1 2025:CGHC:53634 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1370 of 2025 1 - Mohan Rajput @ Mohan Nepali S/o Dhansingh, Aged About 31 Years R/o Ram Nagar, Near Radha Krishna Mandir, P.S. Gudhiyari, Raipur District Raipur Chhattisgarh 2 - Mahesh Pathore @ Bobby, S/o Nilkanth Pathore, Aged About 21 Years R/o Bharat Nagar Kali Mandir, P.S. Gudhiyari, Raipur District Raipur Chhattisgarh ... Appellants versus State Of Chhattisgarh Through Police Station Gudhiyari, Raipur District Raipur Chhattisgarh ---- Respondent ----------------------------------------------------------------------------------------------- For Appellants : Mr. Pragalbha Sharma, Advocate For Respondent-State : Mr. Ajit Singh, Govt. Advocate ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 03.11.2025 1. 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 02.07.2025 (Annexure A-1) passed by the Special Judge (NDPS Act), Raipur, District Raipur (C.G.), in 2 Special Case No.133/2021, 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 07-07 years and fine amount of Rs.70,000-70,000/- Additional RI for 18-18 months 2. Case of the prosecution, in brief, is that on 24.08.2021 a secret information was received by the police of police station-Gudhiyari, Raipur, that one white Activa having registration no. CG04KZ3221, is carrying contraband/Ganja for purpose of selling. On the said information the police intercepted the said vehicle near Loco Colony near Kali Mandir and carried out search and thereby seized 7 KG of Ganja/cannabis in the said vehicle. The investigating authorities registered an FIR as Crime No. 200/2021 at Police Station- Gudhiyari Raipur, Raipur U/s 20(B) of the NDPS, Act against the appellant. And after completion of the investigation chargesheet was filed before the learned trial court where on the said chargesheet the learned trial court framed charges against the appellant U/s 20(b)(ii) (B) of the NDPS Act, and thereby has passed the impugned judgment dated 02.07.2025, without appreciating the facts and evidence. 3 3. In order to prove the charge against the appellant (accused), prosecution examined as many as 12 witnesses. Statement of appellant was recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. 4. After appreciation of evidence available on record, learned trial Court has convicted and sentenced the appellant under Section 20(b)(ii)(B) of the NDPS Act as mentioned in paragraph two of this judgment. Hence, this appeal. 5. Learned counsel appearing for the appellants contended that the learned trial Court has wrongly been convicted the appellants without any sufficient and clinching evidence available on record against the appellants. He further contended that the court below has failed to appreciate the evidence of witnesses and based its findings on presumption and inadmissible evidence.The learned trial court failed to consider the fact that the prosecution has failed to prove that the seized contraband was in conscious possession of the appellants. He further contended that the prosecution could not produce any witness or evidence against the appellants as required by law for conviction the appellants under the NDPS Act. Learned counsel further contended that prosecution has failed to adduce any cogent and reliable piece of evidence to prove the 4 guilt of appellants. Without there being any sufficient, cogent and clinching evidence/material available on record, therefore, conviction of appellant is 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 the date of incident, Assistant Sub-Inspector Narsingh Sahu of Police Station Gudhiyari Raipur received information from an informant that three persons riding in a white colour Activa bearing registration number CG 04/KZ/3221 at Loco Colony, near Kali Mandir, under the electric pole, Gudhiyari Raipur, were looking for customers with the intention of selling the narcotic substance ganja illegally. Then he 5 recorded the above informant information in the daily register and prepared the informant information panchnama and through constable independent witness Sunil Rathore, Narendra Kothale alias Pappu and Hemant Soni were summoned and after informing them about the informer's information, a report was prepared on the basis of his belief regarding the possibility of the accused absconding due to delay in getting the search warrant and the possibility of the narcotic substance ganja causing panic and the informer's information panchnama and the said report was sent by post to the City Superintendent of Police, Urla through constable. As the station in-charge was on tour in the area, he was informed about the informer's information, as he was on tour in the area, he directed to verify the information and take action, then Assistant Sub-Inspector along with his fellow staff Head Constable No. 275 Samsher Singh, Constable No. 568 Lalit Sahu and independent witnesses reached the place mentioned by the informer. 9. Charge sheet was filed under the NDPS Act against the appellants. Under Section 42 of the NDPS Act, 1985 prescribed for power of entry, search, seizure and arrest without warrant or authorisation. 10. 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 6 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 7 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,— (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: 8 [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, 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.” 11. On perusal of the record, it transpires that the Investigating Officer has complied with provision of Sections 42, 52-A (3) & 55 of the NDPS Act. 12. The Report of Regional Forensic Science Laboratory, Raipur, 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 9 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. 13. Considering the submission with regard to sentence of the appellant, learned counsel for the appellant submits that there is no previous antecedent against the appellant under the NDPS Act. 14. In view of evidence available on record, I am of the view that trial Court has not committed any error in finding that the appellant committed an offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. 15.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 appellant 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. 16. Thus, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction as awarded by the trial Court under Section 20(b)(ii)(B) of the NDPS Act, 1985 to the appellant is hereby affirmed/maintained. 10 17.Considering entire facts and circumstances of case, evidence available on record, submissions of counsel for the respective parties, quantity of seized contraband, i.e., 07 kg Ganja, there is no previous antecedent against the appellant, period since appellant is facing mental trauma and agony of pendency of criminal case, I am of the view that sentence imposed upon appellant by trial Court of 07 years is on higher side. Accordingly, substantive jail sentence imposed upon appellant of 07 years is reduced to 02 years. However, sentence of fine awarded by trial Court is hereby affirmed. Ordered accordingly. 18.Accordingly, appeal is allowed in part and stands disposed of. Sd/- (Arvind Kumar Verma) Judge Vasant