1 2025:CGHC:55250 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 875 of 2003 • Smt.Saroj Verma, W/o Bhanu @ Ajay Verma, aged about 25 years, R/o Raman Mandir Ward, Gidiyari, Chuna Bhatti, Raipur, Chhattisgarh. ... Appellant(s) versus • State of Chhattisgarh through Police Station/ Chouki, Vishrampuri, P.S.-Keskal, District- Bastar, Chhattisgarh. ... Respondent(s) For Appellant(s) : Ms. Reema Dubey, Advocate, who appears Chhattisgarh High Court Legal Services Committee. For Respondent(s)/State : Mr. Rahul Tamaskar, G.A. and Mr. Dashrath Prajapai, Panel Lawyer. Hon’ble Mr. Justice Amitendra Kishore Prasad Order on Board 12/11/2025 RAGHVENDRA JAT Digitally signed by RAGHVENDRA JAT 2 1. Mr. Vinod Tekam whose name appears in the cause list as arguing counsel has informed this Court that it was alloted to him by the Chhattisgarh High Court Legal Services Committee, however, at present he is not a counsel in the Chhattisgarh High Court Legal Services Committee. 2. The other counsel Mr. S.L. Bajaj, Advocate has already been expired as such Ms. Reema Dubey, Advocate who generally appears for Chhattisgarh High Court Legal Services Committee has been requested to argue the matter. 3. The present appeal arises out of the impugned judgment of conviction and order of sentence dated 26.7.2003 passed by the learned Special Judge (N.D.P.S. Act), Bastar at Jagdalpur (C.G.), in Special Criminal Case No. 10/2003 whereby, the learned Special Judge has convicted and sentenced the appellant as under :- Conviction Sentence U/s 20(b)(ii)(b) of N.D.P.S. Act R.I. for 2 years and fine of Rs.5,000/-, in default of payment of fine amount additional R.I. for 6 months. 4. Brief facts of the case, is that Sub-Inspector Santosh Singh (P.W- 3) of Police Station Vishrampur received secret information that the present appellant was carrying contraband ganja. Acting upon the said information, he recorded the same in the Rojnamcha Sanha and informed his superior officers. Thereafter, he 3 summoned two independent witnesses and apprised them of the information received. Subsequently, Sub-Inspector Santosh Singh, along with the witnesses and other police staff, proceeded towards the spot for verification. When they reached near Venrapara Road, on the way to Ketka, a jeep coming from the Oriya side was stopped for checking. In the jeep, one male and one female were travelling. The woman, identified as the appellant, was carrying a small bag. She was apprehended, and a notice under Section 50 of the NDPS Act (Ex.P-4) was served upon her, informing her of her statutory right to be searched before a Magistrate or a Gazetted Officer. The appellant gave her consent in writing (Ex.P-3) to be searched by the police. Upon conducting the search, 3 kilograms and 500 grams of ganja were recovered from the bag in her possession. The search and seizure proceedings were carried out at Police Station Vishrampur. Witness Hameed Khan (P.W.2) weighed the seized ganja, samples of 24 grams each were drawn, and the seizure memo (Ex.P-10) was prepared. The articles were sealed, and an FIR was registered. Intimation regarding the arrest was sent to the appellant’s brother-in-law, Umakant Sharma, and the seized ganja was deposited in the Malkhana, for which a receipt (Ex.P-12) was issued. On 05.02.2003, the sealed samples were forwarded to the Forensic Science Laboratory, Raipur, which confirmed that the seized substance was ganja. After completion of the investigation and recording the statements of witnesses, the police filed a 4 charge-sheet against the appellant. The learned Trial Court framed charges under Section 20(b)(ii)(B) of the NDPS Act, to which the accused pleaded not guilty and was put to trial. After examining five prosecution witnesses and hearing both parties, the learned Trial Court convicted and sentenced the appellant as mentioned in the judgment. 5. So as to hold the accused/appellant guilty, the prosecution has examined as many as 5 witnesses and exhibited 23 documents. The statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which she denied the circumstances appearing against her and pleaded innocence and false implication in the case. 6. After hearing the parties, vide impugned judgment of conviction and order of sentence dated 26.7.2003, learned Special Judge has convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. Hence, the present appeal. 7. Learned counsel for the appellant submits that the prosecution has completely failed to prove the fact that the alleged ganja was seized from the exclusive possession of the appellant. She further submits that it is a case in which alleged Ganja has been seized from the possession of the appellant, however, from the evidence the said fact has not been established and she has categorically denied the seizure made from her. She further submits that the seizure witnesses have already not supported the case of the prosecution and they have stated they have signed upon the 5 documents in presence of police before the police station. As such, the conviction of the appellant is not sustainable and she is liable to be acquitted. 8. Per contra, learned counsel appearing for the State, supporting the impugned judgment, opposed the arguments advanced on behalf of the appellant. 9. Heard learned counsel for the parties and perused the material on record including the impugned judgment. 10. Sub-Inspector Santosh Singh (PW-3) has stated in his evidence that he was posted as Sub Inspector in Vishrampuri from the year 2002 to the year 2003. On 28.1.2003, he received information from an informer that one male and one female were traveling and has kept ganja. Thereafter, he gave her a notice under section 50 of the NDPS Act and informed her of her legal rights and told her that she has the legal right to get his case registered by any gazetted officer or magistrate. The notice under section 50 of the NDPS Act is Ex.P-02. He further stated that two separate sample packets of 24 grams each were drawn from the ganja recovered from both accused persons, and the samples were duly weighed, the record of which is contained in Panchnama vide Exhibit P-5. The recovered ganja was seized at Punit Chowki, Vishwanpuri, and the seizure memo is vide Exhibit P-6, bearing his signatures on portions B to B and the signatures of the accused on portions L to L. He further stated that the first FIR of Crime No. 03/2003 at Police Outpost Vishrampuri, which is Exhibit P-10, on which 6 portions A to A and B to B contain his signatures. Thereafter, he informed the Superintendent of Police, Jagdalpur, about the crime through a wireless radio message, a copy of which forms part of the case record as vide Exhibit P-11, bearing his signatures on portions A to A. He further stated that an entry in Roznama Tanha No. 672, a copy of which has been produced. The seized ganja was handed over to Head Constable/Malkhana Moharrir Madhav Madhav Ram Rathore, for which he received an acknowledgment receipt, marked as Exhibit P-12, containing the Head Constable’s signatures on portions R to A. The accused was arrested, and his arrest memo vide Exhibit P-13, bearing his signatures on portions A to A, a notice of arrest was issued to Umakant Verma, the brother-in-law of accused Bhanu @ Ajay, and its carbon copy is attached to the case file as Exhibit P-14. A site map of the place of occurrence was prepared by the Patwari. The sample packet of seized ganja was forwarded to the Forensic Science Laboratory, Raipur, through the Superintendent of Police, Bhanpuri, under memorandum dated 2.3.2002, marked as vide Exhibit P-16, the FSL acknowledgement is Exhibit P-17, and the chemical examiner’s report received in the case is Exhibit P-18, along with the accompanying memorandum. He further submits that he has recorded the statements of witnesses Lekhraj, Meghnath Chakradhari, Mohd. Hamid Ban and Ghasluram as per directions. 11. Madhav Ram Rathore (PW-5) has stated that he was posted as Malkhana Moharrir at the said Outpost, on that day, he brought 7 the Rojnamcha (daily diary) of Police Outpost Vishrampuri, wherein Rojnamcha Tanha Entry No. 670 records the receipt of secret information from an informant, marked as Exhibit P-20 with its copy as Exhibit P-20©. He further submits that written information sent to the Superintendent of Police, Jagdalpur regarding seizure and confiscation of ganja is recorded in Rojnamcha Tanha Entry No. 4672, marked as Exhibit P-21 along with copy vide Exhibit P-21©. He further stated that on 28.01.2003, the Outpost In-charge, Shri Santosh Singh, handed over to him the seized ganja recovered from Bhanu alias Ajay Verma and Saroj Bai, kept in a blue plastic bag and accompanied by sealed sample packets weighing several kilograms, for deposit in the Malkhana, vide Exhibit P-12 bearing my signature from A to E. He further stated that he entered the seized ganja and sample packets received from Bhanu under Entry No. 3 of the Malkhana Register and those received from Saroj Bai under Entry No. 4, the entries being Exhibit P-22 along copy as Exhibit P-22(B), and I also made the corresponding entries in Rojnamcha Tanha No. 689 relating to Bhanu alias Ajay and Tanha No. 710 relating to Saroj Bai, the originals vide Exhibit P-23 along with copies marked as vide Exhibit P-23(C); 12. In his cross-examination he has stated that the packet which he received weighed 24 grams, as he did not observe any such weight on the packet—rather, the sample packet bore the weight of 50 grams as written on it, and the samples were weighed, 8 sealed, properly marked, and handed over to him by the Outpost In-charge, consisting of two separate sample packets, one each relating to Bhanu and Saroj, with the ganja bags and the sample packets being distinct, and he received all the seized articles for Malkhana deposit at about 5:00 PM, the statement was read over to the witness, who understood it and accepted it to be correct. 13. In order to examine the above facts and submissions/evidences, it would be appropriate to refer to the mandatory provisions of the NDPS Act. 14. On perusal of the records, it transpires that there is violation of Standing Order No. 1 of 1989 as well as provisions of Section 52- A of the NDPS Act, which prescribes the procedure to be followed while conducting seizure of the contraband. It is also found that samples of the seized contraband Ganja were not taken in presence of the Magistrate and it is also pertinent to mention that entries has not been made before the Magistrate and also no photographs have been taken of the contraband in presence of the Magistrate. 15. Standing Order 1/89 Section-II, General Procedure For Sampling, Storage, Etc.- “Whereas the Central Government considers it necessary and expedient to determine the manner in which the narcotic drugs and psychotropic substances shall as soon as may after their seizure, be disposed of having regard to their hazardous nature, vulnerability to theft, substitution and 9 constraints of proper storage space.” 16. Relevant Sections of the NDPS Act read as under :- “52-A. Disposal of seized narcotic drugs and psychotropic substances.- [(1)…… (2)…...Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, 10 photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence]. 17. In the case at hand, date of incident is of 28.1.2003 and, therefore, as per provision of Section 52A(2), (3) & (4) of the NDPS Act when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate 11 for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. 18. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. 19. In the matter of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379, the Supreme Court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial. 12 20. Recently, the Supreme Court in the matter of Yusuf @ Asif versus State (Criminal Appeal No.3191/2023), decided on 13.10.2023, has held as under:- “16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. 17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.” 21. The Supreme Court in the matter of Sanjeet Kumar v. State of C.G. reported in 2022 SCC OnLine (SC) 1117, has held as under:- 13 “18. But if the Court has - (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. 31. Therefore, it is clear that the I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their 14 presence and participation but also came up with an explanation as to how their signatures found a place in those documents. 32.In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. But unfortunately, both the Special Court and the High Court went by the law in theory, without applying the same to the facts of the case.” 22. The Supreme Court in the matter of State of Rajasthan versus Bher Singh reported in (2009) 16 SCC 293 has held as under:- “2. We have perused the evidence of PW 7 who seized the opium in question, as also the evidence of PW 9 who was the officer in charge of the malkhana and from their evidence, we find that it is not possible to hold that the seal allegedly put by PW 7 while taking the sample opium remained intact right through the time it reached the forensic science laboratory. This being a mandatory requirement to establish the fact that the seized goods was in fact a prohibited drug under the NDPS Act, we agree with the High Court on facts of this case that the prosecution has failed to establish this part of its case, hence, we find no reason to interfere in this appeal. Therefore, we 15 dismiss the same.” 23. Considering facts of case, submissions advanced by the learned counsel for the parties, witnesses of search and seizure, other material and evidence available on record, further considering the mandatory provisions of NDPS Act and the principle of law laid down by the Supreme Court in Mohanlal (supra), Yusuf @ Asif (supra), Sanjeet Kumar (supra) & Bher Singh (supra), I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in convicting and sentencing the appellant for offence under Section 20 (b) (ii) (b) of the NDPS Act. 24. Accordingly, the conviction and sentences of the appellant for the offence under Section 20 (b) (ii) (b) of the NDPS Ac is hereby set aside and she is acquitted of the said charge on the basis of benefit of doubt. 25. In the result, the appeal is allowed. The impugned judgment is set aside and the accused/appellant is acquitted of the said charge. Fine, if any, deposited by the appellant shall be refunded to her. 26. The appellant is on bail. She need not to surrender in this case. Her bail bond shall remain in force for a period of six months in view of the provisions contained in Section 437-A of the CrPC. 27. Record of the trial Court along with copy of this judgment be sent forthwith for compliance and necessary action, if any. 28. Since, the present case has been argued by Ms. Reema Dubey, 16 Advocate who is in the panel of Chhattisgarh High Court Legal Services Committee, therefore, she is entitled for the fees to be paid by the Chhattisgarh High Court Legal Services Committee. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat