1 2025:CGHC:56420 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 61 of 2024 1 - Sampatti Chauhan Wife Of Late Brijmohan Chauhan Aged About 40 Years Caste - Chauhan, Resident Of Bhaisamuda, Police Station - Pattalgaon, District - Jashpur, Chhattisgarh. ... Appellant(s) versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station - Pattalgaon, District - Jashpur, Chhattisgarh. ... Respondent(s) For Appellant (s) : Shri Manoj Chouhan, Advocate For Respondent/State : Ms.Sunita Manikpuri, Dy.GA (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 19/11/2025 This appeal has been preferred by the appellant against the judgment and order dated 19.12.2023 passed in Special NDPS Case No. 05/2023 whereby the appellant has been convicted under Section 20(B)(ii-C) of the Narcotics Drugs and Psychotropic Substances Act, 2 1985 and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- with default stipulation. 2. Prosecution case in brief is that on 24.03.2022, the police station Pathalgaon received secret information that the accused was in possession of cannabis for sale. Based on this, a series of panchnamas were prepared starting at 6.30 am on the same day and seizure of 21.100 kgs. of ganja was made from the house of the accused at Village Bhaisamuda, District Jashpur. Samples were taken and sent for chemical analysis to the FSL which confirmed the presence of ganja. The appellant was arrested and Crime No. 80/2023 was registered under Section 20(B) (ii-c) of the NDPS Act. The investigation was carried out, challan was filed before the Special Court (NDPS Act), Jashpur. 3. In order to prove the charges against the accused, prosecution has examined as many as 12 witnesses. Statement of the accused/appellant was also recorded under Section 313 Cr.P.C. in which he pleaded his innocence and false implication. This apart 03 defence witnesses were examined. 4. Learned trial court vide its order impugned dated 19.12.2023 convicted and sentenced the appellant as mentioned above. Hence this appeal. 5. Learned counsel for the appellant submits that the judgment passed by the trial court is illegal, improper and is contrary to the facts and evidence available on record. He submits that the prosecution has 3 failed to comply with the mandatory procedural safeguards prescribed under the NDPS Act. The seizure witnesses have turned hostile casting doubt on the prosecution story. Seizure witnesses namely Shyam Lal, Ram Kishan (PW-2 & 3) and Kamlesh Sahu (PW-4) examined before the trial court have turned hostile creating doubts about the veracity of the prosecution case. The procedure adopted in sampling and preservation of seized contraband violated Sections 52(a) and 59 of the NDPS Act as well as the 1/89 memorandum particularly since the seized goods were allegedly not produced from the malkhaana for sampling before the Magistrate. The seizure reportedly took place from the verandah of the house of the accused and not from inside the premises impacting chain of custody and possession claims. It is submitted that on the seizure date itself, 20 packets were opened and mixed together (samras panchnama Ex.P-15) without any preliminary testing or use of a narcotic detection kit to confirm the contents, violating established procedures. Thereafter, entire investigation was carried out by the same officer and charge sheet was filed. Therefore the entire investigation as also the prosecution of the appellant and consequent conviction is vitiated. 6. Further it is submitted that there was a material discrepancy in the weighment noted at the time of seizure (21.100 kgs.) and re-weighment before the Magistrate during sampling (20.955 kgs.) of the contraband indicating tampering or irregularity (Ex.P-17 and 37). The statement of the investigating officer contradicts the timing of receipt of secret information recorded in the rojnamcha sanha. Reference was made to 4 various authoritative judgments of this Court and the Apex Court which emphasizes strict adherence to the chain of custody and procedure in NDPS cases. He submits that the co-accused Naresh Chauhan was absconding for a long time and later acquitted, strengthening the possibility of wrongful conviction. 7. On the other hand, leaned counsel for the State submits that the learned trial court was fully justified in convicting the appellant and submits that the seized contraband was recovered from the possession of the accused at her house, duly recorded in panchnaama with independent witnesses. The samples were duly sent to FSL wherefrom, report was received that it was ganja. There is ample evidence on record to convict the appellant hence the judgment passed by the trial court with respect to the conviction of the appellant is just and proper which demands no interference. He submits that even where the investigation is conducted entirely by the same police officer who is the informant/complainant, independent evidence of prejudice or bias must be established. The submission is rejected in light of the Apex Court decision in Union of India Vs. Mohanlal and Another reported in (2016) 3 SCC 379, which clearly states that the investigation stands vitiated without the necessity of providing independent prejudice or bias on part of the investigating officer. The mere fact of the complainant and investigating officer being the same individual suffices to render the investigation and trial legally unsustainable. 8. On careful scrutiny of the records, statements of witnesses and the procedure followed, the following infirmities are apparent. Several 5 seizure witnesses have turned hostile or contradicted in their statements weakening the version of the prosecution. The investigating officer w3as one and the same who, right from the stage of receipt of mukhbir information, reaching at the spot, carrying out search, seizure, preparation of sample and lodging of FIR followed by deposit of ganja was done by him. 9. On perusal of records, it transpires that there is violation of Standing order of 1/89 as well as Section 52-A of the NDPS Act, 1985. Section 52-A pf the NDPS Act reads as follows: 52A Disposal of seized narcotic drugs and psychotropic substances - (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.” 10. In the present case, this Court found that the inventory has not been made before the Judicial Magistrate. As per provisions of Section 3 of the Cr.P.C. 1973, Magistrate means Judicial Magistrate and not Executive Magistrate. Therefore, this Court is of the considered opinion 6 that there is non-compliance of Section 52-A of the NDPS Act, 1985. Standing Order 1/89 under Section 52-A of NDPS Act, 1881, provides: “Whereas the Central Government considers it necessary and expedient to determine the manner in which the narcotic drugs and pyschotropic substances shall as soon as may after their seizure be disposed of having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space.” 11. In the matter of Union of India Vs. Mohanlal and Another reported in (2016) 3 SCC 379, the Supreme Court has held as under: 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evidence when the two are placed 7 in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.” 12. The Apex Court and this Court have consistently held that any deviation from mandatory procedural safeguards in NDPS cases results in the benefit of doubt being extended to the accused, given the harsh impact of stringent law. The sampling sealing and production procedures form the backbone of the prosecution case and any lacuna therein compels interference. It is therefore held that there has been a complete and unexplained failure to adhere to the requirements of Section 52-A. Neither the samples were drawn in the presence of a Magistrate nor was the inventory list prepared and certified as required under the law. 13. Thus, it is found that in the cases relating to offences under the Narcotics, Drugs and Psychotopic Substances Act, which involves a reverse burden of proof, the settled position of law-except in cases where the investigation is conducted by the multiple officers and the complainant is not the sole investigating officer and the independent proof of bias or prejudice is no longer necessary. Once it is established that the complainant, informant and the investigating officer are the one and same person and the entire investigation was conducted solely by this individual, the rights of the accused to a fair investigation and trial 8 stand violated. This vitiates both the investigation and ensuing trial. This principle laid down by the Apex Court in authoritative precedent, si binding on this Court. Therefore merely on the ground that the complainant/informant and the investigating officer are one and the same, the investigation and prosecution in the present case cannot be sustained in law. Given the defective sampling procedure carried out by the seizure officer, the complete abdication of duty by the officer in charge to follow lawful protocols, the FSL report stands vitiated and loses any evidentiary value. Reliance on such a flawed report cannot sustain a conviction beyond reasonable doubt. Consequently, the conviction of the appellant deserves to be and is hereby set aside. 14. Accordingly, the appeal is allowed. The impugned judgment of conviction and order of sentence passed by the trial court are set aside. He shall be set at liberty forthwith, if not required in any other case. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2026.01.14 14:01:48 +0530