the fact that the seized goods was in fact a prohibited drug under the NDPS Act, we agree with the High Court on facts of this case that the prosecution has failed to establish this part of its case, hence, we find no reason to interfere in this appeal. Therefore, we dismiss the same.” 23. Considering facts of case, submissions advanced by the learned counsel for the parties, witnesses of search and seizure, quantity of contraband Ganja which was seized from the appellant (it is neither small quantity nor commercial quantity, it is an intermediate quantity) and other material and evidence available on record, further 13 considering the mandatory provisions of NDPS Act and the principle of law laid down by the Supreme Court in Mohanlal (supra), Yusuf @ Asif (supra), Sanjeet Kumar (supra) & Bher Singh (supra), this Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in sentencing the appellant RI for 10 years for the offence under Section 20(b)(ii)(B) of the NDPS Act, maximum sentence prescribed under Section 20(b)(ii)(B) of NDPS Act is 10 years, this Court is of the opinion that sentence imposed by trial Court upon the appellant (RI for 10 years) appears to be on higher side. So keeping in view all the circumstances, mentioned above, ends of justice will be served if the sentence imposed upon appellant is reduced from RI 10 years to RI 02 years. 24. In the result, appeal is allowed in part. While maintaining the conviction of appellant under Section 20(b)(ii)(B) of NDPS Act, the sentence imposed upon the appellant by the trial Court is reduced from RI for 10 years to RI 02 years. Sentence of fine, however, imposed by the trial Court is hereby maintained. 25. Record of case be sent back forthwith with a copy of this order sfor information and necessary action. Sd/- (Arvind Kumar Verma) Judge Vasant VASANT KUMAR Digitally signed by VASANT KUMAR Date: 2025.02.22 11:36:28 +0530