1 2026:CGHC:4808 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 392 of 2024 1 - Shok Haran Lavkesh S/o Ramakant Cast Mahara, Aged About 22 Years R/o Village Saraitola Thana Rajendragaram District Anuppur (M.P.) 2 - Manoj Kumar Tendve S/o Lalla Prasad Cast Mahara, Aged About 22 Years R/o Soniyamar Thana Rajendragarh District Anuppur (M.P.) ... Appellants versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Gurur, District Balod Chhattisgarh. ... Respondent(s) For Appellants : Shri Vikas Pradhan, Advocate For Respondent/State : Shri Rishi Raj Pithawa, Dy. GA (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 28/01/2026 This criminal appeal under Section 374(2) of the Code of Criminal 2 Procedure has been preferred against the judgment dated 31.01.2024 passed by the learned Special Judge (NDPS Act), Balod in Special Sessions Case No. 26/2023, whereby the appellants have been convicted for offence punishable under Sections 8/20(b)(ii)(C) of the NDPS Act and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.1,00,000/- each. Thus, the appellants challenge the legality and correctness of conviction and sentence. 2. According to the prosecution, on 04.02.2023, police personnel of Police Station Gurur, District Balod, under the leadership of ASI Arun Kumar Sahu (PW-12), were engaged in routine vehicle checking duty near Fagunadah Tiraha situated on National Highway-930 within the jurisdiction of Police Station Gurur. It is the prosecution case that while the police team was conducting vehicle checking, ASI Arun Kumar Sahu (PW-12) received reliable secret information that a Bolero vehicle bearing registration No. MP-18-T-3451 was coming from the direction of Durg carrying illegal contraband ganja. The information was reduced into writing and necessary intimation was communicated to superior officers asper procedure. The information and related proceedings form part of the documentary evidence proved during trial. After some time, the suspected vehicle was noticed approaching and was stopped by the police party. Upon checking, two persons were found inside the vehicle. The driver disclosed his name as Shok Haran Lavkesh, while the co- occupant disclosed his name as Manoj Kumar Tendve, both residents of District Anuppur, Madhya Pradesh. 3 3. This fact has been deposed by PW-12 (Investigating Officer) and corroborated by members of the police party including PW-2, PW-4, and PW-5. Before conducting search, notices were issued and accused persons were informed regarding legal formalities. Necessary consent proceedings were drawn in presence of witnesses. Documents concerning consent and search proceedings were proved as Exhibits P- 36 and P-37, while procedural compliance entries were proved by PW- 12. Thereafter, the police team conducted search of the Bolero vehicle in presence of witnesses. During search, plastic sacks and packets kept in the rear portion of the vehicle were found containing suspicious substance. Upon opening and examination, the substance was suspected to be ganja. According to prosecution, the recovered contraband consisted of three plastic sacks containing 20 kilograms 12.800 kilograms ganja and the total recovered quantity was found to be 33.200 kilograms, which falls within commercial quantity under NDPS Act. The seizure proceedings were recorded vide Seizure Panchnama Exhibit P-8, proved by PW-1, PW-3, and PW-12. Recovery proceedings are further supported by Vehicle Search Panchnama — Exhibit P-7, Recovery Panchnama — Exhibit P-9. Identification Panchnama — Exhibit P-10 and Weighment Proceedings. The contraband substance recovered from different packets was weighed using an electronic weighing machine brought to the spot. The weighment proceedings and certification documents were proved through Ex. P-12 & P-13 — Weighment proceedings, proved by PW-11, Ex. P-33 & P-34 — Certification regarding weighing machine, also 4 proved through PW-11. 4. After weighing, all packets were opened and contents were mixed. Representative samples were drawn, each sample packet containing approximately 100 grams of ganja. Samples were sealed and marked in presence of witnesses and seal impression proceedings were carried out. These proceedings were proved through Mixing & Sampling Panchnama — Exhibit P-11, Sample Panchnama — Exhibit P-14, Sample Seal Memo — Exhibit P-15, proved by PW-12 and supporting police witnesses. Remaining bulk contraband was also sealed. 5. Upon failure of accused persons to produce valid documents authorizing possession or transport of ganja, the police seized Contraband ganja, and Bolero vehicle used for transportation. Arrest memos of accused persons were prepared vide Exs. P-16 to P-20, proved by prosecution witnesses. Vehicle seizure memo was proved through seizure documents exhibited during trial. Information regarding arrest was communicated, proved as Exhibits P-39 and P-40. Subsequently, FIR was registered at Police Station Gurur vide FIR Exhibit P-31, proved through prosecution evidence. 6. Seized property was deposited in Malkhana and entries were made in register. Custody records were proved through Ex. P-27 — custody certificate, Ex.P-28 & P-28C — Malkhana register entries, proved by PW-7. Samples were forwarded for chemical examination through official dispatch records proved as part of prosecution evidence 5 Samples sent to Forensic Science Laboratory were examined and the report confirmed that seized substance was cannabis (ganja). Chemical examination report was proved vide Exhibit P-45, proved by prosecution. After completion of investigation, charge-sheet was filed against accused persons for offence punishable under Sections 8/20(b) (ii)(C) NDPS Act. 7. The prosecution has examined 12 witnesses and proved Exhibits P-1 to P-51. Statements of accused were recorded under Section 313 CrPC. They denied allegations and pleaded false implication. No defence evidence was adduced. 8. Learned counsel appearing for the appellants assails the impugned judgment contending that the learned trial Court has failed to properly appreciate material contradictions, procedural lapses, and deficiencies in the prosecution case. It is submitted that conviction has been recorded ignoring serious infirmities appearing from the evidence of prosecution witnesses and documentary record. He further submits that even the testimony of the Investigating Officer and official witnesses, when carefully examined along with documentary exhibits, demonstrates serious procedural lapses and inconsistencies which go to the root of the prosecution case. It is submitted that the prosecution story is founded upon alleged recovery in presence of independent witnesses; however, the said witnesses did not support the prosecution version during trial. PW-1 Haldhar Prasad Nirmalkar, an independent witness, has categorically stated that he was called to the police station, 6 Police officials obtained his signatures on documents. He was not present at the place of alleged recovery and signed documents without reading them, no seizure took place in his presence. 9. Similarly, PW-3 Kirtan Ram Sahu, another independent witness, has also not supported the prosecution version and has deposed that he had no knowledge about the alleged seizure. The police called him to the police station and obtained signatures and he was not present at the alleged spot. It is argued that both seizure witnesses have demolished the prosecution version regarding search and recovery. The defence submits that when independent witnesses do not support seizure proceedings, the entire recovery becomes doubtful. It is submitted that the prosecution claims that the seizure took place at Fagunadah Tiraha; however, independent witnesses deny presence at the spot. 10. Thus, seizure proceedings including Search Panchnama (Ex. P- 8), Recovery Panchnama (Ex. P-9), Identification Panchnama (Ex. P- 10), Mixing Panchnama (Ex. P-11), lose evidentiary value since witnesses disowned participation. He submits that prosecution story shows packets were opened, mixed, and samples drawn, yet the witnesses do not convincingly support this process. Ex. P-14 (Sample Panchnama) and Ex. P-15 (Sample Seal Panchnama) are rendered doubtful because independent witnesses have not confirmed sampling procedure. It is argued that improper sampling affects entire prosecution case since FSL report depends upon integrity of samples. 7 11. It is submitted that prosecution has failed to establish continuous safe custody of seized articles. Though prosecution has relied upon Malkhana entry (Exhibit P-28), Receipt (Exhibit P-29), Dispatch documents, Forwarding letter, yet the defence contends that link evidence is not properly proved through reliable testimony. Thus, there is absence of proper link evidence creates possibility of tampering. 12. Learned counsel for the appellant argued that prosecution story relies mainly upon police witnesses including PW-2,PW-4,PW-5, PW-12 (Investigating Officer),but independent corroboration is missing. It is contended that conviction cannot rest solely upon police testimony when independent witnesses have disowned recovery. The mandatory compliance regarding sampling, sealing, and certification was not strictly followed. There is no convincing evidence showing compliance before Magistrate as required by law. Therefore, seizure becomes doubtful. 13. Learned counsel for the appellants further submits that one of the most serious infirmities in the prosecution case relates to incorrect and contradictory indication of the place of incident in the spot maps prepared during investigation, which strikes at the root of the prosecution story. 14. It is next contended that the prosecution has relied upon spot maps prepared during investigation and exhibited as Ex.P-1 and Ex. P- 2, however, a careful comparison of both documents reveals that he location of interception and seizure shown in Exhibit P-1 differs 8 materially from the location shown in Exhibit P-2 and the orientation, road position and point of recovery do not correspond with each other. The places shown in the two maps appear to be entirely different locations, creating serious doubt as to where the alleged seizure actually took place. 15. It is argued that when seizure is said to have occurred at a public place during vehicle checking, exact location becomes a crucial fact, and inconsistency regarding such location goes to the root of the prosecution case. He further submits that prosecution witnesses have deposed that the vehicle was intercepted at Fagunadah Tiraha on NH- 930, yet the two spot maps prepared during investigation do not consistently depict the same place. Such contradiction, according to the defence, indicates that the investigation itself suffers from uncertainty regarding the place of occurrence. 16. In support of the above submission, learned counsel for the appellants has placed reliance upon the judgment of the Supreme Court in Amar Chand vs. State of Himachal Pradesh, reported in 2022 LiveLaw (SC) 2022, wherein the Supreme Court held that “When the place of occurrence is incorrectly or inconsistently indicated in official records and maps prepared during investigation, such discrepancy creates serious doubt regarding the prosecution case and undermines credibility of recovery proceedings.” 17. It is submitted that the Supreme Court observed that where the very foundation of the prosecution case — the place of recovery — 9 becomes doubtful, the accused is entitled to benefit of doubt. Applying the ratio of the said judgment, learned counsel submits that in the present case: (i) Two different spot maps indicate inconsistent locations; (ii) Prosecution has failed to reconcile this contradiction; (iii) No satisfactory explanation has been given regarding discrepancy. Thus, according to learned counsel, the recovery itself becomes doubtful. It is argued that once the place of seizure itself becomes doubtful, subsequent proceedings such as seizure, sampling, and investigation lose credibility. In NDPS cases, where punishment is extremely severe, prosecution must establish recovery with complete certainty. In view of contradictory spot maps, prosecution version cannot be accepted beyond reasonable doubt. Learned counsel for the appellants submits that the prosecution has failed to establish the incident location with certainty; the recovery proceedings become doubtful and therefore, the appellants are entitled to benefit of doubt. It is therefore prayed that conviction be set aside and appeal be allowed. 18. Per contra, learned counsel appearing for the State has supported the impugned judgment and submits that the learned trial Court has rightly appreciated the evidence on record and recorded conviction against the appellants in accordance with law. He submits that the prosecution has successfully established recovery of 33.200 kilograms of ganja, which is a commercial quantity, from the vehicle in which the appellants were travelling. 10 19. The recovery proceedings have been duly proved through testimonies of police witnesses, particularly PW-12 Arun Kumar Sahu, Investigating Officer, police personnels examined as prosecution witnesses and the documentary evidence relating to search and seizure. It is argued that seizure panchnama, vehicle search proceedings, identification memo and sampling documents collectively establish recovery beyond doubt. 20. Learned State counsel submits that merely because independent witnesses did not support prosecution fully, the prosecution case cannot be discarded. It is argued that it is common experience that independent witnesses often turn hostile due to fear or local pressure. He contends that evidence of official witnesses cannot be discarded solely on the ground that they belong to police force, particularly when their testimonies remain consistent and reliable. 21. The testimonies of police witnesses, including PW-12 and other members of police party, consistently establish interception of vehicle, recovery of contraband, preparation of seizure documents,arrest of accused, sealing and sampling procedure. There are no material contradictions affecting core of prosecution case. After seizure, contraband was mixed, weighed and representative samples were drawn and sealed in accordance with procedure. Documents relating to sampling, seal preparation and weighment have been proved during trial. The sealed samples were later sent to the forensic laboratory, and seal integrity remained intact. The chemical examination report (Exhibit 11 P-45) conclusively establishes that seized material was ganja. 22. It is argued that once scientific report confirms nature of contraband, defence cannot dispute recovery merely on technical grounds. The prosecution has produced documentary evidence showing deposit of seized material in Malkhana and dispatch of samples to FSL. Entries in Malkhana register and forwarding documents establish continuity of custody. No evidence of tampering has been produced by defence. 23. He submits that both accused persons were travelling in the vehicle carrying contraband concealed behind the seat. No lawful explanation was offered by them regarding possession or transportation of ganja. Thus, conscious possession is clearly established. In response to defence argument regarding difference between spot maps Exhibit P-1 and P-2, learned State counsel submits that minor discrepancies regarding location description are natural and do not affect substance of prosecution case. It is argued that both maps relate to the same general location, recovery location remains substantially same and no prejudice has been caused to accused. Thus, reliance placed upon judgment cited by defence is misplaced. 24. Learned State counsel submits that investigation substantially complied with NDPS procedural requirements. Minor procedural irregularities, if any, do not vitiate trial unless prejudice is shown. Learned trial court after analyzing oral and documentary evidence in detail has rightly concluded that prosecution proved guilt beyond 12 reasonable doubt. There is no perversity warranting interference in appeal. 25. This Court has heard learned counsel for the parties at length and perused the entire record of the trial court including oral and documentary evidence. 26. The conviction of the appellants rests upon alleged recovery of commercial quantity of ganja from the vehicle in which they were travelling. Therefore, the core question for determination is whether the prosecution has proved recovery and possession of contraband beyond reasonable doubt in strict compliance with procedural safeguards mandated under the NDPS Act. 27. On careful perusal of the evidence available on record, this Court further finds material inconsistencies in the prosecution version regarding receipt of secret information and the nature of the alleged recovery. From the evidence of PW-2 and PW-5, it emerges that in their examination-in-chief they stated that the police party had acted upon prior information regarding transportation of contraband substance. However, during cross-examination, particularly in paragraph 13 of their cross-examination, both witnesses admitted the facts contrary to the version given in examination-in-chief and conceded that the incident occurred during routine vehicle checking. 28. Further, PW-12 (Arun Kumar Sahu), the Investigating Officer, in his cross-examination at paragraph 45, admitted that no secret information had been received during the course of regular checking 13 and the vehicle was intercepted during routine checking. Thus, from the admissions of the prosecution witnesses themselves, it becomes evident that the prosecution case shifts from one based upon prior secret information to one of chance recovery during routine checking. 29. The prosecution has initially attempted to project the case as one arising out of prior intelligence information. However, admissions made by prosecution witnesses reveal that the alleged recovery occurred during routine checking and not pursuant to any specific prior information. Such contradictory stand taken by the prosecution witnesses affects the credibility of the prosecution story and creates doubt regarding the exact manner in which the alleged recovery was effected. When the prosecution version fluctuates on such a material aspect, the Court is required to scrutinize recovery proceedings with greater caution. 30. The inconsistency regarding prior information or chance recovery assumes importance because procedural safeguards under NDPS Act differ depending upon circumstances in which search is conducted. Where prosecution witnesses themselves give inconsistent versions, the benefit of such doubt necessarily goes in favour of the accused. 31. Therefore, the evidence of PW-2, PW-5 and PW-12 demonstrates that the prosecution case is not consistent even on the basic question whether the vehicle was intercepted based on secret information or during routine checking. This contradiction further weakens the prosecution case and adds to the cumulative doubt already noticed 14 regarding recovery proceedings. In the present case, prosecution has initially projected that the police party intercepted the vehicle on the basis of prior secret information. However, as already discussed, PW-2 Lukhan Chandrakar and PW-5, Gunesh Yadav (Constable) in cross- examination, admitted that the recovery occurred during routine checking. More importantly, PW-12, the Investigating Officer, in paragraph 45 of his cross-examination, admitted that no secret information had been received during regular checking. 32. Thus, the prosecution itself gives conflicting versions: * One suggesting prior information, * Another indicating chance recovery. prior information was indeed received, then strict compliance with Section 42 was mandatory. However, the prosecution has failed to establish the exact time of receipt of information, Proper recording of such information, Prompt forwarding to superior officer and documentary proof of compliance beyond doubt. 33. On the other hand, if recovery was purely accidental during routine checking, then prosecution ought to have consistently projected the case as one under chance recovery. The contradictory versions create uncertainty as to whether Section 42 compliance was required and, if required, whether it was complied with. 34. Where prosecution itself fails to present a consistent case regarding receipt of prior information, the Court is justified in drawing adverse inference regarding procedural compliance. Such ambiguity 15 assumes significance in NDPS cases, where statutory safeguards are intended to prevent misuse of power. In the examination in chief of PW- 2, he has deposed as under: “eq[kchj lwpuk ds vk/kkj ij mifujhz{kd v#.k lkgw ds lkFk gejkg ds #i esa eSa vkj{kd fy[ku lkgw] Mkesanz jkoVs] NksVw lksudj okgu psfdax gsrq Qkxqunkg frjkgk iq#j x;s Fks-----” In his cross-examination, at para 13 he has stated that : “lkgw <kck ds ikl 3-15 cts ds vklikl v#.k lkgw mi fujh{kd ckrk;k fd Qksu ls voS/k xkatk ifjogu dh lwpuk feyk gSA” PW-5 Gunesh Yadav (Constable) in his examination in cheif has stated that : “Qjojh 2023 dks eq[kchj lwpuk ds vk/kkj ij mi fujh{kd v#.k lkgw ds lkFk gejkg ds #i esa eSa] vkj{kd fy[ku lkgw] Mkesanz jkoVs] NksVw lksudj okgu psfdax gsrq Qkxqunkg frjkgk iq#j x;s FksA” Whereas the IO (PW-12) has stated that “ ;g dguk xyr gS fd ?kVuk ds laca/k esa eq[kchj lwpuk izkIr gqvk FkkA” 35. Thus, the prosecution has failed to satisfactorily establish compliance of Section 42 of the NDPS Act and the inconsistent stand regarding receipt of prior information further weakens the prosecution case. 36. Further it transpires that there is violation of Standing order of 1/89 as well as Section 52-A of the NDPS Act, 1985. Section 52-A pf the NDPS Act reads as follows: 16 52A Disposal of seized narcotic drugs and psychotropic substances - (1) The Central 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.” 37. In the present case, this Court found that the inventory has not been made before the Judicial Magistrate. As per provisions of Section 3 of the Cr.P.C. 1973, Magistrate means Judicial Magistrate and not Executive Magistrate. Therefore, this Court is of the considered opinion that there is non-compliance of Section 52-A of the NDPS Act, 1985. Standing Order 1/89 under Section 52-A of NDPS Act, 1881, provides: “Whereas the Central Government considers it necessary and expedient to determine the manner in which the narcotic drugs and pyschotropic substances shall as soon as may after their seizure be disposed of having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space.” 17 38. In the matter of Union of India Vs. Mohanlal and Another reported in (2016) 3 SCC 379, the Supreme Court has held as under: 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, 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 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. 18. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evidence when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.” 39. The Apex Court and this Court have consistently held that any deviation from mandatory procedural safeguards in NDPS cases results 18 in the benefit of doubt being extended to the accused, given the harsh impact of stringent law. The sampling sealing and production procedures form the backbone of the prosecution case and any lacuna therein compels interference. It is therefore held that there has been a complete and unexplained failure to adhere to the requirements of Section 52-A. Neither the samples were drawn in the presence of a Magistrate nor was the inventory list prepared and certified as required under the law. 40. The prosecution case rests primarily upon seizure proceedings said to have been conducted at Fagunadah Tiraha. However, independent seizure witnesses examined during trial did not support the prosecution case and denied presence at the place of recovery. Thus, seizure proceedings stand supported only by police witnesses. Though conviction can be based upon official witnesses, such evidence must inspire confidence, particularly in NDPS cases where punishment is severe and procedural safeguards are mandatory. 41. The most significant infirmity appearing in the prosecution case relates to the place of occurrence itself. Two spot maps prepared during investigation and exhibited as Ex. P-1 and Ex. P-2 have been placed on record. Upon comparison, it becomes evident that the location shown in Ex. P-1 materially differs from that shown in Ex.P-2. The Road position, direction, and seizure location do not correspond. Both maps depict different places of occurrence. The prosecution has failed to satisfactorily explain this discrepancy. When seizure is alleged to have 19 taken place during vehicle checking at a particular point on a public road, the precise location becomes a material fact forming the foundation of the prosecution case. 42. If the very place of seizure becomes doubtful, the entire recovery proceeding becomes suspicious. 43. Learned counsel for the appellants has relied upon the judgment of the Supreme Court in Amar Chand vs. State of Himachal Pradesh, 2022 LiveLaw (SC) 2022, wherein it has been held that incorrect or inconsistent indication of the place of incident creates grave doubt regarding prosecution version. The Supreme Court observed that when the foundation of prosecution case becomes doubtful, benefit must go to the accused. The ratio of the said decision squarely applies to the present case. The independent witnesses did not support prosecution case and denied witnessing recovery proceedings. This further weakens the prosecution version regarding actual seizure. 44. Once the location of seizure itself becomes uncertain and independent witnesses do not support recovery, reliance solely upon official witnesses becomes unsafe in the facts of the case. The chain of events leading to seizure becomes doubtful. In criminal jurisprudence, prosecution must establish guilt beyond reasonable doubt. Where serious doubt exists regarding recovery itself, accused are entitled to benefit of doubt. In NDPS matters, strict compliance with safeguards is mandatory. 20 45. This Court therefore records the finding that the prosecution has failed to establish the exact place of incident with certainty. Spot maps Ex. P-1 and P-2 contradict each other materially. The independent witnesses did not support seizure. Recovery proceedings become doubtful. The conviction cannot be sustained in presence of such material infirmities. 46. Consequently, the appeal deserves to be allowed. The judgment of conviction and sentence passed by the learned Special Judge (NDPS Act), Balod in Special Sessions Case No. 26/2023 dated 31.01.2024 is hereby set aside. The appellants are acquitted of charges under Sections 8/20(b)(ii)(C) of the NDPS Act. The appellants shall be released forthwith, if not required in any other case. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2026.02.03 14:12:53 +0530