1 CGHC010391342025 2026:CGHC:31677 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1852 of 2025 Judgment Reserved on 21.07.2026 Judgment Delivered on 24.07.2026 • Gurusaheb Cheema @ Savi, S/o Balvir Singh Cheema, aged about 28 Years, Resident of Veer Savarkar Nagar, House No.Ch-144, Police Station Kabir Nagar, Raipur (C.G.) ...Appellant versus • State of Chhattisgarh, Through - the S.H.O. P.S. Amanaka, District- Raipur (C.G.) ... Respondent For Appellant : Mr. H.A.P.S. Bhatia, Advocate. For Respondent/State : Ms. Swati R. Gupta, Panel Lawyer. (Hon’ble Shri Justice Radhakishan Agrawal) CAV Judgment 1. The present criminal appeal has been preferred under Section 415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, ‘BNSS’) against the judgment of conviction and order of sentence dated 02.08.2025 passed by the learned Special Judge (NDPS Act), Raipur, District Raipur (C.G.) in Special Case No.181/2022, whereby the appellant has been convicted for the offence punishable under Section 18(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act, 1985’) and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.1,00,000/-, and AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2026.07.24 13:23:12 +0530 2 in default of payment of fine, to further undergo rigorous imprisonment for two years. 2. Case of the Prosecution case, in brief, is that on 12.11.2022, Sub- Inspector- Narad Ram Banjare (since deceased), posted at Police Station Amanaka, Raipur, received a secret information that a person was standing near Calcutta Tyre Shop, Transport Nagar, Raipur, in possession of opium and was attempting to sell the same. The said information was recorded in the roznamcha sanha vide Ex.P-2, and a constable was deputed to summon two independent witnesses. Accordingly, witnesses Prakash Rajbhar (since deceased) and Bunty @ Sarvesh Pandey were brought and apprised of the said information. Thereafter, considering the urgency of the matter, the raiding party proceeded to the spot. On reaching the spot, the police party intercepted the appellant, who disclosed his name as Gurusaheb Cheema @ Savi. He was informed about the secret information and apprised of his legal right to be searched before a Gazetted Officer or Magistrate, and a notice under Section 50 of the NDPS Act was served upon him vide Ex.P-4. Prior to conducting the search, the police party as well as the independent witnesses offered their personal search, but nothing incriminating was found. During the personal search of the appellant, two packets containing a substance resembling opium were recovered from the pocket of his pant, and an identification panchnama was prepared vide Ex.P-10. Thereafter, upon weighing, the seized substance was found to be 96 grams of opium. A sample weighing 6 grams was drawn and sealed, and the remaining contraband was also sealed at 3 the spot vide Ex.P-14. The appellant failed to produce any valid licence or permit despite being served with notice under Section 91 Cr.P.C. The contraband was seized in the presence of independent witnesses vide Ex.P-15. A Dehati Nalishi was recorded vide Ex.P-36, on the basis of which, FIR (Ex.P-37), bearing Crime No.424/2022, was registered at Police Station Amanaka, Raipur. The sample was thereafter sent to the FSL for examination, which confirmed the seized substance to be opium. Statements of the witnesses were recorded and, upon completion of the investigation, charge-sheet was filed before the competent Court. 3. The learned trial Court framed charge against the appellant for the offence punishable under Section 18(b) of the Act, 1985. The appellant denied the charge and pleaded not guilty, and claimed to be tried. In order to prove its case, the prosecution examined ten witnesses. However, the appellant did not examine any witness in his defence. 4. Upon appreciation of the oral and documentary evidence available on record, the learned trial Court has convicted and sentenced the appellant as stated hereinabove, which is under challenge in the present appeal. 5. Learned counsel for the appellant submits that the learned trial Court has not properly appreciated the oral as well as documentary evidence available on record while holding the appellant guilty. It is contended that the consent memo (Ex.P-5) is vague as it does not specify before whom the appellant consented to be searched, 4 thereby casting doubt on compliance with mandatory provisions of the Act, 1985. It is further submitted that the independent seizure witness has not supported the prosecution case and the other witness, Prakash Rajbhar, along with the Investigating Officer, has expired, thereby weakening the prosecution case. It is also submitted that the seizure memo (Ex.P-15) does not bear any sample seal and there are discrepancies in the timing of weighing as reflected in the statement of PW-2 Yogesh Thakur and the weighing panchnama (Ex.P-20). Further, contradictions exist regarding the number of seized contraband packets sent to the FSL and the corresponding entries in the Malkhana Register (Ex.P-23C), thereby raising doubt about the chain of custody and transmission of the alleged contraband. On these grounds, it is prayed that the impugned judgment of conviction and sentence be set aside and the appellant be acquitted of the charge leveled against him. 6. On the other hand, learned counsel for the State supports the impugned judgment and submits that the learned trial Court, after proper appreciation of the evidence available on record, has rightly convicted and sentenced the appellant, and the same does not call for any interference by this Court. 7. I have heard learned counsel for the parties and perused the material available on record. 8. Since the raiding officer, Sub-Inspector Narad Ram Banjare, expired during the pendency of the trial, his evidence could not be recorded before the learned trial Court. In order to prove the search and 5 seizure proceedings, the prosecution examined Assistant Sub- Inspector Praneshwar Verma (PW-10), who was a member of the raiding party and had accompanied the raiding officer at the time of the search. He deposed that he accompanied the deceased raiding officer, Sub-Inspector- Narad Ram Banjare, during the raid conducted on 12.11.2022 pursuant to the secret information received from the informant. He stated that since the raiding officer had expired, his evidence had been recorded, wherein he identified the signature of raiding officer on the relevant documents. He further stated that the appellant was apprehended near Calcutta Tyre Shop, Transport Nagar, Raipur and 96 grams of opium was recovered from the pocket of his pant. According to him, a sample weighing 6 grams was drawn, the alleged contraband and sample were sealed at the spot, and after completion of the investigation, the seized sample was sent to the FSL, which confirmed it to be opium. However, during cross-examination, PW-10 made material admissions which go to the root of the prosecution case. He admitted that none of the documents or panchnamas bear his signatures and that he was identifying the signatures of the deceased raiding officer only on account of having worked with him. He further admitted that his name and signature do not appear on the staff search panchnama (Ex.P-7) and that he had not prepared any document at the spot, all documents having been prepared by the deceased raiding officer. Thus, although he claimed to be present throughout the proceedings, but his testimony does not inspire confidence. The entire prosecution case substantially rests 6 on documents prepared by the deceased raiding officer, whose evidence could not be tested by cross-examination due to his death, thereby seriously affecting the evidentiary value and credibility of the prosecution case. 9. This apart, the consent memo (Ex.P-5) does not disclose the person before whom the appellant consented to be searched and only records that appellant had no objection to his personal search, thereby casting serious doubt on due compliance with the mandatory requirements of Section 50 of the NDPS Act. 10. In this regard, the Hon’ble Supreme Court in Arif Khan @ Agha Khan vs. State of Uttarakhand, (2018) 18 SCC 380 has held that it is imperative on the part of the prosecution to establish that the accused was made aware of his valuable right to be searched before a Gazetted Officer or a Magistrate in a meaningful manner and that strict compliance of Section 50 of NDPS Act is mandatory. It has further been held that mere consent of the accused would not dispense with such mandatory requirement and any ambiguity or deficiency in compliance would vitiate the search. Paras 18 to 20 of this judgment is relevant and is reproduced hereunder:- “18.What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja, (2011) 1 SCC 609. 19. Indeed, the latter Constitution Bench decision rendered in Vijaysinh Chandubha Jadeja (supra) has settled the 7 aforementioned questions after taking into considerations all previous case law on the subject. 20. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorised officer to make the suspect aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate. (See also Ashok Kumar Sharma v. State of Rajasthan, (2013) 2 SCC 67 and Narcotics Control Bureau v. Sukh Dev Raj Sodhi, (2011) 6 SCC 392).” 11. Applying the aforesaid principle to the facts of the present case, since the consent memo (Ex.P-5) is vague and does not specify as to before whom the appellant agreed to be searched, the mandatory requirement of Section 50 of NDPS Act cannot be said to have been duly complied with. 12. Further, the independent seizure witness PW-1 Sarvesh Pandey @ Banti has not supported the prosecution case, and another independent witness - Prakash has expired, thereby weakening the prosecution version. There are also material discrepancies in the prosecution evidence regarding seizure and safe custody of the alleged contraband. The seizure memo (Ex.P-15) does not bear any sample seal in column No.13. PW-2 Yogesh Thakur (weigher) admitted that he opens his shop at 8:00 a.m. and closes it at 8:00 p.m., whereas the weighing panchnama (Ex.P-20) records the time as 8 22:40 hours, which creates serious doubt about the genuineness of the alleged weighing process. 13. Moreover, PW-4 Daitare Bhoi, Assistant Sub-Inspector deposed that two sealed packets were sent to the FSL for chemical examination, whereas the Malkhana Register (Ex.P-23C) reflects that only one packet was sent and does not contain any entry regarding sealed packets or the 6 gram sample packet. That apart, the forwarding letter of Superintendent of Police, Raipur (Ex.P-25) mentions that a 6 gram sealed sample marked ‘A’ was sent to FSL and PW-6 Dr. Kulveer Singh, Scientific Officer, has also stated that one sealed packet containing 6 grams was received, but there is no similar entry in the Malkhana Register regarding deposit of such sample, nor is there any mention in the seizure memo (Ex.P-15). Such inconsistencies go to the root of the matter and create serious doubt about the sanctity of the seized material and the chain of custody. 14. Furthermore, the sample seal panchnama (Ex.P-33) does not bear any date and mentions Crime No. 424/2022, however, the said crime number was assigned only after the FIR was registered at 00:20 hours. This circumstance raises a serious doubt that the sample seal panchnama was not prepared at the spot, but was prepared subsequently, thereby affecting the credibility of the prosecution case. 15. In Noor Aga vs. State of Punjab & Anr, (2008) 16 SCC 417, the Hon’ble Supreme Court has categorically held that in cases under the NDPS Act, the burden is on the prosecution to prove that the seized contraband was kept in safe custody and that there was no possibility 9 of tampering. Failure to establish the same is fatal to the prosecution case. 16. In view of the aforesaid analysis, this Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt. The material contradictions, non-compliance of mandatory provisions, and failure to establish safe custody of the seized contraband create serious doubt in the prosecution case, entitling the appellant to the benefit of acquittal. Accordingly, the learned Court was not justified in convicting and sentencing the appellant for the aforesaid offence. 17. Consequently, the appeal is allowed. The impugned judgment of conviction and order of sentence passed by the learned trial Court are set aside. Appellant is acquitted of the charge levelled against him. 18. Appellant is reported to be in jail. He is directed to be released forthwith, if not required in any other case. 19. Let a certified copy of this judgment along with the original record be transmitted to the concerned trial Court and Jail Superintendent for necessary information and action. Sd/- (Radhakishan Agrawal) Judge Akhilesh