1 - Satya Babu Son of Ganga Rajoo Pongla aged about 26 years R/o v. 1 - State Of Chhattisgarh Through: P. S. Katghora Distt. Korba
Case Details
1 Reserved on: 25/04/2025 Delivered on : 07/07/2025 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 440 of 2005 1 - Satya Babu Son of Ganga Rajoo Pongla aged about 26 years R/o Korapattam, Poloogunda P. S. Distt. Vishakhapattnam (A.P.) ... Appellant versus 1 - State Of Chhattisgarh Through: P. S. Katghora Distt. Korba (CG) ... Respondent(s) For Appellant For Respondent/State : :
Legal Reasoning
10. In the instant case there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police 11 was also a member of the searching party. It has been held by this Court in M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence : (2003) 8 SCC 449 that where a search is conducted by a gazetted officer himself acting under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42. For this reason also, in the facts of this case, it was not necessary to comply with the requirement of the proviso to Section 42 of the NDPS Act." 11. As in the case in hand, the search and seizure was done at Bus Stand which is a public place, hence, Section 43 of the NDPS Act would be applicable. Therefore, the contention of Shri Dewangan is rejected. 12. In view of above, the second contention with regard to non-compliance of Section 50 of NDPS Act is also liable to be rejected on the ground that when the accused was apprehended from the spot, he was given notice of Section 50 of NDPS Act i.e. Ex.P/1 informing and apprising him with a right of search by a Gazetted Officer or Magistrate. Perusal of Ex.P/2 clearly indicates that the appellant gave his consent to be searched by the police officer which was translated in Telugu and has been duly proved by I.O. (PW6). Therefore, it cannot be said that there is non-compliance of Section 50 of the Act. The recovery of contraband as stated above has also been proved by the statement 7 of witness I.O. (PW6), Narayan Reddy (PW1) and Naseem Khan (PW2) who are witnesses of entire proceedings carried out. Weighment has also been done. As per the FSL report, the sample which was drawn was found to be contraband Ganja and therefore, it cannot be said that there is violation of Section 50 of the Act and the findings recorded by learned trial Court does not appear to be perverse or contrary to record and no illegality has been committed. Therefore, the conviction of appellant is well merited and does not
Arguments
Mr. K. K. Dewangan, Advocate Ms. M. Asha, P. L. (Hon’ble Shri Justice Sachin Singh Rajput) C A V Judgment 1. This appeal has been filed under Section 374 (2) of CrPC assailing the legality, correctness and judicial propriety of the judgment impugned dated 27.04.2005 passed by the Additional and Sessions Judge, Korba (CG) in Special Case No. No.9/2004 convicting the accused/appellant under Section 20 (2) B of NDPS and sentencing him to undergo RI for 5 years with fine of Rs.35,000/-, on each count plus default stipulation. 2. Facts leading to the disposal of this appeal in brief are that on 24.03.2004, secret information was received by the Police Station-Katghora that an unknown person of dark complexion with a trim beard, thin, black check, white full shirt, full pant and a black bag with stripes of red colour on which Oman is written. Inside the bag, Ganja drug was kept for illegal sale and the 2 man was roaming around Katghora Bus Stand. On this information, Rojnamchasanha No.1431 dated 24.03.2004 at 17.30 hours was registered as per Ex.D/2 and the information was given to the higher officials, thereafter G. R. Diwan, Police Inspector along with a policeman reached the Katghora new bus stand and called the witnesses Nasim Khan and Ramesh Sindhi and informed about the secret information. The person who was carrying the bag was intercepted and on being inquired he said him to be a Telugu and did not understand Hindi. Thereafter a person having knowledge of Telugu language namely Narayan Reddy (PW-1) who resides near the Bus Stand of Katghora was called and on interrogation, the appellant informed his name and address and admitted that contraband Ganja was kept for sale. Thereafter notice under Section 50 of NDPS Act was given to the appellant, he was apprised about his Right to be searched by a Gazetted Officer or Magistrate. The Police Staff and the witnesses were searched and nothing was found and from the search of appellant who was carrying a black colored bag contraband Ganja like substance was found which was identified by smell, taste and by burning. Weighing panchnama was prepared and 7 kg of contraband Ganja was seized, four samples of 25 Grams each was properly sealed. Remaining 6 kg and 900 gm of contraband Ganja was sealed separately. Total value of Ganja was about Rs.28,000/-. Accused/appellant was arrested. After investigation charge-sheet was filed. The appellant was charged for an offence under Section 20 B of the NDPS Act, however he denied the charges and claimed to be tried. 3. So as to establish its case, the prosecution has examined as many as 7 witnesses and exhibited 20 documents. The statement of the accused/appellant under Section 313 CrPC was also recorded where he pleaded his innocence and false implication in the case. 3 4. By the judgment impugned learned Court below has held the accused/appellant guilty and imposed the sentence as described above which is challenged before this Court by the appellant. 5. Learned counsel for the appellant submits that the prosecution was not able to bring home the guilt of the accused person beyond reasonable doubt. He submits that the mandatory provision of Section 42 & 50 of NDPS Act have not been complied with by the prosecution. He further submits that admittedly the appellant does not understands Hindi and he only understands Telugu language, therefore, even though the prosecution is claiming that contents of the documents have been prepared including Section 50 of NDPS Act and panchnama (Ex.P/1) has been explained to the appellant in Telugu, the same is not acceptable as from perusal of Ex.P/1, it is quite evident that before the interpreter could come to the place of incident i.e. Katghora bus stand, Ganja was already recovered. The appellant was not properly informed about his right to be searched through Gazetted Officer or Magistrate. No reason has been assigned by the Investigating Officer as to why the appellant was not searched in presence of the Gazetted Officer or Executive Magistrate. Lastly he submits that the appellant has already served out the sentence and paid the fine and he still wants to press the appeal on merits. Therefore, he submits that the appeal may be allowed by setting side the impugned judgment and the appellant may be acquitted of all the charges. 6. Per contra, Ms. Asha submits that the prosecution was able to bring home the guilt of accused beyond reasonable doubt. She further submits that there is satisfactory compliance of Section 40, 42 and 50 of NDPS Act. The interpreter was present who apprised the appellant with regard to his right to be searched by a Gazetted Officer or Magistrate. The independent witnesses have 4 supported the case of prosecution and recovery of contraband Ganja from the bag held by the appellant is proved beyond reasonable doubt, therefore, learned trial Court has not committed any illegality or irregularity in convicting the appellant and the meritorious finding does not require any interference. 7. Heard learned counsel for the parties at length and perused the record including the judgment impugned. 8. Learned counsel for the appellant had argued that mandatory provisions of Section 42 of NDPS Act have not been complied with. The case of the prosecution is that upon receipt of secret information, the police officials reached the Katghora bus stand. The contraband was recovered from the bag in a public place. Section 42 of NDPS Act deals with search and seizure from a building, conveyance or enclosed place. In the case in hand, the contraband was seized in a public place. In this context, Section 43 of the NDPS Act would be attracted which reads as under - “43. Power of seizure and arrest in public place.— Any officer of any of the departments mentioned in section 42 may— (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 5 (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. 9. Dealing with this situation with regard to applicability of Section 42 & 43 of NDPS Act, Hon’ble Supreme Court in the case of Firdoskhan Khurshidkhan Vs. State of Gujarat and anr. dated 30.04.2024 reported in 2024 SCC OnLine SC 680 observed as under - "18. Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected." 10. In the matter of State of Haryana Vs. Jarnail Singh and Ors. reported in (2004) 5 SCC 188 in Para 9 and 10 of its judgment the Hon'ble Supreme Court has held that: "9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the 6 proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.
Decision
require interference. The appeal is dismissed. 13. From letter dated 17/11/2014 received from the Court of Special Judge (NDPS), District Korba (CG), the fine amount of Rs.35,000/- has been paid by the appellant and from letter dated 21/04/2025 received from Jail Superintendent, Korba, CG, it is reflected that the appellant has already served the sentence and released from the District Jail, Korba, CG. Therefore, no further order is required to be passed. 14. Copy of this judgment with record be sent back. Sd/- (Sachin Singh Rajput) JUDGE Parul / Deepti DEEPTI HARIKUMAR Digitally signed by DEEPTI HARIKUMAR Date: 2025.07.08 10:39:06 +0530