1 2025:CGHC:16742-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1616 of 2017 1 - Sujeet Kumar Ram S/o Subhash Ram Kahar, Aged About 25 Years R/o Kalali Fatak, Katarasgarh, Police Station Katarasgarh, District Dhanbad Jhharkhand, 2 - Chunnu Singh S/o Chandrashekhar Singh, Aged About 26 Years R/o Vishnunagar, Tehsil Thanait, Police Station Navara, District Bhojpur Bihar, ... Appellants versus 1 - State Of Chhattisgarh Through District Magistrate District Dhamtari, Chhattisgarh, ... Respondent(s) For Appellants : Shri Rishi Rahul Soni, Advocate. For Respondent : Shri Ashutosh Shukla, Panel Lawyer. Hon'ble Shri Sanjay K. Agrawal & Hon'ble Shri Deepak Kumar Tiwari, JJ Judgment on Board (09/04/2025) Deepak Kumar Tiwari, J KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.04.11 18:21:12 +0530 2 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, the appellants herein have preferred this criminal appeal challenging the legality, validity and correctness of the judgment of conviction and order of sentence dated 5.7.2017 passed by the learned Special Judge (NDPS Act, 1985), Dhamtari (C.G.), in Special Criminal Case No.133/2016 by which the appellants have been convicted and sentenced as under:- Conviction Sentence Under Section 20(b)(ii)(C) of the NDPS Act RI for 14 years with a fine of Rs.1,50,000/- each, in default of payment of fine to further undergo additional RI for 3 years each. 2. In this case, on 16.11.2016 at about 00.15 hours the appellants were found to be illegally transporting 160.77 Kgs of contraband (Ganja) in 80 packets in Honda Accord Car bearing registration No.CG- 04/AK 5508. 3. Case of the prosecution, in brief, is that on 15.11.2016, at about 9.35 am, while Ramesh Sahu (PW-10), ASI, who was posted in the District Crime Branch, Dhamtari, was performing patrolling duties along with Head Constable Nos.147, 183, 196 & other constables in a Government vehicle bearing registration No.CG-03/5396, he received a secret information that two persons in a white Honda Accord Car bearing registration No.CG-04/AK 5508 are transporting contraband (Ganja) from Jagdalpur to Raipur. The 3 number plate is forged one. It was possible that the said car is registered at Delhi. On the basis of said information, a Mukhbir Panchnama (Ex.-P/17) was prepared and information was sent to the Deputy Superintendent of Police, Dhamtari, vide Ex.-P/25 by deputing (PW-2) Kuldeep Rajput, after summoning two independent witnesses namely Tulsidar Manikpuri (PW-1) and Bhanwar Singh Mandavi (not examined), through Head Constable Rakesh Mishra (PW-11). A notice (Ex.-P/1) was issued to the said witnesses under Section 160 of the CrPC. 4. Panchnama (Ex.-P/2) was prepared, as no search warrant was received. The police party proceeded to the spot near village Shyamtarai, PS Arjuni and the vehicle namely, Honda Accord Car bearing registration No. CG-04/AK 5508 was subjected to check. Thereafter notice (Ex.-P/3) under Section 50 of the NDPS Act was issued. Consent of the accused persons to be searched by the police personnel was obtained vide Ex.-P/4. After obtaining consent, search Panchnama of police personnel was prepared vide Ex.-P/6. From possession of the accused persons 160.77 kg of contraband (Ganja), which was kept in 80 packets, was seized vide Ex.-P/10. The same was sealed on the spot. As the accused persons failed to produce any valid document for transporting huge quantity of contraband, a notice under Section 91 of the CrPC was issued vide Ex.-P/27. 4 5. Crime details form and spot map was prepared vide Ex.-P/29. Personal search of the accused persons was prepared vide Ex.-P/11 & P/12 respectively. The accused persons have been arrested vide Ex.-P/13 & P/14 respectively. After informing their relatives vide Ex.-P/28, Dehati Nalishi was prepared on the spot vide Ex.-P/19. 6. After returning to the Police Station Arjuni, general entry No.11 was recorded vide Ex.-P/30 and FIR was registered vide Ex.-P/20. Weight certificate was obtained vide Ex.-P/41. On 18.11.2016, an inventory was prepared vide Ex.-P/38 under Section 52-A of the NDPS Act. The Executive Magistrate has prepared Panchnama vide Ex.-P/39 and physical verification Panchnama was prepared vide Ex.-P/40. 7. The seized contraband was sent to the Forensic Science Laboratory for examination vide Ex.-P/21 on 18.11.2016. In the FSL report (Ex.-P/32), the seized substance was found to be Ganja was confirmed. 8. After completion of the investigation, charge sheet was filed under Section 20 (b) (ii)(C) of the NDPS Act. 9. The prosecution in order to prove its case examined as many as 12 witnesses and exhibited 42 documents. Statements of the accused persons were recorded under Section 313 of the CrPC wherein they denied the allegations and pleaded innocence and false implication. 5 The appellants in support of their defence neither examined any witness nor exhibited any document. 10.Learned counsel for the appellants would submit that the trial Court is absolutely unjustified in convicting the appellants for offence under Section 20 (b) (ii)(C) of the NDPS Act, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that independent witnesses namely, Tulsidar Manikpuri (PW-1) was declared hostile and he has not supported the case of the prosecution. The other witness namely, Bhanwar Singh Mandavi was not examined. There is non-compliance of the provisions of Section 50 & 52-A of the NDPS Act. Alternatively, learned counsel for the appellants submits that the appellants did not have any criminal antecedents and they are young boys aged about 25 & 26 years respectively. In that view of the matter, it is prayed that the sentence imposed on the appellants may be suitably reduced or the present appeal may be allowed either in full or in part. 11. Per contra, learned State Counsel would support the impugned judgment of conviction and submit that the trial Court is absolutely justified in convicting the appellants for offence under Section 20 (b) (ii)(C) of the NDPS Act. He further submits that the provisions contained under Sections 50 & 52-A of the NDPS Act have been satisfactorily complied with by the prosecution in the present case. 6 As such, the conviction and sentence imposed on the appellants is well merited and the Appeal deserves to be dismissed. 12.We have heard learned counsel for the parties, considered their rival submissions and have gone through the records with utmost circumspection. 13.In the case at hand, on the date of the offence i.e. 16.11.2016, the patrolling party of District Crime Branch, Dhamtari led by the ASI Ramesh Sahu along with other staff, on the basis of secret information, recorded the Rojnamcha Sanha in general diary at the District Police Control Room, Dhamtari, while performing patrolling duties, that the contraband is being transported in white Honda Accord Car. The said information was registered vide Ex.- P/17 at District Crime Branch, Dhamtari. Thereafter the said information was sent to the Deputy SP, Dhamtari vide Ex.-P/25, which was duly proved by Ramesh Sahu (PW-10) ASI. On the basis of said information, 160.77 kg of contraband (Ganja) in 80 packets was recovered from possession of the appellants and weight Panchnama vide Ex.-P/9 & seizure memo vide Ex.-P/10 were prepared. The said seizure was made in the presence of independent witnesses namely, Tulsidas (PW-1) and Bhanwar Singh (not examined). However, the said Tulsidas has not supported the case of the prosecution. Though he was declared hostile, however, he has admitted his signatures on the notice issued under Section 160 7 CrPC (Vide Ex.-P/1) and Panchnama (Ex.-P/2). In the absence of search warrant, the patrolling party proceeded to the spot and notice (Ex.-P/3) was given to the accused persons under Section 50 of the NDPS Act. Consent of the accused persons to be searched by the police officer was also obtained vide Ex.-P/4. Thereafter Panchnama (Ex.-P/5) regarding search made by the police party was also prepared. The identification memo was prepared vide Ex.-P/7 in respect of the contraband which has been recovered from the possession of the accused persons, which they were transporting in a hidden manner in Honda Accord Car bearing registration No. CG- 04/AK 5508. 14.Weight verification Panchnama & Weight Panchnama vide Ex.-P/8 & P/9 respectively were prepared. Notice under Section 91 of the CrPC was issued to the accused persons, however, they had failed to produce any valid document for transporting such huge quantity of contraband Ganja. Seizure memo (Ex.-P/10) was prepared. Though the witness (PW-1) has deposed that he was called at the Crime Branch Office where his signatures were obtained on the said papers, in this regard, when we examine the statement recorded by ASI Ramesh Sahu (PW-10), we find that nothing material has been elicited in his cross-examination to disbelieve his version, particularly when huge quantity of contraband has been recovered from the possession of the accused/appellants. 8 15.In this regard, their Lordships of the Supreme Court in the matter of P.P. Fathima v. State of Kerala {(2003) 8 SCC 726} held that mere fact that a Panch witness did not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made and observed in Para-07 as under: “7. Learned counsel then contended that in view of the fact that the Panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a Panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of PWs. 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails.” 16.It has also been held by their Lordships of the Supreme Court in Mukesh Singh v. State (NCT of Delhi) {(2020) 10 SCC 120} that it is not always necessary to corroborate the testimony of police officials, through the testimony of independent witnesses. In the matter of Dharampal Singh v. State of Punjab {(2010) 9 SCC 608} it has been held that lack of independent witness is not fatal to the case of the prosecution. By adopting same analogy, it has further been held in Rizwan Khan v. State of Chhattisgarh {(2020) 9 9 SCC 627} that the independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. 17.Another limb of argument that has been put forth on behalf of the appellants is that Section 50 of the NDPS Act has also not been complied with by the prosecution in the present case. 18.In the case of Madan Lal & Others vs. State of Himachal Pradesh reported in {2003 AIR SCW 3669}, it has been held that the provisions of Section 50 of the NDPS Act do not apply to the search of a vehicle or a bag but only to personal searches. In a mere recent case, in the matter of State of Kerala Versus Prabhu, Cr.A.No.3434 of 2024 arising out of SLP (Crl.) No.13937 of 2023 decided on 20th August, 2024, the Hon’ble Supreme Court observed that Section 50 of the NDPS Act, which outlines the procedure for conducting search of a person, applies only to personal searches and not to searches of bags carried by the person being searched. Hence, the finding recorded by the trial Court in this regard is also just and proper, therefore, the argument put-forth in this behalf by the appellants also deserves to be and is hereby rejected. We hereby hold accordingly. 19.So far as the argument raised by learned counsel for the appellants regarding non-compliance of Section 52-A of the NDPS Act is concerned, recently in the matter of Bharat Aambale Vs. State of Chhattisgarh {2025 SCC OnLine SC 110}, it has been held that 10 mere non-compliance of the procedure under Section 52-A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution’s case doubtful, which may not have been there had such compliance been done. The Court should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. 20.In the present case, samples were drawn in the presence of the accused persons and certificate of the Magistrate was also obtained. As per the principle laid down in the matter of Bharat Aambale (Supra), it is not necessary that the sampling may be done at the very spot of seizure. 21.On the basis of aforesaid discussion, we are of the opinion that the statement of IO namely, Ramesh Sahu (PW-10) ASI inspires confidence of the Court that during the patrolling, he has recovered huge quantity of contraband from the conscious possession of the accused persons, which they were transporting in a hidden manner, and the substance which was seized from the accused persons, as per the FSL report (Ex.-P/32), was found to be Ganja. The trial Court has rightly appreciated the oral and documentary evidence available on record. We hereby affirm the finding recorded by the trial Court. 11 22.In the instant case, the appellants have been sentenced to undergo rigorous imprisonment for 14 years with a fine of Rs.1,50,000/- for the offence under Section 20(b)(ii)(C) of NDPS Act, whereas the minimum sentence of 10 years’ imprisonment has been prescribed for the aforesaid offence. The factors to be taken into account for imposing higher than the minimum punishment have been prescribed under Section 32B of the NDPS Act, 1985 which are as follows:- “32B. Factors to be taken into account for imposing higher than the minimum punishment.- Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely:- (a) the use or threat of use of violence or arms by the offender; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence; (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence; (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities.; (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence. 12 23.Taking into consideration the aforesaid provision and the fact that the prosecution has admitted that the appellants do not have any criminal antecedents as per the arrest memo, looking to their age and that they are facing the lis since 2016, we are of the opinion that while maintaining the conviction of the appellants, sentence imposed on the appellants be reduced from RI for 14 years to RI for 10 years, the fine amount of Rs.1,50,000/- be also reduced to Rs.1,00,000/- and the sentence of RI for 3 years in the event of making default in payment of fine amount be also reduced to RI for 6 months. Ordered accordingly. Ordered accordingly. 24.In the result, the Appeal is partly allowed to the extent indicated above. 25.Let a certified copy of this judgment along with original record be transmitted forthwith to the trial Court concerned as well as to the Superintendent of Jail where the appellants are languishing for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Barve