1 2025:CGHC:13875 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 2026 of 2022 Ghanendra Kumar Dewangan S/o Damodar Ram Dewangan, Aged About 26 Years R/o Mahimasagar Ward, Dhamtari, Police Station City Kotwali, Dhamtari, District Dhamtari Chhattisgarh. ... Appellant versus State of Chhattisgarh Through The District Magistrate, Dhamtari, District Dhamtari Chhattisgarh. ... Respondent(s) For Appellant : Mr. Dinesh Yadav, Advocate. For Respondent(s) : Mr. Amit Verma, Panel Lawyer. Hon'ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 22.03.2025 1. Today, though the present appeal has been listed for hearing on IA No.01 of 2022, which is an application for suspension of sentence and grant of bail and IA No. 02 of 2022, which is an application for suspension of fine amount, but with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is being heard finally. 2. Accordingly, IA No. 01 of 2022 and IA No. 02/2022 stands disposed of. PREETI KUMARI Digitally signed by PREETI KUMARI 2 3. The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 15.12.2022 passed by the learned Special Judge (N.D.P.S. Act, 1985) Dhamtari, District- Dhamtari (C.G.) in Special Criminal Case (NDPS Act) No. 06/2021, whereby the learned Special Judge after holding the appellant guilty for the offence punishable under Section 21(C) of the Narcotic Drug and Psychotropic Substance Act, 1985 (hereinafter refereed to as ‘the Act’) and sentenced him to undergo R.I. for 10 years and to pay fine of Rs. 1,00,000/-, in default of payment of fine to further undergo R.I. for 3 years. 4. The judgment of conviction and order of sentence is challenged on the ground that without there being any evidence relating to conscious possession of illicit contraband article and ignoring the fact that the prosecution has not complied with the mandatory provisions of the Act which is meant for providing the safeguard to the accused, learned trial court has committed an illegality in convicting and sentencing the appellant as aforementioned. 5. Case of the prosecution, in brief, is that, on 09/07/2021, Sub Inspector Ramesh Sahu posted at Police Station City Kotwali Dhamtari received information from an informer that Ghanendra Kumar Devangan, resident of Mahima Sagar Ward, is coming on his Honda Shine Motor Cycle No. CG 05/R/6898 with illegally banned narcotic drugs to sell to someone near St. Mary's School. On receiving the said information, the Sub Inspector prepared the informer information Panchnama (Ex.P-17) on the spot, sent Assistant Sub Inspector Rakesh Mishra as per Ex.P-18 to call independent witnesses and Head Constable Dinesh Turkane was sent as per Ex.P-21 to give a copy of the informer information to the Deputy Superintendent of Police Dhamtari. When two independent witnesses Chandu Yadav and Sharad Patel were present at 3 the spot, they were made aware of the informer information and were booked under Section 160 Cr.P.C. for cooperating in the entire proceedings. Under this, notice was given as per Exhibit P-5. Deputy Inspector Ramesh Sahu, stating the need to conduct raid immediately without search warrant, prepared Panchnama as per Exhibit P-6 regarding not being able to obtain search warrant in the presence of the above witnesses. Thereafter, the staff along with Head Constable No. 183 and 189 and independent witnesses reached the place mentioned by the informant. At the same time, when the accused arrived at the spot, he was questioned and he was informed about the informant's information and notice under Section 50 of NDPS Act was given and consent for search was taken from the accused and a search Panchnama of the police party was prepared. On searching the accused and his motorcycle, 23 boxes of banned drugs containing narcotic substance were recovered from a white polythene bag kept on the tank of the motorcycle. Drug Inspector Sandeep Kumar Suryavanshi was called on the spot for identification. He identified the drugs recovered from the accused as banned drugs. 6. During the investigation, the banned drugs were seized from the accused in front of witnesses and seizure sheet (Ex.P-12) was prepared. The spot map of the incident was prepared and the map was also prepared by the Patwari. The accused was arrested and an arrest-sheet was prepared and information about the arrest was given to his family members. Dehati Nalsi (Ex.P-31) was registered on the spot, on the basis of which a First Information Report was registered under Section 21 (C) NDPS Act under Crime No. 271/2021 at Police Station City Kotwali Dhamtari. 7. After recording the statement of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 and due investigation, the charge- sheet was filed in the Court of the Special Judge (N.D.P.S. Act), Dhamtari (C.G.). 4 8. In order to prove the guilt of the appellant/accused, the prosecution has examined as many as 13 witnesses and exhibited 36 documents along with Articles A-1 to A-240 in support of its case. Statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973, in which he denied the circumstances appearing against him and pleaded innocence and stated that he has been falsely implicated in the case. 9. Learned Special Judge after affording an opportunity of hearing to the parties, convicted and sentenced the accused/appellant as aforementioned. 10. Learned counsel for the appellant submits that the prosecution utterly failed to appreciate the evidence of proper and in its right perspective. He further submits that the evidence of the independent prosecution witnesses i.e. PW-01 Chandu Yadav and PW-4 Sharad Patel are not corroborated by other prosecution witnesses. He further submits that the learned Special Judge has committed the gross error in not appreciating that the quantity of contraband article kept in the bag by the accused/appellant which are exclusive possession of the accused/appellant or not, further, the learned Special Judge has not appreciated that sample has been taken 30 pieces of contraband article by the police authority for sending the FSL out of total contraband article 3312 pieces capsul and it is marked as of the sample A, but police authority has deposited the contraband article in the malkhana. This fact has been admitted by the I.O. as well as corroborated by other prosecution witness in their deposition which is solely ground that the accused/appellant deserved to be acquitted from the alleged charge. Further, the conviction of the accused/appellant is not sustainable on 5 alone ground that the entire contraband article has not sent for FSL. The learned Special Judge has not appreciated this important aspect of the case. Further, the statement of prosecution witnesses are full contradictions and omission and cannot be relied upon for conviction the accused/appellant. Therefore, the impugned judgment of learned trial Court is bad in law and is liable to be set-aside. 11. On the other hand, judgment impugned is supported on behalf of the respondent/State and submits that conscious possession of the appellant has been established by the prosecution by adducing evidence. The prosecution has complied with the provisions of Special Act and conviction and sentence is sustainable under the law. 12. I have heard learned counsel for the parties, perused the impugned judgment and records of the trial Court. 13. In order to establish the complicity of the accused/appellant in the crime in question, the prosecution has examined Sub-Inspector Mr. Ramesh Sahu (PW-13) who has stated that during his posting in City Kotwali Police Station Dhamtari, on 09/07/2021, he along with his staff went for a town tour. He received information from an informant near Ambedkar Chowk Dhamtari that Ghanendra Devangan, resident of Mahima Sagar Ward, is coming near St. Mary's School on his motorcycle bearing banned narcotic drugs for illegal sale through his motorcycle bearing Registration No.CG 05/R/6898. He gave this information to Head Constable No. 183 and 189 and prepared a panchnama on the basis of the informant's information (Ex.P-17) on which the signatures of Head Constable No. 183 Rakesh Mishra (PW-6) and Head Constable No. 189 Amit Singh (PW-10) are there and both of them have also supported this fact through their statements during the evidence. He further deposed 6 that after the arrival of independent witnesses, he along with his staff went to the place of incident near St. Mary's School, where a person came on Honda Shine motor cycle bearing registration No. CG 05/R/6898, and on stopping and questioning him, he told his name to be Ghanendra Kumar Devangan, resident of Mahima Sagar Ward, Dhamtari, he had some goods tied in a white plastic bag on top of the tank of his motor cycle. Ghanendra Kumar Devangan was made aware of the informer's information and an FIR was lodged under Section 50 NDPS for searching his goods and vehicle. Notice of the Act was given to him as per Exhibit P-7 and when Ghanendra Kumar Devangan gave his consent for the search by the investigating ofÏcer as per Exhibit P-8, then in front of the witnesses, first the police party's body search was given to Ghanendra Kumar Devangan as per Exhibit P-9 and after this, the packet kept on the tank of Ghanendra Kumar Devangan's motorcycle was opened and boxes of capsules named SPAS-TRANCAN PLUS 385 mg were found in it. Each box had 6 strips of blue coloured capsules and each strip had 24 capsules on which the batch number CBC 02858/21 was written. In this way, a total of 3312 capsules were found from the possession of accused/appellant Ghanendra Kumar Devangan. 14. Drug Inspector Sandeep Suryavanshi (PW-2) further stated that after inspecting the medicine recovered from the accused, he gave his report as per Exhibit P-2 on which he and his colleague Drug Inspector Smt. Nikita Shrivastava have also signed and on examination he found that the medicine seized from the accused/appellant was marked Dicyclomine Hydrochloride, Tramadol, Exetaminafil. In all, there were 3312 blue coloured capsules in 138 packets in 23 boxes whose weight was found to be 1275.12 grams. On the basis of preliminary examination, he stated that the drugs may be psychotropic and the accused did not 7 have any document regarding their storage or sale and he advised to send the drugs to FSL for chemical examination. 15. Investigating OfÏcer Ramesh Sahu (PW-13) further stated that on 25/08/2021, FSL investigation report was received through Superintendent of Police Dhamtari. Exhibit P-34 is marked on this report and questions were also asked to the accused/appellant during the examination regarding this report, to which the accused replied that he does not know. According to FSL report (Ex.P-34), on examining the capsules seized from the accused, the presence of Dicyclomine, Tramadol & Acetaminophen has been reported. The Investigating OfÏcer also presented the details of departure and return to the crime scene during his statement, on the original of which Ex.P-35 and Ex.P-36 have been marked respectively. 16. Now coming to the FSL Report i.e. Ex.P-34, a sealed packed marked as ‘A’ 30 strips were found in which each strip contained 8 turquoise coloured capsules (total 240 pieces), which were stated to be SPAS TRANCAN PLUS in the form. These are marked A-1 to A-240 respectively here. The said samples were subjected to necessary physicochemical and TLC tests, marked as Exhibit A-1 to A-240, in which Dicyclomine, Tramadol and Acetaminopher were found positive. 17. After appreciating the evidence available on record, the statement of Sub-Inspector Mr. Ramesh Sahu (PW-13), Investigating OfÏcer Ramesh Sahu (PW 13), Drug Inspector Sandeep Suryavanshi (PW-2), other prosecution witnesses and the documents available on records, particularly, seizure memo (Ex.P-12) and the FSL report (Ex.P-34), the learned Special Judge has arrived at a finding that the appellant was found in possession of total 1275.12 grams contraband articles, further, 8 the appellant has failed to give plausible explanation with respect to the huge recovery of the contraband article which were recovered from his possession and the prosecution has proved the case against the appellant beyond reasonable doubt, thus, he was convicted and sentenced as aforementioned. 18. Considering the evidence available on record, and the findings recorded by the learned trial Court as discussed above, the appellant has rightly been convicted and sentenced by the trial Court as aforementioned. I do not find any scope for interference in the judgment impugned. Consequently, the appeal is liable to be and is hereby dismissed. 19. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order date 15.12.2022. 20. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance, if necessary. Sd/- (Ramesh Sinha) Chief Justice Preeti