1 2026:CGHC:476 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1857 of 2024 1 - Tarun Nayak S/o Duryodhan Nayak Aged About 42 Years R/o Tedapali, P.S. Khoksara, District Kalahandi, Odisha. 2 - Antram Nayak S/o Nathuram Nayak Aged About 45 Years R/o Behra, P.S. Khoksara, District Kalahandi, Odisha. ... Appellants versus State Of Chhattisgarh Through Station House Officer, Police Station - Devbhog, District Gariyaband, Chhattisgarh. ---- Respondent For Appellants : Mr. Vikas Pradhan, Advocate. For State : Mr. SS Baghel, GA. Hon'ble Shri Justice Arvind Kumar Verma Judgment on Board 05.01.2026 1. Challenge in this criminal appeal is to impugned judgment of conviction and sentence dated 17.09.2024 passed by learned Special Judge, (NDPS Act), Raipur, (CG) in Special Criminal (NDPS Act) Case No.251/2023, whereby the appellants stand convicted and sentence as under: Conviction Sentence 2 Under Section 20(b) (ii)(b) of NDPS Act. Rigorous imprisonment for 10 years & fine of Rs.1,00,000/-, in default of payment of fine 02 years additional RI. 2. Case of the prosecution, in brief, is that Assistant Sub-Inspector, Chhabil Tandekar received information from the informer that, two persons, who are inter-state ganja smugglers, were carrying intoxicating substance ganja and coming from odisha to Chhattisgarh on motorcycle registration no. CG-04-DN-8330 to sell it. On receiving said information, they intercepted the said vehicle on which appellants were travelling and during course of search, 57 kg ganja was recovered from appellant No.1/Tarun Nayak and 68 kg ganja was recovered from appellant No.2/Antram. Total 125 kg ganja was seized from their possession. On the basis of seizure, appellants 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 appellants. Statements of witnesses were recorded under Section 161 of Cr.P.C. 3. After completion of investigation, charge-sheet/challan was filed against the appellant and based upon whic273h trial Court framed the charged against him. 4. In order to prove guilt of appellants, prosecution examined total 17 witnesses and their statements were recorded. However, no 3 defence witnesses was examined. Statement of appellant (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 appellants 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. Independent witnesses (PW-1/Bhojraj & PW-2/Sushant Kumar Netam & PW-3/Prakash Netam) have not supported the case of prosecution and turned hostile. There are major contradictions and omissions in the statement of prosecution witnesses, which cannot be relied upon. The FSL report is doubtful as the seal on the F.S.L. report (Ex.P-36) is ‘NN DEVBHOG’, however, in the seal Panchnama (Ex.P-12), seal is mentioned as ‘P.S.DEVBHOG’. In the Inventory Report (Ex.P-31), the Seal is in Hindi "Nyayik Magistrate Pratham Shreni Devbhog". Trial Court has wrongly appreciated that the investigation has been done properly and mandatory provisions of the NDPS Act have been complied with. The learned trial Court failed to appreciate the entire action of seizure and sampling is wholly illegal as it was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act. There is serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. 4 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. In support of his contention, he places reliance upon the decisions of State of Rajasthan vs Tara Singh, 2011 (11) SCC 559; Surepally Srinivas vs State of Andhra Pardesh, 2025 SCC OnLine SC 683; Hanif Khan alias Annu Khan versus Central Bureau of Narcotics, AIR Online 2019 SC 2085; Vicky @ Kamalkant Chaurasiya and Other vs State of Chhattisgarh (CRA 162/2025, order dated 24.02.2025). 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-1/Bhojraj & PW-2/Sushant Kumar Netam (Independent witnesses of notice Ex.P-1 to PW-17) have not supported the case of prosecution and turned hostile. Even PW-3/Prakash Netam 5 (Taul Panchnama witness) in his evidence has stated that he has not weigh the contraband on the alleged date of incident. 10. PW13/Kapoorchand Netam (Malkhana In-charge) in his cross- examination has admitted that seal of the police station is not affixed on the four sealed packets marked as Articles A-06 to A-09. He also admitted that said four packets do not contain any endorsement or description indicating the nature of the contents therein. He further admitted that he did not open or examine alleged packets bearing Articles A-06 to A-09. PW-13 further stated pursuant to the directions of the Station House Officer, he handed over the four sample packets of the narcotic substance ganja, which were kept secured in the Malkhana in connection with the present case, to Police Constable on 24/09/2023 for the purpose of examination at the State Forensic Science Laboratory, Raipur. However, PW-17/Kulip Singh Thakur (FSL sample deposit) in his evidence has stated that the alleged samples brought before him on 28.09.2023. Hence, question arises that in the alleged four days, where is the sample packets of the narcotic substance ganja. 11. On perusal of seal Panchnama (Ex.P-12), the seal shows as ‘P.S. DEOBOG’, therefore, it crystal clear that property which has been seized from the possession of the appellant/accused seal is mentioned as ‘P.S.DEOBOG’, however, as per inventory under Section 52A (2) of the NDPS Act prepared by the JMFC, Devbhog, Raipur in Ex.P-31, the seal is mentioned as "Nyayik Magistrate Pratham Shreni Devbhog, Jila Raipur, (Chhattisgarh)", thereafter, 6 the property has been send to the FSL examination and in the FSL report (Ex.P-36), seal is mentioned as ‘NN DEOBHOG’, hence, it is crystal clear from the documents (F.S.L. report (Ex.P-36), seal Panchnama (Ex.P-12) & Inventory Report (Ex.P-31) itself that the samples (ganjga) sealed by the IO/Seizing Officer may be tempered with while being sent to the forensic examination. The alleged discrepancies in the seal creates serious doubt in prosecution case. 12. In case of Vicky @ Kamalkant Chaurasiya and Other vs State of Chhattisgarh), this Court while allowing the appeal (CRA 162/2025) on 24.02.2025 held that it is also important fact that prosecution wholly relied upon the FSL report of the seized contraband that is Ex. P-40. Ex. P-40 shows that contraband is a ganja. Date of incident was 19th August, 2018 however FSL report shows that date of receiving of the contraband was 03rd August 2018 which is prior to the incident. Prosecution did not explained this mistake neither Malkhana Mohirrir was examined nor the Malkhana Register was produced before the trial Court, therefore conviction of appellants for the offence punishable as mentioned above is bad in law.” 13. In case of Hanif Khan alias Annu Khan (supra), the Hon’ble Supreme Court held that there is no credible evidence that the FSL sample produced related to the very same contraband stated to have been seized from the appellant. PW-6 in his cross- examination, did not offer any reasonable explanation why the 7 sample seized from the appellant and deposited in the Malkhana could not be produced in the Court except after a long gap of one year. 14. For the foregoing discussions, evidence and particularly the aforementioned decisions, this Court is of the considered opinion that trial Court has committed grave legal error in convicting and sentencing the appellant for offence under Section 20(b)(ii)(b) of NDPS Act. Hence, judgment impugned deserves to be set aside. 15. Accordingly, Criminal Appeal is allowed and the impugned judgment dated 17.09.2024 (Annexure A-1) is hereby set-aside. The appellant is acquitted from the aforementioned charge/offence. He is reported to be in jail, therefore, he be set free forthwith if no longer required in any other criminal case. 16. The appellant is directed to file personal bond with one surety in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. 17. 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/-