1 2025:CGHC:13251 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1767 of 2023 Judgment Reserved on : 22.01.2025 Judgment Delivered on : 20.03.2025 • Navneet Dubey, S/o Shri Shivakant Dubey, Aged About 22 Years R/o. Village Maveiya, Thana Meja, District- Prayagraj (U.P.). ---Appellant versus • State of Chhattisgarh, Through Station House Officer, Police Station- Farasgaon, District- Kondagaon Chhattisgarh. --- Respondent And CRA No. 2169 of 2023 1. Puneet Kumar Pandey, S/o Ramesh Chand Pandey, Aged About 30 Years R/o Village- Badachaka, Naini, P.S. Naini, District- Prayagraj (U.P.) 2. Deepak Kumar Gauda, S/o Matamber Gauda, Aged About 24 Years, R/o Bisaijan Khurd, Police Station - Meja, District Prayagraj (U.P.) ---Appellants Versus • State Of Chhattisgarh Through P.S. Farasgaon, District Kondagaon (C.G.) AMIT PATEL Digitally signed by AMIT PATEL 2 --- Respondent _____________________________________________________________ For Appellants : Mr. Vikash Pradhan, Advocate. For Respondent/State : Ms. Nandkumari Kashyap, Panel Lawyer _____________________________________________________________ Hon'ble Smt Justice Rajani Dubey C A V Judgment 1. As both these appeals arise out of the impugned judgment of conviction and order of sentence dated 25.07.2023 passed by learned Special Judge (NDPS Act), Kondagaon, District- Kondagaon (C.G.) in Special Criminal Case (NDPS Act, 1985) No. 09/2019, whereby the appellants have been convicted for offence punishable under Section 20 (b) (ii)(C) of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 1,00,000/-, in default, to further undergo rigorous imprisonment for 01 year., they are heard analogously and are being disposed of by this common judgment. 2. Brief facts of the case are that in the year 2019, Investigating Officer- Shishirkant Singh (PW-09) was posted as Sub-Inspector/Station House In- charge in the Police Station- Farasgaon, District- Kondagaon, on 14.01.2019 he received secret information from the informant that some persons in one White coloured Bollero Pickup Truck Bearing No. UP-70-FT-2373 were traveling and carrying contraband article ganja with them for illegal trade and are coming towards from Orissa and going to Raipur via Jagdalpur- Kondagaon. The aforesaid information was recorded in the Rojnamcha Sanha and informed the Senior Officer about the information and recorded the Secret Informer Information Panchnama vide Ex. P/24 and Non- Obtaining Search Warrant Panchnama vide Ex. P/36. Thereafter served 3 notices under Section 160 Cr.P.C. to independent witnesses namely Sameer Khan and Piyush Pathak vide Ex. P/21 & Ex. P/22, he along with accompanying staff and witnesses, reached the spot and set up a blockade and prepared a Blockade Panchnama vide Ex. P/34. During the blockade, White Coloured Bollero Pickup Truck Bearing No. UP-70-FT-2373 coming towards from Orissa side was stopped in which three persons were found. On being interrogated, the driver disclosed his name as Punit Kumar Pandey and the persons sat next to him disclosed their name as Navneet Dubey and Deepak Kumar Gond. On being carefully investigating the said vehicle on the back side, they were carrying ganja sealed in 22 packets and were taped in brown coloured cello tape, which were kept in the brown chicks cartoon box. After giving notice under Section 50 of the NDPS Act to the accused persons for search vide Exs. P/36, P/37 & P/38 and their consent was taken as Exs. P/39, P/40 & P/41. After searching of police party vide Ex. P/8 and witnesses vide Exs. P/42, P/43, P/44, P/45 & P/46, search Panchnama was prepared. 3. After searching the said pickup truck in the presence of witnesses Panchnama vide Ex. P/46 was prepared, Recovery Panchnama was prepared vide Ex. P/47, which is found to be 22 packets of contraband article like ganja. The illegal narcotic substances ganja recovered from the vehicle owned by the accused persons was 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/48. Notice under Section 67 of NDPS Act was given to the accused persons vide Exs. P/49, P/50 & P/51 for producing documents in relation to said contraband article ganja. The substance was found to be cannabis/ganja. Notice to weigher (taulkarta) Asfaq Ali was given vide Ex. P/54. Thereafter on being checked the electronic weighing machine brought by weigher, it was 4 found to be correct. Physical verification of scales Panchnama was prepared vide Ex.P/55. On weighing, the illegal drug ganja recovered from the vehicle owned by the accused persons at the spot itself was found to be 106.964 KG and thereafter, narcotic substances weight Panchnama was prepared vide Ex.P/56. After which two samples of 50 grams each were taken out of the recovered ganja and and Samaras Panchnama was prepared. At the spot itself, 106.964 kg of narcotic ganja in the possession of the accused persons and two samples packets of 50 grams each prepared from it, 22 packets containing contraband article ganja kept in the vehicle of the accused persons, which is white coloured Bollero Pickup Truck No. UP-70-FT-2373. Seized one Bollero Pickup vehicle amounting to Rs. 5,00,000, Registration Certificate of the said vehicle, key of said vehicle, one grey coloured Nokia Mobile, cash of Rs. 420/-, Driving license, Voter ID, Aadhar Card and one touch screen mobile of LYF seized from the possession of accused/Punit Pandey. One Black coloured Jio Mobile, cash of Rs. 3,000/-, Voter ID seized from the possession of accused/Navneet Dubey and one Jio Mobile and cash of Rs. 300/- seized from the possession of accused/Deepak Gond as per seizure memo vide Ex. P/58. Thereafter, the seized articles were sealed in front of the accused persons and the witnesses. Sample Seal Panchnama was prepared vide Ex. P/57. Spot map was prepared by the Police in Crime Details Form vide Ex. P/68. When evidence of the crime was found against the accused persons, they were arrested in front of the witnesses, arrest sheets were prepared vide Exs. P./60, P/61 & P/62 respectively and their relatives were informed about their arrest vide Ex. P/64. 4. After completion of process, Zero Dehati Nalishi (Ex. P/11) was registered. Inventory report of the proceedings (Ex. P/5) was prepared 5 through the concerned Executive Magistrate. After returning to Farasgaon Police Station, a First Information Report vide Ex. P/12 was registered against the accused persons under Crime No 05/2019 under Section 20 (b) of the NDPS Act. The samples of seized ganja were sent to Forensic Science Laboratory, Raipur for testing and as per the FSL test report (Ex. P/70) received from Forensic Science Laboratory, Raipur, the seized contraband article was found to be ganja. After thorough 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. 5. In order to establish the charge against the appellants, the prosecution has examined as many as 10 witnesses and exhibited 70 documents as Exs. P/1 to P/70. The statements under Section 313 of Cr.P.C. of the appellants have also been recorded in which they denied the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, no evidence was adduced by them in defence. 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 inaugural paragraph of this judgment. Hence, this appeal. 7. Learned counsel for the appellants would submit that the impugned judgment of conviction passed by learned trial court is contrary to the facts and evidence available on record, hence the same is liable to be set-aside. Learned trial Court did not appreciate the statement of prosecution witnesses 6 without proper corroboration. Learned trial Court has failed to appreciate that there are major omissions and contradictions in the statement of Investigating Officer- Shishirkant Singh (PW-9) which was overlooked and while conducting search and seizure proceedings, the mandatory provisions of the NDPS Act, as such, Section 50 of the Act was not followed. This apart, as per the procedure prescribed in Standing Order 1/89 issued by the Central Government for drawing samples from each packet, whereas it has not been done in this case. The prosecution has utterly failed to prove its case beyond reasonable doubt against the appellants by adducing cogent and reliable evidence, even then the learned trial Court has held the appellants guilty of above offence. Therefore, the impugned judgment is liable to be set aside. In support of his contention, he relied upon the judgments of the Hon’ble Supreme Court in the matters of Dharamveer Prasad vs. State of Bihar and Another, reported in (2020) 12 SCC 492; Union of India vs. Bal Mukund and Others, reported in (2009) 12 SCC 161 and on the judgement of this Court in the matter of Hemant Singh and Another vs. State of Chhattisgarh, passed in Criminal Appeal No. 1697 of 2018. 8. On the other hand, learned counsel for the State supporting the impugned judgment submits that the Investigating Officer at the time of effecting search and seizure proceedings has substantially complied with all the mandatory provisions of the NDPS Act. This apart, the official witnesses have fully supported the prosecution case and their evidence cannot be discarded merely on the ground of they being official witnesses. Learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellants, which needs no 7 interference by this Court. Therefore, the present appeal being sans merit is 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. 10. It is vivid from record of learned trial Court that learned trial Court framed charge under Section 20(b)(ii)(C) of NDPS Act against the appellants on this ground that they possessed 106.964 Kg of contraband article ganja in 22 packets which were kept in Bollero Pickup Truck bearing No. UP-70-FT- 2373 for illegal trade and which is more than the commercial quantity. Prosecution has examined as many as 10 witnesses to prove its case against the appellants and after appreciating the oral and documentary evidence, learned trial Court convicted the appellants as mentioned in inaugural para of this judgment. 11. As per record of learned trial Court, all witnesses are members of police party and on the date of incident they stopped the said vehicle of the appellants and seized 106.964 Kg of contraband article ganja, however, no independent witnesses were examined by the prosecution before the trial Court. 12. Satish Chidda (PW-1), Krishna Kumar Sahu (PW-2), Uttam Nishad (PW-3) and Parmanand Mirdha (PW-5), Nemsingh Markam (PW-6) they all are the Police Constable in the Police Station- Farasgaon and Hari Nandan Singh (PW-7) is the Inspector, Sumant Kumar Bhagat (PW-8) is the Assistant Sub-Inspector, Shishirkant Singh (PW-9) is the Sub-Inspector, all are posted in the same Police Station- Farasgaon and Vinod Kumar Sahu (PW-10) is 8 the Inspector, who was posted at the time of incident in the Police Station- Farasgaon, presently he is posted in Police Station- Keshkal. As per charge- sheet, two independent witnesses namely Piyush Pathak and Sameer Khan’s name were found place in the list, whereas in trial programme, both independent witnesses namely Piyush Pathak and Sameer Khan’s was given up by the prosecution as they did not examine before the trial Court as prosecution witnesses. Investigating Officer- Shishirkant Singh (PW-9) has stated that he received secret information that in the white coloured Bollero Pickup Truck No. UP-70-FT-2373, in which accused persons were traveling, were in possession of contraband article ganja in the said vehicle and in this regard, he made entry in Rojnamcha Sanha vide Ex. P/17C and has also sent information to SDOP Office. As per information, they found one suspected vehicle i.e. white coloured Bollero Pickup Truck No. UP-70-FT- 2373 and they stopped and searched the said vehicle and found contraband article ganja, which when weighed was found to be of 106.964 Kg. In para 18 of his cross-examination, he admitted this fact that he has not prepared the sample packets of the contraband article ganja at the spot. In para 19 of his cross-examination, he admitted this fact that he had not given the notice under Section 50 of NDPS Act to the accused persons jointly, however, he had given notice under Section 50 of NDPS Act to the accused persons separately. 13. Ajendra Kumar Padhigrahi (PW-4), who was posted as Tahsildar at Farasgaon and has stated that in para 2 as under:- " मेरे निቖኔश पर मौजूቖኔ आर्ቌकों े उ्ሹ सभी पैके टों को खोलकर उसमें रखे पቖኔा्ቕ को जमी पर रखा। मैे ቖኔेखा निक उ्ሹ पቖኔा्ቕ गांजा ्ቕा। यहां पर उ्ሹ पቖኔा्ቕ को सुचकर, चखकर ቖኔेखा गया ्ቕा तो यह गांजा होा पाया गया ्ቕा। उ्ሹ माቖኔक पቖኔा्ቕ गाजा को आपस में 9 निमलाकर समरस निकया गया।। समरस करे के प्ቐात उ्ሹ गांजा को 5 बोरिरयों में भरकर बोरिरयों को B-1 से B-5 से चिचन्हांनिकत निकया। गया ्ቕा… .. समरस करे के प्ቐात उ्ሹ गांजा में से 50-50 ्ቇाम के ቖኔो सेम्पल पैके ट तैयार निकये गये। पैके टों को ए-1 और ए-2 से चिचन्हांनिकत निकया गया। " 14. Sumant Kumar Bhagat (PW-8), who is the ASI and stated that he was Incharge of the Malkhana at Thana- Farasgaon and he deposited the seized samples and contraband article ganja in Malkhana and he gave one sample packet on 04.02.2019 for its chemical examination to Constable- Nemsingh (PW-6) and made entry in this regard in the Malkhana Register and the same was received after chemical examination on 07.03.2019 and he has produced Malkhana Register vide Ex. P/15. 15. Nemsing Markam (PW-6) has stated that he received sample packets on 03.02.2019 and the same were sent to FSL, Raipur and they were deposited on 04.02.2019. 16. This Court observed in the matter of Hemant Singh (supra) held in paras 15, 16 & 17 are 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 10 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 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. 11 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 perusal of 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. 17. 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 12 packets could be performed individually. As the investigating officer before drawing the samples, proceeded to mix the contents of the all the packets without subjecting them to the test by the U.N. Kit, the accused has a right to contend that one of the packets 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 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 light of the above judgment, considering the aforesaid facts and circumstances of the case, submissions advanced by the learned counsel 13 for the parties, material available on record, in the present case also it is admitted by Ajendra Kumar Padhigrahi (PW-4), that in presence of the witnesses, all packets containing the contraband article ganja recovered from the joint possession of the accused persons were opened and all of them were mixed together and reconciled and samras, so prosecution agency has failed to comply with the instructions given in Standing Order No. 1/89. It is also vivid that both independent witnesses namely Sameer Khan and Piyush Pathak were not examined by the prosecution before trial Court and only police witnesses were examined by the prosecution. Thus, it is quite vivid that the prosecution has not been able to prove the guilt of the appellants beyond all reasonable doubt. Being so, the learned trial Court was not justified in recording the conviction of the appellants under Section 20(b)(ii) (C) of the NDPS Act. 18. In the result, both the criminal appeals are allowed and the impugned judgment dated 25.07.2023 of the learned trial Court is hereby set aside. The appellants are acquitted of the charge under Section 20(b)(ii) (C) of the NDPS Act, 1985. They are reported to be in jail, therefore, they be set free forthwith, if not required in any other cases. 19. Keeping in view the provision of Section 481 of BNSS, 2023., the appellants are directed to furnish the personal bond a sum of Rs. 25,000/- each before the Court concerned 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 appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 14 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 AMIT PATEL