1 2025:CGHC:57472 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1168 of 2025 Imran Khan @ Imu S/o Shahjahan Aged About 29 Years R/o Sanjay Nagar, Rda Plot, Pahla Maidan, Near Chandrakar Clinic, Raipur, P.S. Tikra Para, District - Raipur Chhattisgarh --- Appellant versus State Of Chhattisgarh Through S.H.O., P.S. Telibandha, District - Raipur, Chhattisgarh --- Respondent ---------------------------------------------------------------------------------------- For Appellant : Mr. Trivikram Nayak, Advocate For Respondent-State : Ms. Pragya Shrivastava, Dy. G.A. ----------------------------------------------------------------------------------------- WITH CRA No. 1439 of 2025 Sanjay Benwa S/o Late Data Singh Benwa Aged About 31 Years R/o Shrinagar, P.S.- Khamtarai, Raipur, Dist- Raipur C.G. --- Appellant Versus State Of Chhattisgarh Through The P S Telibandha, District Raipur C.G. ---- Respondent ---------------------------------------------------------------------------------------- For Appellant : Mr. Anchal Kumar Matre, Advocate For Respondent-State : Ms. Pragya Shrivastava, Dy. G.A. ----------------------------------------------------------------------------------------- 2 Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 26.11.2025 1. Since both the aforesaid criminal appeals have been filed against the impugned judgment dated 01.04.2025 passed by the Special Judge (NDPS Act), Raipur, District Raipur (CG) in Special Criminal Case (NDPS) No.67/202, they were clubbed & heard together and are being disposed of by this common judgment. 2. The appellant has filed the instant appeal under Section 415(2) of the BNSS questioning the judgment of conviction and order of sentence dated 01.04.2025 passed by the Special Judge (NDPS Act), Raipur, District Raipur (CG) in Special Criminal Case (NDPS) No.67/202, whereby the appellants stands convicted and sentenced as under: Conviction Sentence In Default of Payment of Fine Under Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 RI for 10 years and fine amount of Rs.1,00,000/- Additional RI for 02 years Under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 RI for 10 years and fine amount of Rs.1,00,000/- Additional RI for 02 years 3. Case of the prosecution in brief is that on 03.10.2020 at 10.30 am, Sub- Inspector Divya Sharma of Police Station Telibandha, Raipur received information through mobile phone from an informer that near Marine 3 Drive Telibandha, two boys named Imran and Sanjay, who are friends with each other and and jointly in their possession. They are making illegal money by possessing banned and psychoactive narcotic drugs. The information was recorded in the diary number 10 at 10:30 AM. Constable No. 2751 Dilip Jangde was dispatched to summon witnesses. He summoned independent witnesses Santosh Singh alias Pappu Thakur and Teju Taneja and brought them to the police station. Both independent witnesses were served notices under Section 160 of the Code of Criminal Procedure, informing them of the informant's information, and a whistleblower's information panchnama was prepared. A panchnama was prepared stating the reason for not obtaining a warrant for the suspects Imran and Sanjay. Since there was a high possibility of the psychoactive drugs being misappropriated during the time it would take to obtain the warrant from the magistrate, a copy of the informant's information panchnama was sent to the CSP, Civil Lines, Raipur, through Constable No. 1145 Ashish Nag. 4. The prosecution's case further states that Head Constable No. 1082 Ramkrishna Verma, Constable No. 1789 Ramnarayan Patel, Constable No. 2751 Dilip Jangde, Soldier 303 Prashant Kaurav along with two independent witnesses left for the place indicated by the informant with investigation kit, shellac, candle, matchsticks and rope. On finding the suspects at the place indicated by the informant, they were surrounded and stopped. On questioning, they gave their names as Imran and Sanjay. 4 They were informed of the informant's information and were also informed of their legal rights regarding search. 5. It was told that they can get their search done by a Magistrate or a Gazetted Officer, on which the suspects gave their consent to get themselves searched by the raiding officer only. Thereafter, the raiding officer got himself, the members of the police force present on the spot and the independent witnesses and the vehicle searched by the accused, in which no objectionable item was found. 6. The prosecution's case is further such that on searching the accused, during the search, a total of 06 strips of psychoactive and narcotic drug SPAS TRANCAN PLUS, each strip containing 24 capsules, totaling 144 capsules, were recovered from the possession of accused Imran and Sanjay. On the spot itself, samples were separated in front of independent witnesses, the remaining capsules were sealed on the spot and the remaining narcotic capsules were sealed in a carton. On being asked about the said narcotic capsules recovered from the accused, they could not produce any legal authority letter, license or licence in relation to the above-mentioned banned capsules. Then, it was seized on the spot in front of independent witnesses and seizure sheets were prepared. Thereafter, the accused were arrested by informing them the grounds of arrest and the accused were brought to Telibandha police station along with the seized narcotic capsules, where crime number 356/2020 was duly registered and the psychotropic drug seized from the possession of 5 the accused was tested by the Food and Drug Administration Department, Raipur, FSL tests were conducted, and a memorandum statement from accused Imran alias Emu was recorded, in which he admitted purchasing the aforementioned narcotic capsules from accused Harish Gaikwad's shop without a prescription for sale. Based on the memorandum statement, accused Harish Gaikwad was arrested in this case, and after a thorough investigation, a charge sheet was filed in the concerned Court. 7. Charge sheet against accused Imran Khan alias Emu and Sanjay Benwa under Sections 29 and 21 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and against accused Harish Gaikwad under section 29 read with section 21 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and when the charge sheet was read out and explained to them, they denied having committed the crime and when they were examined under section 313 of the Code of Criminal Procedure, they pleaded not guilty. 8. In this case, the prosecution has produced prosecution witnesses Santosh Singh Thakur (PW1), Teju Taneja (PW2), Ashish Kumar Nag (PW3), Dilip Jangde (PW4), Suraj Singh Chelak (PW5), Harichandra Nayak (PW6), Dharmendra Verma (PW7), Mirza Yusuf Beg (PW8), Tulesh Sahu (PW9), D.S. Nishad (PW10), Ramkrishna Verma (PW11), Mirza Latif Veg (PW12), Tekchand Ghirhe (PW13), Mirza Akhtar Beg (PW14), Ram Swaroop Dewangan (PW15), Divya Sharma (PW16), Surendra Kumar Sahu (PW17), Ram Narayan Patel (PW18) and Prashant Kaurav (PW19) 6 have been recorded in the court, whereas the defence has not recorded the statement of any defence witness in support of its case in the Court. 9. After appreciation of evidence available on record, learned trial Court has convicted and sentenced the appellants as mentioned in Para-2 of this judgment. Hence, appeals. 10. Learned counsel appearing for the appellants contended that the trial Court has wrongly been convicted the appellants without any sufficient and clinching evidence available on record against the appellants. They further contended that no case is made out against the appellants in the matter at hand and the trial Court has committed an error in convicting the appellants on the basis of documents and records available. They further contended that in the matter at hand apparently as per the prosecution itself the total quantity of seized NDPS named 'Tramadol' which is an active ingredient in the 'Spas Trancan Plus' Capsules, only 72 capsules amounting to 385 mg (tramadol plus neutral substance) per capsule x 72 capsules = 27,720 mg of Tramadol i.e. 27.72 grams of Tramadol had been allegedly recovered from the possession of the Appellants and even otherwise as per the prosecution the total joint recovery of the alleged drug Tramadol from the joint possession of co- accused persons each capsule having 385 mg of total substance (neutral plus tramadol) is 385 mg (per capsule) x 144 capsules 55,440 mg of Tramadol i.e. 55.44 gm of Tramadol including the neutral substance, 7 whereas as per the entry no. 238ZH inserted vide S.O. no. 1762(E) dated 26/04/2018 the small quantity of Tramadol is 5 grams and commercial quantity of Tramadol is 250 gm. Therefore, the trial Court in the matter of an intermediate quantity has wrongly convicted the Appellants for offence u/s 21(C), whereas the entire prosecution itself admits that only 55.44 quantity of NDPS Tramadol was allegedly recovered in joint possession which lies in the range between small and commercial quantity of the drug. Henceforth, the conviction order is liable to be set aside and dismissed. Accordingly, even the Charges had been wrongly framed against the Appellants and the conviction on such erroneous charge cannot be sustained sans merit and evidence. In criminal trial, it is a settled principle that the prosecution has the burden to prove the case beyond reasonable doubt, which it has miserably failed to do so. 11. Further, it is submitted that even the alleged recovery and seizure of Tramadol has not been proved and the independent prosecution witnesses with regard to seizure have not supported the case of prosecution itself and accordingly, no case is made out against the Appellants. The prosecution has not only the onus to prove its case beyond doubt, but it also had the duty to comply with the mandatory requirement u/s 52-A of NDPS Act and there is no iota of evidence in the entire record of the trial pertaining to the compliance of Section 52-A of NDPS Act. Even the 10- PW-16 has not whispered anything pertaining to compliance of the same. 8 The prosecution has even failed to comply with the mandatory Standing Order 1/1989 regarding sampling and storage of NDPS, which the prosecution has not complied with in the instant matter at hand and there is no iota of evidence regarding compliance of the same. 12. It is further argued that even PW-17 has stated that the Ex.P-53 does not mention whether the seized contraband was sealed or not and also there is discrepancy regarding the time, furthermore, even it has been admitted that the 'seal' was not provided to him for storage at the malkhana. Also, the PW-17 admits overwriting in Ex.P-53. Accordingly, the probability that the records/seal has been tampered with cannot be over-ruled and there maybe even tampering of evidence. Henceforth, in light of the material fact that the independent witnesses have not supported the case of prosecution coupled with the aforementioned fact as laid clearly by PW-17 which leads to an inference that the alleged recovery and seizure of contraband/NDPS- tramadol from present Appellants is suspicious, doubtful and not proved. There is also non-compliance of Standing Order 1/1988 dated 15/03/1988 as per which the seized substance should have to be sent for chemical examination within 72 hours and the onus was on the prosecution to ensure compliance of the same, in the matter at hand there is no iota of evidence regarding compliance of the same, rather, the seized Tramadol was only sent to FSL for chemical examination on 13/10/2020 (work certificate Ex. P-29) with letter dated 09/10/2020 as deposed by PW-06 and the version of prosecution is binding on itself. It 9 is settled law that when two views are available from same piece of evidence then the view in favour of accused must be adopted, accordingly, the Appellants ought to have been acquitted. 13. It is further argued that the trial Court on the same piece of evidence available against the co-accused Harish Gaikwad who as per the prosecution was the main culprit and mastermind who had pivotal role in providing the banned NDPS drug Tramadol from his controlled pharmacy store, he has been acquitted him from the offences, whereas taking a dual stand the trial Court has convicted the Appellants, which is impermissible. From a perusal of the evidence recorded in the case it is apparently clear that the prosecution has utterly failed to substantiate the charges as framed against the appellants. Therefore, the appellants deserves to be acquitted. It is therefore prayed that the impugned judgment dated 01/04/2025 passed in Special Case No. 67/2020 be set aside/quashed and the appellants be acquitted. 14. 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. The trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeals being sans 10 merits is liable to be dismissed 15. 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. 16. On careful perusal of the evidence adduced by the Investigating Officer (PW-16) it is clear that on the date of incident, she received information from an informant that two boys named Imran and Sanjay, near Marine Dive Telibandha, were jointly possessing and selling banned and psychoactive narcotic drugs and earning money illegally. The above information was recorded in Roznamcha Sanha and started procedure under the NDPS Act. After conducting due formalities under the NDPS Act, Investigating Officer reached the spot, the person mentioned as per the informant's information informed them about the legal rights there and told them about the informant's information and told them that they can get the matter investigated by their Officer or Magistrate. In this regard, she had given notice to the accused under Section 50 of the NDPS Act which is Ex.P-04. During the investigation, she had searched the accused, in which 03 strips of Spas Tankan Plus, each strip containing 24 capsules, total 72 capsules, were found in a white coloured membrane in the possession of accused Imran alias Immu and 03 strips of Spas Tankan Plus, each strip containing 24 capsules, total 72 capsules, total 144 capsules were found in the box found in the possession of accused Sanjay 11 Benua, which she recovered on the spot and prepared the recovery panchnama, which is Ex.P-08. The Investigating Officer had identified the capsules recovered from the accused persons as banned capsules on the spot itself. The description written on the said capsules mentioned the presence of Tramadol Hydrochloride. In respect of which she had prepared the identification panchnama, which is Ex.P-09. The samples of the narcotic capsules seized from the accused to the FSL office for FSL testing. After testing, the FSL office received the report along with the report. In the said report, the test reports for Dicyclomine, Tramadol, and Acetaminophen in the sample packets IO sent were found to be positive. 17. In this view of the matter and keeping in mind that illegal/prohibited drugs was recovered from the possession of the appellants and they had not offered any explanation in this regard, in the considered opinion of this Court, the prosecution has been able to establish beyond doubt that both the appellants were possessing contraband substance in violation of Section 08 of the NDPS Act and, therefore, each appellant is liable for their individual act of possessing the contraband illegally. 18. It is clear that the total quantity of seized NDPS named 'Tramadol' which is an active ingredient in the 'Spas Trancan Plus' Capsules, only 72 capsules amounting to 385 mg (tramadol plus neutral substance) per capsule x 72 capsules = 27,720 mg of Tramadol i.e. 27.72 grams of Tramadol had been recovered from the possession of the Appellants and even otherwise as per the prosecution the total joint recovery of the drug 12 Tramadol from the joint possession of co-accused persons each capsule having 385 mg of total substance (neutral plus tramadol) is 385 mg (per capsule) x 144 capsules 55,440 mg of Tramadol i.e. 55.44 gm of Tramadol including the neutral substance, it is evident that the recovered substance falls within the intermediate quantity, i.e., more than the small quantity of Tramadol is 5 grams and commercial quantity of Tramadol is 250 gm as notified under Entry No. 238ZH, inserted vide S.O. 1762(E) dated 26.04.2018. Therefore, the trial Court in the matter of an intermediate quantity has wrongly convicted the Appellants for offence under Section 21(C) of the NDPS Act. Thus, in the opinion of this Court, learned trial Court fell into error in taking total quantity of Tramadol recovered from appellants as 55.44 gram and holding that offence under Section 21(c) of the NDPS Act is attracted. In the given facts of the case and considering that the quantity of contraband seized from the appellants is lesser than commercial quantity but greater than small quantity, the offence under Section 21 (b) of the NDPS Act would be attracted against the appellants. 19. Accordingly, the appeals are allowed in part. Conviction of appellants under Section 21(c) of NDPS Act is converted/altered into Section 21(b) of NDPS Act and each of them is sentenced to undergo RI for 02-02 years and to pay fine of Rs.10,000-10,000/-, in default of payment of fine, they shall further undergo RI for 06-06 months. Ordered accordingly. 13 20. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) Judge Vasant