1 2025:CGHC:9602 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 2201 of 2024 1 - Kartikram Patel @ Durgapasad Patel S/o Lalmani Patel Aged About 19 Years, 2 - Rakesh Tandi S/o Ram Parasad Tandi Aged About 19 Years, Both are R/o Village Bhukel, P.S. Basna, District Mahasamund (C.G.) ... Appellant(s) versus State Of Chhattisgarh Through Station House Officer, Police Station Basana, District Mahasamund (C.G.). ---- Respondent ----------------------------------------------------------------------------------------------- For Appellants : Ms. Anjali Pradhan, Advocate For Respondent-State : Mr. Topilal Bareth, Panel Lawyer ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 25.02.2025 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. The appellants have filed the instant appeal under Section 415 (2) of the BNSS, 2023 questioning the judgment of conviction and order of sentence dated 28.11.2024 passed by the Special Judge (NDPS Act, 1985), Saraipali, District Mahasamund (C.G.), in Special Criminal (NDPS Act) Case No.22/2018, 2 whereby the appellants have been convicted and sentenced as under : Conviction Sentence In Default of Payment of Fine Under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 RI for 05 years and fine amount of Rs.50,000/- Additional RI for 06 months 3. Case of the prosecution in brief is that on 14.09.2018, two persons from HF Deluxe Motorcycle without registration number which is coming from Padampur Road, Odisa to Basna are carrying the Ganja. Thereafter, the police stopped the motorcycle near Bir Naryan Singh Chowk in front of Satkar Hotal. Police searched the motorcycle and 03 kg Ganja has been seized from appellants. The proceedings under provisions of N.D.P.S. Act have been drawn against the appellants and Crime No. 374/2018 was registered against the them for the offence punishable under Section 20(b)ii(B) of NDPS Act. after completion of investigation, charge sheet was filed before the Court below. 4. In order to prove the offence, the prosecution examined as many as 11 witnesses. The appellants denied all the allegation and his statements were recorded under section 313 of Cr.P.C. where he took a plea that they have been falsely implicated in the case. 5. Learned counsel for the applicants contended that the applicants are innocent and they have falsely been implicated in the alleged crime, they have not committed any offence as alleged against them. She further contended that there is non compliance of Standing Order 1/89 of NDPS Act in para 32 of cross examination of the Investigating Officer (PW-11), he himself admitted that there was no compliance of Standing Order 1/89 of NDPS Act. The 3 learned trial Court has failed to consider that there is no any reliable evidence to convict the appellants for the alleged offence. It is further contended that looking to the nature of evidence, which is available on record the alleged offence, is not made out against the present appellants, hence the appellants are liable to be acquitted from the aforesaid charge. It is also contended that prosecution has failed to adduce any cogent and reliable piece of evidence to prove the guilt of appellants. Without there being any sufficient, cogent and clinching evidence/material available on record, therefore, conviction of appellants are not sustainable. 6. On the other hand, learned counsel for the State supporting the impugned judgment would submit 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. Learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellants which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 7. I have heard learned counsel appearing for the parties and perused the record of the trial Court and other material available on record with utmost circumspection. 8. On perusal of the record, I have found that on 14.09.2018, two persons from HF Deluxe Motorcycle which is coming from Padampur Road, Odisa to Basna are carrying the Ganja. The police stopped the motorcycle near Bir Naryan Singh Chowk and on being searched, police seized 03 kg Ganja kept in said motorcycle of the appellants. Under Section 42 of the NDPS Act, 1985 4 prescribed for power of entry, search, seizure and arrest without warrant or authorization. 9. 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 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 5 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,— (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 6 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, 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.” 10. On perusal of the record, it transpires that the Investigating Officer of this case has complied with provision of Sections 42, 52-A (3) & 55 of the NDPS Act. 11. The Report of Regional Forensic Science Laboratory, Raipur, which shows that the samples of seized articles have been found positive vide its report exhibited as Ex.P/36. Therefore, in considered opinion of this Court, the trial Court has rightly convicted the appellants 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. 12. In view of evidence available on record, I am of the view that trial Court has not committed any error in finding that the appellants committed an offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. 13.Finding of conviction recorded by trial Court is in accordance with the evidence available on record which is neither perverse nor contrary to the records. Looking to the entire evidence adduced by the prosecution, in my considered view, the trial Court has rightly convicted the appellants for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. I do not find any illegality or infirmity in the judgment passed by the trial Court. 7 14. Thus, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellants. The conviction as awarded by the trial Court under Section 20(b)(ii)(B) of the NDPS Act, 1985 to the appellants are hereby affirmed/maintained. 15. Considering entire facts and circumstances of case, evidence available on record, submissions of counsel for the respective parties, quantity of seized contraband, there is no previous antecedent against the appellants as submitted by counsel for the appellants, Appellant No.1- Kartikram Patel @ Durga Prasad has undergone about 04 months & 18 days and Appellant No.2- Rakesh Tandi has undergone about 01 year out of 05 years jail sentence imposed upon them by the trial Court. Further considering the quantity of seized contraband Ganja is 03 Kg, I am of the view that sentence imposed upon appellants by trial Court of five years is on higher side. Accordingly, substantive jail sentence imposed upon appellants of five years is reduced to six months. 16. Since Appellant No.2 Rakesh Tandi has already undergone about one year is facing mental trauma and agony of pendency of criminal case, I am of the considered opinion that the ends of justice would be met if, while upholding the conviction imposed upon the him, 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 No.2, he shall further undergo as has been ordered by the learned Special Judge (NDPS Act), Saraipali, District Mahasamund (C.G.). Ordered accordingly. 8 17.Accordingly, appeal is allowed in part and disposed of. sd/- (Arvind Kumar Verma) Judge Vasant