1 2025:CGHC:5278 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1967 of 2023 Manish Kumar Jarwana S/o Late Shri Rakesh Kumar Jarwana, aged about 30 years, R/o Sector 7 Awas Vikas Colony Bodla, Sikandara Police Station Jagdishpura, District : Agra, Uttar Pradesh ... Appellant Versus State of Chhattisgarh through Station House Officer, Police Station Kondagaon, District : Kondagaon, Chhattisgarh ... Respondent For Appellant : Mr. Aman Tamboli, Advocate. For Respondent/State : Mr. Akhilesh Kumar, G.A. Hon'ble Smt Justice Rajani Dubey Judgment on board 29.01.2025 1. This appeal has arisen out of the impugned judgment of conviction and order of sentenced dated 24.08.2023 passed by learned Special Judge, NDPS Act 1985, Kondagaon, District- Kondagaon (C.G.) in Special Criminal Case No. 16/2018, whereby the appellant has been convicted for offence punishable under Section 20 (b)(ii)(C) of the NDPS Act, 1985 and sentenced 2 to undergo rigorous imprisonment for 10 years and fine of Rs. 1,00,000/-, in default, to further undergo rigorous imprisonment for 01 year. Prosecution Story:- 2. Brief facts of the case are that, on 18.11.2017, Investigating Officer- Shishirkant Singh (PW-) was posted in the year 2017 as Inspector/Station House In-charge in the Police Station- Kondagaon, received secret information from the informant that in one Mahindra Scorpia Car Bearing No. UP-80-BY-3389 carrying ganja for illegal trade and is coming towards from Jagdalpur and was going to Raipur. The aforementioned information was recorded in the Rojnamcha and informed the Senior Officer about the information and duly preparing the informer information Panchnama (Ex. P/2) and he along with accompanying staff and witnesses, reached the spot and set up a blockade. During the blockade, a Mahindra Scorpia Car Bearing No. UP-80-BY-3389 coming towards from Jagdalpur side was stopped in which three persons were found. On being interrogated,The driver revealed his name as Vijendra Kumar, and the person sat in front of him and revealed his name as Manish Kumar Jarwana and sat on the back side and revealed his name as Sonu Gupta. After giving notice under Section 50 of the NDPS Act to the accused persons for search vide Ex. P/6 and consent was taken vide Ex. P/7. After searching of police party vide Ex. P/10 and witnesses vide Ex. P/11. On being carefully investigating the said vehicle, they were carrying ganja in Mahindra Scorpia Car Bearing No. UP-80-BY-3389 sealed in 18 packets which were taped in brown coloured cello tape 3. After preparing the vehicle search panchnama (Ex. P/13) searched the said car in the presence of witnesses, Recovery Panchnama was prepared vide Ex. P/14, which is found to be 18 packets of intoxicant like ganja and 3 after searching of the accused vide Ex. P/12 seized four mobile phone, and cash of Rs. 2330/- from the appellant. The illegal narcotic substances like ganja recovered from the vehicle owned by the accused persons which were kept inside the car of back side were mixed together, some quantity of it was rubbed, smelled, sniffed and burnt and it was found that it contained narcotic substances and Identification Panchnama was prepared vide Ex. P/15. Notice under Section 67 Cr.P.C. was given to the accused persons for producing documents in relation to said contraband articles.The substance was found to be cannabis. Notice to weigher Digamber Yadav was given. Thereafter on being checked the electronic weighing machine brought by weigher, it was found to be correct. Physical verification of scales Panchnama was prepared vide Ex.P/16. On weighing, the illegal drug ganja recovered from the vehicle owned by the accused persons at the spot itself, it was found to be 156. 630KG and thereafter, narcotic substances weight Panchnama was prepared vide Ex.P/17. After which sample was taken out of the recovered ganja and sample & samaras panchnama were prepared. At the spot itself, prepared samples packets of intoxicants like ganja kept in the vehicle of the accused which is Mahindra Scorpia Car. Thereafter, the seized articles were sealed in front of the accused persons and the witnesses and sample seal Panchnama was prepared vide Ex. P/21 . Spot map was prepared by the police in Crime Details Form vide Ex. P/57. When evidence of the crime was found against the accused persons and they were arrested in front of the witnesses, arrest sheets were prepared vide Exs.P/24, 25 & 26. After completion of process, Zero Dehati Nalishi (Ex. P/40) was registered and inventory report of the proceedings vide Ex. P/37 was prepared through the concerned Executive Magistrate. After returning to Kondagaon Police Station, a First Information Report vide Ex. P/41 was registered against the 4 accused persons under Crime No. 255/2017 under Section 20 (b) of the NDPS Act. The sample of seized ganja was sent to Forensic Science Laboratory, Raipur for testing and as per the FSL test report (Ex. P/42) received from Forensic Science Laboratory, Raipur, the seized contraband article was found to be ganja. After thorough the investigation, evidence of crime was found against the accused persons and the charge-sheet was presented against them in the Court of Special Judge (NDPS Act), Kondagaon. 4. The charges were read over to the appellants, they denied the same and claimed trial. When the accused were examined under Section 313 of Cr.P.C., they declared himself as innocent and though stated that they have been falsely implicated, but no defence evidence was presented by them. 5. In order to establish the charges against the appellant, the prosecution has examined as many as 18 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 6. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned Trial Court has convicted the appellants and sentenced them as mentioned in opening paragraph of this judgment. Hence, this appeal. Submission of the parties:- 7. Learned counsel for the appellants would submit that the impugned judgment of conviction and sentence passed by learned Trial court is bad-in- 5 law and in facts and thus, liable to be set aside and the appellant deserves to be acquitted. Learned Trial Court failed to appreciate the evidence recorded in the case in its true and correct perspective, hence on conjectures and surmises in convicting and sentencing the appellant. The learned trial Court failed to appreciate the prosecution case as it could not substantiate the charges by way of cogent and reliable evidence beyond all reasonable doubts. The prosecution has failed to prove its case beyond reasonable doubt. The mandatory provisions of the NDPS Act, 1985 were not complied by the prosecution agency. So, the learned trial Court committed grave error by convicting the appellant. The prosecution could not prove seizure of the Ganja from the accused, but the learned trial Court gave wrong finding and convicted the appellant. 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 in CRA No. 1697 of 2018 (Heman Singh and Anr. Vs. State of Chhattisgarh) decided on 03.07.2024. 8. 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 doubts. The Investigating Officer at the time of effecting search and seizure proceeding has substantially complied with all the mandatory provisions of the NDPS Act, 1985. The official witnesses have fully supported the prosecution case and their evidence cannot be discarded mainly on the ground of they being official witnesses particularly, in absence of any evidence on record to show their ill intention or animosity as against the appellant and the other co-accused for their false 6 implication in the case. The learned trial Court has minutely appreciated the oral and documentary evidence and 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 without any merit and liable to be dismissed. 9. 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:- 10. It is clear from record of learned Trial Court that learned Trial Court framed charges under Section 20 (b) of NDPS Act against the appellant and other co-accused persons. The prosecution has examined as many as 18 witnesses and the learned trial Court after appreciation of oral and documentary evidence convicted the appellant under Section 20(b) (ii) (C) of NDPS Act, 1985, which is as mentioned in opening para of this judgment. 11. As per records of learned Trial Court, Sunil Katlum (PW-01), Digambar Yadav (PW-02), Santosh Baghel (PW-03) are independent witnesses, they have admitted their signatures on all documents, denied the proceeding and also not identified the accused persons. The prosecution declared them hostile and cross-examined them, but they denied all the suggestions of the prosecution. In cross-examination the Constable Rituraj Singh (PW-05), Head Constable Uday Painkra (PW-06), Constable Narendra Netam (PW-08) are members of police party and they have supported the statement of the Investigating Officer. 7 12. As per Investigating Officer- Shishirkant Singh (PW-18), stated that on 18.11.2017 he got information from the informer that in one white Mahendra Scorpio No. UP 80 BY 3389 carrying illegal article contraband Ganja and going from Jagdalpur to Raipur via Kondagaon. After entry in Rojnamcha Sanha (Ex. P/45) he started for catching them with his team and they stopped the suspected vehicle No. UP 80 BY 3389 and upon searching he found three persons in vehicle namely Vijendra Kumar, Manish Kumar and Sonu Gupta and on thorough checking, they found Ganja. Thereafter, he prepared search and seizure memo and seized 18 packets contraband and after preparing all the documents he lodged F.I.R vide Ex. P/41 and he admitted his signature on B to B part. The independent witnesses Sunil Netam (PW-01), Digambar Yadav (PW-02) and Santosh Baghel (PW-03) have admitted their signatures on all documents i.e., Ex. P1 to Ex. P/28, but they denied all the proceeding, but the actual witnesses supported the statement of the Investigating Officer (PW-18), Kaldas Parwar (PW-09) Tehsildar and also stated that after weighing of the contraband, he prepared the inventory. 13. The main objection of the appellant is that it was necessary for the prosecution to establish by cogent evidence that alleged quantity of contraband was seized from the exclusive possession of the accused/appellant and it was also necessary that all the seizure memo and physical verification proceedings were conducted before any Magistrate and in this case, prosecution agency not followed the standing order 01/89. 14. (PW-09) Kaldas Parwar stated in para 3 of his examination-in-chief that on his instructions, those 18 packets were opened by the Constable Santosh Sirdar and Constable Jailu and the intoxicating substance was mixed and two sample packets Z1 and Z2 of 50-50 grams were prepared and it was sealed. 8 As per the appellant, the Investigating Officer had not complied with the standing order 01/89 and not taken sample from each of the 18 packets. Total 18 packets of Ganja was seized from the vehicle and only 02 samples were taken out from the contraband after mixing them which is not permissible as per law. 15. This Court observed in CRA No. 1697/2018 in paragraphs 15, 16 & 17 as under:- “ 15. Though no procedure is prescribed either in the N.D.P.S. Act or in the N.D.P.S. Rules regarding the manner in which the samples are to be drawn but a Standing Order 1/89 has been issued by the Central Government in this regard, wherein general procedures for sampling, storage etc. have been given which reads as under : “2.1. All drug shall be properly classified, carefully weighed and sampled on the spot of seizure. 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of 9 packages/containers, one sample (in duplicate) may be drawn. 2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. 2.7. If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container. 2.8. While drawing one sample (in duplicate) from a particular lot, it must he ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also he sealed and marked "Secret Drug sample/Test memo", to be sent to the chemical laboratory concerned.” 16. From a perusal Instruction 2.4, it is evident that it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Instruction 2.5 provides an exception to Instruction 2.4. It has been provided in Instruction 2.5 that when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.” 16. Thus, in the aforesaid situations, a representative sample can be drawn after bunching together the contents of numerous packages. The essential requirement before such an action of drawing a representative sample can be undertaken is that the contents of each package have to be subjected to colour test by U.N. drug testing Kit. Once the test is conducted and the result indicates that all the packages are identical in all respects, then a representative sample can be taken out after bunching the packages. Hence, the Investigating Officer was under an obligation to collect separate samples from each of the packets so that the analysis of the contents of each of the packet could be performed individually. As the seizure officer before drawing 10 the samples, proceeded to mix the contents of the packets without subjecting them to the test by the U.N. Kit, the accused has a right to contend that one of the packet might not have contained contraband ganja. If at all the prosecution desired to prove that all the packets contained ganja, then it was essential for the samples to have been collected and analysed individually from all the packets or else, the test by U.N. Kit should have been carried out on the material present in all the 40 packets. The Hon'ble Apex Court considered a similar issue in the case of Gaunter Edwin Kircher v. State of Goa reported in AIR 1993 SC 1456 and observed as below:- “5.We shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms.. from this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.” 17. In the light of above judgment, and in the present case also it is clear that the prosecution agency did not comply with the standing order of 01/89. Thus, considering the facts and circumstances of the case, nature and quality of the evidence adduced by the prosecution, the fact that the independent witnesses have not supported the prosecution case and the manner in which the investigation was carried out where the Investigating Officer has failed to comply with the instructions given in standing order 01/89. Keeping in view, the certain legal position, this Court is of the opinion that the prosecution has not been able to prove the guilt of the appellant beyond all reasonable 11 doubts. Being so, the learned trial Court was not justified in recording conviction of the appellant under Section 20(b) (ii) (C) of the NDPS Act, 1985. 18. For the foregoing reasons, the appeal is allowed and the impugned judgment dated 24.08.2023 passed by learned Special Judge (NDPS Act, 1985) in Special Criminal Case No. 16/2018 is set-aside. The appellant is acquitted of the charge under Section 20(b)(ii) (C) of the NDPS Act, 1985 by extending him the benefit of doubt. The appellant is in jail since 18.11.2017. They 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. 50,000/- 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 Uttej