1 2025:CGHC:6155 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1281 of 2021 1 - Sanjay Prasad S/o Ramashraya Prasad, Aged About 36 Years R/o Village Matihi Dumari Chilkahar, Ps Fefna, District Balia (U.P.), District : Ballia, Uttar Pradesh ... Appellant versus 1 - State Of Chhattisgarh Through Ps Farasgaon, District Kondagaon Chhattisgarh, District : Kondagaon, Chhattisgarh ... Respondent(s) For Appellant : Shri Varun Sharma, Advocate For Respondent/State : Ms. Pushpalata Khalko, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 03/02/2025 This appeal arises out of judgment and order dated 16.08.2021 passed by the Special Judge (NDPS), Komdagaon (CG) in Special Criminal Case No. 27/2018 convicting the accused/appellant under Section 20(b)(ii-c)) of the Narcotics Drugs and Psychotropic Substances 2 Act and sentencing him to undergo RI for ten years and to pay fine of Rs. 1,00,000/- with default stipulation. 2. As per prosecution case, on 19.12.2017, after receiving a secret information from the informant that one truck bearing No. MH 40Y 3258 is carrying contraband cannabis (ganja) for illegal trade and is coming towards Farasgaon from Jagdalpur. On the basis of the said information, independent witnesses were calle d and panchnama was prepared under Section42(2) of the NDPS road was blocked , the truck was detained and the driver of the truck-appellant was apprehended and arrested. After due compliance, the search was conducted and 78 packets sealed with brown tape was seized in which cannabis like substance was present which was weighed and marked as A1 to A78 and the total weight of the alleged contraband was found to be 405.500 kgs. which was seized and sealed in front of the witnesses in 13 plastic bags. The appellant was arrested and Crime No. 122/2017 was registered under Section 20(B) (ii-c) of the NDPS Act. The investigation was carried out, challan was filed before the Special Court (NDPS Act), Kondagaon. 3. In order to prove the charges against the accused, prosecution has examined as many as 14 witnesses. Statement of the accused/appellant was also recorded under Section 313 Cr.P.C. in which he pleaded his innocence and false implication. 4. Learned trial court vide its order impugned dated 16.08.2021 convicted and sentenced the appellant as mentioned above. Hence this appeal. 3 5 Learned counsel for the appellant submits that the judgment passed by the trial court is illegal, improper and is contrary to the facts and evidence available on record. The trial court ha believed the statements of the prosecution witnesses without proper corroboration as there are various omissions and contradictions in their statement. It is further submitted that the learned trial court has failed to appreciate that the statutory compliance have not been made and there is no evidence with regard to the appellant having conscious possession of the contraband. He submits that the appellant is merely a driver of the vehicle. 6. On the other hand, learned counsel for the State/respondent submits that the learned trial court was fully justified in convicting the appellant. There is ample evidence on record to convict the appellant hence the judgment passed by the trial court with respect to the conviction of the appellants is just and proper which demands no interference. 7. Heard learned counsel for the parties and perused the judgment passed by the trial court as well as the material available on record with utmost circumspection. 8. On perusal of records, it transpires that there is violation of Standing order of 1/89 as well as Section 52-A of the NDPS Act, 1985. Section 52-A pf the NDPS Act reads as follows: 52A Disposal of seized narcotic drugs and psychotropic substances - (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or 4 conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.” 9. In the present case, this Court found that the inventory has not been made before the Judicial Magistrate. As per provisions of Section 3 of the Cr.P.C. 1973, Magistrate means Judicial Magistrate and not Executive Magistrate. Therefore, this Court is of the considered opinion that there is non-compliance of Section 52-A of the NDPS Act, 1985. Standing Order 1/89 under Section 52-A of NDPS Act, 1881, provides: “Whereas the Central Government considers it necessary and expedient to determine the manner in which the narcotic drugs and pyschotropic 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.” 10. Mixing of the contents of 13 packets in one lot and then drawing the representative samples is not permissible under the Standing Orders and since such a sample would cease to be a representative sample of the corresponding packets. Therefore, in the present case, there is non-compliance of Standing Order 1/89 under Section 52-A of NDPS Act, 1985. Investigating Officer has not taken samples from each seized packets of the contraband. 11. Recently, the Supreme Court in the matter of Yusuf @ Asif 5 versus 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.” 12. Taking into consideration the findings recorded by the learned trial court, it is pertinent to mention that the Investigating Officer has not taken the samples from each packets of the seized contraband (ganja). He has mixed up the entire contents of 78 packets and before taking samples and out of that he took two samples of 50-50 grams each. Thus, there is a complete violation of Standing Order of 1/89. The investigating Officer is duty bound to collect the drawn samples of each packet before mixing up. 13. Considering facts of case, submissions advanced by the learned counsel for the parties, there is a violation of Section 52-A of the NDPS 6 Act as well as the Standing Order of 1/89 , the present appeal deserves to be and is hereby allowed. 14. Thus, considering the mandatory provisions of NDPS Act and the principle of law laid down by the Supreme Court in the matter of Yusuf @ Asif (supra), Sanjeet Kumar (supra) I am 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 convicting and sentencing the appellant for the offence under Section 20(B)(ii-c) of the NDPS Act. As such, the judgment impugned deserves to be set aside. 15. Accordingly, the appeal is allowed. It is reported that the appellant is in jail. He shall be set at liberty forthwith if not required in any other case. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.03.12 11:55:05 +0530