1 2025:CGHC:53635 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1393 of 2024 1 - Heeralal Nagesh S/o Raghumani Nagesh Aged About 53 Years R/o Ward No. 1, Dhaurakot, Police Station- Devbhog, District- Gariyaband (C.G.). 2 - Devkumar Gond S/o Puren Gond, Aged About 30 Years R/o Village- Nakti Simoda, Police Station- Raighar, District- Navrangpur ( Odisha). ... Appellants versus State of Chhattisgarh Through- The Station House Officer, Police Station, Borai, District- Dhamtari ( C.G.). ---- Respondent ----------------------------------------------------------------------------------------------- For Appellants : Mr. Goutam Khetrapal, Advocate For Respondent-State : Ms. Sunita Manikpuri, Dy. Govt. Advocate ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 03.11.2025 1. The appellants have filed the instant appeal under Section 415(2) of the BNSS, 2023 questioning the judgment of conviction and order of sentence dated 04.07.2024 (Annexure A-1) passed by the Special Judge (NDPS Act), Dhamtari, District Dhamtari (C.G.), in 2 Special Sessions Case (NDPS) No.22/2023, whereby the appellants have 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 05-05 years and fine amount of Rs.50,000-50,000/- Additional RI for 01-01 year 2. Case of the prosecution, in brief, is that on 15.10.2023, Incharge of Police Station, Borai namely Rajesh Jagat along with other police personnel were checking the vehicles near Borai Police Station, at that time, the police personnel stopped the motorcycle bearing registration no. CG-04-HQ-7920, in which, two persons were sitting and kept one plastic bag. Thereafter two independent witnesses namely Tarun Samrath and Ravindra Samrath were brought at the place of incident. It was also the case of the prosecution that the appellants were informed of the fact that if they so desire, they can get search in the presence of any gazette officer or Executive Magistrate. on having given the consent, search of the appellants was made and allegedly recovered 12.300 kg. cannabis from the possession of the appellants. 3. In order to prove the charge against the appellant (accused), 3 prosecution examined as many as 09 witnesses. Statement of 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. 4. 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. 5. Learned counsel appearing for the appellants contended that the learned trial Court has wrongly been convicted the appellants without any sufficient and clinching evidence available on record against the appellants. He further contended that the court below has failed to appreciate the evidence of witnesses and based its findings on presumption and inadmissible evidence. The learned trial court failed to consider the fact that the prosecution has failed to prove that the seized contraband was in conscious possession of the appellants. He further contended that the prosecution could not produce any witness or evidence against the appellants as required by law for conviction the appellants under the NDPS Act. Learned counsel further contended that prosecution has failed to adduce any cogent and reliable piece of evidence to prove the guilt of appellants. Without there being any sufficient, cogent and 4 clinching evidence/material available on record, therefore, conviction of appellant is not sustainable. 6. 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 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. 7. 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. 8. On perusal of the record, I have found that on the date of incident, Inspector Rajesh Jagat, posted at Borai Police Station, along with his staff, Head Constable No. 238 Saurabh Patel, Constable No. 445 Yuvraj Sahu, No. 821 Pradeep Dev, No. 762 Saurabh Sahu, and No. 27 Jitendra Korram, were stationed at the checkpoint in front of Borai Naka and were checking vehicles. During the checking, a red motorcycle bearing number CG 04/HQ/7920 arrived from Odisha and was stopped. Two persons were sitting on 5 it. On checking the vehicle on suspicion, a narcotic substance like Ganja was found inside a white colour plastic bag between the two persons sitting in the said vehicle. Constable No. 821 Pradeep Dev present on the spot was given a duty certificate and sent to bring two independent witnesses. He brought Tarun Samastha and Ravindra Samarth to the spot, who were given notice under Section 160 CrPC and were asked to cooperate in the proceedings (Ex.P.6). On questioning the persons travelling in the said vehicle, they told their names to be Hiralal Nagesh and Devkumar God. A panchnama was prepared on the spot regarding non-availability of search warrant (Ex.P.7). A consent panchnama was prepared regarding consent of the accused for the search (Ex.P.10 and 11). A search panchnama of the police party was prepared (Ex.P.2). A search panchnama was prepared after searching the vehicle of the accused (Ex.P.12). 9. Charge sheet was filed under the NDPS Act against the appellants. Under Section 42 of the NDPS Act, 1985 prescribed for power of entry, search, seizure and arrest without warrant or authorisation. 10. 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 6 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 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 7 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 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 8 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.” 11. On perusal of the record, it transpires that the Investigating Officer has complied with provision of Sections 42, 52-A (3) & 55 of the NDPS Act. 12. The Report of Regional Forensic Science Laboratory, Raipur, which shows that the samples of seized articles have been found positive. 13. Considering the submission with regard to sentence of the appellant, learned counsel for the appellant submits that there is 9 no previous antecedent against the appellant under the NDPS Act. 14.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. 15. 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. 16.Considering entire facts and circumstances of case, evidence available on record, submissions of counsel for the respective parties, quantity of seized contraband, 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 appellants by trial Court of five years is on higher side. Accordingly, substantive jail sentence imposed upon appellants of 05 years is reduced to 02 years. However, sentence of fine awarded by trial Court is hereby 10 affirmed. Order accordingly. 17.The appellants are reported to be in jail. They shall serve out the sentence as modified above. 18. 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 appellants are undergoing their jail sentence to serve the same on the appellants informing him that they are 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. 19. 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