1 2025:CGHC:13994 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 414 of 2025 1 - Rasik Vishwas S/o Ratan Vishwas Aged About 30 Years R/o Village Gadapota, Jamtola, Tahsil And P.S. Hanskhali, District- Nadiya (West Bengal) ... Appellant(s) versus 1 - State Of Chhattisgarh Through- Station House Officer, Police Station Puspal, District- Sukma (C.G.) ... Respondent(s) For Appellant(s) : Mr. Nitansh Kumar Jaiswal, Advocate For Respondent(s) : Mrs. Prabha Sharma, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 24/03/2025 1. With the consent of the parties the present matter is heard finally. 2. This criminal appeal has been filed under Section 45 (2) of BNSS, 2023 by the appellant against the judgment of conviction and order of sentence dated 05.02.2025 passed by the learned Special Judge (N.D.P.S.) South Bastar-Dantewada (C.G.), in Special Criminal 2 Case No. 06/2022, whereby the appellant has been convicted and sentenced as follows:- Conviction Sentence U/s 20(b) (ii)(B) of NDPS Act R.I. for 5 years and fine of Rs. 25,000/- in default of fine additional S.I. for 6 months. 3. The prosecution case, in brief, is that on 27.12.2021 the concerned police authority has received information from the secret informant that one unknown person has kept illegal contraband ganja in his motorcycle and bag at Village Dautnar, District- Sukma (C.G.) dur- ing checking and police has seized 10.390 kg contraband Ganja from place of incident, and on that basis, panchnama was prepared in presence of witness, and the notices were issued and the appel- lant was arrested. After completing the investigation according to NDPS Act, 1985 charge sheet was filed against appellant. 4. The learned Special Judge (NDPS) South Bastar, Dantewada(C.G.), after appreciating oral and documentary evi- dence available on record vide judgment dated 05.02.2025, con- victed the appellant for the offence punishable under Section 20(b) (ii)(B) of the N.D.P.S. and sentenced him as mentioned in opening paragraph of this order. 5. The appellant was in jail from 27.12.2021 to 20.09.2022 (8 months 23 days) during trial and they are in jail from the date of judgment dated 05.02.2025 (total 2 years 2 months). 6. Learned counsel for the appellant would submit that the appellant is innocent person and has been falsely implicated in the aforesaid 3 case and the mandatory provisions have not been followed by the prosecution. The judgment of the Trial Court is bad in law as well as on facts. The learned Trial Court ought not to have convicted and sentenced the appellant and ought to have given the benefit of doubt since the evidence submitted by the prosecution is very shaky and unbelievable. The Trial Court failed to appreciate the evidence and documents available on record. Alternatively, he submits that the trial Court has awarded the sentence of RI for 5 years and fine of Rs. 20,000/- under Section 20(b)(ii)(B) of the N.D.P.S, in default of payment of fine additional S.I. for 6 months. 7. Learned counsel for the appellant submits that he does not want to press this appeal on merits and confine his arguments to the sen- tence part thereof only. Further, he submits that the present appel- lant is aged about 30 years and as he is facing criminal trial since 2021 and the appellant has already undergone more than 2 years and 2 months of the jail sentence awarded by the trial Court in Spe- cial Criminal Case No. 06/2022. There is also no previous criminal antecedents against the appellant. Therefore, the jail sentence awarded to the appellant may be reduced to the period already un- dergone by him. 8. Learned Panel Laywer appearing for the respondent/State, submits that the Trial Court has rightly convicted and sentenced the appel- lant, in which no interference is called for. 9. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 4 10.From perusal of the records, it transpires that on 27.12.2021 the concerned police authority has received information from the secret informant that one unknown person has kept illegal contraband ganja in his motorcycle and bag at Village Dautnar, District- Sukma (C.G.). During checking, the police has seized 10.390 kg contra- band Ganja from place of incident, and on that basis, panchnama was prepared in presence of witness, and the notices were issued and the appellant was arrested. After completing the investigation according to NDPS Act, 1985 charge sheet was filed against appel- lant. 11. So far as the fact of compliance with the mandatory provisions of the N.D.P.S. Act in relation to the above proceedings in the case at hand is concerned, this case appears to be not a case of action based on informer’s information but a case of chance recovery dur- ing MCP checking proceedings. In the above situation, the provi- sions of Section 42 of the N.D.P.S. Act will not apply but Section 43 will apply. Although during vehicle checking, when there was a sus- picious situation of presence of ganja in the bag, Sub Inspector Pramod Kashyap informed the Sub-Divisional Officer about the above information and prepared the report Exhibit P-29 and sent it through constable Kattam Rama (PW-03) regarding being present for the action and the action of supplying the said mail to the office reader also shows that there is substantial compliance with the pro- visions of Section 42. Similarly, in the case at hand, as per the pros- ecution story and evidence, contraband was recovered from the bag of the accused. In such a situation, the provisions of Section 50 of 5 the "NDPS Act" is not attracted. The Hon’ble Supreme Court in State of Himachal Pradesh vs Pawan Kumar (2005) 4 SCC 350 that for the purpose of Section 50 (1), the expression 'Person' means - appropriate covering and clothing (including The word 'Per- son' does not include a bag, briefcase, suitcase, tin box, carryall etc. carried by hand or carried on the shoulder. Similarly, as far as the directive provision of Section 57 of N.D.P.S. Act' is concerned, though the documents in this regard are not proved by the prosecu- tion, but from the perusal of the report dated 28/12/2021 available on record and the acknowledgment along with the seal printed on it, the report containing the detailed description of the proceedings is revealed to have been received by the Police Sub-Divisional Officer Office, Tongpal on 28/12/2021 through inward and outward postal number 377/2021. Apart from this, under Section 52-A of NDPS Act, preparation of Inventory is also reflectedwhile doing physical verification by the Executive Magistrate/Tehsildar Chhindgarh re- garding the material recovered from the documents available on record. 12.Therefore, it appears that there were compliance of Section 42 and the prosecution has also followed the norms of 52-A of the NDPS Act. The trial Court after considering the material available on record and evidence of the prosecution witnesses, convicted the ap- pellant for the offence under Section 20(b)(ii)(B) of the N.D.P.S. Act. Considering the material available on record and the evidence ad- duced by the prosecution, I am of the view that the Trial Court did not commit any illegality or infirmity in the findings recorded by Trial 6 Court as regards conviction of the appellants under Section 20(b)(ii) (B) of the N.D.P.S. 13. As regards the sentence awarded to them. Considering the fact that the appellant is facing criminal trial since 2021 and thereafter more than 2 years has been elapsed, considering the age of the appellant at present and further considering the quantity of contraband seized from the joint possession of the appellants i.e. 10.390 Kg contra- band(ganja), which is intermediate quantity and there is no previous criminal antecedents against him and further the appellant has al- ready undergone 2 years and2 months of jail sentence awarded by the trial Court, this Court is of the opinion that in the interest of jus- tice, the sentence imposed upon them is reduced to rigorous impris- onment for 3 years instead of R.I. for 5 years under Section 20(b)(ii) (B). However, fine imposed by trial Court is maintained. 14. The appellant is in jail and he shall serve out the sentence as modi- fied above. 15. With the aforesaid observations, the criminal appeal is partly al- lowed to the extent indicated hereinabove. 16. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) JUDGE Madhurima