1 2025:CGHC:19170 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 120 of 2016 Lakeshwar Patel S/o Shri Ganpat Patel Aged About 37 Years Occupation Agriculturist, R/o Village Menpali, Police Station Saraipali, District Mahasamund, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Station House Officer, Police Station Sariya, District Raigarh, Chhattisgarh. ---- Respondent ___________________________________________________________ For Appellant : Mr. Amit Singh, Advocate For State/Respondent : Mr. Jitendra Shrivastava, GA ___________________________________________________________ Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 28/04/2025 1. This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 being aggrieved with the judgment of conviction and order of sentence 2 dated 05.11.2015 (Annexure A-1) passed in Special Case No.17/2014 by the Special Judge (NDPS Act, 1985), Raigarh, District Raigarh (C.G.), whereby the trial Court has convicted the appellant as under : Conviction Sentence In Default Under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 R.I. for 04 years and fine amount of Rs.6,000/- In default of payment of fine amount further R.I. for 06 months 2. According to the case of prosecution on 21/10/2014, Inspector R.G. Soni received a secret information from an informant that a person is walking on Bonda Katangpali road carrying ganja in a blue-black coloured bag. The said information was recorded in the rojnamcha-sanha. After registering the case in number 38, Constable Anand Ram Bhagat was sent to give notice to witnesses Ex. P-5. When witnesses Narsingh Sahu and Bholaram Jansena appeared in the court, informer information panchnama was prepared in their presence as per Ex. P-2. Information was given to higher officials under section 42 NDPS Act and. Along with staff and witnesses, the accused was informed about his legal rights by giving notice of Ex. P-7 as per Section 50 of NDPS Act and when the accused gave consent as per Ex. P 8, when the accused was searched in front of witnesses, ganja was found kept 3 in a plastic membrane inside the bag in the possession of the accused. The recovered ganja was mixed as per Ex.P-14. On weighing the ganja recovered from the accused as per Ex. P-16, it was found to be 5 kg of ganja. From which two samples of 50-50 grams were prepared. 3. Ganja recovered from the accused and sample were seized as per seizure memo Ex. P-17 and the accused was arrested as per Ex. P- 40. A dehati nalishi was registered on the spot as per Ex. P-34 and after returning to the police station, FIR was registered against the accused as per Ex. P 36. On finding the crime against the accused, the investigation was completed and he was produced before the Court under Section 20 (B) NDPS Act. 4. To prove the guilt of the appellant, the prosecution has examined as many as 10 witnesses. Statement of the appellant was recorded under Section 313 of the Cr.P.C., wherein appellant pleaded innocence and false implication in the matter. However, no defence witness was examined by the appellant. 5. After completion of trial, the trial Court convicted and sentenced the appellant as mentioned in paragraph one of this judgment. Hence, this appeal. 6. Learned counsel appearing on behalf of the appellant contended 4 that he does not wants to press this appeal on merits and confines his argument to the sentence part only. He further submits that the incident is of the year 2014 and he is facing lis since 2014. Appellant has undergone about 15 months, therefore, it is prayed that the jail sentence awarded to the appellant may be reduced to the period already undergone by him. 7. Per contra, learned counsel for the State/respondent opposes the argument raised by counsel for the appellant, supported the impugned judgment and submits that sentence awarded by the trial Court is just and proper and requires no interference. 8. I have heard learned counsel appearing on behalf of the parties and perused the material available on record with utmost circumspection. 9. On perusal of the records, I have found that 21.10.2014, Inspector- R.G. Soni of Police Station Sariya, District Raigarh received a secret information from an informer that the appellant has kept narcotic substance ganja in a bag on the way Bonda Katangipali way taking Ganja coming on the footpath. After following procedure under the NDPS Act, recovered 05 kg contraband ganja from illegal possession of the appellant. 10. Under Section 42 of the NDPS Act, 1985 prescribed for power of 5 entry, search, seizure and arrest without warrant or authorization. 11. 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. 10. Under Section 42 of the NDPS Act, 1985 prescribed for power of 5 entry, search, seizure and arrest without warrant or authorization. 11. 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 6 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 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 7 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 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. 8 (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.” 12. On perusal of the record, it transpires that the Investigating Officer Mr. R.G. Soni (PW-09) has complied with provision of Sections 42, 52-A (3) & 55 of the NDPS Act. 13. The Report of Regional Forensic Science Laboratory, 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 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. 14. Considering the above facts and circumstances of the case, particularly, considering the fact that the contraband Ganja seized from the possession of the appellant is 05 kg in total; he has already undergone about 15 months out of the period of 04 years sentence imposed upon him by the trial Court, seizure witnesses of this case have also been hostile before the trial Court and fine amount has been deposited by the appellant, I am of the considered opinion that the ends of justice would be met if, while 9 upholding the conviction imposed upon the appellant, the jail sentence awarded to him is reduced to the period already undergone by him. Ordered accordingly. 15. Ordered accordingly. 15. Records of the Court below be sent back along with a copy of this order forthwith for information and necessary compliance. Sd/- (Arvind Kumar Verma) Judge Vasant