1 2025:CGHC:58839 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR CRA No. 885 of 2025 1. Mohammad Shakib Khan S/o Mohammad Shabbir Khan Aged About 21 Years R/o Jankipuram, District Lucknow, Uttar Pradesh 2. Mohammad Dilshad Khan S/o Shabit Ali Aged About 23 Years R/o Sonbarsa Kohdaur, Police Station Kohdaur, District Pratapgarh, Uttar Pradesh ... Appellants versus State Of Chhattisgarh Through Station House Officer, Police Station, Purur, District Balod, Chhattisgarh. ---- Respondent ----------------------------------------------------------------------------------------------- For Appellants : Mr. Rakesh Kumar Jha & Mr. Priyanshu Ojha, Advocates For Respondent-State : Mr. Ajit Singh, Govt. Advocate ----------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 04.12.2025 1. With the consent of counsel for the parties, the matter is heard finally. 2. The appellants have filed the instant appeal under Section 415 (2) of the BNSS, 2023 questioning the judgment of conviction and sentence dated VASANT KUMAR Digitally signed by VASANT KUMAR Date: 2025.12.05 12:18:16 +0530 2 08.04.2025 passed by the Special Sessions Judge, Balod, District Balod (C.G.) in Special Sessions Case No.88/2023, 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 06-06 years and fine amount of Rs.25,000- 25,000/- Additional RI for 06-06 months 3. Case of the prosecution, in brief, is that on 25.09.2023 there was a tip which was received by the prosecution through mukhbir that in the jurisdiction of the Respondents at Gram Rani Durgawati Chowk, Tirha, the Appellants in the TVS Jupiter being vehicle No.CG 17 KR 7098 were taking 8 Kgs of Ganja was in possession of the Appellants which was in Red Black bag which was being taken by the Appellants from the way of Kondagao to Keshkal, Kanker were going to Raipur and thereafter, after informing the senior official action were taken by the prosecution and thereafter, after due procedure First Information Report was registered against the Appellants on 25.09.2023 at 11.46 PM. Thereafter on 03.11.2023, final report was filed before the learned Court and thereafter charges were framed against the present Appellants on 23.01.2024. 4. In order to prove the charge against the appellants (accused), prosecution examined as many as 10 witnesses. Statement of appellants was recorded under Section 313 of CrPC in which they pleaded innocence and false 3 implication. However, no defence witness was examined by the appellant. 5. 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. 6. Learned counsel appearing for the appellants contended that the learned trial Court has wrongly been convicted the appellant without any sufficient and clinching evidence available on record against the appellants. He further contended that the Trial Court has brushed aside the case of the Appellants that there is a sheer non compliance of the Section 42(2) of the NDPS Act wherein from the Statements of the PW-3 and PW 9 there is material contradiction which particularly states about the event and time difference and there was a procedural lapse over the same incident. The Hon'ble Supreme Court in the case of Abdul Rashid Ibrahim Mansuri vs. State of Gujrat, reported in (2000) 2 SCC 513, a three Judge Bench has held that compliance of Section 42 of the NDPS Act, 1985 is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. And in the instant case, the case of the prosecution has not been proved beyond reasonable doubt as there is material inconsistencies in the statement of the PW-3 and PW- 9 whereas 4 the information in writing was given to the senior official (SDOP) before 2 hourts whereas the information was received by the prosecution i.e. 3 PM which smacks the case of the prosecution. He further submits that the Trial Court ought to have seen that there is a sheer non-compliance of the Section 57 of the NDPS Act, whereas from the Exhibit P-37 it could be seen that the report is made on 26.09.2023 and the receiving which is given in the report itself is of 25.09.2023 one day before the report is made, which itself casts a doubt about the case of the prosecution. The trial court failed to appreciate the Standing Order No. 1/89 dated 13th June, 1989 which has been framed by the Government of India in exercise of powers conferred by sub-section(1) of Section 52A of the NDPS Act 1985 with regard to the general procedure for sampling and Section 2 of the Standing Order which deals with the general procedure for sampling, storage etc. He further submits that as per Standing Order, Clause 2.4, in case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in the case of seizure of more than one package/container. In the present case, there are 2 packets as reflected from identification panchnama of contraband article ganja, therefore, the prosecution should have taken sample in duplicate from each packages whereas in the present case after mixing the entire contraband ganja, they have prepared the sample. Learned counsel further contended that prosecution has failed to 5 adduce any cogent and reliable piece of evidence to prove the guilt of appellants. Without there being any sufficient, cogent and clinching evidence/material available on record, therefore, conviction of appellants is not sustainable. 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. 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. 9. On perusal of the record, I have found that on 25.09.2023, the Assistant Sub-Inspector received information through mobile phone from an informant that a blue coloured TVS Jupiter Scooty bearing registration number CG 17 KR 7089 in which two persons are sitting, a red and black coloured bag is kept between the driver and the pillion rider in which illegal drug ganja is kept, and is going from Kondagaon towards Raipur via Keshkal, Kanker. Based on the informant's information, the senior 6 officers of the police station and the section were informed by recording the information in the daily diary. 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 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 7 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 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 8 (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 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 FSL Report which shows that the samples of seized articles have been found positive vide its report exhibited as Ex.P/46. Therefore, in considered opinion of this Court, the trial Court has rightly convicted the 9 appellants for the offence punishable under Section 20(b)(ii)(B) of the NDPS Act. I do not find any illegality and infirmity in the findings recorded by the trial Court with regard to the conviction part. 13. Considering the submission with regard to sentence of the appellants, learned counsel for the appellants submits that there is no previous antecedent against the appellants under the NDPS Act and the learned State Counsel has also affirmed this aspect. 14. In view of evidence available on record, I am of the view that trial Court has not committed any error in finding that the appellant committed an offence punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985. 15.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 appellants 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. 16. Thus, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubts against the appellants. The conviction as awarded by the trial Court under Section 20(b)(ii)(B) of the NDPS Act, 1985 to the appellants is hereby affirmed/maintained. 10 17.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 appellants, period since appellant is facing mental trauma and agony of pendency of criminal case. Further considering the fact that the appellants are in jail from almost 11 months, I am of the view that sentence imposed upon appellants by trial Court of six years is on higher side. Accordingly, substantive jail sentence imposed upon appellants of six years is reduced to one year. However, sentence of fine awarded by trial Court is hereby affirmed. Ordered accordingly. 18.Accordingly, appeal is allowed in part and stands disposed of. Sd/- (Arvind Kumar Verma) Judge Vasant