1 2025:CGHC:18456 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 35 of 2016 1 - Vivek Sona @ Haddi S/o Raju Sona Aged About 24 Years R/o Sector 5, Sadak No. 41, Behind Quarter No. 2 A, Bhilai, District Durg, Chhattisgarh., Chhattisgarh ... Appellant(s) versus 1 - State Of Chhattisgarh Through The Police Station Bhilai Nagar, District Durg, Chhattisgarh., Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Vijay Kumar Sahu, Advocate For Respondent(s) : Mr. Rishabh Singh Deo, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 23/04/2025 1. With the consent of the parties, the present matter is heard finally. 2. This criminal appeal has been filed under Section 374 (2) of Cr.P.C. by the appellant against the judgment of conviction and order of sentence dated 13.10.2015 passed by the learned Special Judge 2 (N.D.P.S.) Act, Durg (C.G.), in NDPS Case No. 10/2014, whereby the appellant has been convicted and sentenced as follows:- Conviction Sentence U/s 21(B) of NDPS Act, 1985 R.I. for 10 years and fine of Rs. 25,000/-, in default of payment of fine, further R.I. for 1 year. 3. The prosecution case, in brief, is that on the basis of the information from the informer, the Station House Offier of P.S. Bhilai Nagar got the information on 17.08.2013 regarding the illegal transportation of brown sugar of 41.61 gm and the same day the FIR was lodged by the police against the appellant. The learned trial court framed the charges under Section 21(B) of NDPS Act against the applicant, however the appellant denied the charge and faced the trial. After hearing the parties, the learned Trial Court held the appellant guilty for the said offence and since the criminal appeal is being filed by challenging the legality and validity of sentence. 4. The learned Special Judge (NDPS) Durg (C.G.), after appreciating oral and documentary evidence available on record vide judgment dated 13.10.2025, convicted the appellant for the offence punish- able under Section 21(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 18.08.2013 to 08.02.2019 which is about 5 ½ years. 6. Learned counsel for the appellant would submit that the appellant is innocent person and has been falsely implicated in the aforesaid case and the mandatory provisions have not been followed by the 3 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. 7. Learned counsel for the appellants 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 appellant at present is aged about 33 years is facing criminal trial since 2013 and the appellant has already undergone 5 years 5 months and 21 days of sentence awarded by the trial Court. There is also no previ- ous criminal antecedents against the appellant. Therefore, the jail sentence awarded to the appellant may be reduced to the period al- ready undergone 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. 10. From perusal of the records, it transpires that for the evidence of compliance with the mandatory provisions of Section 42, the Trial Court has relied upon the statement of PW-5/ C. Tirkey who has stated in paragraph 1 of his evidence that he made entry of informer information at S. No. 28 in Exhibit P/22. After that, he sent Constable 4 No. 552 Rajneesh to the office of CSP Bhilai Nagar with the written information Exhibit P/1, the details of which were registered at S. No. 37 in Exhibit P/24. Then constable Rajneesh came back after giving the information and informed that C.S.P. Sir is outside, the same in- formation has been entered at S. No. 38 in Exhibit P/25. After that, he prepared the Informant Information Panchnama in front of wit- nesses Swati Das and Kailash Pal, in which it was recorded that in view of the possibility of absconding of the accused, it was neces- sary to proceed without obtaining a search warrant, which is Exhibit P/7. This information was intimidated to CSP Bhilai nagar and to the trial court. In this way PW-5/ C. Tirkey has proved the fact in para- graph 1 and 2 of his evidence that as soon as he received the infor- mant's information, he entered it in Exhibit P/22 and immediately in- formed to C.S.P. Bhilai Nagar (Ex. P/1), thereafter he entered the grounds of his belief in Exhibit P7, the information of which was transmitted to the CSP. PW-5/C. Tirkey has admitted in paragraph 18 of his cross-examination that after the arrival of two independent witnesses, he prepared the informer information panchnama. 11. The evidence of PW-5/ C. Tirkey has been confirmed by PW-1 Ra- jneesh Tiwari in paragraph 1 of his evidence. PW-1 Rajneesh Tiwari has stated that he went to Office of CSP Bhilai Nagar to inform about the information received by the police station Incharge Mrs. C. Tirkey about Vivek Sona alias Haddi keeping the brown sugar for il- legal sale, where he informed about Ex. P/1 to the reader of CWP. Then the reader of CSP had made an entry that CSP has gone out. 5 12. PW-5/ C. Tirkey has stated in paragraph 2 of his evidence that he considered the possibility of absconding the accused. Keeping this in view, Exhibit P/7 was prepared regarding proceedings without ob- taining search warrant. This information was intimidated by her to CSP and to Special Judge, NDPS. Exhibit P/7 was perused, in which it is mentioned that if action is taken to obtain warrant under Section 41 (1) of the Act, then the accused may abscond, hide or de- stroy the evidence, information about which is given to CSP and Special Judge, Durg is also mentioned in Exhibit P/7. 13. Hence, it is clear that the prosecution has succeeded in proving be- yond doubt the fact of compliance with the provisions of Sec- tion 42 of the Act in this case. 14. For the evidence of compliance with the mandatory provisions of Section 50, the trial court has relied on the statement of PW-5 C Tirkey who has stated in paragraph 4 of his evidence that after reaching the spot, he had informed the accused under Section 50 of the Act that he has the right to get himself searched by or from any Magistrate or Gazetted Officer, in relation to which the search panch- nama is Exhibit P/8. 15. Hence, from the above information mentioned in Exhibit P/8, it is clear that P.W. 5 C. Tirkey, strictly following the mandatory provision of Section 50 of the Act, had informed the accused Vivek Sona alias Haddi that he would be booked under NDPS. Under Section 50 of the Act, the accused has the right to get his search done by a gazetted officer or Magistrate or by PW-5. Although the written con- sent of accused Vivek Sona has not been presented by the prosecu- 6 tion, in which accused Vivek Sona had given consent to search by PW 5C Tirkey, yet consent Panchnama for search has been exe- cuted by PW-5 C. Tirkey. 16. PW-5 in paragraph 20 of her cross-examination, when asked by the learned counsel for the accused, has expressed that it is wrong to say that the accused had not given his consent in the search panch- nama of Exhibit P/8. It is correct to say that the consent of the ac- cused is not mentioned in writing in Exhibit P/8, but the accused had given consent only then he was searched. Apart from this, no other questions have been asked in the cross-examination of C. Tirkey re- garding Exhibit P.8. Therefore, in the absence of cross-examination, the statement made in the evidence of C. Tirkey that accused Vivek Sona had given him consent to search him cannot be disbelieved. 17. Hence, it is clear from the above discussion that the prosecution has succeeded in proving beyond doubt that P.W. 5 C. Tirkey had in- formed accused Vivek Sona about his "rights to search" in compli- ance with the mandatory provision of Section 50 of the Act. 18. For the evidence of compliance with Section 55, the trial court has relied upon the statement of PW-5 C. Tirkey who has stated in para- graph 13 of his evidence that she along with her fellow staff, wit- nesses and the accused returned to Bhilai Nagar police station, whose entry has been made at S. No. 61 in Exhibit P 28-C and the seized brown sugar was given to the head constable of Malkhana, Amrit Minz, for keeping it in a sealed envelope for safekeeping, whose entry was made at S. No. 64 in Exhibit P/29-C. The report re- ceived from the State Forensic Science Laboratory, Raipur, shows 7 that in the envelope which was sent to him for testing, a seal similar to "SDS MPP" and a seal similar to the seal mentioned in the sample seal Panchnama Exhibit P/16 was found. 19. After careful observation of the packet received from FSL Raipur by PW-5 C. Tirkey it is seen that according to the seizure letter Exhibit P/12, brown sugar along with rubber wands in one red and eight green plastic membranes were kept in a white envelope and sealed with the seal mentioned in the sample seal Panchnama of Exhibit P/ 16 and in FSL Raipur also, a seal similar to the seal mentioned in the sample seal Panchnama Exhibit P/16 was found pasted in the seized white paper envelope. Hence it is clear that PW-5 C. Tirkey sealed the seized brown sugar with the sample seal mentioned in Panchnama Exhibit P 16 and handed it over to P.W. 6 Amrit Minj, then P.S. 6 Amrit Mij again placed this sealed envelope in a yellow colored envelope and re-sealed the yellow colored envelope with a seal similar to SDS MPP and after writing the specifics of the crime, name of the accused, description and weight of the goods on it, after obtaining the seal and signature of the Incharge police station. Sec- tion 55 of the Act has been followed by keeping the white col- ored envelope given by PW- 5 C. Tirkey. 20.Further, it appears that there were compliance of Section 42, Sec- tion 50 and Section 55 of NDPS Act. The trial Court after consider- ing the material available on record and evidence of the prosecution witnesses, convicted the appellant for the offence under Section 21(B) of the N.D.P.S. and sentenced to undergo R.I. for 10 years and fine of Rs.25,000/-. Considering the material available on 8 record and the evidence adduced 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 Court as regards conviction of the ap- pellants under Section 21(B) of the N.D.P.S. 21. As regards the sentence awarded to them. Considering the fact that the appellant is facing criminal trial since 2013 and thereafter more than 20 years has been elapsed, considering the age of the appel- lant at present and there is no previous criminal antecedents against him and further the appellant has already undergone 5 years 5 months and 21 days of jail sentence awarded by the trial Court, this Court is of the opinion that in the interest of justice, the sentence im- posed upon the appellant is reduced to the period already undergone by him. 22. Consequently, the appeal is partly allowed. The conviction of the appellant under Section 21(B) of NDPS Act is affirmed and against the conviction he is sentenced to the period already undergone by him. 23. It is reported that the appellant is on bail. His bail bonds is not dis- charged at this stage and the same shall remain operative for a fur- ther period of 6 months in light of Section 437-A of Cr.P.C. 24. 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