1 2026:CGHC:23244 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 59 of 2022 Reserved on 05/05/2026 Pronounced on 15/05/2026 State of Chhattisgarh, Through- The In-charge, Police Station Navagarh, District- Janjgir-Champa (C.G.) ... Appellant versus 1 - Sahil Dheevar S/o Shri Bisahu, Aged About 25 Years, 2 - Mantudas Mahant S/o Shri Lakhand Das, Aged About 22 Years, Both are R/o Village Kirit, Police Station Navagarh, District- Janjgir- Champa (C.G.) ... Respondents For Appellant/State : Mr. Akhilesh Kumar, Government Advocate For Respondents : Mr. Vivek Singhal, Advocate Single Bench: Hon'ble Shri Sanjay S. Agrawal, J C A V Judgment 1. This appeal has been preferred by the appellant/State under Section 378 of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 09.06.2017 passed by the Special Judge (under N.D.P.S. Act), Janjgir Champa (C.G.) in Special Criminal Case No.10/2015, whereby, the respondents have been acquitted with SUNITA GOSWAMI Digitally signed by SUNITA GOSWAMI Date: 2026.05.15 15:37:12 +0530 2 regard to the offence punishable under Section 20(b)(ii)(B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act,1985’). 2. Briefly stated the facts of the case are that on 20.04.2015, at 18.30 hrs., a secret information was received by the In-charge Police Station, Navagarh that, two persons are travelling along with contraband article (cannabis) in a motorcycle bearing registration No. CG-11 BB 9015 and are proceeding towards the village Kera and, based upon which, a Mukhabir Panchanama was prepared vide Ex.P-43 and was forwarded to the Sub-Divisional Officer (Police), Navagarh, District Janjgir Champa under Section 42 of the Act, 1985 and thereafter, the witnesses were called by issuing notices under Section 160 Cr.P.C. and, the accused persons were apprehended and while apprising them to be searched either by the Magistrate or the Gazetted Officer as required under Section 50 of the Act, 1985 and, that after taking their consent to be searched by the Investigation Officer, a search was carried out in presence of two witnesses, namely, Ramnarayan and Prakash Sagar, where, seven packets of contraband article (Ganja) were recovered from them, which were kept in one plastic bag in their alleged motorcycle. The alleged seizures were made from the accused persons vide Ex.P-21, while motorcycle bearing registration No. CG-11 BB 9015 was seized from respondent No.1- Sahil Dheevar under seizure memo (Ex.P-22) and, the Baramdagi Panchanama was, accordingly, made vide Ex.P-13 and identification of it was made vide Ex.P-14 and upon its weighing, it was found to be 06 kg and 500 gm vide Ex.P-18 and thereafter, a Samras Panchanama was made vide 3 Ex.P-15, while mixing those contraband articles and, sampling of ganja in two packets containing 50-50 gm each were prepared. The alleged seized articles were deposited in Malkhana on 20.04.2015 vide Ex.P- 34/C and physical verification of it was conducted on 02.05.2015 vide Ex. P-28 in presence of the Executive Magistrate and after completion of due investigation, a charge-sheet was submitted before the trial Court and the respondents have been charge-sheeted for the offence punishable under Section 20(b)(ii)(B) of the Act, 1985, which was denied by them and claimed to be tried. 3. The trial Court, after considering the evidence led by the prosecution, arrived to a conclusion that the alleged contraband article (Ganja) was not recovered from their conscious possession, as its witnesses have not supported the same and, held further that the alleged contraband article was neither found to be deposited in the Malkhana in a sealed manner, nor its physical verification (Ex.P-28), made on 02.05.2015, i.e.12 days upon its recovery, was duly established and, in consequence, the respondents have been acquitted from the commission of the alleged crime and, being aggrieved, the instant appeal has been preferred. 4. Learned counsel appearing for the appellant/State submits that the finding of the trial Court holding that the physical verification (Ex.P-28) of the alleged contraband article was not made in proper manner and thereby, acquitting the respondents for the non-compliance of sub- section (2) of Section 52-A of the Act, 1985, is apparently contrary to law, however, the same was duly made before the Executive 4 Magistrate, as such, the alleged physical verification ought not to have been disbelieved, particularly when its authenticity was not questioned by the respondents. 5. On the other hand, learned counsel appearing for the respondents has supported the impugned judgment of acquittal as passed by the trial Court. 6. I have heard learned counsel appearing for the parties and perused the entire record. 7. The question which arises for determination is as to whether the finding of the trial Court acquitting the respondents for non-compliance of the provision prescribed under Section 52-A of the Act, 1985, is sustainable or not ? 8. Perusal of the record would show that on 20.04.2015, the alleged contraband articles (Ganja) in seven packets kept in one plastic bag was recovered from the possession of the respondents during the search and seizure proceedings vide Baramdagi Panchanama (Ex.P- 13) and, was identified as such vide Ex.P-14 and, Samras Panchanama was made upon its mixing vide Ex.P-15 and upon its weighing, it was found to be 06 kg 500 gm as evidenced by the Taul Panchanama (Ex.P-18) and, sampling of ganja in two packets containing 50-50 gm each was then prepared vide Ex.P-17. The entire search and seizure proceedings were done in presence of two independent witnesses, namely, Ramnarayan (PW-2) and Prakash Sagar (PW-7), but they have, however, turned hostile without supporting the same. 5 9. It reveals further from perusal of the record that after the completion of search and seizure proceedings, the alleged contraband articles were deposited in the Malkhana, but, were however, not found to be deposited in a sealed manner, as evidenced by its Register (Ex.P-34/C), though, the acknowledgment (Ex.P-33) to this effect was shown to be made in a sealed manner. In view of such circumstances, it is difficult to hold that the alleged sampling of ganja contained in two packets having 50-50 gm each was sent for the chemical examination in a sealed manner, like “A” and “B”. Therefore, it cannot be said that the alleged contraband article seized vide Ex.P-13 was sent for the chemical examination. 10. Moreover, it is to be noted here at this juncture that the alleged drawing of sample in two packets vide Ex. P-17 was made on 20.04.2015, but it was done without following the procedure prescribed under sub- section (2) of Section 52-A of the Act, 1985, as according to the said provision, it has to be forwarded in the manner prescribed therein. However, instead, the physical verification was found to be conducted on 02.05.2015 vide Ex.P-28, i.e. much after the passing of considerable period of 12 days from the date of completion of the search and seizure proceedings. 11. Section 52-A, as amended by Act No.16 of 2014, which deals with disposal of seized drugs and psychotropic substances, is relevant for the purpose, reads as under :- “52-A. Disposal of seized narcotic drugs and psychotropic substances. - [(1) The Central 6 Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.] (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in- charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of- 7 (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence]”. 12. It, thus, appears from a bare perusal of the aforesaid provision that upon seizure of the contraband article, the same has to be forwarded either to the officer-In-charge of the nearest Police Station or to the officer empowered under Section 53 of the Act, 1985, who shall then prepare an inventory as stipulated in the aforesaid provision and has to make an application to the Magistrate for the purposes of (a) certifying the correctness of the inventory; (b) certifying photographs of such drugs or substances taken before the Magistrate as true; and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn and, the 8 Magistrate shall as soon as may allow the application made under sub- section (3) of the said provision. 13. What is, therefore, required to be followed in view of the aforesaid provision that no sooner the seizure is effected and the contraband is forwarded to the officer-In- charge of the Police Station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned herein-above, including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. 14. It is, thus, evident that the process of drawing of samples has to be done in presence and under the supervision of the Magistrate and, the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A (4) of the Act, 1985, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. 15. However, in the instant matter, as observed herein-above, drawing of samples of contraband article “Ganja” was made upon its seizure immediately on 20.04.2015 vide Ex.P-17 even without following the procedure prescribed under sub-section (2) of Section 52-A of the Act, 1985. In view thereof, the entire proceeding is, thus, appears to be 9 vitiated for non-compliance of sub-section (2) of Section 52-A of the Act, 1985. 16. The aforesaid observation is fortified by the principles laid down by the Supreme Court in the matter of Union of India V. Mohanlal & Anr., reported in (2016) 3 SCC 379, where, while interpreting the aforesaid provision, it was held at paragraphs 15 to 17 as under :- "15. It is manifest from Section 52-A(2) include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in- charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. 16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, 10 the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. 17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure." 17. In view of the principles laid down by the Supreme Court in the above referred matter, the drawing of samples of Ganja in two packets from all the seven packets at the time of seizure is, thus, cannot be held to be in conformity with the law laid down by the Supreme Court. Therefore, the case of the prosecution is not free from suspicion and, the same has, thus, not been established beyond the reasonable doubt. 18. Consequently, I do not find any infirmity in the impugned judgment dated 09.06.2017 passed by the Special Judge (under N.D.P.S. Act), Janjgir Champa (C.G.) in Special Criminal Case No.10/2015, acquitting the respondents/accused from the commission of offence 11 punishable under Section 20(b)(ii)(B) of the Act, 1985, though on different reasonings, is hereby affirmed. 19. The appeal, being of merit is, accordingly, dismissed. Sd/- (Sanjay S. Agrawal) JUDGE sunita