1 2026:CGHC:5296 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 337 of 2020 1 - Ujjawal Yadav S/o Shri Banbasa Yadav Aged About 42 Years R/o Village - Dabari, Thana - Katabanji, District - Balangir Orissa, District : Balangir, Orissa ... Appellant(s) versus 1 - State Of Chhattisgarh Through The District Magistrate Mahasamund, District - Mahasamund Chhattisgarh. ... Respondent(s) For Appellant(s) : Shri Sunil Sahu, Advocate For Respondent(s) : Shri Rishi Raj Pithawa, Dy.GA (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 30/01/2026 The present criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure against the judgment dated 19.12.2019 passed by the learned Special Judge (NDPS Act), Mahasamund in Special Criminal Case (NDPS) No. H-39/2017, 2 whereby the appellant has been convicted under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) and sentenced to undergo Rigorous Imprisonment for two years with fine of Rs.2,000/-, and in default of payment of fine to undergo additional rigorous imprisonment for two months. Being aggrieved by the conviction and sentence, the appellant has preferred the present appeal. 2. The prosecution case, in brief, is that on 15.10.2017 at about 7:15 PM, Sub-Inspector Chandrakant Sahu (PW-11), while on patrol duty at Mahasamund, received secret information that a person was transporting ganja near Railway Station Road for illegal sale. The information received was reduced into writing and intimation was sent to superior officers. The written information memorandum prepared in compliance of statutory requirement was exhibited during trial (Ex. P-1). Thereafter, police staff along with independent witnesses proceeded towards the indicated location and laid surveillance near Railway Station Road. The suspected person, later identified as the appellant, was intercepted. The appellant was informed about the information received and notice under Section 50 of the NDPS Act was served upon him informing him of his right to be searched before a Magistrate or Gazetted Officer. The notice and consent document were proved as Ex. P-2. After obtaining consent, search of the bag carried by the appellant was conducted in presence of witnesses. During search, two packets containing suspected ganja were recovered. The recovered contraband was weighed on the spot with electronic weighing machine and total quantity was found to be 2 kilograms and 80 grams. 3 Necessary identification and weighment panchnama was prepared and proved as Ex. P-3. Samples were drawn from the seized ganja, sealed, and specimen seal impressions were taken. Sampling and sealing proceedings were documented vide sample panchnama (Ex. P-4). Thereafter, complete seizure memo was prepared in presence of witnesses and the contraband articles along with samples were seized vide seizure memo (Ex.P-5). The appellant was arrested and arrest memo was prepared, proved as Ex.P-6. FIR was registered at Police Station Mahasamund under Crime No. 528/2017. FIR was proved as Exhibit P-7.Seized samples were forwarded to Forensic Science Laboratory through proper channel. Forwarding memo and dispatch entry were proved as Ex. P-8. FSL report confirming that the seized material was ganja was proved as Ex. P-9. After completion of investigation, charge-sheet was filed before the competent court. The accused abjured his guilt and demanded trial taking defence of false implication. 3. Learned trial Court, after hearing both the parties, found the prosecution case proved in respect of offence under Section 20(b)(i)(ii) of the N.D.P.S. Act and convicted the appellant/accused for commission of aforesaid offence under N.D.P.S. Act as shown herein-above in paragraph 1. 4. Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence on facts as well as on law and submitted that the learned trial Court has failed to appreciate the evidence available on record in its proper perspective and has 4 recorded conviction merely on presumptions, ignoring material contradictions and serious procedural lapses. 5. It is contended that the entire prosecution case rests upon an alleged recovery said to have been made from the possession of the appellant, but the prosecution has utterly failed to prove such recovery beyond reasonable doubt. The independent witnesses cited by the prosecution have not supported the seizure proceedings and have turned hostile. Their evidence clearly indicates that they were not present at the time of alleged recovery and had merely signed documents at the police station. Consequently, the seizure proceedings reflected in the seizure memo (Ex. P-5), weighment panchnama (Ex.P- 3), and sampling proceedings (Ex.P-4) become highly doubtful. 6. Learned counsel further submits that compliance of Section 50 of the NDPS Act, which is a mandatory safeguard, has not been proved in accordance with law. Although notice under Section 50 is shown to have been served through Ex.P-2, the prosecution has failed to establish that the appellant was meaningfully informed of his right to be searched before a Magistrate or Gazetted Officer. The document appears to have been prepared mechanically, and there is nothing to show that the accused understood or voluntarily waived such right. It is argued that mere obtaining of signature cannot amount to proper compliance. 7. It is also argued that the alleged secret information, claimed to have been recorded vide Ex.P-1, suffers from infirmities. The prosecution has failed to prove timely recording and forwarding of such 5 information to superior officers as required under Section 42 of the NDPS Act. According to counsel, this omission goes to the root of the prosecution case and renders the entire search and seizure illegal. 8. Learned counsel further submits that there are material discrepancies regarding timing and sequence of events. The time reflected in seizure memo (Ex. P-5), registration of FIR (Ex.P-7), and preparation of other documents do not match with oral testimony of prosecution witnesses. This discrepancy suggests that documents were prepared subsequently at the police station and not at the spot, thereby casting serious doubt on fairness of investigation. 9. It is also contended that the prosecution has failed to establish safe custody and proper sealing of seized contraband. The connecting evidence regarding custody of seized articles from the spot till dispatch to the Forensic Science Laboratory is incomplete. The forwarding memo and dispatch documents (Ex.P-8) do not satisfactorily prove that samples remained untampered. Consequently, even though the FSL report (Ex.P-9) confirms the substance to be ganja, the connection between the sample tested and the alleged seized material remains doubtful. He submits that the Investigating Officer and the complaining officer are practically the same, which affects fairness of investigation. Such practice, though not automatically illegal, requires strict scrutiny, and in the present case, procedural safeguards have not been shown to have been properly followed. 10. It is further argued that the prosecution has relied almost entirely on official witnesses, whose testimonies contain contradictions and 6 improvements. When independent witnesses do not support the prosecution version, reliance solely on police witnesses, without strong corroboration, is unsafe in NDPS cases involving stringent punishments. The appellant has been falsely implicated and that documents appear to have been prepared to strengthen a doubtful case. The inconsistencies in statements of witnesses regarding place of interception, time of search, and manner of recovery demonstrate lack of credibility in prosecution story. 11. It is also urged that the learned trial Court failed to properly appreciate these inconsistencies and recorded conviction merely on the basis that contraband was allegedly recovered, without ensuring strict compliance of statutory safeguards mandated under NDPS Act. 12. Learned counsel submits that NDPS Act being a stringent statute, procedural safeguards are not empty formalities but are essential to ensure fairness. Any violation must go in favour of the accused. On cumulative assessment of evidence, he contended that the prosecution case is doubtful and appellant is entitled to benefit of doubt. Hence, conviction and sentence deserve to be set aside and appellant deserves acquittal. 13. In the alternative, without prejudice to the above submissions, it is argued that even assuming prosecution case to be partly acceptable, the sentence imposed is excessive considering quantity involved is below commercial quantity, appellant has already undergone substantial incarceration, and fine amount has already been deposited. 7 Therefore, sentence may reduced to period already undergone. 14. On these grounds, learned counsel prays that the appeal be allowed, conviction be set aside, and appellant be acquitted, or in the alternative, sentence be suitably modified. 15. Learned State counsel submits that the recovery is proved through consistent testimony of official witnesses and seizure memo (Ex.P-5). The Signatures of independent witnesses on documents support prosecution case even if they turned hostile. Compliance of Section 50 through Ex. P-2 stands proved. The FSL report (Ex.P-9) conclusively establishes seized material as ganja. The minor discrepancies do not vitiate otherwise reliable prosecution case. 16. Heard learned counsel for the parties at length and have carefully gone through the entire record of the case including oral and documentary evidence adduced before the trial Court as well as the reasoning assigned in the impugned judgment. 17. The conviction of the appellant rests primarily upon the alleged recovery of 2 kilograms and 80 grams of ganja from the bag carried by him on 15.10.2017 near Railway Station Road, Mahasamund. Therefore, the core question that arises for consideration is whether the prosecution has succeeded in proving beyond reasonable doubt that the contraband was recovered from the conscious and exclusive possession of the appellant in strict compliance with the safeguards provided under the NDPS Act. 8 18. The prosecution case hinges upon the testimony of police officials who constituted the raiding party and conducted the search and seizure. Though their statements support the prosecution story, it is noticeable that the independent witnesses cited by the prosecution have not fully supported the seizure proceedings and were declared hostile. The seizure witnesses admitted their signatures on seizure and related documents but did not fully corroborate the prosecution version regarding the manner in which recovery was effected. Their evidence creates doubt regarding the exact manner and circumstances in which seizure proceedings were conducted. 19. Upon re-appreciation of evidence, this Court finds that the seizure proceedings and recovery of contraband from possession of the appellant are substantially proved through the testimony of the seizing officer and other official witnesses. Merely because independent witnesses have not fully supported prosecution, the entire prosecution case cannot be discarded when official testimony remains consistent and supported by documentary evidence. 20. The notice under Section 50 of the NDPS Act was served upon the appellant and the same is reflected in documentary evidence. Though learned counsel for the appellant pointed out certain procedural lapses and discrepancies, such lapses do not go to the root of the matter so as to completely demolish the prosecution case. The seized material was duly sampled and sent for chemical examination and the FSL report confirms the substance to be ganja. Thus, recovery and nature of contraband stand established. 9 21. This Court, therefore, finds no substantial reason to interfere with the finding of guilt recorded by the learned trial Court. The conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act is affirmed. 22. The next question pertains to the quantum of sentence. It is not in dispute that the quantity involved is less than commercial quantity, falling within intermediate quantity. 23. It has been submitted that the appellant has already remained in custody for a substantial period during investigation and trial. It is further brought to notice that the incident relates to the year 2017 and the appellant has faced trial and appeal proceedings for several years. There is nothing on record to indicate previous criminal antecedents of the appellant. The prolonged pendency of proceedings and period already undergone in custody are relevant factors while considering sentence. 24. Considering the totality of circumstances, including quantity involved, period of incarceration already undergone, and passage of time, this Court is of the view that ends of justice would be met if the sentence of imprisonment awarded to the appellant is reduced to the period already undergone, while maintaining conviction and fine imposed by the trial Court. 25. Consequently, conviction of the appellant under Section 20(b)(ii) (B) of the NDPS Act is maintained. However, the substantive sentence of imprisonment awarded by the trial Court is modified to the period already undergone by the appellant. 10 26. The appeal is thus allowed in part. Conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act is affirmed. The sentence of rigorous imprisonment imposed upon the appellant is reduced to the period already undergone. The sentence of fine imposed by the trial Court shall remain intact. 27. Since the appellant is already on bail, his bail bonds shall stand discharged upon deposit/payment of fine, if not already deposited. Records of the trial Court be sent back along with a copy of this judgment. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2026.02.05 10:49:35 +0530