1 2025:CGHC:61215 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1599 of 2025 Yashin Ali S/o Sharafat Ali, Aged About 34 Years R/o Block No. 1, Room No. 09, Irani Dera, B.S.U.P. Colony, P.S. Pandri, Raipur, District Raipur (C.G.) ... Appellant versus State Of Chhattisgarh Through P.S. Pandri, Raipur, District Raipur (C.G.) --- Respondent ----------------------------------------------------------------------------------------------- For Appellant : Mr. Ajay Kumrani, Advocate For Respondent-State : Ms. Sunita Manikpuri, Dy. G.A. ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 16.12.2025 1. With the consent of learned counsel for the parties, the matter is heard finally. 2. This criminal appeal filed by the appellant-accused under Section 415 (2) of the Bhartiya Nagrik Suraksha Sanhita, 2023 (henceforth “BNSS”) is directed against the impugned judgment of conviction and order of sentence dated 06.06.2025 passed by the Special Judge (NDPS Act), Raipur, District Raipur (C.G.) in Special Case No. 30 of 2021, whereby the appellant has been convicted & sentenced as under :- 2 Conviction Sentence In Default of Payment of Fine Under Section 21(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 RI for 10 years and fine amount of Rs.1,00,000/- Additional RI for 02 years Under Section 20(b)(ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 RI for 10 years and fine amount of Rs.1,00,000/- Additional RI for 02 years Both sentences to run concurrently 3. Case of the prosecution in brief is that on 04.01.2021, Assistant Sub- Inspector J.S. Maravi of Police Station Pandri, Raipur, received credible information from an informer that a person carrying ganja was standing near Vigyan Bhawan Gate, DaldalSeoni. The information recorded, and independent witnesses Javed Raza and Vikash Mika were summoned. After complying with procedural formalities, the information was conveyed to the CSP, who authorized ASI Maravi to act upon it. Police team along with independent witnesses proceeded to the spot and found a person matching the description, who attempted to flee but was apprehended. He disclosed his name as Yashin Ali. After informing him of his legal rights, a search was conducted in the presence of witnesses. From his possession, 335 grams of charas (net weight) and 5 kilograms of ganja were recovered. Samples were drawn and marked appropriately. Panchnamas for physical verification, weighing, sealing, and sample preparation were made on the spot. Thereafter the crime No. 02/2021 was registered at the Police Station, Pandri, Raipur and after investigation charge sheet has been filed before the learned court below and the learned 3 court below has taken cognizance. 4. In support of its case, prosecution has examined as many as 11 witnesses and statement of accused/appellant was also recorded under Section 313 of the CrPC in which the appellant denied the charge leveled against him and pleaded his innocence and false implication in the case. 5. The learned trial Court on perusal of material evidence on record, committed the appellant for the offences under Sections 21(b) and 20(b(ii)(B) of N.D.P.S. Act sentence him as mentioned above, 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. He further contended that the judgment passed by the Learned Trial Court is bad in law, contrary to the facts and evidence on record, and suffers from incorrect appreciation of evidence, thereby rendering it unsustainable in the eyes of law. The impugned judgment of conviction and sentence is perverse and against the settled principles of criminal jurisprudence, as it is not based on any cogent or reliable evidence and is liable to be set aside. The mandatory provisions of the NDPS Act, including Sections 42, 50, 52, and 57, were not complied with during the search, seizure, and subsequent investigation, thereby vitiating the entire prosecution case. He further submits that the witnesses of Informer Information Panchnama Ex. P-02. Police party's search Panchnama Ex.P- 03, witness search Panchnama Ex.P-04, search of means of travel Ex.P- 4 05, clothes search Panchnama Ex.P-06, search Panchnama of goods in the possession of the suspect Ex.P-07, drug recovery Panchnama Ex.P- 08, again drug recovery Panchnama Ex.P-09, drug identification Panchnama Ex.P-10, Samras Parnchnama. Ex.P-11, verification of electronic weighing scale Ex.P-12. On being shown the weighing panchnama Ex.P-13, re-weighing panchnama Ex.P-14, seizure memo Ex.P-15, sample seal panchnama Ex.P-16, arrest memo Ex.P-17 and the 'Nazri' map Ex.P-18 had not supported the prosecution case and have turned hostile and also failed to confirm essential aspects of alleged recovery. The alleged Ganja was not recovered from the exclusive or conscious possession of the Appellant, and there is no direct or substantive evidence to show that the contraband was seized from the Appellant. The trial Court completely overlooked the fact that there is no direct evidence to prove that the alleged ganja was recovered from the possession or knowledge of the Appellant. The judgment of conviction is based on mere presumptions and surmises rather than conclusive proof. There is no unimpeachable evidence on record to establish the guilt of the Appellant beyond reasonable doubt, as required under criminal law. It is, therefore, respectfully prayed that the Court may kindly be pleased to allow this appeal and set-aside the impugned judgment of conviction and sentence dated 06.06.2025 and further be pleased to acquit the appellant from the charge. 7. On the other hand, learned counsel for the State supporting the impugned judgment would submit that the investigating officer at the time of 5 effecting search and seizure proceedings has 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. Learned State counsel would further submit that there are multiple previous antecedents of the appellant for the offence under IPC, Arms Act and NDPS Act which are registered in different police stations. 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. In order to examine the above facts and submissions/evidences, it would be appropriate to refer to the mandatory provisions of the NDPS Act. 10. 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. 11. Standing Order 1/89 Section-II, General Procedure For Sampling, Storage, Etc.- “Whereas the Central Government considers it necessary 6 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 constraints of proper storage space.” 12. 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 7 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, 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]. 13. In the case at hand, date of incident is of 04.01.2021 and, therefore, as per provision of Section 52A(2), (3) & (4) of the NDPS Act when any 8 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 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. 14. 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. 15. 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 9 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. 16. 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.” 10 17. 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:- “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 presence and participation but also came 11 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.” 18. 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 dismiss the same.” 19. Considering facts of case, submissions advanced by the learned counsel 12 for the parties, witnesses of search and seizure, quantity of contraband Charas which was seized in total quantity 335 Gm and Ganja which was also seized in total quantity 05 Kg (both are neither small quantity nor commercial quantity, it is an intermediate quantity) and 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) 20. The Report of Regional Forensic Science Laboratory which shows that the samples of seized articles have been found positive. 21. Considering the submission with regard to conviction of the appellant, this Court is of the view that 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 Sections 21(B) & 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. 22. 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 Sections 21(B) & 20(b)(ii)(B) of the NDPS Act, 1985 to the appellant is hereby affirmed/maintained. 23. Considering entire facts and circumstances of case, evidence available on 13 record, submissions of counsel for the respective parties, quantity of seized contraband, 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 10 years is on higher side. Accordingly, substantive jail sentence imposed upon appellant of 10 years is reduced to 04 years. However, sentence of fine awarded by trial Court is hereby affirmed/maintained. Ordered accordingly. 24. Accordingly, appeal is allowed in part and stands disposed of. 25. Record of case be sent back forthwith with a copy of this order for information and necessary action. Sd/- (Arvind Kumar Verma) Judge Vasant