1 2025:CGHC:13047 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgement Reserved on: 21.01.2025 Judgement Delivered on: 19.03.2025 CRA No. 1312 of 2022 Rahul Soni S/o Late Sitaram Soni, aged about 25 years, Occupation-Driver, R/o Village Satpata, Police Station Bishrampur, District Surajpur (C.G.) ..Appellant Versus State of Chhattisgarh, through Station House Officer Police Station Bishrampur, District Surajpur (C.G.) ... Respondent For Appellant : Mr. Ashok Kumar Shukla, Advocate. For State : Mr. Devesh G. Kela, P.L. Hon'ble Smt Justice Rajani Dubey C.A.V. Judgment 1. This appeal has arisen out of the impugned judgment of conviction and order of sentenced dated 02.08.2022 passed by learned Special Judge, NDPS Act 1985, Surajpur, District- Surajpur (C.G.) in Special Sessions Trial No. 06/2020, whereby the appellant has been convicted for offence punishable under Section 21 (C) of the NDPS Act, 1985 and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 1,00,000/-, in default, to further undergo rigorous imprisonment for 02 years. Prosecution Story:- Digitally signed by RAVVA UTTEJ KUMAR RAJU 2 2. Brief facts of the case are that the concerned police got a secret information on 01.05.2020 at about 08:05 a.m. through informant, that appellant is about to come to village Satpata, Bishrampur to sell illegal psychotropic medicines and injections. The police at around 01:50 pm found the appellant standing near Carnel School chowk with one white colour plastic bag. Upon search the police found one sealed plastic box inside the white colour plastic bag held by the appellant having 100 bottles of phencyrex cough syrup each bottle containing 100 ml of syrup worth rs. 9500/- and 25 number of AVIL injection each injection containing 10 ml worth rs. 296.75/- and 25 number of REXOJESIC Injection each injection containing 02 ml worth Rs. 152.25/- in which Psychotropic substances Codiene Phosphate, Pheniramine Maleate and Buprenorphine were found as one of the ingredients of the medicines seized. These are under the commercial quantity of NDPS Act, 1985. After completing the raid, search and seizure of medicines from the appellant, the charge sheet was produced before the learned trial Court. 3. The charges were also framed under the above mentioned sections to which the appellant had denied the circumstances appearing against him. It was stated in his accused statement recorded under Section 313 of Cr.P.C. that he is innocent and has been falsely implicated in this case and the witnesses are also giving wrong statements. 4. In order to establish the charges against the appellant, the prosecution has examined as many as 09 witnesses to prove the guilt against the appellant, however, no defence witness has been adduced by the appellant. 3 5. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned Trial Court has convicted the appellant and sentenced him as mentioned in inaugural paragraph of this judgment. Hence, this appeal. Submission of the parties:- 6. Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence are arbitrary, illegal, bad-in-law and contrary to the evidence available on record. The judgment passed by the learned trial Court is perverse and contrary to the statement laid down by the prosecution witnesses. The learned trial Court ought to have considered that the samples taken for FSL is erroneous as it was not taken from all the bottles/injections seized, therefore such FSL report cannot be the basis of the conviction in view of the judgment of Hon’ble Supreme Court in the matter of Gaunter Edwin Kircher Vs. State of Goa reported in 1993 AIR SC 1456 and Union of India Vs. Balmukund reported in 2009 Cr.L.R. (SC) 590. The judgment of conviction and order of sentence passed by the learned trial Court are based on conjecture and surmises. The prosecution has absolutely failed to prove its case beyond any reasonable doubt. Both the independent witnesses have turned hostile and have not supported the case of the prosecution. It is also clear that the investigating agency have not followed the mandatory provisions of the NDPS Act as provided under Section 42 to 57. As such, the impugned judgment is liable to be set aside. He placed reliance on the judgments passed by this Court in CRA No. 808 of 2023 (Chandrashekhar Shivhare & Anr. Vs. Intelligence Officer) and other connected appeal decided on 26.06.2024 and the Hon’ble Supreme Court held in the matters of Kuldeep Singh Vs. State of Punjab reported in 4 2010(10) SCC 219, Shiv Kumar Gupta Vs. State of Madhya Pradesh reported in 2016 CriLJ 2986, Rohit Chadha Vs. State of Madhya Pradesh reported in 2016 CriLJ 2025, Vijay Pandey Vs. State of Uttar Pradesh, Vijay Jain Vs. State of M.P. reported in (2013) 14 Supreme Court Cases 527, Laxminarayan Vs. State of M.P. (Now C.G.) reported in 2010 (4) C.G.L.J. 147, Gaunter Edwin Kircher Vs. State of Goa reported in 1993 AIR Supreme Court 1456, 7. On the other hand, learned counsel for the State supported the impugned judgment and submits that the prosecution has successfully proved its case beyond all reasonable doubt. The learned trial Court after minutely appreciating the oral and documentary evidence available on record has rightly convicted the accused/appellant and there is no illegality or infirmity in the findings of the learned Trial Court, therefore the impugned judgment of conviction and sentence is bereft of any merit and liable to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. Discussion & Analysis:- 9. It is clear from record of learned Trial Court that learned Trial Court framed charges under Section 21 (C) of NDPS Act against the appellant. The prosecution has examined as many as 09 witnesses and after appreciation of oral and documentary evidence, the learned trial Court has convicted the appellant under Section 21 (C) of NDPS Act, 1985, which is as mentioned in the inaugural para of this judgment. 5 10. As per records of learned Trial Court, Vinay Yadav (PW-01), Bhupendra Manikpuri (PW-02) are the independent witnesses and they have not supported the prosecution case. They have only admitted their signatures on all documents (Ex. P/01 to Ex. P/11), but they have denied of any search and seizure before them. The prosecution declared them hostile and cross- examined them, but they denied all the suggestions of the prosecution in their cross-examinations. 11. The Investigating Officer- Kapil Dev Pandey (PW-09) admitted in para 17 of his cross-examination that “ यह कहना सही है किक काय पालक मजिस्ट्रेट के सम्ቌ ्቎ वस्तु को पेश करने के पूव सील को खोले ाने संबंधी कोई पंचानामा ्ቚकरण में संल्ሿ नहीं है । यह कहना सही है किक सैम्पिሴलग के प्ቐात् सीलबंद किकये ाने का पंचनामा तैयार नहीं किकया था । He again admitted in paragraphs 28 and 33 of his cross-examination that “ 28 यह कहना सही है किक औषधिध किनरी्ቌक ने भौधितक सत्यापन हेतु पेश किकये गये इंेक्शन एवं कफ सीरप के पैके ट को खोलकर ांच नहीं किकया था । 33 यह कहना सही है किक मैंने सी0 एस 0 पी0 के उसके किनवास पर घटना की सूचना देने का कोई ्ቚयास नहीं किकया था । सी0 एस 0 पी0 को सूचना देने के लिलए आर्ቌक राकु मार िሺसह ्ቅमांक 336 सूरपुर आये थे और सूचना देकर 11:20 बे वापस आये थे । 12. Malkhana Incharge- Avinash Singh (PW-05) has produced Malkhana Register Ex. P/16, and he also admitted in para 4 of his cross-examination that “ यह कहना सही है किक उपर वቓኌणत मेरे ्ቛारा बतायी गयी कीमत सील बंद धिDब्बे के स्लीप में लिलखे होने के कारण बता रहा हूं । यह कहना सही है किक सील बंद तीनों धिDब्बे पृथक- पृथक थे तीनों को एक पा्ቔ में बंद कर नहीं किदया गया था । अब कहता है किक तीनों धिDब्बे एक झोले में रखकर किदया 6 गया था । यह कहना सही है किक उ्ሹ झोला सीलबंद नहीं था । यह कहना सही है किक तीनों सील बंद धिDब्बे में लगा सील तहसीलदार के पद नाम की थी । 13. The prosecution has examined the Drug Inspector Jayprakash Sharma (PW-07), who admitted the suggestion of the defence in para 8 of his cross- examination that AVIL injection is used as anti-allergy and he further stated that “ यह कहना सही है किक एकिवल इंेक्शन को धिचकिकत्सक की पचL के आधार पर लायसेंसधारी किव्ቅे ता किव्ቅय कर सकता है । यह कहना सही है किक एकिवल इंेक्शन एनDीपाएस ए्ሹ के तहत ्ቚधितबंधिधत दवाई नहीं है । The Investigating Officer also admitted that for FSL examination sample was not taken from each and every bottle. Malkhana Incharge (PW-05) also admitted in para 6 of his cross-examination that it is true to say that between 01.05.2020 and 03.05.2020, no entry was made in the Malkhana Register. 14. The Hon’ble Supreme Court in the matter of Gaunter Edwin Kircher (supra) held in para 5 which reads as under:- “5. In general possession of any narcotic drug or psychotropic substance has been prohibited by Section 8 of the Act and any person found in possession of the same contrary to the provisions of the Act or any rule or order, made or permit issued thereunder is liable to be punished as provided thereunder to imprisonment for a term which shall not be less than 10 years and shall also be fined which shall not be less than Rs. 1 lac. Section 27 of the Act,, however, is an exception whereby lesser punishment is provided for illegally possessing any “smaller quantity” for personal consumption of any narcotic drug or psychotropic substance. Under this Section the following ingredients should be fulfilled: “(a) The person has been found in possession of any narcotic drug or psychotropic substance in “small quantity”; 7 (b) Such possession should be in contravention of any provision of the Act or any rule or order made or permit issued thereunder; and (c) The said possession of any narcotic drug or psychotropic substance was intended for the personal consumption and not for sale or distribution.” 15. The Hon’ble Supreme Court in the matter of Laxminarayan (supra) held in paras 9, 11 & 14 which reads as under:- “9. So far as manner of taking representative sample is concerned, In Bal Mukund Vs. Central Narcotics Bureau reported in 2006(III) MPJR 365, the Madhya Pradesh High Court held that if the contraband was kept in more than one packet, then representative packet must be made after taking sample from each packet. In the present case, according to the prosecution, the contraband was kept in 15 small packets, whereas, as per evidence of S.S. Parihar (PW-1), the representative packet was prepared after taking sample from 2-3 packets. Therefore, it cannot be said that the remaining packets were also carrying some contraband of which a representative packet was made and it was a circumstance which goes against the prosecution. 11. Apart from the above, there is no evidence to show that where the contraband and representative sample were kept from 30.08.90 to 11.9.90, i.e. the alleged date of sending it to the Public Analyst. In The State of Rajasthan Vs. Daulat Ram reported in AIR 1980 SC 1314, where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the Supreme Court held that the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question which was a fact which had to be proved affirmatively by the prosecution. In the present case, there is absolutely no evidence to show that where the contraband and representative packet was kept from 30.8.90 to 11.9.90. No entry of Malkhana register has been proved. The Investigating Officer did not depose that in the said period where the samples were kept; even there is no oral assertion 8 that the samples were kept in Malkhana in the said period. 14. For the foregoing reasons, the conviction recorded by the Sessions Judge u/s 20 of the N.D.P.S. Act cannot be sustained. The appeal is allowed. The conviction and sentence awarded to the appellant u/s 20 of the N.D.P.S. Act are set-aside. He is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and surety stands discharged.” 16. This Court in Chandrashekhar Shivhare & Anr.(supra) after observing the Hon’ble Apex Court’s order held in paragraph 47 which reads as under:- “47. Hence, the act of the Intelligence Officer of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by the Supreme Court in Mohanlal (supra). This creates a serious doubt about the prosecution’s case that substance recovered was a contraband. Therefore, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt.” 17. In the light of above cited judgments, and in the present case also it is clear that the Investigating Officer has not complied with the mandatory provisions of the NDPS Act. Both the independent witnesses have also not supported the prosecution case and it is also clear that in Malkhana Register no entry was made regarding depositing of sample by the Malkhana Incharge- Avinash Singh (PW-05). It is quite evident from the statement of the Drug Inspector (PW-07) Jayprakash Sharma that the seized AVIL injection is used as an anti-allergic injection and he further admits that AVIL injection is not prohibited under NDPS Act and also cough syrup PHENCYREX and REXOGESIC injection (Burprenorphine) are not prohibited drugs under NDPS Act. Keeping in view, the certain legal position, and from the 9 statements of all witnesses, this Court is of the opinion that the prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubts. Being so, the learned trial Court was not justified in recording conviction of the appellant under Section 21(C) of the NDPS Act, 1985. 18. For the foregoing reasons, the appeal is allowed and the impugned judgment dated 02.08.2022 passed by learned Special Judge (NDPS Act, 1985) in Special Sessions Trial No. 06/2020 is set-aside. The appellant is acquitted of the charge under Section 21(C) of the NDPS Act, 1985. The appellant is in jail since 01.05.2020. He shall be set at liberty forthwith, if no longer required in any other cases. 19. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 25,000/- in the like amount before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 20. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- (Rajani Dubey) JUDGE U.K. Raju