1 2025:CGHC:9587 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 2199 of 2024 Krishna Jagat S/o Late Tribhuwan Jagat Aged About 36 Years R/o Raja Khariyar Chhaliya Para P.S. Raja Khariyar District - Nuapada (Odissa) At Present R/o Fokat Para Behind Bharat Sewa Ashram P.S. Devendra Nagar Raipur District - Raipur (C.G.). ... Appellant versus State Of Chhattisgarh Through Police Station Gudiyari Raipur District - Raipur (C.G.). ---- Respondent ___________________________________________________________ For Appellant : Mr. Shivam Mishra, Advocate For State/Respondent : Ms. Sunita Sahu, P.L. ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 25/02/2025 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. This criminal appeal has been preferred by the appellant under Section 415(2) of the BNSS, 2023 being aggrieved with the VASANT KUMAR Digitally signed by VASANT KUMAR Date: 2025.03.01 17:02:50 +0530 2 judgment of conviction and order of sentence dated 13.09.2024 passed in special Case (NDPS Act) No.153/2023 by the Special Judge (NDPS Act), Raipur, District Raipur (C.G.), whereby the trial Court has convicted the appellant as under : Conviction Sentence In Default Under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 R.I. for 04 years and fine amount of Rs.40,000/- In default of payment of fine amount further R.I. for 10 months 3. According to the case of prosecution, on 11.07.2023, Sub Inspector Vinod Kashyap posted at Police Station Gudhiyari, Raipur received a secret information from an informer that near Disha College, Main Road Kota-Ramnagar Raipur, a person is carrying contraband ganja to buy and sell, then following the mandatory provisions of the NDPS Act, police reached the said spot and questioned, a person was apprehended, who told that his name is Krishna Jagat, Thana Raja Khariyar, District Nuapada, Odisha and presently he is a resident of Fokat Para, behind Bharat Seva Ashram, Thana Devendra Nagar, District Raipur. He was apprised of the informer's information and was also apprised of his legal rights regarding search, on which the accused gave his consent to be searched by the raiding officer. On being searched, a coloured bag found from the possession of 3 the accused in which a botanical substance like Ganja was found, which was identified on the spot by tasting, smelling, rubbing and burning, and was prima facie identified as Ganja. The seized ganja recovered from the possession of the accused was found to be 04 kg 300 grams. Two samples of seized contraband,. i.e., S1 & S2 were sent for chemical examination which were found positive. Then crime was registered against the accused was arrested. After completion of investigation, charge-sheet was filed by the police against the appellant. 4. To prove the guilt of the appellant, the prosecution has examined as many as 12 witnesses. Statement of the appellant was recorded under Section 313 of the Cr.P.C., wherein appellant pleaded innocence and false implication in the matter. 5. After completion of trial, the trial Court convicted and sentenced the appellants as mentioned in paragraph one of this judgment. Hence, this appeal. 6. Learned counsel appearing on behalf of the appellant contended that he does not wants to press this appeal on merits and confines his argument to the sentence part only. He further submits that the incident is of the year 2023. There is no criminal antecedent against the appellant and he is facing lis since 2023. Appellant has undergone about 01 year and 07 months, therefore, it is prayed that the jail sentence awarded to the 4 appellant may be reduced to the period already undergone by him. 7. Per contra, learned counsel for the State/respondent opposes the argument raised by counsel for the appellant, supported the impugned judgment and submits that sentence awarded by the trial Court is just and proper and requires no interference. 8. I have heard learned counsel appearing on behalf of the parties and perused the material available on record with utmost circumspection. 9. On perusal of the records, I have found that 11.07.2023, Sub Inspector- Vinod Kashyap of Police Station Patewa, District Mahasamund received a secret information from an informer that the appellant has kept narcotic substance ganja in a bag near Disha College, Main Road Kota-Ramnagar Raipur and after following procedure under the NDPS Act, recovered 04.300 kg contraband ganja from illegal possession of the appellant. 10. Under Section 42 of the NDPS Act, 1985 prescribed for power of entry, search, seizure and arrest without warrant or authorization. 11. The next issue that falls for our consideration is with respect to the compliance of Section 42 of the NDPS Act 1985. For the said purposes, an analysis of the bare text of Section 42 of the NDPS Act 1985 is undertaken hereinafter. Section 42 of the NDPS Act 5 1985 is worded as follows: “42. Power of entry, search, seizure and arrest without warrant or authorisation.— (l) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,— 6 (a)enter into and search any such building, conveyance or place; (b)in case of resistance, break open any door and remove any obstacle to such entry; (c)seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d)detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: [Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that] if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, 7 conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” 12. On perusal of the record, it transpires that the Investigating Officer Mr. Vinod Kashyap (PW-11) has complied with provision of Sections 42, 52-A (3) & 55 of the NDPS Act. 13. The Report of Regional Forensic Science Laboratory, which shows that the samples of seized articles have been found positive. Therefore, in considered opinion of this Court, the trial Court has rightly convicted the appellant for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. I do not find any illegality and infirmity in the findings recorded by the trial Court with regard to the conviction part. 14. Considering the above facts and circumstances of the case, particularly, considering the fact that the contraband Ganja seized from the possession of the appellant is 04 Kg 300 grams in total; he has already undergone about 01 year and 07 months out of the period of 04 years sentence imposed upon him by the trial Court, seizure witnesses of this case have also been hostile before the trial Court and there is no previous antecedent of the 8 appellant, I am of the considered opinion that the ends of justice would be met if, while upholding the conviction imposed upon the appellant, the jail sentence awarded to him is reduced to the period already undergone by him. If the fine amount is not deposited by the appellant, he shall further undergo as has been ordered by the learned Special Judge (NDPS Act), Raipur, District Raipur (C.G.). Ordered accordingly. 15. Records of the Court below be sent back along with a copy of this order forthwith for information and necessary compliance. Sd/- (Arvind Kumar Verma) Judge Vasant