1 2025:CGHC:52362 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 77 of 2020 State Of Chhattisgarh Through Station House Officer, Police Station Basantpur, District Balrampur - Ramanujganj CG. ... Appellant versus Shrawan Patel S/o Keshav Prasad Patel, Aged About 48 Years R/o Village Parasdiha, Police Station Basantpur, District - Balrampur - Ramanujganj, CG ... Respondent For appellant/State : Mr. Dilman Rati Minj, Govt.A. with Ms. Mukta Tripathi, Panel Lawyer. For Respondent/accused : Mr. Santosh Bharat, Adv. (Hon’ble Mr. Naresh Kumar Chandravanshi, J ) Judgment on Board 27-10-2025 1. The present Acquittal Appeal under Section 378(3) of the Cr.P.C. is directed against the judgment dated 28-2-2017 passed by the Special Judge (NDPS Act) Ambikapur (henceforth, referred to ‘Special Judge’) in Special Criminal Case No. 21/2015 whereby the respondent/ accused has been acquitted of the charge under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth referred to as ‘NDPS Act’). 2. The case of the prosecution, in brief, is that, on 19-11-2015, Sub Inspector T.R. Kanwar, Police Chowki, Wadrafnagar, PS Basantpur Digitally signed by AVANISH KUMAR PATHAK Date: 2025.11.04 17:06:57 +0530 2 received an information from an informant that, accused Shravan Patel, resident of village Parasdiha, illegally sells ‘Ganja’, and has also kept Ganja in his house. This information was recorded in Rojnamcha Sanha. Two independent witnesses were called, Mukhbir Suchna was prepared. Aforesaid information was sent to the SDOP, Wadrafnagar. Sub Inspector T.R. Kanwar along with police party went to the house of the respondent, served him notice under Section 50 of the NDPS Act. After preparing necessary Panchnama, he searched house of the respondent/accused in which, the respondent produced a green Nylon bag, in which, two polythene packets were found. Pink coloured polythene contained 500 gms contraband substance like Ganja and Yellow coloured polythene contained 1 kg contraband substance like Ganja, which was recovered vide Ex. P-9. On being examined that narcotic substance by burning and smelling, it was found to be ‘Ganja’, to which, identification Panchnama (Ex. 10) was prepared. On being weighed, it was found that weight of narcotic substance kept in Yellow polythene was 1 kg and kept in Pink polythene was 500 gm. Samples of 100 gms – 100 gms from each polythene were separated. Remaining 900 gms and 400 gms Ganja was kept in two separate packets and samples of 100 gms each were kept in two separate packets. All 4 packets were seized vide seizure memo (Ex. P-14), which was kept in Malkhana of Police Chowki, Wadrafnagar. Un- numbered FIR (Ex. P-24) was registered at Police Chowki, Wadrafnagar, against the respondent/accused, based on which, numbered FIR (Ex. P-25) was registered at PS Basantpur. Statements of witnesses under Section 161 of the Cr.P.C. were recorded. Spot map 3 was prepared by police as well as revenue officer. Detailed information of arrest and seizure was sent to the SDOP concerned vide Ex. P-20. Two samples of seized contraband substance was sent to Regional Forensic Science Laboratory, Ambikapur, in which vide FSL Report Ex. P-48A, both the samples were reported to be Ganja. 3. After completion of investigation, a charge-sheet under Section 20 B of the NDPS Act was filed by the police against the respondent/accused before the concerned Special Court under the NDPS Act, Ambikapur. 4. Learned Special Judge framed charge against the respondent/accused under Section 20(b)(ii)(B) of the NDPS Act, who abjured his guilt and entered into trial. 5. So as to prove the guilt of the respondent /accused, the prosecution examined following witnesses and exhibited following documents :- WITNESSES PW 1 Agast Kumar Patel PW 6 Radhe Kumar Paikra PW 2 Pradeep Patel PW 7 Amitabh Rawat PW 3 Narsinh Patel PW 8 Tarsiyus Ekka PW 4 Bhola Ram PW 9 Dhansinh Sandilya PW 5 Paskal Lakda PW 10 T.R. Kanwar, IO EXHIBITS 1. Ex. P-1 Notice to witnesses for raid proceeding 2. Ex. P-2 Mukhbir Suchna Panchnama 25. Ex. P-24 Un-numbered FIR 3. Ex. P-3 Panchnama of not taking search warrant 26. Ex. P-24- C Counter Nalsi receipt 4. Ex. P-4 Action plan 27. Ex. P-25 Numbered FIR 4 Panchnama 5. Ex. P-5 Notice to accused for search 28. Ex. P-26 Memo for keeping articles in Malkhana 6. Ex. P-6 Witness search panchnama 29. Ex. P-27 Receipt of Dhansinh Sandilya, Malkhana, Chowki Wadrafnagar 7. Ex. P-7 Police search panchnama 30 Ex. P-28- C Copy of Jabti register, Chowki Wadrafnagar 8. Ex. P-8 Search panchnama of Parchhi of house of accused 31. Ex. P-37- C Copy of Rojnamcha Sanha 9. Ex. P-9 Recovery panchnama of Ganja 32. Ex. P-30- C Copy of Rojnamcha Sanha 10. Ex. P-10 Pahchan Panchnama 33 Ex. P-31- C Copy of Rojnamcha Sanha 11. Ex. P-11 Najri Naksha by Patwari 34 Ex. P-32- C Copy of Rojnamcha Sanha 12. Ex. P- 11-A Memo for preparing Najri Naksha 35 Ex. P-33- C Copy of Rojnamcha Sanha 13. Ex. P-12 Physical verification of weight machine 36. Ex. P-34- C Copy of Rojnamcha Sanha 14. Ex. P-13 Taul Panchnama 37. Ex. P-35- C Copy of Rojnamcha Sanha 15 Ex. P-14 Seizure memo of Ganja 38. Ex. P-36- C Copy of Rojnamcha Sanha 16 Ex. P-15 Police Statement of witness Agast Patel 39. Ex. P-38 Mukhbir Suchna Panchnama 17. Ex. P-16 Police Statement of Pradeep Patel 40. Ex. P-41 Karya Praman Patra 18 Ex. P-17 Notice to Narsinha Patel, weigher 41. Ex. P-44 Crime details form 19 Ex. P-17 (repeat) Kistbandi Khatauni 42 Ex. P-45 Arrest memo 20 Ex. P-18 Map prepared by Patwari 43. Ex. P-46 Information of reasons for arrest 21. Ex. P-19 Memo to SDOP for his 44. Ex. P-47 Information of arrest 5 presence. 22. Ex. P-20 Information to SDOP regarding proceeding 45. Ex. P-48 Memo of FSL 23. Ex. P-21 Memo for chemical examination 46. Ex. P-48- A FSL report 24. Ex. P-22 Receipt of article by FSL 47. Ex. P-49 Article return receipt. Statement of respondent/ accused was recorded under Section 313 of the Cr.P.C., in which he denied all the circumstances appearing against him in the prosecution evidence, pleaded not guilty and false implication. He has not examined any witness in his defence. 6. Learned Special Judge after appreciating the evidence adduced by the prosecution, acquitted the respondent/accused of the charge. Hence, this Acquittal Appeal. 7. Learned counsel for the appellant/State submits that the Special Judge has not appreciated the evidence in proper perspective. He submits that, the prosecution has proved its case beyond reasonable doubt, there is complete compliance of provisions of NDPS Act and in the evidence of prosecution witnesses, there is no discrepancy, despite that, the Special Judge has acquitted the accused, hence this appeal may be allowed and the respondent may be convicted for the offence under Section 20(b)(ii)(B) of the NDPS Act. 8. On the other hand, learned counsel for the respondent/accused supports the impugned judgment of acquittal. He submits that the Special Judge has rightly acquitted the respondent/accused of the said charge and the impugned judgment of acquittal is well merited which 6 does not call for any interference. 9. I have heard learned counsel for the parties and perused the material available on record including the record of the Special Court. 10. Learned Special Judge has held proved that, procedures prescribed in Sections 42 and 57 of the NDPS Act have been complied with, but procedure contemplated in Section 50 of the NDPS Act has not been complied with, as, as per the case of the prosecution and deposition of the Investigating Officer, alleged recovery was made from the house of respondent situated at Parasdiha, but as per the spot map (Ex. P-11) prepared by the Patwari Bhola Ram (PW-4), place of incident is shown to be situated at village Jamai. Further after depositing alleged contraband substance including samples in the Malkhana of the Police Chowki, when it was taken out from Malkhana of Police Chowki to send it to the FSL, Ambikapur, has not been proved. Therefore, the Special Judge held that, prosecution has failed to prove its case beyond reasonable doubt and acquitted the respondent from the charge. 11. Sub Inspector T.R. Kanwar (P.W. 10) is Investigating Officer of the instant case. He has stated in his deposition that, upon the information received from an informant, he reduced it in Rojnamcha Sanha No. 623, prepared Mukhbir Suchna Panchnama after calling witnesses and information in this regard was sent by him to the SDOP, Wadrafnagar vide Ex. P-19. As per record, that information was sent to the SDOP vide Constable Ramsewak Bhagat, but that person has not been 7 examined by the prosecution. 12. Paskal Lakda (P.W. 5) was Reader of the SDOP, Wadrafnagar. He has stated in his deposition that, aforesaid Mukhbir Suchna/Panchnama was received by him and in this regard, he gave receipt in Ex. P-19. Ex. P-19 is carbon copy of the document, which was sent by the Investigating Officer to the SDOP, on bottom of which, Paskal Lakda (P.W. 5) has put his signature along with acknowledgment and date. In aforesaid endorsement, it is clear from open eye that, earlier he had put the date as ‘20-11-2015’, but by over writing it, it was made ‘19-11- 2015’, though he has denied this suggestion in his cross-examination, but since aforesaid fact is clear from open eye, therefore denial of Paskal Lakda (P.W. 5) is worthless, particularly when the endorsement of said Rojnamcha is not found to be appended with Ex. P-19. Thus, aforesaid fact shows that, when the information taken down under Section 42(1) of the NDPS Act was sent to the SDOP, Wadrafnagar is, found to be doubtful, whether it was sent on 19-11-2015 or 20-11- 2015. 13. In instant case, both the search and seizure witnesses and the weigher [i.e. Agast Kumar Patel (P.W. 1), Pradeep Patel (P.W. 2) and Narsingh Patel (P.W. 3) respectively] have not supported the case of the prosecution and turned hostile. None of the police personnel accompanying the Investigating Officer (P.W. 10) has been examined by the prosecution. In such situation, alleged recovery and seizure of contraband substance Ganja along with preparation of samples, keeping seized contraband substance Ganja in safe custody till 8 depositing the same in FSL ought to have been proved by the prosecution beyond reasonable doubt. As per deposition of Investigating Officer T. R. Kanwar (P.W. 10), on being searched the house of the respondent, alleged narcotic substance Ganja was found kept in Parchhi ( Veranda ) of his house, which was kept by him in two polythene packets, kept in a Nylon bag. He has not stated specifically in his deposition that alleged Nylon bag containing two polythene packets in which alleged contraband substance was kept, was recovered from which place of alleged Parchhi (Veranda) and in which condition that Nylon bag was kept, as to whether it was kept on the floor or it was hanged on wall or anywhere else or it was kept hidden or at open place of Parchhi (Veranda), which can be seen in open eye. Thus, recovery of Nylon bag, which was containing alleged contraband substance Ganja in two polythene bags is found to be doubtful. 14. As per deposition of the Investigating Officer T.R. Kanwar (P.W. 10), after recovery of contraband substance Ganja, two samples, each containing 100 gms were prepared. Remaining 900 gms and 500 gms Ganja was kept in two packets and two samples were kept in two separate packets. Thereafter, all four packets were sealed and kept in Malkhana of Police Chowki by the Head Constable Dhansingh Sandilya (P.W. 9), which was received by making receipt/endorsement vide Ex. P-26. This fact has also been proved by Dhansingh Sandilya (P.W. 9). In this regard, copy of Malkhana register (Ex. P-28-C) has also been proved. 9 15. As per Ex. P-48, alleged contraband substance was received by the FSL on 23-12-2015, but it has not been proved by the Investigating Officer T.R. Kanwar (P.W. 10) or Dhansingh Sandilya, Malkhana Muharrir (P.W. 9) that, when alleged two samples were taken out from Malkhana to send it to the FSL, Ambikapur. This fact has also been admitted by Dhansingh Sandilya, Malkhana Muharrir (P.W. 9). This is found to be a material lacuna on the part of prosecution, as the prosecution has failed to prove that, without any chance of change of alleged samples, it was sent to FSL immediately after taking out from Malkhana. 16. Thus, from aforesaid discussion, it is found that, it has not been specifically proved by the prosecution that, information with regard to informant was sent to the SDOP, Wadrafnagar, as provided in Section 42(2) of the NDPS Act and it is found to be doubtful as there is over writing in the date in concerned document (Ex. P-19). The place of seizure of alleged Nylon bag / contraband substance, whether the seizure was made from Parchhi (veranda) of the house of the respondent/accused and in which condition, it was kept there, has also not been proved. Further, when the alleged contraband substance Ganja was sent from Malkhana of Police Chowki, Wadrafnagar to the FSL Ambikapur has not been proved. In the instant case, procedure prescribed in Section 52A(2) of the NDPS Act has also not been complied with. In the case of Bharat Aambale vs. The State of Chhattisgarh (2025 (8) SCC 452), Hon’ble Supreme Court has held that, non-compliance or delayed compliance with the procedure 10 prescribed Under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution, but such lacking will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence. 17. As has been discussed in preceding paragraphs, in the instant case, there are material discrepancies in the physical evidence adduced by the prosecution, therefore, non-compliance of the procedure prescribed in Section 52A hits the truthfulness of the case of the prosecution. 18. In the case of Ranjan Kumar Chadha Vs. State of HP [2023 SCC OnLine 1262], Hon’ble Supreme Court, while considering the issue with regard to compliance of provisions of Section 50 of the NDPS Act, has held that, section 50 of the NDPS Act pertains to search of a person and does not cover a bag, briefcase or any such article or container, which cannot be considered part of human being body. These items are distinct and identifiable separate from human body. In view of aforesaid law laid down by Hon’ble Supreme Court, in instant case, as per the case of prosecution, alleged recovery/seizure was made from the house of the respondent/accused, not from his body, therefore, compliance of provision of Section 50 of the NDPS Act was not required. Hence, the finding recorded by learned Special Judge holding it to be negative against the prosecution is not sustainable. 19. In view of above discussion, it is found that, prosecution has failed to prove its case beyond reasonable doubt against the respondent/ 11 accused, therefore, I do not find any infirmity or illegality in the impugned judgment passed by learned Special Judge acquitting the respondent/accused from the charge under Section 20(b)(ii)(B) of the NDPS Act. 20. Hence, instant appeal deserves to be and is hereby dismissed. 21. Let a certified copy of this judgment along with the original record be transmitted to the Special Court concerned forthwith. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak