1 2025:CGHC:12517-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1727 of 201 7 (Arising out of judgment of conviction and order of sentence dated 12.09.2017 passed by the learned Special Judge (NDPS Act) Dhamtari (C.G.), in Special Case (NDPS) No. 124/2017) 1. Avinash Kumar Singh S/o Guru Prasad Singh aged about 27 years, R/o Village : Parmandapur, Nirala Nagar Baliya, Police Station City Kotwali Baliya, District – Baliya, U.P. 2. Sonu Kumar S/o Dadan Kharbar aged about 21 years, R/o Village: Semri, Dudhpatti, Police Station – Semti, District – Baxar, U.P. ... Appellants versus • State of Chhattisgarh, Through: Station House Officer, Police Station – Arjuni, District – Dhamtari, Chhattisgarh. ... Respondent For Appellants : Mr. Ashok Kumar Swarnakar, Advocate/Panel Lawyer appointed by Chhattisgarh High Court Legal Service Committee and Ms. Pooja Loniya, Advocate. For Respondent/State : Mr. H.A.P.S. Bhatia, Panel Lawyer. DB: Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board (17.03.2025) Digitally signed by HEERA LAL SAHU Date: 2025.03.26 10:58:11 +0530 2 Sanjay Kumar Jaiswal, J. 1. Invoking jurisdiction of this Court under Section 374(2) of the CrPC, appellants herein have preferred this criminal appeal challenging the legality, validity and correctness of the judgment of conviction and order of sentence dated 12.09.2017 passed by the learned Special Judge (NDPS Act), Dhamtari, (C.G.), in Special Criminal Case (NDPS Act) No. 124/2017 by which the appellants have been convicted and sentenced as under:- Conviction Sentence & Fine U/s 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 R.I. for 14 years and to pay fine of ₹1,50,000/- each; in default of payment of fine, additional rigorous imprisonment for 3 years. 2. In this case, on 10.12.2016 the appellants were found illegally transporting 143.10 Kgs of narcotic substance (ganja) in 27 packets in Scorpio vehicle No. OR-19-P-4235. 3. The prosecution case, in brief, is that on 10.12.2016, Sub- inspector Ramesh Sahu (PW-6), in charge of the District Crime Branch along with his staff head constables No. 147, 183, 196, constables No. 254, 262, and 371 went for investigation of a crime in government Sumo vehicle No. CG-03-5396. During that time, near Krishi Upaj Mandi, information was received from an informer that two persons were bringing narcotic substances like ganja from 3 Jagdalpur to Raipur for illegal sale in a black Scorpio vehicle No. OR-19-P/4235. On the information, witnesses head constable Pradeep Singh and Rakesh Mishra were made aware of the informer information and an information panchnama was prepared on the spot. Thereafter, constable Kuldeep Rajput was sent with a duty certificate to give a copy of the information to DSP Office, Dhamtari. Thereafter, Head Constable Rakesh Mishra was sent with a duty certificate to summon two independent witnesses and bring them to the spot. After a while, Head Constable Rakesh Mishra brought two independent witnesses namely Shekharam Sahu and Shambhu Sahu. Both the witnesses were made aware of the informer's information and were summoned under Section 160 of the Cr.P.C and asked for cooperation. Thereafter, Panchnama (Ex.P-13) was prepared regarding the non-receipt of search warrant in front of witnesses and blockade was done near Shyamtarai Naka NH-30. 4. Further, the case of the prosecution is that after some time, suspicious black Scorpio vehicle bearing registration No. OR-19-P/4235 was coming, which was stopped by waving hands. On enquiry, the person sitting on the driver's seat told his name as Sonu Kumar S/o Dadan Kharbar, aged about 21 years, R/o village Semri Dudhpatti, Police 4 Station-Semti, District-Buxar, Bihar and the person sitting in the back seat of the vehicle told his name as Avinash Kumar Singh S/o Guruprasad Singh, aged about 27 years, R/o Parmandapur, Nirala Nagar Ballia, Police Station-City Kotwali, Ballia, District-Ballia (Uttar Pradesh). The suspects were informed about the informer's information and made aware of their valuable right of search by any gazetted officer or the nearest magistrate. In this regard, notice was given to the suspects in which the suspects agreed to get it done by Sub Inspector Ramesh Sahu. The police party were searched in front of witnesses by the accused persons in which no objectionable things were found. In this regard, police search panchnama was prepared in front of the suspects and witnesses. Thereafter, the Scorpio vehicle of the suspects was searched in which a number plate with UP-60-Z-2011 written on it and 27 packets were found which were opened, on which narcotic substance like ganja was found and a registration book on which UP-60-Z-2011 was written and a chip card registration copy of Orissa state OR-19-P-4235 were found. A search panchnama was prepared in front of witnesses. Thereafter, in front of witnesses and suspects, 27 packets of ganja-like narcotic substance were smelled, rubbed and burnt by the witnesses and they said that it was ganja and an 5 identification panchnama was prepared. Thereafter, the weigher head constable Pradeep Singh was made to physically verify the electronic weighing scale in front of witnesses and a physical verification panchnama was prepared. On weighing the seized ganja, it was found to be 143.10 kg in total. 50-50 grams of ganja was taken out separately for sampling, put in polythene and cotton cloth and sealed. The sealed packets were marked as 1A-1B to 27A-27B. Thereafter, the accused persons were served with a notice under Section 91 of Cr.P.C. to produce valid documents regarding the possession, sale or transportation of the recovered ganja and documents related to ownership of the vehicle Scorpio. On this, the suspects admitted in writing that they did not have any documents regarding the narcotic substance ganja, the real number of the vehicle was UP-60-Z-2011 and the number plate bearing registration No. OR-19-P-4235 was fake, the said vehicle was purchased from Ujjwal Agarwal, R/o Ballia and the name was not transferred. Thereafter the Scorpio vehicle along with documents, one number plate, two RC books, total ganja weighing 143.10 kg and the sealed samples were seized as per the seizure memo (Ex.P-20). 5. Further, the case of the prosecution is that on finding of crime against the accused persons, the accused persons 6 were arrested in front of witnesses. Spot map was prepared, Dehati Nalsi was registered vide Ex.P-7 and statements of witnesses were recorded on the spot. Thereafter, the seized property and the accused persons were taken to Police Station Arjuni and numbered crime was registered. The seized ganja was duly deposited in Malkhana of the Police Station and the samples were sent for chemical examination to FSL through Superintendent of Police, Dhamtari from where the test report was received. According to FSL report (Ex.P-31), the seized substance was found to be ganja. A crime was registered at zero on the spot and on that basis, FIR was registered vide Ex.P-6 against the accused persons at Police Station Arjuni. After completion of investigation, charge sheet was filed. 6. The prosecution in order to prove its case examined in all 10 witnesses and exhibited 32 documents. The statements of the appellants were recorded u/s 313 of Cr.P.C. wherein they denied the guilt and pleaded false implication. However, the appellants in support of their defence neither examined any witness nor exhibited any document. 7. The learned trial Court after appreciating the oral and documentary evidence available on record, by impugned judgment, proceeded to convict the appellants and sentenced them as mentioned in the opening paragraph of 7 this judgment, against which this appeal has been preferred. 8. Learned counsels appearing for the appellants would submit that the learned trial Court is absolutely unjustified in convicting the appellants for offence u/s 20(b)(ii)(C) of the NDPS Act, as the prosecution has failed to prove the said offence beyond reasonable doubt. They further submit that the independent witnesses namely Shambhu Sahu and Shekh Ram Sahu have not been examined by the prosecution as they have been given up vide order of trial Court dated 19.06.2017, as such, the prosecution case is not supported by any independent witness. They placed reliance on the decision of the Hon’ble Supreme Court in the matter of Krishan Chand Vs. State of Himachal Pradesh1. They further vehemently argued that the provisions contained under Section 50 of the NDPS Act had not been complied with as at the relevant time and place, all the two accused persons were jointly served with the notice under Section 50 of the NDPS Act, and therefore there is no valid compliance with the said provision of law which should vitiate the search. In support of their argument, they placed reliance on the decision of Bombay High Court in the matter of Dharmaveer Lekhram Sharma 1 AIR 2017 SC 3751 : AIR 2017 SC (Criminal) 1624 8 & Another vs. State of Maharashtra & Ors2. They also submit that Sections 42 & 43 of the NDPS Act have also not been complied with. They next submit that it is apparent from the statements of PW-4 Mohit Kumar Chaturvedi and PW-9 Udyan Behar that the samples of the seized contraband were sent for chemical examination to FSL after a lapse of 3 days as the contraband has been seized from the accused persons on 10.12.2016 and the samples were sent on 14.12.2016 which is not permissible in the eye of law, as such, appellants herein deserve to be acquitted of the charge. Hence, it is prayed by them that sentence of the appellants may also be reduced suitably or the present appeal may be allowed in full or in part. In support, learned counsels for the appellants placed reliance on the decision of the Hon’ble Supreme Court in the matter of Pradeep Bachhar vs. State of Chhattisgarh3. 9. Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that though the independent witnesses have not been examined by the prosecution, but the Investigating Officer i.e., Ramesh Sahu (PW-6) has proved 2 (2001) 5 Bom CR 9 : 2001 Cri LJ 4886 3 2018 (13) SCC 600 9 the case of the prosecution beyond doubt and, therefore, the case of the prosecution cannot be said to be vitiated. Learned State counsel further submits that the mandatory provisions of the NDPS Act have satisfactorily been complied with by the prosecution in the present case. As such, the conviction and sentence passed by the learned trial Court against the appellants is well merited and, therefore, present appeal deserves to be dismissed. 10. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 11.In the case on hand, on the date of offence i.e. 10.12.2016, illegal contraband i.e. Ganja was recovered and seized from the possession of the appellants who were sitting in the offending vehicle vide seizure Panchnama (Ex.P-20) in presence of independent witnesses namely Shambhu Sahu & Shekh Ram Sahu. However, both the said witnesses have not examined by the prosecution as they have been given up vide order of the trial Court dated 19.06.2017. But, Investigating Officer, namely, Ramesh Sahu (PW-6) has duly proved the seizure of Ganja from the appellants vide Ex.P-20. In this regard, their Lordships of the Supreme Court in the matter of P.P. Fathima v. State of Kerala 4 held that mere fact that a Panch witness did not support 4 (2003) 8 SCC 726 10 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.” 12.The NDPS Act is a complete Code in itself. Once the procedure enumerated in Sections 42, 43, 49 & 50 is scrupulously followed, it was for the accused, from whose possession the substance is recovered, to explain how he came into possession of the same. It has also been held by their Lordships of the Supreme Court in Mukesh Singh v. State (NCT of Delhi) 5 that it is not always necessary to corroborate the testimony of police officials, through the testimony of independent witnesses. 5 (2020) 10SCC 120 11 13.In the matter of Dharampal Singh v. State of Punjab 6 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 7 that the independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. 14.As such, from above analysis on the point, it is vividly clear that merely because seizure witnesses have not been examined by the prosecution, it cannot be said that the entire prosecution’s case stands vitiated. More particularly, in the present case, Investigating Officer, namely, Ramesh Sahu (PW-6) has duly proved and supported recovery and seizure of Ganja from the appellants vide seizure Panchnama (Ex.P-20). The FSL report (Ex.P-31) also shows that Ganja is found in samples/Articles A1-A27 to B1-B27 which were taken from the contraband seized from the appellants from the spot. Therefore, we do not see any good ground to disbelieve the fact of recovery and seizure of Ganja from the appellants on the date and time of the offence and, as such, the findings recorded by the learned trial Court in this regard, is liable to be and the same is hereby affirmed. We hereby hold accordingly. 6 (2010) 09 SCC 608 7 (2020) 09 SCC 627 12 15. The another contention that has been raised on behalf of the appellants is that Sections 42 & 43 of the NDPS Act have not been complied with by the prosecution in its letter and spirit. 16. In the instant case, the seizure of the contraband from the accused persons was made from their private car and not from the public conveyance and it is clear from the material available on record that panchnama was prepared vide Ex.P-13 regarding search proceeding as the investigating officer could not obtain search warrant at that time, therefore, the argument put forth in this behalf by the appellants also deserves to be and is hereby rejected. We hereby hold accordingly. 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. A bare perusal of Section 50 of the NDPS Act, it is clear that the provisions of this Section apply only to personal searches. According to the prosecution, the seized cannabis were kept in 27 packets which were being carried in the offending vehicle and thus it was under the control of the accused persons at the particular time. In the case of Madan Lal & Others vs. State of Himachal Pradesh 13 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 more recent case, 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, Hon’ble the 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. Therefore, the argument put-forth in this behalf by the appellants also deserves to be and is hereby rejected. We hereby hold accordingly. 19. The next contention of the counsels for the appellants is that there was a delay of 3 days in sending the sample packets of the seized contraband to FSL, in this regard, it is clear from the evidence that there was no question put before Investigating Officer, Ramesh Sahu (PW-6) regarding the said delay to which he could explain reason of the delay. As such, the argument put forth in this behalf by the counsels for the appellants also deserves to be and is hereby rejected. 20. At this stage, learned counsel for the appellants submits that in view of the decision of the Hon’ble Supreme Court in 14 the matter of Pradeep Bachhar (supra), wherein the conviction of the accused persons has been upheld, however, considering the poor background and first offence of the accused persons (therein), the sentence has been reduced from 15 years of rigorous imprisonment to 10 years of rigorous imprisonment, and however, the order of payment of fine of Rs. 1.5 lakhs each is also upheld but the order in default of payment of fine, the sentence to undergo RI for 3 years is reduced to RI for 6 months. Therefore, in the present case, the sentence of the appellants herein for the offence punishable under Section 20(b)(ii)(C) of the NDPS Act may also be reduced. 21. 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 punishable 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 15 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.” 22. As such, in view of discussion made here-in-above, taking into consideration the law laid down by the Hon’ble Supreme Court in the matter of Pradeep Bachhar (supra) and further considering the aforesaid provisions of the Act and also considering the facts that the appellants have no criminal antecedents, as per arrest memo, appellant No. 1 Avinash Kumar Singh studied up to 12th Class and is an owner of taxi, he is currently aged about 35 years and appellant No. 2 Sonu Kumar is a labourer, he is currently 16 aged about 29 years, appellants are facing the lis since 2016 and further looking to their poor educational background while affirming the conviction of appellants for offence under Section 20(b)(ii)(C) of the NDPS Act, we deem it appropriate to reduce their sentence from 14 years’ rigorous imprisonment, to 10 years’ rigorous imprisonment, but the order of payment of fine of Rs. 1.5 lakhs each is upheld. However, the sentence of 3 years’ rigorous imprisonment in default of payment of the fine amount is also reduced to 6 months’ rigorous imprisonment. 23. Consequently, this criminal appeal is party allowed to the extent indicated herein above. 24. Let a certified copy of this order 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) (Sanjay Kumar Jaiswal) Judge Judge H.L. Sahu