1 2025:CGHC:59810 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1935 of 2024 Jafar Ali S/o Mushtak Aged About 25 Years R/o Boriyakhurd R.D.A. Colony, P.S. Tikrapara, Raipur, Dist. Raipur, C.G. ...Appellant versus State Of Chhattisgarh Through Officer-In-Chare Telibandha Raipur, District- Raipur, C.G. ---- Respondent For Appellant : Mr. Badruddin Khan, Advocate. For State : Mr. Vivek Sharma, PL. Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 09.12.2025 1. Challenge in this criminal appeal is to impugned judgment of conviction and sentence dated 31.01.2024 passed by learned Special Judge, (NDPS), Raipur, in Special Criminal (NDPS) No.106/2020, whereby the appellant stands convicted and sentence as under: Conviction Sentence 2 Under Section 21 (C) of the NDPS Act. Rigorous imprisonment for 10 years & fine of Rs.1,00,000/-, in default of payment of fine 06 months additional RI. 2. Case of prosecution, in brief, is that on 11.10.2020 one informant gave information to the Police of Telibandha Raipur that Jafar Ali and Pradeep Chimnani are having Narcotic drug in House No.16, Pradhanmantri Awas Block no-5, Labhandi Raipur. After receiving said information, the Police reached the alleged house and found that present appellant and Pradeep Chimnani were standing at the door of house, the Police gave notice for searching so they agreed for search and, as such, after taking search, the substance of Codeine Phosphate Triprolidine Hydro Chloride Syrup RC- Kuff 69 Bottle of 100 ml each was seized from the house. On the basis of seizure, appellant was arrested. After completion of other necessary formalities, the police returned to the Police Station and deposited the seized contraband in the Malkhana and lodged FIR against the appellant. 3. After completion of investigation, charge-sheet was filed and trial Court framed the charges against the appellants for offence under the Act of NDPS Act. 4. In order to prove guilt of appellant, prosecution examined total 11 witnesses and their statements were recorded. However, no defence witnesses was examined. Statement of appellant 3 (accused) was recorded under Section 313 CrPC in which he pleaded innocence and false implication. 5. After completion of trial, trial Court convicted and sentenced the appellant as mentioned in paragraph -1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court is illegal, perverse and contrary to the evidence available on record, hence liable to be set aside. Seizure witnesses (PW-1 and PW-2) have not supported prosecution case and declared to be hostile. Total 69 Bottle was seized (containing 6.90 liter), whereas trial Court has consider 10 liter, which is wrong calculation, as such, it is clear that Codeine Phosphate is only 10 mg in each bottle as per Exhibit -41. The seized Codeine Phosphate is less then commercial quantity, therefore, Section 20(B) of NDPS Act would be apply in place of Section 20(C) of NDPS Act. Investigating officer has not followed the procedure prescribed under the NDPS Act. The Malkhana Register was not produced by the prosecution and PW-8/Surendra Kumar Sahu (head constable of Malkhana) himself stated in para 7 of his cross examination that the article was sealed before him, as such, it is very clear that Ex.P-13 seized article was opened in front of PW-8 without following the prescribed procedure. There are major contradictions and omissions in statement of the IO, which cannot be relied upon. Trial Court has wrongly appreciated that the investigation has 4 been done properly and mandatory provisions of the NDPS Act have been complied with. The learned trial Court failed to appreciate that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. There are several discrepancies in the prosecution case which makes the custody of the seized articles and sampling extremely doubtful. As such, the criminal appeals deserve to be allowed and the impugned judgment deserve to be set aside. 7. 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 appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed 8. Heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 9. PW-11/B.M.Sahu, Sub-Inspector (Investigation Officer) in his evidence has stated that after completing the aforesaid entire proceedings, he returned to Police Station Telibandha, Raipur, alongwith accompanying staff, seized property, accused persons 5 and witnesses, return entry was duly recorded in the Rojnamcha Sanha vide Sanha No.72 dated 12.10.2020 at 03:00 hours, which has been exhibited as Exhibit P-38 and its copy is Exhibit P-38-C. Upon reaching the police station, he handed over the seized articles and samples recovered from the accused persons to the Malkhana In-charge for safe custody under a Supurdnama. The Malkhana In-charge received the seized property and issued a Supurdnama receipt to him, which has been exhibited as Exhibit P-39. He (PW-11) in his cross-examinatino has admitted that seal mentioned in clauses (A) to (A) of Exhibit P-46 is different from the seal mentioned in the seal panchnama (Exhibit P-13) and the seizure memo (Exhibit P-15). Seized articles were sent to the Drug Inspector for physical verification and during such verification, the Drug Inspector opened the exhibits, conducted physical examination, and, thereafter, resealed the same with his own official seal. In the draft of the Senior Superintendent of Police, both the seal specimen received from the Drug Inspector as also from police station were sent to the Forensic Science Laboratory, however, copies of the documents forwarded to the FSL alongwith the draft of the Senior Superintendent of Police have not been filed alongwith the charge-sheet in the present case. 10. PW-8/Surendra Kumar Sahu (Head Constable) in his evidence has stated that he was posted as Malmunshi at Telibandha. He further admitted that there is no entry in the Malkhana register regarding the person, who carried the sample on 13.10.2020. It is 6 correct to say that the particulars regarding the seal and shellac used in the case and their deposit in the Malkhana, are not recorded in Exhibit P-29. It is also correct to state that on 11.10.2020, six seized vials were sealed separately and sent for examination to the State Testing Laboratory, Food and Drug Administration, while the remaining sixty-three vials were kept in the Malkhana for safe custody, as mentioned in clauses (a) to (a) of Exhibit P-29. 11. PW-1/Milan Tolani and PW-2/Gaurav Narvani (Independent witnesses) have turned hostile and not supported the case of prosecution. 12. It is pertinent to mention here that on 11.10.2020, seized samples was send for Forensic Science Laboratory (FSL) examination by the Drugs Inspector, however, as per the prosecution and available document Ex.P-29/C, alleged contraband/substance has been seized from the appellant/accused on 12.10.2020, therefore, question arises that how it is possible that samples has been seized from the accused on 12.10.2020 at about 01 O’Clock. 13. It is also pertinent to mention herein that on 14.10.2020, Drugs Inspector has opened the seal of seized samples for physical verification and upon defined/mentioned the batch number of cough syrup, company name and composition, etc, re-affixed the seal and send the report, in which, seal of the Drugs Inspector is mentioned as ‘vkS”kf/k fujh{kd , [kkn~; ,oa vkS”kf/k iz’kklu , ftyk&jk;iqj ¼N-x-½ ’, However, in the alleged FSL report, seal 7 is mentioned as ‘DRUGS INSPECTOR, TCD, CG’. Hence, it is crystal clear that seal mentioned in clauses (A) to (A) of Exhibit P- 46 is different from the seal mentioned in the seal panchnama (Exhibit P-13) and the seizure memo (Exhibit P-15), therefore, there is complete non-compliance of mandatory provision of the NDPS Act. 14. For the foregoing discussion/observation, this Court is of the considered opinion that prosecution has failed to prove its case against the appellant beyond reasonable doubt and trial Court has committed grave legal error in convicting and sentencing the appellant for the aforementioned offence, hence, judgment impugned deserves to be set aside. 15. Accordingly, Criminal Appeal is allowed and the impugned judgment dated 31.01.2024 (Annexure P-1) is hereby set-aside. The appellant is acquitted of the charge under Section 21(C) of the NDPS Act. 16. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) Judge J/-