1 2026:CGHC:5009 NAFR HIGH COURT OF CHHATISGARH AT BILASPUR CRA No. 1135 of 2016 1 - Kamal Jangde S/o Premlal Jangde Aged About 19 Years R/o Bhejridih, Police Station Kharora, District Raipur, Chhattisgarh. --- Appellant(s) versus 1 - State Of Chhattisgarh Through The Station House Officer, Police Station Rajadevri, Choki Baya, District Baloda Bazar Bhatapara, Chhattisgarh. --- Respondent(s) CRA No. 1220 of 2016 1 - Shankar Lal Gendre S/o Malikram Gendre Aged About 23 Years R/o Amera Police Station And Tahsil Palari, District Baloda Bazar Bhatapara, Chhattisgarh. ---Appellant(s) Versus 1 - The State Of Chhattisgarh Through Station House Officer, Police Station Rajadevri, Outpost Baya, District Baloda Bazar Bhatapara, Chhattisgarh. --- Respondent(s) 2 For Appellant(s) : Ms. Sangeeta Mishra and Shri Sameer Rigri, Advocate on behalfof Shri Govind Dewangan, Advocates For Respondent/State : Shri Rishi Raj Pithawa, Dy.GA (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 29.01.2026 Since both the appeals arise out of the same judgment of conviction and order of sentence dated 03.09.2016 passed by the learned Special Judge (NDPS) & First Additional Sessions Judge, Balodabazar–Bhatapara in Special Criminal (NDPS) Case No. 11/2015 arising out of Crime No. 51/2015 of Police Station Rajadevari, both appeals are being disposed of by this common judgment. 2. By the impugned judgment, the learned trial Court convicted both appellants under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced each of them to undergo three years rigorous imprisonment along with fine of Rs.10,000/-, with default stipulation of additional imprisonment. Being aggrieved, both convicts have preferred these appeals. 3. The prosecution case, shorn of unnecessary details, is that on 04.11.2015, Sub-Inspector R.D. Sahu (PW-14), of Police Station Rajadevari, received secret information that two persons were transporting illicit Ganja on a motorcycle through Devgaon–Gavand road area. The information indicated movement of contraband substance in significant quantity. After receiving the information, he 3 reduced the same into writing in the Daily Diary and informed superior officers in accordance with procedure, necessary arrangements were thereafter made and a police team comprising staff members including PW-10, PW-11 and other constables proceeded towards the indicated route for verification and interception. A naka-bandi was organized near Devgaon–Gavand Chowk, and during checking operations, a motorcycle bearing registration number mentioned in the seizure documents was noticed approaching the naka point. The vehicle was stopped and two persons were found riding the motorcycle, who disclosed their names as Kamal Jangde and Shankar Lal Gendre, the present appellants. Upon suspicion and after informing them about the intended search, the bag carried by them was searched in presence of witnesses. On opening the bag, police officials found five separate packets wrapped in plastic tape, containing greenish-brown flowering and fruiting tops suspected to be Ganja. The contents were weighed on the spot after calling a weighing person, and each packet was found to weigh approximately one kilogram, making total recovered contraband about 5 kilograms of Ganja. The prosecution has proved that identification procedure of the seized substance was conducted on the spot, Samples were drawn from seized contraband,Samples and bulk quantity were separately sealed, Seizure proceedings were conducted in presence of witnesses, and Necessary seizure documents were prepared. 4. The seizure proceedings and related formalities were documented under seizure memo Ex. P-5 to P-7, while the 4 proceedings relating to search and seizure were recorded under panchnama documents prepared at the spot. The recovered contraband along with motorcycle used in transportation was seized and taken into custody. Arrest memos of both accused persons were prepared vide Ex. P-9 and Ex. P-10. It was further deposed that seized property and samples were deposited in the Malkhana of police station and entries were made in the Malkhana register, which has been proved on record. 5. Thereafter, sealed samples were forwarded through proper channel to the Forensic Science Laboratory for chemical examination. vide Ex. P-23, confirmed that the seized substance was Ganja (cannabis). On completion of investigation, statements of witnesses were recorded and after completing necessary formalities, charge- sheet was filed against both accused persons for offence punishable under Section 20(b)(ii) of the NDPS Act. 6. In order to bring home the charge, the prosecution examined as many as 14 witnesses, including the IO R.D.Sahu (PW-14), seizure witnesses, and formal witnesses. Various documents such as seizure memo, search panchnama, arrest memo, sample seal memo, forwarding letter, and FSL report (Ex. P/23) were brought on record. Independent witnesses, though did not fully support the prosecution case and were declared hostile. 7. Learned Court below vide judgment under challenge has convicted and sentenced the appellant herein as mentioned above. 5 Hence the appeal filed by the present appellant. 8. Learned counsel appearing for the appellants assailed the impugned judgment on factual as well as legal grounds and submitted that the conviction recorded by the learned trial Court is unsustainable. It is contended that the prosecution story suffers from serious procedural infirmities and contradictions which go to the root of the matter. It is submitted that the entire case rests primarily upon police witnesses, whereas independent seizure witnesses have not supported the prosecution case and have stated that their signatures were obtained on blank papers. According to the appellants, this creates serious doubt regarding genuineness of seizure proceedings. It is further submitted that compliance of mandatory provisions of the NDPS Act has not been satisfactorily established. She argued that the prosecution failed to prove strict compliance of Sections 42 and 50 of the NDPS Act. It is urged that before conducting search, accused persons were not properly informed of their legal right to be searched before a Gazetted Officer or Magistrate, thereby vitiating the recovery. Counsel also submits that the complainant officer and Investigating Officer being the same person creates serious prejudice to the accused and renders investigation unfair. It is argued that the entire investigation becomes suspect when the officer who claims recovery also conducts investigation. 9. Another contention raised by the counsel for the appellants is that the prosecution has failed to establish safe custody and proper transmission of samples. It is submitted that link evidence regarding 6 sealing, custody and transmission of samples to FSL is not satisfactorily proved and therefore possibility of tampering cannot be ruled out. 10. It is also argued that the ownership and conscious possession of contraband has not been proved beyond doubt. No documentary evidence regarding ownership of motorcycle or exclusive possession of bag has been produced. Lastly, learned counsel submits that even otherwise the sentence imposed is excessive in view of the facts and circumstances of the case, especially considering that the appellants are young persons and have already undergone substantial period of incarceration. On these grounds, counsel for the appellants prayed for acquittal of appellants or in the alternative for substantial reduction of sentence. 11. Per contra, learned State counsel supported the impugned judgment and submitted that the learned trial Court has properly appreciated evidence and rightly convicted the appellants. It is submitted that recovery of contraband has been consistently proved through testimony of police witnesses, whose evidence cannot be discarded merely because they belong to police force. Their statements regarding interception, seizure and arrest are consistent and reliable. It is argued that merely because independent witnesses did not fully support prosecution does not demolish prosecution case when official witnesses are trustworthy and documentary evidence corroborates recovery. 7 12. Learned State counsel further submits that the seized substance has been scientifically examined and confirmed to be Ganja by FSL report, thus conclusively establishing nature of contraband. It is also argued that appellants were found transporting contraband together and failed to give any explanation regarding possession, thereby proving conscious possession. So far as procedural compliance is concerned, it is submitted that substantial compliance of NDPS provisions has been made and minor procedural deviations, if any, do not vitiate conviction when recovery itself is proved. However, learned State counsel fairly submits that considering period already undergone by appellants, this Court may consider modification of sentence if deemed appropriate. 13. Heard learned counsel for the parties and perused the material available on record including the judgment impugned. 14. This Court has carefully examined the entire evidence available on record, the impugned judgment, and rival submissions advanced by counsel for the parties. The principal question for consideration is whether recovery of contraband from appellants and their conscious possession thereof stands proved beyond reasonable doubt. From the evidence of PW-14, the Investigating Officer, and accompanying police personnel, it clearly emerges that appellants were intercepted while traveling together on motorcycle and contraband substance was recovered from bag being carried by them. Their testimonies remain consistent regarding interception, recovery, seizure and arrest. 8 15. Though independent witnesses have not fully supported prosecution case, they have admitted their presence and signatures on seizure documents. Law is well settled that testimony of hostile witness is not to be discarded in toto and can be relied upon to the extent it supports prosecution. Further, the chemical examination report conclusively establishes that seized material was Ganja. The chain of circumstances beginning from interception till chemical examination stands reasonably proved. The contention regarding investigation being conducted by same officer who effected seizure, though a matter requiring caution, does not automatically vitiate prosecution unless prejudice is demonstrated. In the present case, no material prejudice has been established. The evidence on record sufficiently establishes that appellants were transporting contraband substance jointly and failed to offer any plausible explanation regarding possession. Hence, conscious possession stands proved. Accordingly, this Court finds no perversity or illegality in the finding of guilt recorded by the learned trial Court. Conviction of appellants therefore deserves to be maintained. However, while examining question of sentence, certain mitigating circumstances deserve consideration. The quantity of ganja recovered, though not insignificant, is not of commercial magnitude. It is also evident from record that appellants have already undergone substantial incarceration during trial and after conviction. No previous criminal antecedent has been brought on record. 16. The object of sentencing being reformation along with deterrence, this Court is of the considered opinion that ends of justice 9 would be met if sentence of imprisonment is reduced to the period already undergone by appellants, while maintaining fine imposed by trial Court. 17. Consequently, the appeals are partly allowed. Conviction of appellants under Section 20(b)(ii) of the NDPS Act as recorded by the learned Special Judge is affirmed. However, sentence of imprisonment imposed upon the appellants is modified to the period already undergone by them. Fine amount imposed by the trial Court shall remain intact, and default stipulation shall stand modified accordingly. 18. Further, the chemical examination report conclusively establishes that seized material was Ganja. The chain of circumstances beginning from interception till chemical examination stands reasonably proved. The contention regarding investigation being conducted by same officer who effected seizure, though a matter requiring caution, does not automatically vitiate prosecution unless prejudice is demonstrated. In the present case, no material prejudice has been established. The evidence on record sufficiently establishes that appellants were transporting contraband substance jointly and failed to offer any plausible explanation regarding possession. Hence, conscious possession stands proved. 19. Accordingly, this Court finds no perversity or illegality in the finding of guilt recorded by the learned trial Court. Conviction of appellants therefore deserves to be maintained. However, while examining question of sentence, certain mitigating circumstances 10 deserve consideration. Quantity recovered, though not insignificant, is not of commercial magnitude. It is also evident from record that appellants have already undergone substantial incarceration during trial and after conviction. No previous criminal antecedent has been brought on record. 20. The object of sentencing being reformation along with deterrence, this Court is of the considered opinion that ends of justice would be met if sentence of imprisonment is reduced to the period already undergone by appellants, while maintaining fine imposed by trial Court. 21. Since the appellants are already on bail, the operative portion of the judgment requires suitable modification. The appeals, namely Criminal Appeal Nos. 1135 of 2016 and 1220 of 2016, are partly allowed. The conviction of the appellants for the offence punishable under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 as recorded by the learned Special Judge (NDPS) & First Additional Sessions Judge, Balodabazar–Bhatapara in Special Criminal Case No. 11/2015 is affirmed. However, the sentence of imprisonment awarded to the appellants is modified to the period already undergone by them. The fine amount imposed by the trial Court is maintained. 22. Since the appellants are already on bail, their bail bonds shall stand discharged upon deposit of fine amount, if not already deposited, and subject to compliance with other conditions, if any. 11 23. The appellants shall comply with Section 437-A of the Code of Criminal Procedure, and furnish the requisite bond before the trial Court within the stipulated period. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2026.02.05 10:50:59 +0530