1 2025:CGHC:53874 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1596 of 2025 1 - Kishan Bahadur S/o Late Rajkumar Bahadur Aged About 29 Years R/o Ward No. 02, Pandar Dalli Rajahara, Police Station Rajahara, District Balod (C.G.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through Police Station Rajahara District Balod (C.G) ... Respondent(s) For Appellant(s) : Shri Dashrath Kushwaha, Advocate For Respondent/State : Ms.Laxmeen Kashyap, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 04/11/2025 This appeal under Section 415(2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 has been preferred by the appellant assailing the judgment of conviction and order of sentence dated 30.07.2025 passed by the learned Special Judge (NDPS Act), Balod in Special 2 Sessions Case No. 09 of 2023 whereby the appellant has bee n convicted for the offence punishable under Section 8 read with Section 20(b)(ii)(B) of the Narcotics Drugs and Psychotropic Substances Act, 18\985 and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs. 10,000/- with default stipulation. 2. Prosecution case in brief is that on 01.12.2022, acting upon secret information received from a mukhbir, the police of police station Rajahara conducted a search at the residence of the appellant, resulting in recovery of 2.564 kgs. Of ganja from the alleged possession of the appellant from his dwelling house. The said information was reduced into writing and a report was simultaneously forwarded to the City Superintendent of Police, Rajahara for appropriate action. As the City Superintendent of Police was not present, to prevent any delay or interference with the said operation, a detailed panchnama was drawn and another panchnama was prepared reflecting the procedural formalities subsequent to which the investigating officer accompanied by staff members panch witneses and an official investigation kit, proceeded to the spot in government vehicle for conducting search and seizure proceedings. 3. Upon reaching the house of accused/appellant, he was found present in the premises. The officer apprised him of the substance of the secret information and intimated him of his right relating to search proceedings. A panchnama of the proposed search was prepared on the spot. Upon obtaining the written consent of the accused, both the officer 3 and the accused subjected themselves,the staff and the government vehicle to a personal search, but no objectionable article was found. Thereafter on searching the residential premises of the accused in the presence of the witnesses, a dull coloured bag was noticed hanging from a nail inside the house. Upon examination, the said bag was found containing a greenish-brown leafy and flowering substance emanating a strong smell characteristic of ganja. The material was opened and shown to the witnesses, who, upon smelling it, confirmed that it was indeed ganja. The necessary panchnama was prepared on the spot recording these facts. 4. Subsequently, Constable No. 193 was directed to summon a weighman and thereafter weighment was done to ascertain the exact weight of the recovered substance. The instruments were physically verified in presence of the witnesses and found to be in proper condition and upon weighing the seized narcotic substance was found to be 2.564 kilograms. Thereafter, the accused was served with a notice under Section 91 of the Code of Criminal Procedure, calling upon him to produce any valid license or authority for possessing the said substance. The accused, in his written reply, stated that he has no document of any kind in respect of the said article. Consequently, the entire recovered material was seized in the presence of the witnesses under an appropriate seizure panchnama. For the purpose of chemical analysis, two sample packets of 100 grams each were drawn from the seized contraband. The remaining contraband was packed and sealed 4 while two sample packets were separately sealed with signatures of the witnesses as well as of the accused/appellant. 5. Considering the nature of the recovery and the apparent contravention of the statutory provisions, the investigating officer registered Rime No. 430/2022 at police station Rajahara for the offence punishable under Section 20(b) of the NDPS Act, 1985 against the appellant. The seized articles were deposited in the malkhana with the prescribed entries and forwarded for chemical examination as per procedure. During the course of investigation, statements of all relevant witnesses were recorded under Section 161 Cr.P.C. and a site map of the spot was also prepared. After completion of the entire investigation, the IO found sufficient material against the accused and accordingly, charge sheet was filed before the Special Court under the NDPS Act for the offence under Section 8 read with Section 20(b)(ii)(B) of the Act. Upon appearance of the appellant, charge was framed accordingly. The accused pleaded no guilty and claimed to be tried. 6. During trial, the prosecution examined as many as 11 witnesses including the Investigating Officer, Nand Kishore Sinha (PW-11). No independent witnesses were examined to support the seizure. The appellant denied all the incriminating circumstances appearing against him in the prosecution evidence and stated that he had been falsely implicated. No defence witness was adduced. The learned trial court, relying on the evidence of the official witnesses and chemical examination report, convicted and sentenced the appellant as aforesaid. 5 7. Learned counsel for the appellant vehemently argued that the prosecution could not prove its case beyond all reasonable doubt. He submits that the learned trial court has not appreciated the evidence available on record in its proper perspective and arrived at an erroneous conclusion as to the guilt of the appellant. He submits that the learned trial court failed to see that the prosecution has not complied with the mandatory provisions of the NDPS Act and particularly that of Section 52-A of the NDPS Act as no sampling was done in presence of Magistrate nor any inventory of the contraband was prepared, nor the photographs were taken. He further submits that no application for certification was filed before the Magistrate which is a mandatory requirement under the NDPS Act and as such the failure to comply with such mandatory provision can vitiate the entire trial, and give a clean chit to the accused in the form of acquittal. 8. Contention of the counsel for the appellant is that the entire conviction rests upon the uncorroborated testimony of the police officials and that no independent seizure witness was examined. It is urged that the provisions of Section 42 and 50 of the NDPS Act have not been duly complied with, as mandatory notice and procedural safeguards have neither been proved nor produced. 9. He further contended that the alleged seizure was from the house of the appellant and in absence of proof of exclusive possession and conscious control, conviction cannot stand. It is argued that the learned trial court has failed to appreciate the inconsistencies in the statements 6 of prosecution witnesses particularly regarding preparation of the seizure memo, its timing and sealing procedure. 10. It is also argued that the quantity seized falls under intermediate quantity and in absence of strict compliance with procedural mandates, conviction cannot be sustained. The fine amount having been already deposited, the appellant prays for setting aside the conviction or in the alternative, for reduction of sentence to the period already undergone. Lastly, he submits that the independent witnesses have not supported the case of prosecution therefore, the story put forth by the prosecution renders doubtful. 11. To buttress his submissions, learned counsel for the appellant submits that the prosecution has failed to comply with the mandatory procedural safeguards prescribed under the NDPS Act which are sine qua non for sustaining conviction in narcotics cases. It was submitted that although the police relied on the secret information (mukhbir) leading to search and seizure at the appellant’s house, the IO failed to fully comply with Section 42 of the Act. The information though reduced into writing was not shown to have been promptly communicated to the superior officer before taking any action as mandated by Section 42 (2). This lapsus counsel for the appellant argued, rendered the entire search illegal and vitiated subsequent recovery and seizure. He further submits that Section 50 of the Act, dealing with personal search of an accused, was not triggered and allegedly not followed,However, this was urged to be immaterial as no search of the appellant was conducted. Further the 7 seizure panchanama and sampling procedure although documented contained discrepancies regarding the identification and sealing of samples raising doubts on their authenticity. Such procedural incosnistencies, counsel argued, erode the trustworthiness of the prosecution evidence. 12. Overall it was argued that the investigation was marred by procedural irregularities rendering the case liable to be quashed. 13. Per contra, learned State counsel supported the impugned judgment and submitted that the evidence of the Investigating Officer and other police personnel clearly establishes recovery of contraband from the premises of the appellant. He asserted that all statutory provisions including those relating to search, seizure, sampling and proof of possession were complied with in accordance with law. It is submitted that the report under Section 42 was indeed recorded in writing and forwarded timely to the superior officer, as is evident from the investigation record, thus the requirements of Section 42 has been fulfilled. The CSP was out of station but necessary measures like preparation of a panchanama before proceeding with the search were undertaken as a precaution against destruction or tampering of evidence. He submits that even if the independent witnesses have not supported the case, the police officials have categorically proved the seizure of contraband and the FSL report which also proves that fact and conviction can sustain on the basis of the statement of the police officials, hence, the appeal deserves to be dismissed. It is argued that 8 minor omissions or contradictions do not affect the core of the prosecution story and that statutory compliance was substantially made, as reflected in the contemporaneous documents on record. It is therefore contended that the learned trial court has rightly appreciated the evidence and procedural compliance, leading to a valid and sustainable conviction which calls for no interference. 14. Having considered the rival contentions in the light of the evidentiary record and statutory provisions, the following conclusions emerge for determination: 1. Whether the search and seizure were conducted in compliance with mandatory provisions of the NDPS Act? 2. Whether the prosecution has proved conscious possession of the seized contraband beyond reasonable doubt. 3. Whether the conviction and sentence imposed by the trial court call for interference? 1. Compliance with statutory provisions : The record shows that the alleged search took place at the appellant's residential premises on the basis of secret information. The investigating officer has reduced the secret information into writing and recorded it in panchnama. The information was also forwarded to the superior officer, albeit the City Superintendent of Police was not available. Preparation of the panchnama prior to search with two independent witnesses shows an attempt at procedural correctness. However, the record must conclusively establish the exact timeline of forwarded the written 9 information to superior officers and compliance with all requisites laid out in Section 42(2). Minor procedural irregularities may not vitiate the search if bonafide efforts are present, but substantive compliance is essential. Further the investigation record demonstrates that samples were separated from the main bulk for chemical testing, sealed, marked and documented in the presence of witnesses including the accused. The weighman’s arrival and verification of scales further corroborate compliance. These steps conform to the requirements of Section 52-A. So far as Section 35 and 54 of the Act are concerned, once seized from the appellant’s house, the law presumes knowledge and possession under these sections unless rebutted. The appellant did not produce any evidence to negate these presumptions, thereby shifting the onus appropriately. 15. On perusal of the records, it is evident that the Investigating Officer seized 2.564 kg of contraband Ganja from the backyard of the house of the applicant, hanging on the wall. This seizure was not from a personal search of the accused/applicant. Consequently, Section 50 of the NDPS Act, which mandates specific procedures for personal searches, does not apply to the facts of this case. 16. Proof of conscious possession- The property from which the so- called ganja was recovered is shows as a residential house where the appellant is alleged to reside. The prosecution has proved by way of clinching evidence with regard to conscious possession of the contraband from the appellant. 10 17. In sum, while minor procedural lacunae may be present, the prosecution has substantially complied with the mandatorily safeguards envisaged under Sections 42 and 52-A. The non-applicability of Section 50 is in conformity with settled legal principles. The presumptions under Sections 35 and 54 of the Act, rightly apply, given possession and failure of the accused to rebut. Hence on proper appreciation of law and facts, the procedures adopted by the prosecution are in consonance with statutory mandates. The learned trial court’s conclusion on procedural compliance and conviction is sustainable. The procedure was well followed by the prosecution and the trial Court has well considered the material available on record, hence no infirmity is found in the impugned order of conviction passed by the Court below, accordingly the same is upheld. 18. So far as the sentence is concerned, the alleged contraband constitutes an intermediate quantity ie. 2.564 kgs. and the punishment is excessive and (b) the appellant has already undergone a substantial portion of the maximum sentence this Court finds that ends of justice would be served by reducing the sentence imposed on the appellant so also considering the fact that there is no previous criminal record/antecedents of the appellant, therefore, this Court finds it expedient to reduce the sentence of five years to that under 1 year. The judgment of the learned trial Court is hereby upheld qua the conviction and the sentence of appellant is reduced to the sentence of 11 one year rigorous imprisonment accordingly. However, the fine sentence and default stipulation is herby affirmed. 19. In the result, the appeal succeeds in part and is allowed. The impugned judgment of conviction is hereby maintained. The appellant is held guilty for the offence punishable under Section 8 read with Section 20(b)(ii)(B) of the NDPS Act. However, the jail sentence imposed on appellant is reduced to 1 year from that of 5 years by him. Being already inside the jail, no order in respect of arrest etc. of the accused/appellant is required. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2026.01.12 14:16:38 +0530