1 CGHC010268762022 2026:CGHC:40896 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 208 of 2022 State Of Chhattisgarh Through Police Station Basantpur, District Balrampur Ramanujganj (C.G.) ... Appellant versus Ramswaroop Tiwari S/o Awadhesh Tiwari Aged About 46 Years Caste Brahman, Occupation Teacher Panchayat (L.B.) Resident Of Village Amandon, Police Station Pratappur, District Surajpur (C.G.) ... Respondent For State/appellant : Shri Atanu Ghosh, Dy.G.A. For Respondent : Shri D.N. Prajapati, Advocate. SB: Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board 18/09/2026 1. Present is an acquittal appeal filed by the appellant/State under Section 378(1) of the Code of Criminal Procedure against the impugned judgment of acquittal dated 20th April, 2022 passed by the learned Special Judge (NDPS Act) Balrampur place Ramanujganj in Special Sessions Case (NDPS) No.05/2020 GOURI MUDALIAR Digitally signed by GOURI MUDALIAR Date: 2026.09.22 17:26:37 +0530 2 whereby the respondent/accused has been acquitted from the offence of Section 21(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). 2. The case of the prosecution is that on 31/03/2020 the police of Police Station Basantpur, District Balrampur received a secret information that the respondent/accused is illegally transporting intoxicating cough syrup in Maruti Eon Car which was coming from Bhamni. The information was recorded in Rojnamcha Sanha and two independent witnesses were called namely Sanjay Dewangan and Rajesh Dewangan @ Sonu they were informed about the secret information and notice Ex.P-1 was served upon them. Said information Panchnama Ex.P-2 was prepared. The necessary to search without warrant panchnama Ex.P-4 was also prepared and the copy of the same were forwarded to the Sub Divisional Officer, Police, Wadrafnagar which is Ex.P-21. The police party proceeded towards the informed place i.e. the main road forest depot. They intercepted white colour Hundai Eon Car bearing number C.G.15 CU 9498 it’s driver disclosed his name as Ramswaroop Tiwari. Notice under Section 50 of the NDPS Act Ex.P-4 was served upon him and he was being informed about his right to be searched from any Magistrate, Raid Officer or Police Authority. He gave his consent that he is ready to give his search to the police authority. The independent witnesses also gave their own search to the accused and panchnama Ex.P-5 3 was prepared. The search of the police party was also made and panchnama Ex.P-6 was prepared, however no incriminating articles were recovered. During search of the Hundai Eon Car bearing number C.G.15 CU 9498, 420 bottles of Onerex Cough Syrup were found which was in plastic packets in four cartoons. The seized cough syrup were physically identified and panchnama Ex.P-7 was prepared, it was sealed and specimen seal panchnama Ex.P-9 was also prepared. The cough syrup and Eon Car have been seized vide seizure memo Ex.P-10. Spot map Ex.P-12 was prepared by Patwari. The accused was arrested on 31/03/2020. FIR Ex.P-24 was registered against the accused for the offence under Section 21(B) of the NDPS Act. Out of 420 bottles of cough syrup, 8 bottles were sent for it’s examination report from the Drug Inspector, Balrampur by memo Ex.P-17. The Drug Inspector, Balrampur submitted his examination report dated 01/04/2020 which is Ex.P-18, P-19 & P-20. According to the report of the Drug Inspector, the seized bottles contains with chlorpheniramne maleate & codeine phosphate syrup. Spot map Ex.P-25 was prepared by the police. 8 bottles of cough syrup were separated and separately sealed which was forwarded to the Station House Officer, Police Station Basantpur and sent for it’s chemical examination to FSL, Raipur from where report was received and in the report, the seized cough syrup bottles were found to be containing 4 chlorpheniramne maleate with codeine phosphate syrup. Statement of the witnesses under Section 161 of Cr.P.C. has been recorded and after completion of usual investigation charge sheet was filed against the respondent/accused before the learned trial Court for the offence under Section 21(B) of the NDPS Act. 3. The learned trial Court has framed charge against the accused for the offence under Section 21(B) of the NDPS Act. The accused denied the charge and claimed trial. In order to prove the offence against the respondent/accused, the prosecution has examined as many as 7 witnesses, statement of the accused under Section 313 of Cr.P.C. has also been recorded in which he denied the circumstances that appears against him, pleaded innocence and submitted that he has been falsely implicated in the offence. After appreciation of oral as well as documentary evidence led by the prosecution, the trial Court acquitted the respondent/accused from the offence under Section 21(B) of the NDPS Act. Hence, this acquittal appeal. 4. Learned counsel for the appellant/State would submit that the prosecution has proved it’s case beyond reasonable doubt but for minor omissions or contradictions, the evidence of the prosecution witnesses is reliable and sufficient to hold the respondent/accused guilty of the alleged offence. The learned trial Court has considered that the alleged cough syrup bottles have been seized on 31/03/2020 which was sent to Drug 5 Inspector for it’s examination on 01/04/2020. However, the seized sample was sent to the FSL for it’s examination on 18/05/2020 and in between that period, the safe custody of the seized article have not been proved by the prosecution, therefore the tampering of the sample cannot be ruled out. He would further submit that even there is no evidence on record that the seized articles were kept in safe custody of malkhana. He would submit that the report of the Drug Inspector clearly reveals that the seized bottles of cough syrup contains with the prohibited drug of chlorpheniramne maleate with codeine phosphate. He further submits that the respondent/accused was transporting the seized cough syrup, he was found in possession of the vehicle and the said cough syrup was being carried in the said vehicle, he alone was occupant of the said vehicle, therefore the respondent/accused has to explain it’s possession, however the respondent/accused failed to explain it’s possession. Merely on minor discrepancy, the respondent/accused has been acquitted, therefore the impugned order suffers from perversity and illegality, the same is liable to be set aside and the respondent/accused may be convicted for the alleged offence. 5. On the other hand, learned counsel appearing for the respondent/accused opposes the submissions made by learned counsel for the appellant and submitted that the prosecution has failed to prove it’s case beyond reasonable 6 doubt, there is no evidence that in between 01/04/2020 to 18/05/2020 where the seized articles were kept and therefore the tampering of the samples cannot be ruled out, thus any chemical report of the said seized article cannot be relied upon. The Drug Inspector has given his report on the basis of the label of the said bottles and the actual contents of the bottles have not been examined by him. He would further submit that the learned trial Court has also observed that it was a lock down period, the alleged articles were seized at the border of Chhattisgarh and Uttar Pradesh and it could not be possible that while crossing the border of the State, the vehicle was not being checked by the police authorities at the check post. He would further submit that the learned trial Court has also observed that the lodger of the FIR cannot investigate the offence and in the present case, both these authorities are one and the same which prejudice the ultimate outcome of the case. Since there is no evidence of safe custody, no malkhana register has been produced and even the malkhana in-charge has not been examined, the acquittal of the respondent/accused can be maintained on this ground alone. The prosecution has utterly failed to prove it’s case beyond reasonable doubt and therefore the learned trial court while meticulously examining the evidence available on record acquitted the respondent/accused which does not suffer from 7 any perversity or illegality and the acquittal appeal is liable to be dismissed. 6. I have heard learned counsel for the parties and perused the record of the trial Court. 7. From perusal of the impugned judgment, it transpires that the learned trial Court has acquitted the respondent/accused considering that it was the lock down period. The alleged drugs was being allegedly transported through Chhattisgarh Uttar Pradesh border and it could not be possible that his vehicle has not been checked in the check post at border and he could be succeeded in crossing the border along with the said illegal drugs. The learned trial Court has also observed that the lodger of the FIR and the Investigating Officer cannot be one and the same person and while relying upon the judgment passed by Hon’ble Supreme Court in the case of Mohan Lal Vs. State of Punjab reported in 2010 (3) CCSC 1568 SC the learned trial Court has considered it to be a suspicious circumstance which makes the prosecution case doubtful. Learned trial Court has also observed that the independent witnesses have turned hostile and that there is no evidence about the safe custody of the seized article from 01/04/2020 up till 18/05/2020 when it was chemically examined by the FSL. When while examining the evidence of the witnesses, sufficient discrepancy has been notices in their evidence. 8 8. PW-06 Anuranjan Lakda is the Investigating Officer who stated in his evidence that on being received secret information, he proceeded for search of the vehicle, he recorded the secret information in Rojnamcha Sanha Ex.P-2 and he called the independent witnesses. The independent witnesses were served with the notice. The necessary panchnama for search necessitating the search without a warrant was prepared and the same was forwarded to the senior police officer SDOP, Wadrafnagar which is Ex.P-3. They proceeded towards the informed place and apprehended the vehicle in which the respondent/accused was found. The respondent/accused was informed that he has a right to be searched by any gazetted officer, police authority or magistrate, then he gave his consent to be searched by the police authority. On being personal search of the accused and on being search of the independent witnesses and police authorities nothing incriminating could be found. Necessary panchnamas were prepared. On being search of the vehicle of the respondent/accused, 420 bottles of codeine cough syrup were recovered which was kept in 4 cartoons in the said car. The said cough syrup were seized on 31/03/2020, seizure memo Ex.P-10 was prepared, the seized articles were sealed and specimen seal panchnama Ex.P-9 was prepared. Accused was arrested on the spot and on 31/03/2020 itself 8 bottles of cough syrup were sent to Drug Inspector for it’s examination report along with the memo Ex.P- 9 17. The statement of the witnesses have been recorded and FIR Ex.P-24 was registered, spot map Ex.P-25 was prepared. 9. In cross-examination, he admitted that he is the lodger of the FIR and also the Investigating Officer, all the proceedings have been done by him. He admitted that by mistake he mentioned the crime number in the documents which has been prepared on the spot though at that time the offence has not been registered. He further admitted that from the accused korex cough syrup has not been seized and even he has not mentioned that at what place of the vehicle the korex cough syrup was being kept. He prepared the specimen seal panchnama Ex.P-9 but specimen seal was not impressed in it. He admitted that this cough syrup have not been sent for it’s chemical examination to FSL, Raipur by him. He admitted that without their being any chemical report it cannot be said that the seized cough syrup is the intoxicating cough syrup. He further admitted that the Drug Inspector has not chemically examined the contents of the bottle and he only sealed it and sent it for chemical examination. He further admitted that without any report of the Drug Inspector he has registered the offence against the accused. He himself not sent any memo to the Gazetted Officer or Executive Magistrate for search and seizure of the accused. He admitted that there is no panchnama prepared by him with respect to the search of the vehicle of the accused. In the document Ex.P-10 he has not 10 mentioned the vehicle number from which the cough syrup has been seized. From perusal of the evidence of this witness though he is the Investigating Officer and carried the entire search and seizure proceeding, however there is no evidence of this witness about the custody of the seized cough syrup as to where he kept the cough syrup or in whose custody he handed it over. 10. PW-1 Rajesh @ Sonu and PW-2 Sanjay Dewangan are the independent witnesses who turned hostile and have not supported the prosecution case, though they have admitted their signature over the documents. Satyaprakash Tiwari is the Patwari who prepared the spot map Ex.P-12 and panchnama Ex.P-13. 11. PW-4 Vikas Kumar Dubey is the Drug Inspector who stated in his evidence that he received the 8 bottles of Onerex cough syrup for it’s examination and after it’s examination he prepared the report on 01/04/2020 and sent back to the police authority. He sealed the cough syrup and sent to the State FSL Raipur for it’s chemical examination. He proved the documents Ex.P-18, P-19 and P-20. In the cross examination, he admitted that he has not conducted any chemical examination of the cough syrup and the nature of the cough syrup could be determined only after it’s chemical examination. 11 12. PW-5 Dharmendra Tiwari a member of search party who stated in his evidence that on the date of incident 420 bottles of korex cough syrup was seized from the car bearing number C.G.15 CU 9498. During investigation the accused disclosed that he purchased the said cough syrup from Bhamni Uttarpradesh. In the cross-examination, he admitted that all the proceedings have been conducted at Basantpur police station and there is no proceeding drawn at Dhanwar Barrier. He admitted that without there being any pass, no vehicles were permitted to cross the barrier. He further admitted that from the accused Ram Swaroop neither vehicle nor korex cough syrup have been seized. He further admitted that during investigation it revealed that seized cough syrup belongs to one Anwar Khan since Anwar Khan could not be arrested, the case has been prepared against the present respondent. 13. PW-7 Dileshwar Chand is the constable who was also a member of search party and witness to the panchnama Ex.P-6. He too have admitted in his cross-examination that from the accused Ramswarooop no cough syrup has been seized from him but it was seized from his car. 14. From the evidence available on record, there is complete absence of evidence with respect to the safe custody of the seized cough syrup and there is no evidence proved by the prosecution regarding the malkhana register or even the malkhana moharrir has not been examined. Even there is no 12 evidence of the witnesses as to where the seized cough syrup have been kept from 31/03/2020 up-til 18/05/2020. From perusal of the impugned judgment and the evidence available on record, it clearly reveals that the consideration of the learned trial Court is one of the plausible views taken by it while acquitting the respondent/accused. 15. Applying the law governing the scope of interference in an appeal against acquittal, the Hon'ble Supreme Court in the case of "State of Rajasthan Vs. Kistoora Ram" reported in 2022 SCC Online SC 984, has held as follows:- "8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all." 16.Further, in case of “Jafarudheen and Others Vs. State of Kerala”, reported in 2022 (8) SCC 440, the Hon’ble Supreme Court has considered the scope of interference in appeal against acquittal in judgement at para 25, which reads as under :- “25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.P.C., the Appellate Court has to consider whether the Trial Court’s view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that ensures in favour of the accused has to be 13 disturbed only by thorough scrutiny on the accepted legal parameters.” 17.After considering the material available on record as well as the well-reasoned judgment passed by the learned trial Court and being very much conscious of the existing legal position as held by the Hon'ble Supreme Court in the case of Kistoora Ram (Supra) and Jafarudheen (Supra), that in an appeal against acquittal, if the view taken by the trial Court is a possible and plausible view on the basis of the evidence available on record, the Appellate Court should be slow in interfering with the order of acquittal and the same cannot be reversed merely because another view is possible. In the present case, the learned trial Court, after appreciating the oral as well as documentary evidence available on record, has rightly found that the prosecution has failed to prove conscious possession of the contraband beyond reasonable doubt. The findings recorded by the learned trial Court are based upon proper appreciation of the evidence and constitute a plausible view. I, therefore, of the considered opinion that the judgment passed by learned trial Court is just and proper and does not call for any interference. 18. For the foregoing reasons, the acquittal appeal is devoid of merits and is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge gouri