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2024:CGHC:33378
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 1220 of 2024
Mehtaru Pal S/o Late Ajit Pal Aged About 77 Years Resident Of Nagar
Panchayat Kunra, Gandhi Chowk, Ward No. 3, P.S. Dharsiwa, District
Raipur, Chhattisgarh
----Appellant
versus
State of Chhattisgarh Through Station House Officer, Police Station
Dharsiwa, Raipur, District Raipur (C.G.).
---- Respondent
CRA No. 1317 of 2024
Tushar Dewangan S/o Rekhraj Dewangan Aged About 22 Years R/o
Village Arang, Netaji Chowk, Ward No. 14, Police Station Arang, District
Raipur, Chhattisgarh.
----Appellant
Versus
State of Chhattisgarh Through Station House Officer, Police of Police
Station Dharsiwa, District Raipur, Chhattisgarh.
---- Respondent
For Appellant : Mr. Vijay Sahu & Mr. Pramod Ramteke,
Advocates.
For State : Ms. Pragya Pandey, Dy. GA.
Hon'ble Shri Justice Arvind Kumar Verma
Judgment on Board
30.08.2024
1. Since above two appeals arising out of same incident, they are being
disposed off by this common order.
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2. Challenge in these criminal appeals is to the impugned judgment of
conviction and sentence dated 25.06.2024 passed by learned Special
Judge, (NDPS Act), Raipur, (CG) in Special Criminal Case
No.173/2023, whereby the appellants stand convicted and sentence as
under:
Conviction Sentence
Rigorous imprisonment for 02
Under Section
years & fine of amount
20(b)(ii)(B) of
Rs.25,000/-, in default of
the NDPS Act.
payment of fine 03 months
additional RI.
3. Case of the prosecution, in brief, is that on 08.08.2023 Shri Brij Kishore
Dixit Assistant Sub-Inspector of Police Station -Dharsiwa, received
secret information that appellants/accused are carrying illegal
contraband (ganja) on vehicle Maruti Swift bearing registration No.CG-
04/PA-1245 at village -Kunra, Gandhi Chowk, Dharsiwaand . On
receiving said information, they reached on spot and during course of
search, 4.650 kg illicit contraband (ganja) was seized from the said
vehicle. On the basis of seizure, appellants were arrested. After
completion of other necessary formalities, the police returned to the
Police Station and deposited the seized contraband in the Malkhana
and lodged FIR against the appellants. Statements of witnesses were
recorded under Section 161 of Cr.P.C.
4. After completion of investigation, charge-sheet/challan was filed
against the appellants for offence punishable under Section 20(b)(ii)(B)
of the NDPS Act.
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5. In order to prove guilt of appellants, prosecution examined total 10
witnesses and their statements were recorded. However, no defence
witnesses was examined. Statement of appellants (accused) were
recorded under Section 313 CrPC in which they pleaded innocence
and false implication.
6. After completion of trial, trial Court convicted and sentenced the
appellant as mentioned in paragraph -1 of this judgment. Hence, this
appeal.
7. In both appeals, learned counsel for the appellants submits that the
impugned judgment passed by the learned trial Court is illegal,
perverse and contrary to the evidence available on record, hence
liable to be set aside. There is no specific evidence available on record
which shows that the appellants were involved in the alleged crime.
Appellants have been falsely implicated in this case as the contraband
(ganja) so seized were from the open place and not in the exclusive
possession of appellants. Independent witnesses/seizure witnesses
(PW-1 & PW-2) have not support the case of prosecution and turned
hostile. Apart from this, general procedure for sampling provided in
Standing Order No.01 of 1989 dated 13.06.1989 has not been
complied with by the prosecution. Investigating Officer received prior
information but he has not complied with provision of Section 42(2) of
the NDPS Act. There are major contradictions and omissions in the
statement of PW-10/Investigating Officer, which cannot be relied upon.
The learned trial Court failed to appreciate that the entire action of
seizure and sampling is wholly illegal. It was done in violation of the
provisions of Section 52A(2) of the NDPS Act as the procedure
prescribed therein was not followed while drawing the samples and
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seizing the alleged narcotic substance. There is serious doubt about
the correctness of samples sent for analysis as to whether they were
actually the samples of the seized contraband. There are several
discrepancies in the prosecution case which makes the custody of the
seized articles and sampling extremely doubtful. Trial Court has
wrongly appreciated that the investigation has been done properly and
mandatory provisions of the NDPS Act have been complied with. The
prosecution has utterly failed to prove its case beyond reasonable
doubt against the appellants by adducing cogent and reliable evidence,
even then the learned trial Court has held the appellant guilty of the
above offence. Therefore, the impugned judgment `is liable to be set
aside.
8. On the other hand, learned counsel for the State supporting the
impugned judgment would submit that the investigating officer at the
time of effecting search and seizure proceedings has substantially
complied with all the mandatory provisions of the NDPS Act. Learned
trial Court having appreciated the overall oral and documentary
evidence has rightly recorded a finding of guilt against the appellant
which needs no interference by this Court. Therefore, the present
appeal being sans merits is liable to be dismissed.
9. Heard learned counsel for the parties and perused the record of the
trial Court including the impugned judgment.
10. PW-10/Brij Kishore Dixit (Assistant Sub-Inspector) in his evidence has
stated that on the date of incident, he received secret information from
the Informer that the appellants were carrying illegal contraband (ganja)
on vehicle Maruti Swift bearing registration No.CG-04/PA-1245 and
trying to sell it near village -Kunra, Gandhi Chowk, Dharsiwaand. After
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recording the said information in Roznamcha Sanha (Ex.P36/C), he
reached on spot along-with other staffs and during course of search
seized total 5 packets (containing 4.650 kg ganja) from the said vehicle.
In his cross-examination, he stated that alleged incident spot is a
public/crowded place where grocery shop, clothes shop, medical shop
were remained, however, he has neither recorded the statements of any
shopkeepers nor putting any question/enquiry with them regarding the
incident. He also admitted that it is also not clear that whose thumb
impression has been mentioned in place of second witness in weighing
panchanama Ex.P-11 & P-10, search panchanama Ex. P-7, search
panchanama of police and witness Ex.P-6, recovery panchanama Ex.
P-8. He further admitted that he received the alleged information
through the informer but on which mode he received the said
information has not been mentioned in Ex. P-1 ie notice. He also
admitted that in Ex.P-2 (information Panchnama) time of panchnama
has been manipulated.
11. PW-1/Poshad Verma & PW-2/Duklaha in their cross-examination have
denied that in his presence the police had prepared the information
panchnama & search panchnama without warrant (Ex.P-2 & Ex.P-3).
He also denied that he had gone to the incident spot with the Police
force and found at spot the accused persons as per the informer
information.
12. In order to test the above facts and submissions/evidences, it would be
appropriate to refer to the mandatory provisions of the NDPS Act.
13.Relevant Sections of the NDPS Act read as under :-
“52A. Disposal of seized narcotic drugs
and psychotropic substances.-
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1. xxxxxx
(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 subsection (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
(a) certifying the correctness of the
inventory so prepared; or
(b) taking, in the presence of such
Magistrate, photographs of [such drugs or
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 subsection (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 subsection (2) and certified by the Magistrate, as
primary evidence in respect of such offence.
55. Police to take charge of articles seized and
delivered.— An officer-in-charge of a police station shall
take charge of and keep in safe custody, pending the
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orders of the Magistrate, all articles seized under this Act
within the local area of that police station and which may
be delivered to him, and shall allow any officer who may
accompany such articles to the police station or who may
be deputed for the purpose, to affix his seal to such articles
or to take samples of and from them and all samples so
taken shall also be sealed with a seal of the officer-in-
charge of the police station."
14. As per provision of Section 52A(2), (3) & (4) of the NDPS Act when any
contraband/narcotic substance is seized and forwarded to the police or
to the officer so mentioned under Section 53, the officer so referred to in
sub-section (1) shall prepare its inventory with details and the
description of the seized substance like quality, quantity, mode of
packing, numbering and identifying marks and then make an application
to any Magistrate for the purposes of certifying its correctness and for
allowing to draw representative samples of such substances in the
presence of the Magistrate and to certify the correctness of the list of
samples so drawn.
15.Notwithstanding the defence set up from the side of the respondent in
the instant case, no evidence has been brought on record to the effect
that the procedure prescribed under subsections (2), (3) and (4) of
Section 52A of the NDPS Act was followed while making the seizure
and drawing sample such as preparing the inventory and getting it
certified by the Magistrate.
16.In the matter of Union of India v. Mohanlal and another reported in
(2016) 3 SCC 379, the Supreme Court while dealing with Section 52A
of the NDPS Act clearly laid down that it is manifest from the said
provision that upon seizure of the contraband, it has to be forwarded
either to the officer-in-charge of the nearest police station or to the
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officer empowered under Section 53 who is obliged to prepare an
inventory of the seized contraband and then to make an application to
the Magistrate for the purposes of getting its correctness certified. It has
been further laid down that the samples drawn in the presence of the
Magistrate and the list thereof on being certified alone would
constitute primary evidence for the purposes of the trial.
17.Recently, the Supreme Court in the matter of Yusuf @ Asif versus
State (Criminal Appeal No.3191/2023), decided on 13.10.2023, has
held as under:-
“16. In the absence of any material on record to establish
that the samples of the seized contraband were drawn in
the presence of the Magistrate and that the inventory of
the seized contraband was duly certified by the Magistrate,
it is apparent that the said seized contraband and the
samples drawn therefrom would not be a valid piece of
primary evidence in the trial. Once there is no primary
evidence available, the trial as a whole stands vitiated.
17. Accordingly, we are of the opinion that the failure of the
concerned authorities to lead primary evidence vitiates the
conviction and as such in our opinion, the conviction of the
appellant deserves to be set aside. The impugned
judgment and order of the High Court as well as the trial
court convicting the appellant and sentencing him to
rigorous imprisonment of 10 years with fine of Rs.1 lakh
and in default of payment of fine to undergo further
imprisonment of one year is hereby set aside.”
18.The Supreme Court in the matter of Sanjeet Kumar v. State of C.G.
reported in 2022 SCC OnLine (SC) 1117, has held as under:-
“18. But if the Court has - (i) to completely disregard the
lack of corroboration of the testimony of police witnesses
by independent witnesses; and (ii) to turn a Nelson’s eye
to the independent witnesses turning hostile, then the story
of the prosecution should be very convincing and the
testimony of the official witnesses notably trustworthy. If
independent witnesses come up with a story which
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creates a gaping hole in the prosecution theory, about the
very search and seizure, then the case of the prosecution
should collapse like a pack of cards. It is no doubt true that
corroboration by independent witnesses is not always
necessary. But once the prosecution comes up with a
story that the search and seizure was conducted in the
presence of independent witnesses and they also choose
to examine them before Court, then the Court has to see
whether the version of the independent witnesses who
turned hostile is unbelievable and whether there is a
possibility that they have become turncoats.
31. Therefore, it is clear that the I.O. examined as PW-7
claims to have done everything only in the presence of
independent witnesses. But those independent witnesses
not merely denied their presence and participation but also
came up with an explanation as to how their signatures
found a place in those documents.
32. In such circumstances, a serious doubt is cast on the
very search and seizure allegedly made by PW-7. But
unfortunately, both the Special Court and the High Court
went by the law in theory, without applying the same to the
facts of the case.”
19.The Supreme Court in the matter of State of Rajasthan versus Bher
Singh reported in (2009) 16 SCC 293 has held as under:-
“2. We have perused the evidence of PW 7 who seized the
opium in question, as also the evidence of PW 9 who was
the officer in charge of the malkhana and from their
evidence, we find that it is not possible to hold that the seal
allegedly put by PW 7 while taking the sample opium
remained intact right through the time it reached the
forensic science laboratory. This being a mandatory
requirement to establish the fact that the seized goods was
in fact a prohibited drug under the NDPS Act, we agree
with the High Court on facts of this case that the
prosecution has failed to establish this part of its case,
hence, we find no reason to interfere in this appeal.
Therefore, we dismiss the same.”
20.Perusal of records would show that on the date of alleged incident
during search 05 packets (containing 4.650 kg) of illicit contraband
(ganja) was seized from vehicle. However, only two sample packets
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containing 100 grams each were prepared for testing out of 05 packets
of contraband. The samples were not taken in each of the packets by
PW-10/Investigating Officer (IO) and before taking samples, IO has
mixed-up the entire contraband in presence of the Judicial Magistrate,
Raipur. Hence, it is clear that there is breach of Standing Order No.01
of 1989 dated 13.06.1989 and complete non-compliance of mandatory
provision of of the NDPS Act.
21.Considering facts of case, submissions advanced by the learned
counsel for the parties, general procedure for sampling provided in
Standing Order No.01 of 1989 dated 13.06.1989, mandatory provisions
of NDPS Act, further the fact that independent/seizure witnesses (PW-
1 & PW-2) have not support the case of prosecution and turned hostile,
other material/ evidence available on record, further considering the
principles laid down by the Supreme Court in Mohanlal (supra), Yusuf
@ Asif (supra), Sanjeet Kumar (supra) & Bher Singh (supra), I am of
the considered opinion that the prosecution has failed to prove its case
beyond reasonable doubt and the trial Court has also committed grave
legal error in convicting and sentencing the appellants for offence
under Section 20(b)(ii)(B) of the NDPS Act. As such, the judgment
impugned deserves to be set aside.
22.For the foregoing reasons, both Criminal Appeals are allowed. The
impugned judgment of conviction and sentence dated 25.06.2024
passed by learned Special Judge, (NDPS Act), Raipur, (CG) in Special
Criminal Case No.173/2023, is hereby set-aside. Both the appellants
are acquitted of the charge under Section 20(b)(ii)(B) of the NDPS Act.
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Appellants are reported to be in jail. They shall be set at liberty forthwith
if no longer required in any other criminal case.
23.Both the appellants are directed to file personal bond with one surety in
the like amount to the satisfaction of the Court concerned in compliance
with Section 437-A of the Code of Criminal Procedure, 1973.
24. Let a copy of this judgment and the original record be transmitted to
the trial court concerned forthwith for necessary information and
compliance.
Sd/-
(Arvind Kumar VErma)
Judge
J/-