1 2025:CGHC:59305 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 1727 of 2024 Malinder Singh S/o Late Chhatrapal Aged About 30 Years R/o Near Gurudwara, Sarswati Nagar, Raipur, District- Raipur, Chhattisgarh. ... Appellant versus State Of Chhattisgarh Through Sarswati Nagar, Raipur, District- Raipur, Chhattisgarh. --- Respondent ---------------------------------------------------------------------------------------- For Appellant : Mr. R.K. Jain, Advocate For Respondent-State : Mr. Ajit Singh, GA & Mr. Shubham Bajpayee, Panel Lawyer ----------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 05.12.2025 1. The appellant has filed the instant appeal under Section 415(2) of the BNSS questioning the judgment of conviction and order of sentence dated 03.09.2024 passed by the Special Judge (NDPS Act), Raipur, District Raipur (CG) in Criminal Case (NDPS) No.107/2024, whereby the appellant stands convicted and sentenced as under: Conviction Sentence In Default of Payment of Fine Under Section 22(C) of the Narcotic Drugs RI for 10 years and fine amount of Rs.1,00,000/- Additional RI for 02 years 2 and Psychotropic Substances Act, 1985 2. Case of the prosecution in brief is that on 26.11.2023, Assistant Sub- Inspector Umashankar Verma of Saraswati Nagar Police Station, Raipur received information from an informer that Malinder Singh and Prakash Tandi were illegally possessing psychotropic capsules for sale at Kukurbeda Trimurti Chowk and were looking for customers. After recording the said information in the daily register, constable number 1033 Bhagwat Damahe was sent to summon the witnesses and he appeared with witnesses Ashirwad Srivastava and Upendra Sahu and informer information panchnama was prepared in front of them and informer information report and informer information panchnama and panchnama regarding non-receipt of search warrant, report of reasons for search, report of receipt of information about the crime were sent to City Superintendent of Police, Azad Chowk, Raipur through constable number 1488 Nandkishore Sinha. Due to being on law and order duty, he would not be present on time and due to delay in his presence, there was full possibility of hiding the narcotic capsules somewhere else and creating chaos. Along with Constable No. 1033 Bhagwat Damahe, PRK 489 Gurudayal from Cyber Cell, PR 1781 Upendra Yadav, Patrolling Constable No. 1537 Dev Kumar Anchal and witnesses Ashirwad Srivastava and Upendra Sahu, they left in the government vehicle Tata 3 Sumo No. CG 03/6404 with the investigation kit. The prosecution's case is further that the place indicated by the informant reached Kukurbera near Trimurti Chowk, where two persons were found, who were surrounded and stopped and on being questioned, they told their names to be Malinder Singh and Prakash Tandi, after being informed of the informer's information in front of the witnesses, Assistant Sub Inspector Umashankar Verma got himself and the members of the police force and independent witnesses searched by the accused and the accused were made aware of the rights related to the search, on which they agreed to get themselves searched by the raiding officer, then when the accused were searched, on searching the yellow coloured carry bag kept in the hand of accused Malinder Singh, psychotropic substance TRAMDOL and 20 capsules with SPASMOTROXYVON & R PLUS written in red colour, each containing 24 capsules, totaling 480 capsules were recovered, which were opened and identified and on identification it was found to be psychotropic substance Tramadol capsules, an identification panchnama was prepared and the above mentioned items were recovered from the accused. The capsules were weighed by weighman Himanshu Sharma, to whom Constable Bhagwat Damahe had given notice and appeared with a digital weighing scale. Physical verification of the digital weighing scale was done in front of witnesses and on weighing, the weight of one capsule without wrapper was found to be 0.630 mg, total weight of 480 capsules of Tramadol was 302.400 grams, including the 4 leaf, weight was 378 grams, 1 leaf contained 24 capsules. 3. The sale proceeds of the psychotropic capsule Tramadol amounting to Rs. 1500 were recovered from the accused Prakash Tandi. On being questioned, the accused said that they had kept the above mentioned narcotic capsules with them for sale. When questioned about the amount, the accused Prakash Tandi said that it was the money received from selling the narcotic capsules. The prosecution's case is further that out of the seized narcotic capsules, one capsule was sealed along with the wrapper and the remaining 479 psychotropic Dicloamine Hydrochloride and Acetaminophen capsules Spasmo Proxyvon Plus (Tramadol) blue coloured capsules, the batch number of all the capsules is WAA3079, manufacturing date August 23, expiry date July 25, which were sealed separately. The act of the accused was prima facie found to be an offence under the NDPS Act, hence a crime was registered at the rural Naalisi on the spot and the accused were arrested and brought to Saraswati Nagar Police Station, Raipur and after registering crime number 323/2023 at Saraswati Nagar Police Station, Raipur, the charge sheet was presented in the court after complete investigation. 4. Charge sheet framed punishable under Section 22(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 against the accused persons and after reading it over to them and explaining it to them, they denied having committed the crime and their trial was conducted under 5 Section 313 of the Code of Criminal Procedure, he pleaded his innocence. 5. In this case, the prosecution has recorded the statements of 14 prosecution witnesses namely Ashirwad Srivastava (PW- 1), Dr. Pankaj Tamrakar (PW- 2), Umashankar Verma (PW- 3), Mrs. Neeru Srivastava (PW- 4), Kuldeep Pathak (PW- 5), Upendra Sahu (PW- 6), Upendra Kumar Yadav (PW- 7), Bhagwat Damahe (PW- 8), Devkumar Anchal (PW- 9), Nand Kishore Sinha (PW- 10), Himanshu Sharma (PW- 11), Gurudayal Singh (PW- 12), Usha Chhetri (PW- 13) and Lakhan Lal Patel (PW- 14) in support of its case, whereas the defence has not recorded the statement of any defence witness in the court in support of its case. 6. The learned trial Judge believes the prosecution evidence and convicting the appellant, hence present appeal. 7. Learned counsel appearing for the appellant contended that the trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellant. He further contended that learned Special Judge failed to consider the facts that the investigation officer not fulfills the mandatory provision of the N.D.P.S. Act. The witnesses of search and seizer independent witnesses P.W.-1 Ashirwad Shrivastive and P.W.-6 Upendra Sahu and witnesses of weight Panchanama P.W.- 11 Himansu Sharma are not support the case of prosecution, therefore the statement of investigation officer is not find 6 corroborate with the statement of independent witnesses. He further contended that the investigation officer not Comply with rules of search and seizure and sampling 2022 and the standing order 1/89 and not taken sample from the each packet. That according to prosecution 20 strip have been sized and investigation officer not taken sample from each strip. The investigation officer not comply with the provision of section 55 of the N.D.P.S. Act and not affix the seal of Station House officer, when it was brought in the police Station for keeping in the Malkhana. The sample of contraband not immediately sent to F.S.L. for chemical examination it was sent to F.S.L. on 22-12-2023 and delay in sending is not explained by the Investigation Officer. It is therefore prayed that this Court pleased be kind enough to allow this appeal and appellant is to be acquitted from the all charges. 8. 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. The 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 appeals being sans merits is liable to be dismissed 9. I have heard learned counsel appearing for the parties and perused the 7 record of the trial Court and other material available on record with utmost circumspection. 10. On careful perusal of the evidence adduced by the Investigating Officer (PW-03), it is clear that on the date of incident, he received information from an informant about the incident. The above information was recorded in Roznamcha Sanha and started procedure under the NDPS Act. After conducting due formalities under the NDPS Act, Investigating Officer reached the spot. During the search, 20 strip of narcotic capsules – Tramadol each strip containing 24 capsules were recovered from the possession of accused person. 11. As per seizure memo, without wrapper weight of the one capsule is 0.630 mg and total number of capsules recovered from the accused was 480, therefore, total quantity of the seized capsules without wrapper was 302.400 gm. However, as per the order dated 28.11.2023 passed by the Judicial Magistrate First Class, Raipur on weighing the seized material kept inside the carry bag, one capsule weighing 0.60 mg without wrapper and on strip weighing 19.04 gms with wrapper, total capsules 480 pieces, total weight 380.800 grams including wrapper were found. 12. On perusal of the seizure memo, it is evident that the trial Court has committed an error in calculation of the seized quantity. The weight of one capsule has been recorded as 0.630 mg, which is an unit expressed in 8 milligrams. Even if the said figure is taken at face value, multiplication of 0.630 mg × 480 capsules would not result in 302.400 grams as calculated by the trial Court. The conversion from milligrams to grams has been wrongly applied. In fact, 0.630 mg multiplied by 480 equals 302.400 mg, which is only 0.3024 grams, and not 302.400 grams. Thus, the trial Court has incorrectly treated milligrams as grams, leading to a grossly inflated computation of the seized quantity. Such a fundamental mathematical and unit-conversion error has materially affected the determination of the quantity and, consequently, the nature of the offence. Therefore, the calculation made by the trial Court is clearly erroneous and unsustainable in law. 13. It is evident that the recovered substance falls within the small quantity of Tramadol is 5 grams and commercial quantity is prescribed as 250 gram which is notified under Entry No. 238ZH, inserted vide S.O. 1762(E) dated 26.04.2018. Therefore, the trial Court in the matter of small quantity has wrongly convicted the Appellant for offence under Section 22(C) of the NDPS Act. Thus, in the opinion of this Court, learned trial Court fell into error in taking total quantity of Tramadol recovered from appellant as 302.400 gram and holding that offence under Section 22(C) of the NDPS Act is attracted. 14. In the given facts of the case and considering that the quantity of contraband seized is small quantity 302.400 mg., i.e., 0.3024 grams 9 (less than five gram), therefore, offence under Section 22(A) of the NDPS Act would be attracted against the appellant. It would meet the end of justice that if the conviction of the appellant under Section 22(C) of the NDPS Act is altered/converted to Section 22(A) of the NDPS Act. 15. Accordingly, conviction of the appellant under Section 22(C) of the NDPS Act is set aside, however, he is convicted under Section 22(A) of the NDPS Act and sentenced to undergo Rigorous Imprisonment for one year with fine amount of Rs.10,000/-. In default payment of fine amount, the appellant shall further undergo Rigorous Imprisonment for one month. 16. The appellant is stated to be in jail, he shall serve out the sentence as modified by this Court. 17. In the result, the instant criminal appeal is allowed in part to the extent indicated herein-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 appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so 10 advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Arvind Kumar Verma) Judge Vasant