1 2025:CGHC:9452 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 162 of 2025 1 - Vicky @ Kamalkant Chaurasiya S/o Kamlesh Patel Aged About 25 Years R/o Village Lambar, Thana-Saraipali, District- Mahasamund (C.G.) 2 - Pappu @ Tarachand Sahu S/o Ghanshyam Sahu Aged About 21 Years R/o Village Loharindipa, Thana-Saraipali, District-Mahasamund (C.G.) ... Appellants versus 1 - State Of Chhattisgarh Through- Station House Officer, Police Station- Saraipali, District- Mahasamund (C.G.) ... Respondent ---------------------------------------------------------------------------------------------- For Appellants : Ms.Anjali Pradhan, Advocate For Respondent : Ms. Pragya Shrivastava, Deputy Govt. Advocate Hon’ble Shri Arvind Kumar Verma Order on Board 24.02.2025 1. This criminal appeal has been preferred by the appellant under Section415(2) of Bhartiya Nagrik Suraksha Sanhita, 2023 being aggrieved with the judgment of conviction and order of sentence dated 14.01.2025 passed in Special Criminal (NDPS Act) Case No. 19/2018 by the Special Judge (NDPS Act0 Saraipali, district- Mahasamund (C.G.), whereby the trial Court has convicted the appellant as under : Conviction Sentence Under Section 20(b)(II)(B) of Rigorous Imprisonment for 05 years and fine of Rs. 50,000/- in default of 2 NDPS Act, 1985 payment of fine additional rigorous imprisonment for 06 months.(Both the appellants) 2. According to the case of prosecution, on 19.08.2018 Assistant Sub-Inspector of Police Station Saraipali Mr. Yogesh Kumar Soni has gone to Balsi Petrol Pump along with staff members for searching the vehicles and during the search proceedings, two persons in silver color Bulet Electra Motor Cycle bearing Registration No. CG 13 AN 7500 coming from Saraipali to Lambar carrying Ganja, the police thereafter stop the motor cycle near Balsi Petrol Pump and seized 6 kg ganja from the appellants. Proceedings under the provisions of NDPS Act have been drawn against the appellants. Crime No. 267 of 2018 was registered against the appellants for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act and after completing necessary investigation, the charge sheet was submitted before the trial court. 3. To prove the guilt of the appellant, the prosecution has examined as many as 10 witnesses. Statements of the appellants were recorded under Section 313 of the Cr.P.C., wherein appellants pleaded innocence and false implication in the matter. After completion of trial, the trial Court convicted and sentenced the appellants as mentioned in paragraph one of this judgment. Hence, this appeal. 3 4. Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is bad in law and in fact liable to be set aside. Non compliance of standing order 1/89 of NDPS Act. In para 32 of the cross examination the I.O. (PW-09) himself has admitted that there was no compliance of standing order 1/89 of NDPS Act. On this ground itself the impugned judgment is liable to be set aside. Learned trial court has not properly considered with the fact that the precaution has failed to prove the case for convicting the appellant for the alleged offences. 5. Per contra, learned counsel for the State/respondent opposes the argument raised by counsel for the appellants, supported the impugned judgment and submits that sentence awarded by the trial Court is just and proper and requires no interference. 6. I have heard learned counsel appearing on behalf of the parties and perused the material available on record with utmost circumspection. 7. On bare perusal of the record I have found that prosecution has failed to prove the provisions of Section 53 of the NDPS Act, 1985. It is clear from the evidence that this was a chance recovery therefore, at the time of search and seizure there is no need to follow the procedure of Section 42 of the NDPS 4 Act, 1985. Section 42(2) of the NDPS Act, provides time for compliance within 72 hours and it is also well settled law that total non-compliance of Section 42(2) of the NDPS Act which is not permissible in law. In this case ASI has followed the mandatory procedure of Section 42 (2) of the NDPS Act. 8. On perusal of record I have also found that 6kg Ganja contraband has been seized from the exclusive possession of the motor cycle of the accused appellants. Therefore Section 50 of NDPS Act would not be applicable. Section 50 of the NDPS Act is applicable when only personal search of the person is done. Contraband has been recovered from the possession of the motor cycle of the appellants which is exclusive possession of the accused appellants. 9. I have also found that malkhana Mohirrir was not examined before the Court. Malkhana Register was not produced before the Trial Court. It is also important fact that prosecution wholly relied upon the FSL report of the seized contraband that is Ex. P-40. Ex. P-40 shows that contraband is a ganja. Date of incident was 19th August, 2018 however FSL report shows that date of receiving of the contraband was 03rd August 2018which is prior to the incident. Prosecution did not explained this mistake neither Malkhana Mohirrir was examined nor the Malkhana Register was produced before 5 the trial Court, therefore conviction of appellants for the offence punishable as mentioned above is bad in law. This instant appeal filed by the appellants deserves to be and is hereby allowed. 10. Ordered accordingly. 11. Records of the Court below be sent back along with a copy of this order forthwith for information and necessary compliance. sd/- Alfiza (Arvind Kumar Verma) Judge