1 2025:CGHC:55054 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1252 of 2025 Tikesh Nirmalkar S/o Bhuneshwar Nirmalkar Aged About 24 Years R/o Matiya, P.S. Arjunda, District Balod (C.G.) ... Appellant versus State Of Chhattisgarh Through P.S. Arjunda, District Balod (C.G.) ---- Respondent ----------------------------------------------------------------------------------------------- For Appellant : Ms. Aditi Singhvi, Advocate For Respondent-State : Mr. Vivek Sharma, PL ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 12.11.2025 1. With the consent of counsel for the parties, the matter is heard finally. 2. The appellant has filed the instant appeal under Section 415(2) of the BNSS, 2023 questioning the judgment of conviction and order of sentence dated 14.05.2025 (Annexure A-1) passed by the Special Sessions Judge, Balod, District Balod (C.G.), in Special 2 Sessions Case No.26/2024, whereby the appellant has been convicted and sentenced as under : Conviction Sentence In Default of Payment of Fine Under Section 20(b) (ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 RI for 06 years and fine amount of Rs.25,000/- Additional RI for 06 months 3. Case of the prosecution, in brief, is that on 25.01.2024 a secret information was received by concerned Police Station that the appellant is illegally selling the contraband substance ganja behind matiya nursery school, upon receipt of the secret information the police went on spot along with independent witnesses and upon search seized 9.619 kg of contraband substance from the appellant. That, the police investigated the matter, completed the procedure and thereafter the FIR was registered against the appellant under Section 8 r/w Section 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substance Act, 1985. The charge was framed under Section 8 r/w 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substance Act, 1985. 4. In order to prove the charge against the appellant (accused), prosecution examined as many as 09 witnesses. Statement of 3 appellant was recorded under Section 313 of CrPC in which he pleaded innocence and false implication. However, no defence witness was examined by the appellant. 5. After appreciation of evidence available on record, learned trial Court has convicted and sentenced the appellant under Section 20(b)(ii)(B) of the NDPS Act as mentioned in paragraph two of this judgment. Hence, this appeal. 6. Learned counsel appearing for the appellant contended that the learned trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellant. She further contended that the impugned judgment of conviction and sentence is bad in law and in facts and thus liable to be set aside and the appellant deserves to be acquitted. The Learned Court below has failed to consider that independent witness for all the proceedings have turned hostile. The Learned Court below has also failed to consider the statement of the witnesses as there is material corroboration in the statement of the witnesses. She due explanation has been given by the appellant in his 313 statement which has not been taken into consideration by the trial court. She further submits that the Learned Court below has failed to consider that there were other people in the house where the contraband substance was found. 4 the investigating agency has failed to comply with the provisions of Section 50 of Narcotic Drugs and Psychotropic Substance Act, 1985. The impugned order passed by the learned trial court is illegal, erroneous and contrary to law and therefore same deserves to be set-aside. From a perusal of the evidence recorded in the case it is apparently clear that the prosecution has utterly failed to substantiate the charges as framed against the appellant. She further submits that there is no evidence on record to show that homogenous mixture of seized contraband substance was made before drawing samples. There is non compliance of provisions of Section 42 of Narcotic Drugs and Psychotropic Substance Act, 1985. The provisions of Section 52A of Narcotic Drugs and Psychotropic Substance Act, 1985 have not been complied with. It is, therefore, prayed that this Court be pleased to set aside the impugned judgment of conviction and sentence dated 14.05.2025, passed by Special Judge (NDPS), Balod District Balod (C.G.) in Special Session Case No. 26/2024, this Hon'ble Court be further pleased to pass such other orders as it may deem fit under the facts and circumstances of the case in favour of the appellant. 7. On the other hand, learned counsel for the State supporting the impugned judgment would submit that the investigating officer at the time of effecting search and seizure proceedings has 5 substantially complied with all the mandatory provisions of the NDPS Act. Learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellants which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. 8. I have heard learned counsel appearing for the parties and perused the record of the trial Court and other material available on record with utmost circumspection. 9. On perusal of the record, I have found that on the date of incident, i.e., 25.01.2024 a secret information was received by concerned Police Station that the appellant is illegally selling the contraband substance ganja behind matiya nursery school, upon receipt of the secret information the police went on spot along with independent witnesses and upon search seized 9.619 kg of contraband substance from the appellant. That, the police investigated the matter, completed the procedure and thereafter the FIR was registered against the appellant under Section 8 r/w Section 20(b) (ii)(B) of Narcotic Drugs and Psychotropic Substance Act, 1985. The charge was framed under Section 8 r/w 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substance Act, 1985. 10. Charge sheet filed under the NDPS Act against the appellant. 6 Under Section 42 of the NDPS Act, 1985 prescribed for power of entry, search, seizure and arrest without warrant or authorisation. 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 information given by any person and taken 7 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 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 8 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. (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 9 has complied with provision of Sections 42, 52-A (3) & 55 of the NDPS Act. 13. The Report of Regional Forensic Science Laboratory, Raipur, which shows that the samples of seized articles have been found positive. 14. Considering the submission with regard to sentence of the appellant, learned counsel for the appellant submits that there is no previous antecedent against the appellant under the NDPS Act. 15.Finding of conviction recorded by trial Court is in accordance with the evidence available on record which is neither perverse nor contrary to the records. Looking to the entire evidence adduced by the prosecution, in my considered view, the trial Court has rightly convicted the appellant for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. I do not find any illegality or infirmity in the judgment passed by the trial Court. 16. Thus, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellant. The conviction as awarded by the trial Court under Section 20(b)(ii)(B) of the NDPS Act, 1985 to the appellant is hereby affirmed/maintained. 17. Considering entire facts and circumstances of case, evidence available on record, submissions of counsel for the respective 10 parties, quantity of seized contraband, i.e., 9.619 Kg Ganja, there is no previous antecedent against the appellant, period since appellant is facing mental trauma and agony of pendency of criminal case, I am of the view that sentence imposed upon appellant by trial Court of six years is on higher side. Accordingly, substantive jail sentence imposed upon appellant of six years is reduced to 11/2 (one and half) year. However, sentence of fine awarded by trial Court is hereby affirmed. Ordered accordingly. 18. The appellant is reported to be in jail. He shall serve out the sentence as modified above. 19. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 11 20. The trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. Sd/- (Arvind Kumar Verma) Judge Vasant