1 2025:CGHC:53643 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1885 of 2025 Shivprasad Sahu S/o Udaychand Sahu Aged About 25 Years R/o Village- Ranai, P.S. Patna, District Koriya C.G. ... Appellant versus State Of Chhattisgarh Through S.H.O. Police Station - Surajpur, District Surajpur C.G. ... Respondent(s) For Appellant : Mr. Pushkar Sinha, Advocate For Respondent(s) : Ms. Sunita Manikpur, Dy. G.A. Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 03/11/2025 1. Heard on I.A. No. 02/2025, application for condonation of delay. 2. On due consideration and for the reasons mentioned therein, I am inclined to allow I.A. No. 02/2025 and the delay of 76 days is hereby condoned. 2 3. With the consent of the parties, the present matter is heard finally. 4. This criminal appeal has been filed under Section 415 (2) of BNSS, 2023 by the appellant against the judgment of conviction and order of sentence dated 26.04.2025 passed by the learned Special Judge (N.D.P.S.) Act, Surajpur, District- Surajpur (C.G.), in Special Criminal Case No. 11/2019, whereby the appellant has been convicted and sentenced as follows:- Conviction Sentence U/s 21(B) of NDPS Act, 1985 R.I. for 5 years and fine of Rs. 25,000/-, in default of payment of fine, further R.I. for 2 months. 5. The prosecution case, in brief, is that, on 18/04/2019, In charge of Outpost Basdei received secret information from informant that one person is standing near Railway Station Shivprasad Nagar for selling psychotropic substance, upon received information Roj- namcha sanha has been prepared and thereafter police conduct the raid and recovered psychotropic substance spasmo proxyvon plus capsule 350 strips with 24 capsule in each strips totaling 8400 capsules, and 20 strips of Rexogesic injection, with 5 injec- tion in each strips, totaling 100 injections from the possession of appellant and thereafter appellant/ accused has been arrested and after investigation charge sheet has been filed against appel- lant/accused. After examination of witnesses and examining the materials available on record learned Court below held that the appellant/accused has committed the alleged crime and therefore 3 vide Judgment dated- 26.04.2025 passed in Special Criminal Case No.-11/2019, found that the appellant is guilty under section- 21 (B) of N.D.P.S. Act, and sentenced for five-year, Rigorous Im- prisonment and fine of Rs. 25,000/- and in default of payment of fine further Rigorous Imprisonment of Two Months Additional. 6. The learned Special Judge (NDPS) Durg (C.G.), after appreciating oral and documentary evidence available on record vide judgment dated 26.04.2025, convicted the appellant for the offence punish- able under Section 21(B) of the N.D.P.S. and sentenced him as mentioned in opening paragraph of this order. 7. The appellant was in jail from 18.04.2019 to 06.06.2019 (50 days) and from the date of judgment, i.e., from 26.04.2025 till date (about 6 months). 8. Learned counsel for the appellant would submit that the appellant is innocent person and has been falsely implicated in the afore- said case and the mandatory provisions have not been followed by the prosecution. He further argued that the Investigating Officer (PW-12) has admitted in his cross-examination that on the date of incident, he has reached at the spot at 1:00 pm. He further admit- ted that he has seized the contraband from the accused at 12:40 pm and arrested the accused at 12:50 p.m. Learned counsel for the appellant vehemently argued that when the Investigating Offi- cer has reached at the spot at 1:00 pm then how did he has men- tioned the seizure time as 12:40 pm in the seizure memo (Ex. P/ 8). The judgment of the Trial Court is bad in law as well as on 4 facts. The learned Trial Court ought not to have convicted and sentenced the appellant and ought to have given the benefit of doubt since the evidence submitted by the prosecution is very shaky and unbelievable. The Trial Court failed to appreciate the evidence and documents available on record. 9. Learned Panel Laywer appearing for the respondent/State, sub- mits that the Trial Court has rightly convicted and sentenced the appellant, in which no interference is called for. 10. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection. 11. From perusal of the judgment passed by the trial Court, it tran- spires that in para 30 of the judgment, the learned Trial Court has discussed that the time of arrival at he scene is mentioned as 1:00 pm in the spot map (Ex. P/10) while the time of seizure action is mentioned as 12:40 pm in the seizure memo. But without giving any reason, the learned Trial Court has arrived at the conclusion that the deposition of the Investigating Officer is credible. 12. In this case, it is crystal clear from the records that Investigating Officer (PW-12) has reached at the spot at 1:00 pm and has pre- pared a seizure memo wherein the time of seizure is mentioned as 12:40 pm. It is pertinent to mention here that the independent wit- nesses have turned hostile. 13. Section 42 of the NDPS Act, 1985 provides for Power of entry, search, seizure and arrest without warrant or authorisation. 5 This Section provides that when any officer receives any credible information regarding crime under the NDPS Act, he shall take down in writing, seize such article and if necessary, shall detain such person; and shall send a copy of his writing to the superior of- ficer within 72 hours mentioning the reasons for his act. 14. Thus, considering the entire facts and circumstances of the case particularly, the fact that the Investigation Officer has reached the spot at 1:00 pm and has prepared a seizure memo (Ex. P/8) wherein the time of seizure is mentioned as 12:40 pm, this Court is of the opinion that there are material contradictions in the proce- dure followed by the Investigating Officer. Therefore, in the above facts and circumstances of the case, offence under Section 21(B) of NDPS Act, 1985 would not be made out against the appellant. 15. The appeal is allowed accordingly. The judgment of conviction and order of sentence dated 26.04.2025 is hereby set aside. Ap- pellant stands acquitted of all the charges levelled against him. The appellant is reported to be in jail. He be released forthwith, if not required in any other case. 16. Keeping in view the provisions of Section 437-A of CrPC, the ap- pellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure of sum of Rs. 10,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the 6 aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court. 17. The Trial Court record (TCR) along with a copy of this judgment be sent back immediately to the trial court concerned for compli- ance and necessary action. 18. Let a copy of this order and the original records be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) JUDGE Madhurima