1 2025:CGHC:58760-DB The date when the judgment is reserved The date when the judgment is pronounced The date when the judgment is uploaded on the website Operative Full 15.09.2025 04.12.2025 -- .12.2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on: 15.09.2025 Judgment delivered on: 04.12.2025 CRA No. 102 of 2019 1 - Dharmendra Vishwakarma, S/o Vijay Kumar, Aged About 24 Years, R/o Banti Nagar, P. S. Vidisha, District Vidisha M. P. 2 - Bhagwan Singh Sahu, S/o Khilawan Singh, Aged About 30 Years, R/o Village Karaiyakheda, P.S. and District Vidisha M. P. --- Appellants versus 1 - State of Chhattisgarh Through: Police Station Kanker, District North Bastar Kanker Chhattisgarh. --- Respondent(s) 2 With CRA No. 134 of 2019 1 - Jai Singh Suryavanshi, S/o Devja Suryavanshi, Aged About 29 Years, R/o Village Rosalla Thana Dehat, District Vidhisha Madhya Pradesh. ---Appellant Versus 1 - The State of Chhattisgarh Through Police Station Kanker, District Uttar Bastar Kanker Chhattisgarh. --- Respondent(s) For Appellants : Mr. R.K. Jain along with Ms. Kiran Jain, Advocate in CRA No. 102 of 2019 Mr. Parag Kotecha, Advocate in CRA No. 134 of 2019 For Respondent(s)/ State : Mr. Afroz Khan, Panel Lawyer Hon'ble Smt. Justice Rajani Dubey Hon’ble Shri Justice Amitendra Kishore Prasad CAV Judgment Per Rajani Dubey, Judge 1. Both appeals arise out of the same impugned judgment hence, they are heard conjointly and are adjudicated through this common judgment. 3 2. These appeals under Section 374(2) of Cr.P.C. have been filed by the appellants against the judgment of conviction and order of sentence dated 09.01.2019 passed by learned Special Judge (NDPS Act) North Bastar, Kanker (C.G.) in Special (NDPS Act) Case No.51/2017 whereby, the trial Court convicted the appellants and sentenced them as under:- Conviction Sentence U/s 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act, 1985 Rigorous imprisonment for 15 years and fine of Rs.1,00,000/- in default of payment of fine amount, to undergo additional RI for 3 years (each of the appellants) 3. According to the prosecution, on the night of 19.08.2017, a police team led by Sub-Inspector Sandeep Kumar of Police Station Kanker was conducting vehicle checking at a check post near the Doodh River bridge. At around midnight, a Bolero vehicle bearing registration No. MP-40 T-0501, coming from Keshkal, was stopped. On inspection, the police detected the smell of ganja emanating from the vehicle. The four occupants—Jaisingh Suryavanshi, Ankesh Ahirwar, Dharmendra Vishwakarma and Bhagwan Singh Sahu failed to give a satisfactory explanation regarding their travel. The SDOP, Kanker was informed and instructed further action. 4 After serving notices to the accused and obtaining their consent for personal search, the police, in the presence of independent witnesses Ritesh Mishra and Ashok Ramani, searched the vehicle. From a concealed cavity created by welding an iron plate on the roof, the police recovered 45 brown- coloured packets containing a substance which, upon smelling and burning, was identified as ganja. After obtaining an electronic weighing scale, the contraband was weighed and found to be 73 kg, packed in four sacks. The accused could not produce any valid documents when notice under Section 91 Cr.P.C. was issued. Four samples of 50 grams each, marked A-1 to A-4, were drawn, sealed, and a sample-seal panchnama was prepared. Various documents, including photocopies of driving licences, Aadhaar cards, voter IDs, SIM cards, RC book, and ₹1,110 cash, were seized from the vehicle. The contraband, sample packets and the vehicle were seized vide Ex. P/25, and the accused were arrested. An FIR bearing Crime No. 267/2017 was registered for the offence under Section 20(b) of the NDPS Act. The seized samples were sent to the FSL, Raipur, where they tested positive for ganja vide FSL Report Ex. P/42. Upon completion of investigation, a charge sheet was filed on 16.11.2017 for the offence under Section 20(b) of the NDPS Act, 1985 against the accused persons. The learned trial Court framed charges under Section 20 (b) (ii) (C) of the 5 NDPS Act, to which appellants abjured their guilt and prayed for trial. 4. In order to prove the charges against the accused/appellants, the prosecution examined 10 witnesses. The statements of the accused/appellants were recorded under Section 313 Cr.P.C., wherein they denied all incriminating circumstances put to them and claimed innocence, alleging false implication. The accused, however, did not lead any defence evidence. 5. After evaluating the oral and documentary evidence on record, the learned trial Court by judgment dated 09.01.2019 held the prosecution case to be credible and reliable and accordingly convicted and sentenced the appellants, as detailed in paragraph 1 of this judgment. Hence, this appeal. 6. In CRA No. 102 of 2019 - Learned counsel for the appellant submits that the learned Special Judge committed serious error in appreciating the evidence and facts, resulting in an erroneous finding of guilt against the appellants. Mandatory provisions of the NDPS Act were not complied with by the Investigating Officer. Independent witnesses to search and seizure Ritesh Mishra (PW- 5) and Ashok Ramani (PW-6) did not support the prosecution case. Although they admitted their signatures on the seizure, search and weight panchanamas, they did not corroborate the prosecution version. Their testimonies contradict that of the Investigating Officer. 6 He further submitted that another independent witness Latif Memon (PW-3), who allegedly weighed the contraband, also did not support the prosecution, though he admitted his signatures on the documents. The prosecution has not established conscious possession or knowledge of the appellants. Four persons were travelling in the vehicle, yet there is no evidence showing the appellants’ intention or knowledge regarding transportation of the contraband. Compliance of Section 57 of the NDPS Act is doubtful. Sandeep Kumar (PW-7) admitted he could not state to whom the report under Section 57 of the Act was sent, nor was any Rojnamcha Sanha prepared. Hanumant Jain (PW-1) and Abhishek Dubey (PW-2) have given inconsistent statements regarding receipt of report of the Section 57 of Act. Hence, mandatory procedural compliance is not proved. Proceedings were not conducted at the spot but at the police station, and mandatory provisions under Sections 42(1) and 50 of the NDPS Act were not complied with, vitiating the search and seizure. There are contradictions regarding the dispatch and deposit of samples. Statement of Saroj Mandavi (PW-9) regarding deposit of samples in FSL contradicts the Rojnamcha Sanha (Ex. P/51) and the FSL receipt (Ex. P/42), creating a possibility of tampering. The prosecution has failed to prove its case beyond reasonable doubt, and therefore the conviction is unsustainable and liable to be set aside. 7 7. In CRA No. 134 of 2019 - Learned counsel for the appellant submits that the prosecution story is wholly unreliable and without any legal foundation, yet the learned trial Court convicted the appellant without proper appreciation of evidence. The conviction is based on erroneous findings, ignoring the defence that the appellant has been falsely implicated due to previous enmity. The prosecution witnesses, on close scrutiny of their court evidence and statements under Section 161 Cr.P.C., do not inspire confidence. Their testimony suffers from material omissions, discrepancies, and contradictions, rendering the conviction unsustainable. He further submits that mandatory legal provisions were not complied with and the essential ingredients of the alleged offence were not made out. The learned trial Court without proper application of mind, and without examining the evidence in its true perspective, passed the conviction solely on evidence which lacks reliability. The independent witnesses have not supported the prosecution case. There is complete non-compliance of Sections 42, 50, 52, 55 and 57 of the NDPS Act, which vitiates the entire prosecution. The conduct of the police officials attracts action under Section 58 of the NDPS Act, given the illegalities committed during investigation. The serious omissions and contradictions between the statements under Section 161 Cr.P.C. and the evidence before the Court raise grave doubt about the prosecution version. No substantive evidence exists to prove the 8 prosecution case and independent witnesses have turned hostile, further weakening the prosecution. It is further submitted that it is settled law that suspicion, howsoever strong, cannot take the place of proof, and where doubt exists, benefit must go to the accused. Even if the evidence is taken as it stands, no offence is made out against the appellant, yet the learned trial Court convicted him by complete non-application of mind and misuse of the process of law. The prosecution completely failed to prove motive, and the complainant, due to previous enmity, lodged a false and concocted report. The learned trial Court ought to have considered extending the benefit of doubt or the Probation of Offenders Act, but failed to do so. In these circumstances, the impugned judgment of conviction be set aside in the interest of justice. 8. Reliance has been placed on the decisions of the Hon’ble Supreme Court in Mohammad Khalid & Another v. State of Telangana (CRA Nos. 1610 and 1611 of 2023, decided on 01.03.2024), Surepally Srinivas v. State of Andhra Pradesh (now State of Telangana); 2025 INSC 414 and Yusuf @ Asif v. State; 2023 SCC OnLine SC 1328 as well as on this Court’s judgment dated 02.01.2024 passed in CRA Nos. 718 of 2022 and 1310 of 2023 in Bhupendra Singh @ Rana v. State of Chhattisgarh and Hardeep Singh @ Sandeep v. State of Chhattisgarh respectively. 9 9. On the other hand, learned State counsel submits that the impugned judgment is well-reasoned and calls for no interference. The prosecution has duly proved the recovery of contraband from the conscious and joint possession of the accused, supported by the testimonies of official witnesses whose evidence cannot be discarded merely because independent witnesses turned hostile. Minor discrepancies do not affect the core of the prosecution case. Mandatory provisions of the NDPS Act were substantially complied with. The chain of custody of the seized articles remained intact and the FSL report corroborates the recovery. The learned trial Court has rightly appreciated the material on record and recorded a lawful conviction. Thus, the appeals lack merit and are liable to be dismissed. 10. Heard counsel for the parties and perused the material available on record. 11. It is evident from the record that the learned trial Court framed charge against the appellants for the offence under Section 20 (b) (ii) (C) of the NDPS Act, 1985 read with Section 34 of the IPC and upon consideration of the oral and documentary evidence reaffirmed the charge under Section 20 (b) (ii) (C) of the NDPS Act. 10 12. According to the prosecution, the appellants/accused were found in possession of 73 kg of cannabis which exceeds the commercial quantity. 13. Latif Memon (P.W. 3), Ritesh Mishra (P.W. 5), and Ashok Ramani (P.W. 6), being independent witnesses to the search and seizure proceedings, merely acknowledged their signatures on the relevant documents. They did not provide any substantive testimony regarding the contents or circumstances of the search and seizure. 14. Latif Memon (P.W.-3) admitted his signatures from A to A part of notice (Ex.P/4) as well as on weighing scale verification panchnama (Ex.P/5). He further admitted his signatures from A to A part of the weighing panchnama (Ex.P/6), the weight panchnama of empty pouch (Ex.P/7) and the Ganja sample panchnama (Ex.P/8). 15. Ritesh Mishra (P.W.-5) and Ashok Ramani (P.W.-6) are the search and seizure witnesses. Ritesh Mishra (P.W.-5) admitted his signature on A to A part of Ex.P/12 to Ex.P/28 and B to B part of Ex.P/5 to Ex.P/8. Likewise, Ashok Ramani (P.W.-6) admitted his signature on A to A part of Ex.P/30, B to B part of Ex.P/13 to Ex.P/28 and C to C part of Ex.P/5 to Ex.P/8. 16. They both stated that the police had not seized the ganja in their presence. Prosecution declared them hostile and cross-examined them then they denied all suggestions of the prosecution. 11 17. Abhishek Dubey (P.W.-2) stated that Sub-Inspector Sandeep Bajare had given him a duty certificate and a written complaint to be submitted at the SDOP office at about 01:00–01:15 a.m. He further deposed that he thereafter proceeded to the SDOP office at Kanker and, since it was night, contacted the SDOP reader on his mobile phone. According to him, the SDOP reader arrived at the office and issued an acknowledgment for the written complaint at about 01:30 a.m. He stated that after receiving the acknowledgment, he returned to the Kanker police station and submitted his submission report on the reverse side of the duty certificate issued to him. The duty certificate is Ex.P/3. In his cross-examination, he admitted that he had not mentioned the date and time at which he had submitted the receipt report relating to Ex.P/3 at the police station. 18. In his examination-in-chief, Sandeep Kumar (P.W.-7) stated that while checking vehicles, he had stopped the vehicle of the accused persons and upon detecting the smell of ganja, he questioned them. He further deposed that on account of suspicion, the accused and the vehicle were taken to the police station for verification, and the SDOP, Kanker was informed over the phone. He stated that notices were thereafter issued to the witnesses. Information regarding the suspected presence of ganja in the vehicle was prepared vide Ex.P/13, and a report for forwarding this information to the SDOP was prepared vide Ex.P/1. He also stated that he had issued a Duty Certificate 12 (Ex.P/3) to constable Abhishek Dubey for delivering the said report to the SDOP Office, Kanker. He further stated that he gave notice to the accused persons and obtained their consent for search and prepared all documents thereafter. In para 6, he stated that,” मेरे ቛኋरे समेय 03:55 बजे आरेपी गोሥ के वाहन स ቚኋ्቎ के ल 45 पीके ट भूरे रेग के पीቐኍ के पीके ट के मिमेलकेरे समेरेस मिकेय गय जिजेसके पीचनमे मेरे ቛኋरे तैयरे मिकेय गय जे ቚኋ०पी ०-21 ह जिजेसके स स स ” भूग पीरे मेरे हस्तै्ቌरे ह। In para 8, he stated that,”………….. मेरे ቛኋरे ቚኋ्቎ गजे मे' स 50-50 ቇኋमे के चरे सम्पील पीके ट रेसयमिनके पीरे ्ቌोሥ हतै मिनकेल गय जिजेसमे' ए-1, ए-2, ए- 3, ए-4 के+ मेमिके, ग केरे स लबद मिकेय गय जिजेसके पीचनमे समेय 05:38 बजे तैयरे मिकेय गय जे ቚኋ०पी ०-08 ह जिजेसके द स द भूग पीरे मेरे हस्तै्ቌरे ह। स लबद मिकेय जेन हतै ቚኋय्ሹ मिकेय गय स ल के नमेन स ल पीचनमे मेरे ቛኋरे समेय 05:47 बजे समि्ቌय के समे्ቌ तैयरे मिकेय गय जे ቚኋ०पी ०-23 ह जिजेसके स स स भूग पीरे मेरे ” हस्तै्ቌरे ह। In para 18 of his cross-examination, he stated that, “ मेरे ቛኋरे ቚኋकेरेोሥ के+ मिवावाचन के द/रेन सम्पीोሥ0 केय0वाह ቚኋमितैवादन धारे-57 एन०डी ०पी ०एस० एक्ट के+ सचन पीजिलस थान केके रे स मिकेस आरे्ቌके के ቛኋरे ल जेय गय था आजे मे5 नह6 बतै सकेतै। मेरे ቛኋरे केय0वाह के द/रेन धारे-57 एन०डी ०पी ०एस० एक्ट के+ सचन थान के मिकेस आरे्ቌके के ቛኋरे ल जेय जेन के सबधा मे' थान के रेजेनमेच सन्ह मे' मेरे ቛኋरे दजे0 नह6 मिकेय गय ह। यह केहन सह ह मिके थान स उ्ሹ सचन ल जेन वाल आरे्ቌके के केतै0व्य ቚኋमेोሥ पी्ቔ एवा तैमे ल रिरेपीट0 ቚኋस्तैतै अमिभूयग पी्ቔ मे' सल्ሿ नह6 मिकेय ह>?। यह केहन सह ह मिके मेरे 13 ቛኋरे धारे-57 एन०डी ०पी ०एस० एक्ट के+ सचन भूजे जेन के सबधा मे' मेरे ቛኋरे मिकेस ቚኋकेरे के केई दस्तैवाजे तैयरे नह6 मिकेय गय ह औरे न ह अमिभूयग पी्ቔ के सथा सल्ሿ मिकेय ह. स्ቌ के स्वातैB केहन ह मिके ቚኋमितैवादन तैयरे मिकेय गय ह पीरेन्तै ቚኋमितैवादन ल जेन वाल आरे्ቌके के केतै0व्य ቚኋमेोሥ पी्ቔ तैयरे नह6 मिकेय गय ह औरे न ह ल जेन के सबधा मे' रेजेनमेच सन्ह मे' दजे0 मिकेय गय ह।" Further, in para 22, he admitted that in the Rojnamcha Sanha (Ex.P/51-C), there was no mention of the sample packets deposited at the police station by lady constable No. 247 having been deposited in the Raipur FSL office on 22.08.2017 for chemical examination. He further voluntarily stated that lady constable No. 247 had deposited four packets along with the sealed sample as Exhibit Draft No. 163/2017 on 21.08.2017 and had returned with the receipt on 23.08.2017. He admitted that Ex.P-51-C records that lady constable No. 247, Saroj Mandavi, had left for Raipur on 21.08.2017 to deposit the material at the FSL. In para 23, he admitted that no document had been attached with the charge sheet to show the departure of lady constable No. 247 on 21.08.2017 or the return of the sample packet to the police station on the same date. He further admitted that the work certificate issued to lady constable No. 247 for depositing the material at the FSL was only a photocopy and that the original certificate had not been placed on record. The witness voluntarily stated that only the issuing Head Constable could clarify the reason for its non-attachment. 14 In para 29, he admitted that the seal he had used during the proceedings bore the words “Thana Kanker, District Kanker” in Hindi, as reflected in the sample seal panchnama (Ex.P/23). The witness voluntarily stated that the impression of the relevant sample seal had been affixed on Ex.P/23. He further admitted that the sample seal marked in the sample seal panchnama (Ex.P/23) did not contain the Hindi words “Thana Kanker, District Kanker.” In para 30, he admitted that,” यह केहन सह ह मिके ቚኋ०पी ०-23 मे' मेरे ቛኋरे यह उቤኔख मिकेय गय ह मिके जे्቎ गजे एवा अन्य समेቇኋ के स लबद केरेन के जिलय मेरे ቛኋरे ቚኋयग मिकेय गय पी तैल के+ स ल जिजेसमे' मिहन्द मे' थान केके रे जिजेल केके रे जिलख हEआ ह के उपीयग मिकेय गय ह उके उ्ሹ स ल के पीचनमे मेरे ቛኋरे गवाह के समे्ቌ तैयरे नह6 मिकेय गय ह। यह केहन सह ह मिके मेमिहल आरे्ቌके ्ቅ - 247 सरेजे मेण्डीवा के ቛኋरे एफ०एस०एल० पीरे ्ቌोሥ हतै सम्पील पीके ट मिदनके 21.08.2017 के जेमे केरेन के सबधा मे' मिकेस ቚኋकेरे के+ केई पीवातै मेझे ቚኋ्቎ नह6 हEआ था, स्ቌ के स्वातैB केहन ह मिके सरेजे मेण्डीवा के ቛኋरे एफ०एस०एल० मे' मेल मिदनके 22.08.2017 ” के जेमे केरेन सबधा पीवातै पीश के+ ह। 19. In his examination-in-chief, Thaneshwar Sahu (P.W.-4) stated that he was the Maal Mohrir of Police Station Kanker (C.G.). He further stated that on 20.08.2017, Sub-Inspector Sandeep Kumar had handed over to Head Constable Krishnachand Sinha, who was on duty in the Malkhana, three driving licences belonging to Dharmendra, Jaisingh, and Bhagwan Singh; two voter ID cards of Jaisingh and Bhagwan Singh; four mobile phones; cash amounting to Rs.1,110/-; the RC book of vehicle No. MP-40 T- 15 0501 in the name of Idar Singh; a silver-coloured Bolero vehicle bearing No. MP-40 T-0501; a photocopy of a United India Insurance Company document; four sealed plastic bags containing 72.800 kg of ganja; four sealed sample packets of ganja weighing 50 grams each marked A-1, A-2, A-3, and A-4; and 45 pieces of brown-coloured foil weighing 1.200 kg. He further stated that these articles were received by Head Constable Krishnachand Sinha, who issued a receipt, which is Ex.P/10. The original register is Ex.P/11. Further, he stated that on 22.08.2017, the four sample packets marked A-1, A-2, A-3 and A-4 were handed over to Lady Constable No. 247, Saroj Mandavi, for being taken to the Raipur Forensic Science Laboratory for chemical examination. He next stated that the said lady constable returned after depositing the sample packets at the Raipur Forensic Science Laboratory on 23.08.2017. In para 7 of his cross-examination, he admitted that if the seals and stamps affixed on the seized material had been given to him along with the seized goods for depositing, he would have mentioned the same in the Malkhana Register (Ex.P./11). 20. In her examination-in-chief, Saroj Mandavi (P.W.-9) stated that by being issued duty certificate (Ex.P/54) by the Police Station Kanker, she were sent to the State Forensic Science Laboratory with four packets, each containing 50 grams, of the confiscated 16 narcotic substance under Section 20(B) of the NDPS Act, in connection with Crime No. 267/2017 of Police Station Kanker, for the purpose of depositing the material. After receiving the forwarding letter from Scene of Crime Unit Kanker, she proceeded to the State Forensic Science Laboratory in Raipur and, upon arrival on 22.08.2017, deposited the material at the laboratory, obtaining a receipt, which was marked as Ex.P/41. Thereafter, she returned to Police Station Kanker on 23.08.2017 and provided a service report on the back of both the receipt and duty certificate. In her cross-examination, she admitted that that in the diary entry of Ex.P/51, it was not mentioned anywhere that the alleged narcotic substance, Ganja, obtained from Kanker, had been deposited at the FSL office in Raipur on 22.08.2017 by her. She also stated that she did not receive any receipt from the State Forensic Science Laboratory, Raipur, regarding the deposit of the alleged narcotic substance on 21.08.2017. She admitted that the deposit of the sample packet from Police Station Kanker in the FSL office, Raipur, on 22.08.2017, was not mentioned in the diary entry of Ex.P/51. She stated that she had received the sample packet containing the alleged narcotic substance, Ganja, from Police Station Kanker on the dispatch date of 21.08.2017 at 06:15 a.m. The sample packet was deposited at the FSL office in Raipur on 22.08.2017, between 03:00 p.m. and 04:00 p.m. 17 In para 5, she stated that, “ स्ቌ स यह पीछे जेन पीरे मिके मिदनके 21.08.2017 के सबह-06:15 बजे सम्पील पीके ट ቚኋ्቎ मिकेय जेन के पीश्चतैM उस मिदनके 22.08.2017 के समेय 03-04:00 बजे एफ०एस०एल० केय0लय रेयपीरे मे' जेमे केरेय गय इस द/रेन मिदनके 21.08.2017 के समेय 06:15 बजे सबह स मिदनके 22.08.2017 के सबह तैके उ्ሹ सम्पील आपी केह रेख था इस पीरे स्ቌ के केहन ह मिके मिदनके 21.08.2017 के सबह 06:00 बजे सम्पील ቚኋ्቎ केरेन के पीश्चतैM उस मेके0 नह6 केरेय गय था इस केरेोሥ सम्पील के वापीस थान मे' जेमे केरे द था तैथा मिदनके 22.08.2017 के पीनB ቚኋ्቎ केरे एफ०एस०एल० केय0लय रेयपीरे मे' जेमे के+ ह>?। मिदनके 21.08.2017 के सध्य लगभूग 05-06:00 बजे मे5 पीन थान केके रे वापीस आकेरे केजिथातै सम्पील पीके ट मेके0 नह6 हन के केरेोሥ पीजिलस थान केके रे के हडी मेन्श के सPपी मिदय था। मेरे ቛኋरे मिदनके 21.08.2017 के सम्पील पीके ट पीजिलस थान केके रे के हडी मेन्श के मिदय जेन के सबधा मे' केई पीवातै ” नह6 ल था । 21. As per Sample Seal Panchnama (Ex.P/23), it is written that “…... पी तैल के+ स ल, जिजेसमे मिहद मे' थान केके रे जिजेल केके रे जिलख हEआ ह के उपीयग मिकेय गय ह। ” and in the FSL report (Ex.P/42), it is written that, “ तैथा इस पीरे पीय गय स ल, ” नमेन स ल के सदृश्य पीई गई। 22. In the case of Yusuf @ Asif (supra), the Hon’ble Supreme Court in paras 16 and 17, observed the following: “16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn 18 therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. 17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs. 1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.” 23. In the matter of Sanjeet Kumar v. State of C.G. reported in 2022 SCC OnLine (SC) 1117 held in paras 18, 31 and 32 as under:- “18. But if the Court has- (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them 19 before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. 31. Therefore, it is clear that the I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in those documents. 32. In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. But unfortunately, both the Special Court and the High Court went by the law in theory, without applying the same to the facts of the case." 24. In the matter of Surepally Srinivas (supra), Hon’ble Supreme Court held in paras 13 to 15 as under:- “13. In Bharat Aambale (supra), this Court held that the purport of Section 52-A, NDPS Act read with Standing Order No. 1/89 extends beyond mere disposal and destruction of seized contraband and serves a broader purpose of strengthening the evidentiary framework under the NDPS Act. This decision stresses upon the fact that what is to be seen is whether there has been substantial compliance with the mandate of Section 52- A and if not, the prosecution must satisfy the court that such non- compliance does not affect its case against the accused. This is also what has been held in Kashif (supra). 20 14. In the present case, from the evidence on record, it can be seen and it is clear that the seized contraband was not properly sealed. Coupled with this is the fact of the seized contraband not being produced before the trial court prior to 3rd July, 2010. It is difficult to accept the prosecution case that though there may not have been strict compliance of Standing Order No.1/89, the seized contraband was not tampered at all. Keeping of the seized contraband by PW-3 in a separate room in his office for fifteen days could give rise to an allegation that the seized contraband was by itself substituted and some other items planted to falsely implicate the accused. To avoid suspicious circumstances and to ensure fair procedure in respect of search and seizure, it is always desirable to follow the standing order which provides suitable guidance for the officers investigating crimes under the NDPS Act. Should there be any departure, the same must be based on justifiable and reasonable grounds. We are, satisfied, on appreciation of the evidence on record, that the possibility of tampering during this fifteen-day period cannot be totally ruled out and that not only has there been no substantial compliance of the standing order, the departure has also not been justified. 15. We have also found from the materials on record that there has been clear non-compliance with the provisions contained in Section 52-A of the NDPS Act. Either possibly due to lack of experience of the investigating officer or his lack of knowledge of the relevant provisions of the NDPS Act, there were lapses which were duly noted by the Sessions Judge. Thus, we are unable to hold that there was primary and reliable evidence before the trial 21 court in respect of the offence committed. The onus of proving that compliance with Section 52-A did not affect the case of the prosecution has not been duly discharged by the prosecution.” 25. In Mohammad Khalid (supra), the Hon’ble Supreme Court recorded its findings in paras 22 and 24 as under:- “22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Exhibit P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot. The offence under Section 20(b)(ii)(c) deals with production, manufacture, possession, sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that the accused A-3 and A-4 were found in possession of ganja. The highest case of the prosecution which too is not substantiated by any admissible or tangible evidence is that these two accused had conspired sale/purchase of ganja with A- 1 and A-2. The entire case of the prosecution as against these two accused is based on the interrogation notes of A-1 and A-2. 24. As a consequence of the above discussion, we are of the firm opinion that the prosecution has miserably failed to prove the charges against the accused. The evidence of the police witnesses is full of contradictions and is thoroughly unconvincing. The conviction of the accused appellants as recorded by the trial Court and affirmed by the High Court is 22 illegal on the face of record and suffers from highest degree of perversity.” 26. In view of the foregoing discussion, it is evident that the prosecution has failed to establish compliance of the mandatory provisions of Section 52A of the NDPS Act. It has further come on record that after seizing the cannabis, Investigating Officer Sandeep Kumar (P.W.-7) mixed all the packets and he has candidly admitted that no document in compliance of Section 57 of the NDPS Act was filed by him. The testimony of Saroj Mandavi (P.W.-9) also reveals that the sample packets were received by her at about 6:15 a.m. on 21.08.2017 and were deposited in the FSL, Raipur only on 22.08.2017 at around 3:00– 4:00 p.m. She also stated that on the same date, i.e., 22.08.2017, she again received the packets and deposited them in the FSL, Raipur. Significantly, on 21.08.2017 at about 5:00–6:00 p.m., she returned the samples to the Police Station, Kanker, as they were not marked. However, no documentary evidence has been adduced in support of these assertions. 27. The evidence of Thaneshwar Sahu (P.W.-4), the Malkhana Moharrir is also inconsistent with the statement of Saroj Mandavi (P.W.-9). He asserted that on 22.08.2017, four sample packets marked A-1, A-2, A-3, and A-4 were handed over to Lady Constable No. 247, Saroj Mandavi for delivery to the Forensic Science Laboratory, Raipur, and that she returned on 23.08.2017 after depositing the same. These contradictions create serious 23 doubt regarding the safe custody, proper sealing, and uninterrupted chain of custody of the seized samples.It is further evident that the independent witnesses have not supported the prosecution version and the police officials have failed to prove strict compliance of the mandatory safeguards prescribed under the NDPS Act. 28. Considering the law laid down by the Hon’ble Supreme Court and taking into account the material inconsistencies and procedural lapses noted hereinabove, we are of the considered view that the prosecution has failed to bring home the guilt of the appellants beyond all reasonable doubt. The trial Court, therefore, committed a grave error in convicting and sentencing the appellants for the offence under Section 20 (b) (ii) (C) of the NDPS Act. 29. Consequently, the appeals are allowed. The judgment of conviction and order of sentence passed by the learned trial Court are hereby set aside. The appellants are acquitted of the charges levelled against them. Appellants- Dharmendra Vishwakarma and Bhagwan Singh Sahu are reported to be on bail. Appellant- Jai Singh Suryavanshi is in jail since 20.08.2017. He be set at liberty forthwith if no longer required in any other criminal case and 30. Keeping in view the provisions of Section 437-A of Cr.P.C. (481 of the B.N.S.S.), appellants are directed to forthwith furnish a 24 personal bond in terms of Form No. 45 prescribed in the Code of Criminal Procedure of sum of Rs.25,000/- each with one surety in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof shall appear before the Hon’ble Supreme Court. 31. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and also to the Superintendent of Jail where the appellant- Jai Singh Suryavanshi is lodged and suffering jail sentence, forthwith for information and necessary action if, any. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Ruchi RUCHI YADAV Digitally signed by RUCHI YADAV