1 2025:CGHC:57381 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1688 of 2023 Judgment Reserved on 12.11.2025 Judgment Pronounced on 26.11.2025 1 - Hemant Gaur S/o Late Shri Arjun Singh Gaur, Aged About 20 Years R/o Premnagar, Mandideep, House No. 689, Police Station And Post Mandideep, District Raisen (Madhya Pradesh) 2 - Vishal Shivhare S/o Late Gopal Shivhare, Aged About 20 Years R/o Lamhaheda, Sharda Nagar, Bhopal, Police Station Nishadpura, District Bhopal (Madhya Pradesh) ... Appellants versus State Of Chhattisgarh Through Station House Officer, Police Station Keshkal District Kondagaon, Chhattisgarh. ... Respondent {Cause title, as taken from Case Information System} For Appellant No. 1 For Appellant No. 2 : : Mr. Kiran Jain, Advocate. Mr. Abhishek Sharma, Advocate. For Respondent : Mr. Shailesh Kumar Puriya, Panel Lawyer. {Hon’ble Mr. Justice Naresh Kumar Chandravanshi) CAV Judgment 1. The present appeal has been preferred by the appellants under Section 374 (2) of the Criminal Procedure Code, 1973 against the impugned judgment of conviction and order of sentence dated 06.07.2023 2 passed by learned Special Judge, NDPS Act, Kondagaon, District Kondagaon in Special Criminal Case (NDPS Act) No. 04/2018 whereby appellants have been convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth, 'NDPS Act') and sentenced each of them to undergo rigorous imprisonment for 10 years with fine of Rs.1,00,000/-, in default of payment of fine, to undergo additional rigorous imprisonment for one year. 2. Case of the prosecution in brief, is that on 03.12.2017, at about 9.10 AM, Inspector Sharad Dubey (PW-7) of Police Station Keshkal received secret information from informant that a White Tavera vehicle bearing registration No. MP 04 BC-0156 is transporting contraband substance Ganja from Jagdalpur to Raipur unauthorizedly, for sale. The said secret information was recorded in rojnamcha sanha. Two independent witnesses were called. Necessary Rojnamcha Sanhas and Mukbir suchna panchnama were prepared. Above information was sent to Sub Divisional Officer (P), Keshkal. Subsequently, police party proceeded towards the place of occurrence and cordoned off at Vishrampuri Triangle, Main Road N.H. 30 Keshkal, District Kondagaon. After reaching there, aforesaid Tavera vehicle was stopped and the persons, who were occupants of the Tavera, have informed their names as Hemant Gaur (appellant No. 1 herein), who was driving the aforesaid vehicle and Vishal shivhare (appellant No.2), who was sitting in the middle seat. Notice under Section 50 of NDPS Act was served to the respondents/accused. Necessary Panchnamas were prepared. After preparing necessary Panchnamas, they searched the aforesaid vehicle and found 14 packets wrapped in Brown sellotape kept under the rear seat of the said vehicle, which was recovered 3 vide Ex.P-6. The said contraband substance was identified as Ganja by smelling, to which identification Panchnama (Ex.P-7) was prepared. After weighing the 14 packets of recovered contraband substance Ganja, the total weight was found to be 75.650 kg. Thereafter, search of accused/appellant was started, in which, a Jivani company mobile, Aadhar card, two ATM cards were found, thereafter, a suspicions search panchnama was prepared and notice under Section 67 of NDPS Act was given to the appellant, but he failed to produce any valid document for its transportation. Necessary Panchnamas were prepared and at the place of occurrence, unnumbered Dahati Nalishi (Ex.P-34) was registered under Section 20 (b) of the NDPS Act. Based on which, FIR was registered against the appellants. Seized / recovered contraband substance and articles were deposited in Malkhana of the concerned police station and receipt thereof was obtained. Statement of the witnesses were recorded. Spot map were prepared by the Police and the Patwari. The recovered contraband was homogenized, inventory and sampling were prepared by Executive Magistrate, which was also photographed. One sample marked as “S-1” of seized contraband was sent to FSL, Raipur, to which vide its report Ex. 43-A, the FSL reported that sample S-1 is Ganja. 3. After completion of usual investigation, a charge-sheet was filed before the learned Special Court for the offence under Section 20(b)(ii)(C) of the NDPS Act. 4. Learned Special Judge framed charge against the appellants/accused under Section 20(b)(ii)(C) of the NDPS Act. They abjured guilt and claimed trial. 4 5. In order to establish the charge against the appellant, the prosecution has examined following witnesses and exhibited following documents :- WITNESSES PW 1 Haresh Dhurv P.W. 6 Ajay Tekam PW 2 Atmanand Kuldeep P.W. 7 Sharad Dubey PW 3 Omprakash Nareti P.W. 8 Chhunilal Markam PW 4 Shekhar Patel P.W. 9 Kachruram PW 5 Lilleshwar Kumar Dhruv P.W. 10 Ajay Kumar Dhurv PW-11 Shyamlal Patel EXHIBITS 1. Ex. P-1 Notice to appear as an independent witness 28. Ex. P-28 Notice to the suspect for search 2. Ex. P-2 Informant’s Information Panchnama 29. Ex. P-29 Police vehicle search panchnama 3. Ex. P-3 Police search panchnama 30. Ex. P-30 Duty Certificate 4. Ex. P-4 Search panchnama of witnesses 31. Ex. P-31 Notice for weighing 5. Ex. P-5 Search panchnama 32 Ex. P-32 Notice 6. Ex. P-6 Recovery panchnama 33. Ex. P-33 Notice 7. Ex. P-7 Drug Identification Panchnama 34. Ex. P-34 Dehati Nalishi 8. Ex. P-8 Physical verification of Scales (rjktw) 35. Ex. P-35 Copy of Sanha 9. Ex. P-9 Taul Panchnama 36. Ex. P-36 Consignment delivery acknowledgment 10. Ex. P-10 Property seizure memo 37. Ex. P-37 Crime Details Form 11. Ex. P-11 Seal Panchnama 38 Ex. P-38 Tahreer for appointment of Magistrate for inventory. 12. Ex. P-12 Warrant of arrest 39 Ex. P-39 Tahreer for appointment of 5 Magistrate for inventory. 13. Ex. P-13 Warrant of arrest 40. Ex. P-40 Malkhana Panchnama 14. Ex. P-14 Police statement of Haresh Dhurv 41. Ex. P-41 Memo for chemical examination. 15 Ex. P-15 Notice to become an independent witness 42. Ex. P-42 Display receipt 16. Ex. P-16 Police statement of Atamanand Kuldeep 43. Ex. P-43 Certificate regarding photographs 17. Ex. P-17 Inventory report 44. Ex. P-43- A FSL report 18. Ex. P-18 Inventory report 45. Ex. P-44 Tahrir for supply of Patwari spot Map 19. Ex. P-19 FIR for taking acting regarding illegal transportation of ganja. 46. Ex. P-45 Notice. 20. Ex. P-20 Copy of Sanha 47. Ex. P-46 Property seizure memo 21. Ex. P-21 Copy of Sanha 48. Ex. P-47 First Information Report. 22. Ex. P-22 Copy of Sanha 49. Article A-1 to A-6 Photographs. 25. Ex. P-25 Work Certificate form 26. Ex. P-26-C Copy of Sanha 27. Ex. P-27 Notice to search suspect. Statement of the appellants were also recorded under section 313 of Cr.P.C., in which, they denied the circumstances appearing against them in prosecution evidence and stated that they are innocent and has falsely been implicated in the case. No defence witness has been examined by the appellants in their defence. 6 6. After appreciation of the evidence adduced by the prosecution, the Special court has convicted the appellants and sentenced them as mentioned in opening paragraph of this judgment. Hence, this appeal. [ 7. Learned counsel appearing for the appellant No. 1 – Hemant Gaur would submit that independent witnesses have completely turned hostile and not supported the case of prosecution. Weigher – Devendra Nag has not been examined. It has not been proved that after recovery /seizure of alleged contraband substance, it was kept in sealed condition prior to preparing inventory and collecting sample. She further submits that quantity of alleged contraband substance is also contradictory in various documents of prosecution and statement / deposition of its witnesses. Inventory and sampling has not been prepared by Judicial Magistrate. Compliance of Sending detailed report with regard to arrest and seizure of alleged contraband substance, as provided in Section 57 of the NDPS Act, 1989, has not been proved, which is mandatory provisions to be complied with. She further submits that depositing alleged contraband substance in Malkhana and taking it out for preparation of inventory has not been established by proving Malkhana register of concerned police Station. Kachruram (PW-9) was handed over alleged sample of contraband substance to be deposited in F.S.L., Raipur on 11.12.2017, but it was deposited by him on 13.12.2017. No plausible explanation has been extended by PW-9 in this regard. Hence, she prayed that evidence adduced by the prosecution is not sufficient in the eye of law to hold appellant – Hemant Gaur guilty for aforesaid offences. 7 8. Learned counsel appearing for appellant No. 2 – Vishal Shivhare while supporting aforesaid contention raised by appellant No. 1 would submit that it is incumbent upon the prosecution to prove the chain of custody right from the recovery of the alleged contraband till reaching to the FSL. In between, prosecution is also obliged to prove that alleged contraband substance / sample was remained intact and there is no iota of doubt in respect of collecting said sample and depositing it in FSL. Aforesaid fact has not been proved by the prosecution in the instant case beyond reasonable doubt, as depositing alleged contraband substance in Malkhana has not been established by proving malkhana register. He further submits that mandatory provisions contained in Section 57 of NDPS Act has also not been complied with, therefore, he also prayed that appeal may be allowed and the appellant No. 2 may be acquitted of the alleged charge by setting aside the impugned judgment of Special Court. 9. Per contra, learned counsel for the State would submit that mandatory provision has been complied with and there is no doubt in sample collected from the contraband substance, which was collected by Executive Magistrate and the same was deposited in FSL within five days. He further submits that though Kachruram (PW-9) had received the sample on 11.12.2017, but it was deposited in FLS by him on 13.12.2017, but receipt (Ex.P-42) issued by FSL,Raipur show that aforesaid sample was received to them in sealed condition, therefore, depositing sample after one day of its receipt would not have any adverse effect to the judgment of conviction rendered by the Apex Court, hence, he prayed that appeal may be rejected. 8 10. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record of court below at length. 11. In the instant case, prosecution has examined 11 witnesses, out of which Harsh Dhurv (PW-1) & Aatmanand Kuldeep (PW-2) are independent witnesses of all the proceedings conducted by the Police on the date of incident i.e. on 03.12.2017. But these witnesses have turned hostile and not supported the case of prosecution, except, their signature in various documents. 12. Ajay Kumar Dhruv (PW-10) is a photographer, who took photographs i.e. A-1 to A-6 at the time of preparation of inventory. Shekhar Patel (PW-4) is an Executive Magistrate / Naib Tahsildar, who prepared inventory (Ex.P- 18). Thus, the burden of proving the factual aspect of the case lies on the departmental witnesses i.e. the police personnel. If case of the prosecution is not supported by independent witnesses, then it is onus upon the departmental witnesses to prove the case from much higher degree of credentials of evidence. 13. Inspector Sharad Dubey (PW-7) is Investigating Officer of instant case, who received the secret information to the effect that contraband substance “Ganja” is being transported from Jagdalpur to Raipur in the White Tavera Vehicle bearing registration No. MP 04 BC-0156 and he recorded the said information in Rojnamcha Sanha (Ex.P-20c) as per Section 42(1) of the NDPS Act and prepared Mukhbir Suchna Panchnama (Ex.P-2). He informed about the aforesaid secret information by sending copy of aforesaid documents to Sub Divisional Officer (Police), Keshkal 9 through Constable Chunniram Markam (PW-8) in compliance of Section 42 (2) of the NDPS Act. The said information was received by Ajay Tekam (PW-6), Reader of the Officer of the Sub-Divisional Officer (P), Keshkal and receipt of the said communication (Ex.P-19) was given through which the above information was sent. These facts have been proved by Inspector – Sharad Dubey (PW-7) and Ajay Tekam (PW-6). Thus, compliance of provisions contained in Sections 42 (1) and 42(2) of NDPS Act has been proved by the prosecution. 14. Inspector – Sharad Dubey (PW-7) has further deposed that they cordoned off at Vishrampuri Triange, Keshkal, NH -30 where said Tavera vehicle was stopped,in which, appellant No. 1 – Hemant Gaur was sitting behind in the driver seat whereas appellant No. 2 -Vishal Shivhare was sitting behind in the vehicle. After preparing necessary panchnamas, on being searched, he recovered 14 packets wrapped with brown colour sellotape, which were kept on the seat and below the seat, which was recovered vide recovery memo (Ex.P-8) and on being weighed, its total weight was found 75.650 kgs. On being tested / examined, those packets were found to be packets of contraband substance “Ganja”. He has further deposed that those 14 packets were kept in two plastic sacks, thereafter, those packets and other articles alongwith Tavera vehicle were seized from the joint possession of appellants vide seizure memo (Ex.P-10) and after keeping contraband substance Ganja in two plastic sacks, the same were sealed also. 15. Inspector Sharad Dubey (PW-7), who is Investigating Officer of the case, has further deposed that seized contraband substance ‘Ganja’ and 10 other articles were handed over to Head Constable Mehattar Korram on 3.12.2017 vide receipt memo (Ex.P-36). On 8.12.2017, he took out the contraband substance Ganja from Malkhana vide Malkhana Panchnama (Ex.P-40), thereafter, Nayab Tahsildar – Shekhar Patel (PW-4) prepared inventory (Ex.P-17) and also prepared two samples marked as “S-1” & “S-2” after homogenization of contraband substance of 14 packets, which were kept in two sacks. He has further deposed that sample collected by Executive Magistrate marked as S-1 was sent through constable Kachruram Netam (PW-9) vide memo (Ex.P-41) to FSL Raipur, in which, vide FSL report (Ex.P-43-A), the sample has been reported to be Ganja. 16. Head Constable Omprakash Nareti (PW-3) and Lileshwar Dhruv (PW-5) are the police personnel, who had accompanied the Investigating Officer (PW-7) while conducting search & seizure. The have also supported the deposition of Investigating Officer – Sharad Dubey (PW-7). 17. Ex.P-7 is said to be Narcotic Drug Identification Panchnama, which was prepared after identifying contraband substance as Ganja, but neither it has been mentioned in it nor Investigating Officer (PW-7) has stated in his deposition that while identifying the seized contraband, any of the 14 packets were opened or not. 18. Lileshwar Dhruv (PW-5) has stated in paragraph 6 of his deposition that after making whole in all packets, some materials were taken out from them for identification, but he has rebutted this fact in paragraph 14 of his cross- examination, further it also does not get support from deposition of Investigating Officer (PW-7). Thus, it is found that no material from 14 packets were taken out for identifying the same that the material present in said packets were Ganja, as none of the packet was opened. 11 19. As per deposition of Investigating Officer (PW-7), seized contraband substance alongwith other articles were handed over by him to Head Constable Mehattar Korram on 3.12.2017 vide receipt Ex.P-36 [in which his name is mentioned as Mehattar Netam], to keep the same in safe custody in Malkhana of the police station and, thereafter, contraband substance was taken out by him from Malkhana on 8.12.2017 for preparation of inventory vide Malkhana Panchnama (Ex. P-14). Mehattar Netam, who was found to be Incharge of malkhana, as he signed the receipt (Ex.P-36), but neither he has been examined by prosecution nor Malkhana Panchnama (Ex.P-40) contains his signature. Details of contraband substance taken out from Malkhana by Investigating Officer (PW-7) on 8.12.2017 has also not been mentioned in Malkhana Panchnama (Ex.P-40). 20. Malkhana registered is maintained at police station to demonstrate the fact as to when any article is deposited in Malkhana and when it was taken out from it. Proper person to prove this fact was Incharge of Malkhana, which is found to be Mehattar Netam, but in instant case neither malkhana Incharge has been examined by the prosecution nor malkhana register has been proved by it. 21. In the case of State of Rajasthan vs. Gurmail Singh 1 , their Lordships of the Supreme have held as under :- “3. We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20-5-1995, the malkhana register was not produced to prove that it was so kept 1 2005 (3) SCC 59 12 in the malkhana till it was taken over by PW 6 on 5-6-1995………………………...” 22. Seized contraband substance was taken out from Malkhana vide Panchnama (Ex.P-40) for preparation of inventory, which was prepared by Nayab Tahsildar -Shekhar Patel (PW-4), he has proved the fact that on 8.12.2017, Investigating Officer (PW-7) had brought two sacks containing 14 packets contraband substance ‘Ganja’. On being weighed, total weight of the same was found to be 74.830 kgs, from which, two samples, each containing 50 gms was drawn by him and marked the same as ‘S-1’ & ‘S-2’ after homogenization of all the substance of 14 packets, thereafter, seal of police station, Keshkal was affixed in those samples. His statement also get support from order sheet (Ex.P-17) drawn by him and Inventory (Ex.P-18) prepared & signed by him. 23. Head Constable - Kachruram (PW-9) had taken sample 'S-1' vide memo Ex.P-41 dated 11.12.2017 of Superintendent of Police, Kondagaon and he deposited that sample on 13.12.2017 in FSL, Raipur, to which receipt (Ex.P-42) dated 13.12.2017 was issued by FSL, Raipur. Thus, sample were prepared after 5 days from recovery /seizure of contraband and the same was deposited in FSL on 13.12.2017 i.e. after 10 days from recovery of contraband substance. Since neither Incharge Malkhana Mehattar Netam has been examined by the police nor malkhana register has been proved by the prosecution, rather Investigating Officer (PW-7) himself allegedly handed over the contraband substance to Incharge Malkhana Mehattar Netam and he himself taken out vide Malkhana panchnama (Ex.P-40). Thus, no other person involved in aforesaid proceeding has been examined, except, Sharad Dubey (PW-7), who is Investigating Officer of the instant case. This lack of evidence i.e. non-examination of malkhana incharge and not proving 13 malkhana register creates serious doubt about safe keeping of seized contraband substance ‘ganja’ for 10 days in safe custody. This doubt becomes even more serious because constable - Lileshwar Dhruv, who is one of the witness of Malkhana Panchnama (Ex.P-40) has not supported the fact that seized contraband was taken out from Malkhana on 8.12.2017 by Investigating Officer (PW-7) in his presence and other witness – Ishwar Netam, who has not been examined by the prosecution. Therefore, in absence of deposition of Incharge Malkhana – Head Constable Mehattar Netam and non proving of Malkhana register creates serious doubt about safe custody of alleged contraband substance, including sample collected from it. 24. Inventory (Ex.P /17-18) was prepared by Naib Tahsildar - Shekhar Patel (PW-4) on 08.12.2017 and the sample was taken by Head Constable - Kachruram (PW-9) vide memo (Ex.41) dated 11.12.2017 issued by the Superintendent of Police, Kondagaon, but it has also not been proved by the prosecution that after drawing aforesaid two samples marked as ‘S-1’ & ‘S-2’, those samples and remaining contraband substance, were kept where and in whose custody, till handing over the same to Head Constable Kachruram (PW-9) for being deposited in FSL Raipur. 25. 25. It is settled principle of law that in the cases under NDPS Act, the prosecution is bound to prove the unbroken and unimpeachable chain of custody and the sanctity of the collection of sample of alleged contraband substance right from the time of recovery/seizure to its submission to the Forensic Science Laboratory (FSL), which is highly doubtful in instant case, as neither Incharge Malkhana has been examined by the prosecution nor malkhana register has been proved, even it has also not been proved that 14 after collection of samples on 8.12.2017 by Executive Magistrate (PW-4) where those samples and remaining contraband substance were kept till depositing sample S-1 to FSL on 13.12.2017. In this view of the matter, the FSL report (Ex.P-43A) is nothing but waste paper and cannot be read as evidence in the eye of law. 26. Under the provisions of Section 57 of the NDPS Act, whenever any arrest and seizure is made under the NDPS Act, it is mandatory for the officer to give a full report of all the particulars of such arrest or seizure to his immediate superior officer within 48 hours of such arrest or seizure. In this regard, Investigating Officer (PW-7) has not proved in his examination-in- chief that he has complied with the provisions contained in Section 57 of the NDPS Act. Though in paragraph 25 of his cross-examination, he has denied the suggestion on this count, of learned defence counsel, but he has admitted that no document has been filed to demonstrate the fact that detailed report, as has been provided in Section 57 of the NDPS Act was sent to S.D.O. (Police), Keshkal. Thus, compliance of procedure of aforesaid provision has also not been proved. 27. In the case of Bharat Aambale Vs. The State of Chhattisgarh 2 , their Lordship of the Supreme Court has held that mere delay or non-compliance of the provisions contained in Sections 42 to 57, would not vitiate the entire case of prosecution. Relevant paragraph 26 is reproduced below :- “26. Although it is true that Chapter V of the NDPS Act more particularly, Section (s) 42 to 57 form a unique scheme of provisions that prescribe several procedural safeguards and conditions that have to be mandatorily adhered to, right from the process of conducting search till the seizure and recovery of the 2 2025 (8) SCC 452 15 contraband, its safe-keep and handling, yet it does not mean that a mere delay or non-compliance of the same, would result in the trial being vitiated, or the entire case of the prosecution crumbling.” 28. In instant case, there is not only non-compliance of provisions of Section 57 of the NDPS Act is found, rather sanctity of collection of sample right from the seizure of alleged contraband substance, till sending the sample to FSL has also not been proved beyond reasonable doubt, therefore, non-compliance of provisions contained in Section 57 also heavily goes against the trustworthiness of the case of the prosecution. 29. In the case of Mohammad Khalid and another Vs. State of Telangana 3 , finding various discrepancies regarding actual weight of seized Ganja, changing the original 3 packets from 7 new bags of Ganja, the property deposited in the court was not having any official seal, thus, provisions of Section 52-A of NDPS Act was also not complied with. Therefore, Hon’ble Supreme Court held that, these glaring loop holes in the prosecution case give rise to an inescapable inference that the prosecution has miserably failed to prove the required link evidence to satisfy the Court regarding the safe custody of the sample packets from the time of seizure till the same reached the FSL. 30. In the case of Surepalli Srinivas Vs. State of Andhra Pradesh (Now State of Telangana) (2025 SCC OnLine 683), the prosecution failed to prove that, seized contraband was properly sealed, it was produced before the trial Court belatedly and seized contraband was kept in separate room of P.W. 3 for 15 days, having considered aforesaid facts, Hon’ble Supreme Court allowed the appeal and extended benefit of doubt to the appellants by setting aside judgment of conviction of appellant. 3 2024 (5) SCC 393 16 31. As has been discussed in preceding paragraphs that sanctity of safe custody of alleged contraband substance right from its recovery / seizure and collection of sample, till depositing the sample to F.S.L., Raipur has not been proved beyond reasonable doubt, as also compliance of provisions contained in Section 57 of the NDPS Act has not been proved, therefore, it cannot be held proved beyond reasonable doubt that alleged contraband substance seized from the possession of appellant was “Ganja”. Hence, conviction of the appellant / accused as recorded by learned Special Court is illegal on the face of record and suffers from grave perversity. 32. In view of the foregoing discussion, this Court is inclined to extend the benefit of doubt to the appellant/accused. 33. Resultantly, the impugned judgment dated 06.07.2023 passed by Special Judge, NDPS Act, 1985 convicting and sentencing the appellant for the offence punishable under Section 20(b)(ii)(c) of the NDPS Act is quashed and set aside. The appellant is acquitted of the said charge levelled against him. 34. Appellants are in custody. They be set at liberty forthwith if not warranted in any other case, subject to compliance of Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023 before concerned Special Court in its satisfaction. 35. Record of the Concerned Special Court alongwith a copy of this judgment be sent back forthwith for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.11.26 21:37:32 +0530 17