1 / 13 2025:CGHC:56078 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 954 of 2025 Vikash Tiwari S/o Madhav Prasad Aged About 35 Years R/o Ward No. 9, Block Colony, Simga, P.S. Simga, Distt Baloda Bazar- Bhatapara (C.G.) --- Appellant versus State Of Chhattisgarh Through Station House Officer Police Station Dharsiva, District Raipur (C.G.) --- Respondent(s) CRA No. 907 of 2025 Tamradwaj Dhruw S/o Shri Narayan Dhruw Aged About 27 Years R/o Ward No. 07, Simga P.S. - Simga, Distt.- Baloda Bazar (C.G.) ---Appellant Versus State Of Chhattisgarh Through Police Station - Dharshiva, Distt.- Raipur (C.G.) ---- Respondent CRA No.954/2025 For Appellant : Mr. Aishwarya Kumar Dubey, Advocate. CRA No.907/2025 For Appellant : Mr. Pragalbha Sharma, Advocate with Ms. Laxmi Gupta, Advocate For State : Mr. Ajit Singh, GA with Mr. KK Bahrani, PL. 2 / 13 Hon'ble Shri Justice Arvind Kumar Verma Judgment On Board 18.11.2025 1. Challenge in these criminal appeal is to impugned judgment of conviction and sentence dated 01.04.2025 passed by learned Special Judge, (NDPS Act), Raipur, (CG) in Special Case No.177/2021, whereby the appellants stand convicted and sentence as under: Conviction Sentence Under Section 22(B) of the NDPS Act. Rigorous imprisonment for 07 years & fine of Rs.70,000/-, in default of payment of fine 02 years additional RI. 2. Case of prosecution is that on 08.10.2021, Paras Singh Thakur (Sub-Inspector) received secret information that near toll plaza located near village Devri, two persons are carrying intoxicant capsules in silver car bearing registration mark CG04-HA-0894 and are searching for customer to sell. On receiving such information, he summoned two independent witnesses namely Satyanaryan and Hemant Patel, witnesses were served with notice (Ex.P-1) under Section 160 of CrPC, they were made to understand with the secret information received. He recorded secret information vide Ex.P-34 in presence of the witnesses, sent intimation to senior officer and, thereafter, he alongwith other staff and aforementioned witnesses proceeded to the placed 3 / 13 communicated by the informer. When they reached at the spot, they found the car about which information was received parked and in which two persons were found siting. Said persons were encircled and apprehended. They introduced themselves as Vikas Tiwar (co-accused) and Tamradhwaj Dhruw (present appellant). They were served a notice and was made to understand about their legal right to be searched before a Magistrate or a Gazetted Officer. However, they refused to exercise said right and stated that police personnel could conduct their search. Before conducting search of accused persons, police party gave their personal search to accused persons vide Ex.P-4 and nothing incriminating was found in their possession. Thereafter, on personal search of accused persons before the witnesses, 12 strips (24 capsules in each strip) of Spas Trancan Plus were seized from each accused. Capsules recovered were narcotic substance and possessed by accused persons without license or permit for the purpose of selling. On weighing on an electronic machine, net weight of recovered capsules was found to be 357.12 gram. Accused persons were served with notice under Section 67 of NDPS Act to produce valid document for possessing narcotic tablets/capsule but they failed to justify the possession of aforesaid drugs. Capsules seized from accused persons were marked as A-1 and A-2. Accused persons were arrested and the reasons of their arrest were apprised to them. Spot map was prepared vide Ex.P-39. Seized property in sealed condition was 4 / 13 handed overto Head Constable of police station who had deposited the case property in Maalkhana and issued receipt thereof. FIR for the offence under Section 22(B) of NDPS was registered against accused persons and thereafter duly prepared report under Section 57 of NDPS Act was sent to the superior officer. Capsules were sent for FSL examination vide Ex.P-43 and report of chemical analyst, Ex.P-30, shows that capsules contain tramadol hydrochloride which is a psychotropic substance notified in terms of Notification No.S.O.1761(E) dated 26.04.2018 issued by the Central Government. He has recorded statement of witnesses as stated by them. 3. After completion of investigation, charge-sheet/challan was filed against the appellants and based upon which trial Court framed the charges against them under Section 22(B) of the NDPS Act, 1985. 4. The prosecution has examined 12 witnesses in order to prove the inextricable involvement of the appellants in the commission of offnece punishable under Section 20(B) of NDPS. Out of 12 witnesses, the witnesses of seizure and weighment have turned hostile. Therefore, the entire case of the prosecution clinches on the deposition adduced by Paras Singh Thakur (PW-12), Investigating Officer as well as other police personnel. Statement of appellants (accused) were recorded under Section 313 CrPC in which they pleaded innocence and false implication. However, no defence witnesses was examined. 5 / 13 5. After completion of trial, trial Court convicted and sentenced the appellants as mentioned in paragraph -1 of this judgment. Hence, this appeal. 6. Learned counsel for the appellants submits that the impugned judgment passed by the learned trial Court is illegal, perverse and contrary to the evidence available on record. The prosecution has failed to prove that the seized contraband was in conscious possession of the appellants. The independent witnesses of seizure and memorandum have turned hostile and they have not supported the case of prosecution. The entire proceeding was conducted in absence of the any Gazette Officer, therefore, the entire investigation is itself vitiated. The medicines seized from the accused are not come within the definition of the Narcotic Drugs or Psychotropic Substances. Prosecution could not produce any reliable witness or evidence against the appellant as required by law. Learned Counsel further contended that weighing/ Tolkarta witness has been examined as P.W. -4 and he has clearly stated that no such contraband/narcotics article was weighted before him. There is clear discrepancies about the weight in capsules in sampling. So whole prosecution story is doubtful the whole prosecution case found to be untruth worthy. The evidence of the P.W. 12 not at all trustworthy wherein he accepts that the Informants tip was not entered into in Roznamcha and Indraz. There are major contradictions and omissions in the statements of the prosecution witnesses, which 6 / 13 are not considered properly by the trial Court. There is complete non-compliance of the mandatory provisions of the NDPS Act as the procedure prescribed therein was not followed by the prosecution during investigation, drawing the samples and seizing the alleged narcotic substance. 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 appellants which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed. Alternatively, it is argued that if the Court finds that alleged offence/crime has been committed by the appellants, then considering the age and detention period of the appellants, the fact that they are not having any previous criminal incident, the sentence awarded to appellants be reduced to the period already undergone by them. 8. Heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment. 7 / 13 9. On careful perusal of the evidence adduced by the Investigating Officer (PW-12) it is clear that the raid was carried out on 8.10.2021 and on search of appellants being carried out by raiding party, he was found in possession of 12 strips of Spas Trancan plus Capsule. He further deposed in his testimony that as appellants were not having necessary permit/license to keep the contraband article with them, he was informed that he can be searched before a gazetted officer or a Magistrate but they refused and, therefore, seizure panchnama was drawn in presence of witnesses. He has narrated as to in what manner the muddamal article which was recovered from appellants was weighed in the presence of panch witness. After weighing muddamal article, the sealing procedure was done in the presence of panch witness. Panchnama with regard to the seizure and sealing procedure was done in the presence of panch witnesses. On the basis of seizure, accused persons were arrested vide Ex.P-20 and Ex.P-21. After completion of other necessary formalities, PW-12 along with police stafff returned to the Police Station, handed over the seized property in sealed condition to Maalkhana Moharrir for keeping it in safe custody. Maalkhana Moharrir had issued receipt Ex.P-26 of deposit of seized articles. Thereafter, PW-12 lodged FIR against accused persons. Seized contraband was sent to FSL for analysis vide memo Ex.P-43 and the report received from FSL is Ex.P-30. He recorded the statement of witnesses. Report under Section 57 of NDPS Act was prepared and sent to the superior officer. 8 / 13 10. Ramnayaran Verma (PW-8) was posted as Maalkhana Moharrir at the relevant point of time. According to this witness, the articles recovered during investigation were handed over to him for keeping it safely in Maalkhana and an entry to this efffect was made by him in the register at Sr. No.52, which is Ex.P-27C. He has also issued receipt of deposit of seized articles in the Maalkhana of police station vide Ex.P-26. According to him, out of capsules deposited in Maalkhana, he had given 24 capsules to the Constable for examination at FSL Raipur and entry in this regard was made in the register (Ex.P-27). 11. Ishwar Prasad Verma (PW-3) and Shiv Kumar Verma (PW-4) is the police personnel who were examined to prove the compliance of Section 42 of the NDPS Act. Both these witness have stated about receipt of information through a Constable regarding proceeding under the NDPS Act and in turn, they forwarded the same to the City Superintendent of Police. 12. On perusal of Ex.P-30, chemical analysis report received from Drug Testing Laboratory, Raipur it is apparent that on chemical examination, in the capsules seized from possession of appellants 45.0 mg tramadol hydrochloride was found, which is a psychotropic substance notified in terms of Notification No.S.O.1761(E) dated 26.04.2018 issued by the Central Government. 13. Dr. Vinod Kumar Verma (PW-7) has deposed that he worked as a Government Analyst. On 11.10.2021 two sealed packets pertaining 9 / 13 to Crime No.556/2021, marked as A-1 and A-2, were deposited by Constable of Police Station Dharsiva, receipt whereof was issued vide Ex.P-29. After opening the sample pakcet of A-1, it was found that it is containing 12 sky-blue colour Spas-Trancan plus capsules. Upon chemical analysis, the capsule was found to contain ‘Tramadol Hydrochloride’. His report is Ex.P-30. 14. Though the accused/appellants in their statements under Section 313 Cr.P.C. denied the allegations against them and stated that they have been falsely implicated but they have not stated anything as to why a false case has been foisted against them. Nothing has come out from the cross-examination of the prosecution witnesses to show that there could be any motive for them to falsely implicate appellants for this offence. No plausible or reasonable explanation has been offered by accused/appellants in their statement recorded under 313 CrPC for his false implication. So, there could be hardly any reason to foist recovery of contraband, capsules, on her falsely. 15. Both the seizure witnesses as also witness of weighment though turned hostile and not supported the prosecution case, but they admitted their signature on seizure memos etc. prepared during course of investigation. The seizure witness turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act. Even otherwise, if the evidence of the investigating officer (PW-12), as discussed above, is seen, it is evident that after receipt of secret 10 / 13 information, he reached the spot and completed all mandatory proceedings as contemplated under the NDPS Act. This witness has consistently deposed in the Court about the entire proceedings conducted against the appellants, like receipt of secret information, calling of witnesses, search of police party as well as the appellant after obtaining his consent, recovery of contraband from the appellants, its weighment and sending information to the superior officer etc. 16. In this view of the matter and keeping in mind that illegal/prohibited drugs was recovered from the possession of the appellants and they had not offered any explanation in this regard, in the considered opinion of this Court, the prosecution has been able to establish beyond doubt that both the appellants were possessing contraband substance in violation of Section 18 of the NDPS Act and, therefore, each appellant is liable for their individual act of possessing the contraband illegally. 17. As per allegations, appellants were apprehended by the police party and recovery of 12 strips, each containing 24 capsules of Span Trancan Plus, was effected from each appellant. As per FSL report (Ex.P-30), each capsule recovered from appellants contained Tramadol Hydrochloride. Learned trial Court taking into consideration the weight of each capsule mentioned in seizure memo Ex.P-30 to be “0.62 gram’ convicted and sentenced the appellants for the offence under Section 22(B) of NDPS for being in illegal possession of total 357.12 gram (0.62 x 576) of narcotic 11 / 13 capsules. However, a glance of weighment memo (Ex.P-13) would show that two different weights of capsule is mentioned in said memo. At one place, it is mentioned as “0.62 g’ and at another it is mentioned as “0.62 mg’. It can also be seen that in memo Ex.P-13 at the place where weight is mentioned as “0.62 g”, there is correction by use of ink in respect of metric unit and it is appearing that the word “m” is scored and struck off specifically. In Para-27 of cross-examination, Investigating Officer (PW-12) has also admitted that due to mistake, he had mentioned the weight of one capsule as ‘gram’ in place of ‘miligram’. On 09.10.2021, the Inspector, Station Incharge, Dharsawa Police Station, Raipur, (C.G.) written letter to the Director, Drugs Inspector, Office of District Raipur regarding seeking investigation report of seized medicine. Relevant portion of letter dated 09.10.2021 (Ex.P-43) reads as under: “………... तलाशी लाने पर 12 पቈኋ ्ቚत्येक ेሰ 24 नेग क प्सूला SPAS & TRANCAN PLUS & Dicyclomine Hydrocloride, Tramadol Hydrocloride & Acetaminophen capsules लिलाखा हुआ क प्सूला मिेሰला तथा सूदेही त्቞ध्वज ቗኎$व क पट क& तलाशी लाने पर 12 पቈኋ ्ቚत्येक पቈኋ ेሰ 24 नेग क प्सूला SPAS & TRANCAN PLUS & Dicyclomine Hydrocloride. Tramadol Hydrocloride & Acetaminophen capsules लिलाखा हुआ ज$ेሰला 24 पቈኋ ्ቚत्येक पቈኋ ेሰ 24 नेग क प्सू$ला क$ ला 576 नेग क प्सूला नेशीला मिेሰला जिजसूक पहीचाने नेशीला एव अवध क प्सूला क रूप ेሰ किकये गये। धरसूव क ቤኋपर ऋकि1 पटला सू इलाक्቏ኋकिनेक त5ला ेሰशीने ेሰगव कर त5ला ेሰशीने क सूत्येपने किकये गये। बादे सूही ही7ने पर आर7किपये8 सू मिेሰला क प्सूला क वजने करये गये जिजसूेሰ सू एक पቈኋ क ्ቚत्येक क प्सूला 0.62 mg वजने पये गये। क$ ला 24 पቈኋ ेሰ 12 / 13 मिेሰला 576 नेग क प्सूला क क$ ला वजने 357.12 mg ही7ने पये गये। ……….… " 18. Dr. Vinod Kumar Verma (PW-7), Chemical Analyst, has also deposed that there is difference in the weight of capsule measured by him and PW-12. Thus, it is clear that weight of each capsule seized was 0.62 mg and as such, total weight of 576 capsules recovered from possession of appellants would be 357.12 mg and not 357.12 gram, as held by learned trial Court. Meaning thereby, total quantity of Tramadol Hydrochloride, which is a psychotropic substance notified in terms of Notification No.S.O.1761(E) dated 26.04.2018 issued by the Central Government, seized from possession of appellants is less 1 gm, which comes within the smaller quantity as prescribed under the NDPS Act. As notified in the NDPS Act, for small quantity and commercial quantity ‘Tramadol Hydrochloride’ have been figured in Serial No. 238 ZH, from which, 5gm is the small quantity and 250gm is the commercial quantity. Thus, in the opinion of this Court, learned trial Court fell into error in taking total quantity of Tramadol Hydrochloride recovered from appellants as 357.12 gram and holding that offence under Section 22 (b) of the NDPS Act is attracted. Total quantity of contraband is 357.12 mili gram. In the given facts of the case and considering that the quantity of contraband seized from the appellants is within the smaller quantity, the offence under Section 22 (a) of the NDPS Act would be attracted against the applicants for being in possession of 13 / 13 contraband of small quantity and not under Section 22(b) of NDPS Act. 19. Accordingly, the appeals are allowed in part. Conviction of appellants under Section 22(b) of NDPS Act is converted into Section 22 (a) of NDPS Act and each of them is sentenced to undergo RI for 1 year and to pay fine of Rs.10,000/-, in default to undergo RI for 06 months. 20. 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/-