Nafr High Court
Case Details
1 2025:CGHC:10554 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 380 of 2023 Nasim Khan S/o Usman Aged About 22 Years R/o Village Mohalka Thana Nagina District Nuhu (Haryana) versus ... Appellant State of Chhattisgarh Through Station House OfÏcer, Police Station Nagarnar, District Bastar (C.G.) ... Respondent For Appellant : Ms. Anjali Pradhan, Advocate For Respondent/State : Ms. Monika Thakur, Panel Lawyer Hon'ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 04.03 .202 5 1. Today, though the present appeal has been listed for hearing on IA No.01 of 2022, which is application under Section 389 (2) of the Cr.P.C. for suspension of sentence and grant of bail, but with the consent of learned counsel for the parties and considering the period of detention of the appellant, the appeal is being heard finally. 2.
Decision
Accordingly, IA No. 01 of 2022 stands disposed of. RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN 3. The appellant has preferred this appeal under Section 374(2) of 2 Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 01.02.2023 passed by the learned Special Judge (N.D.P.S. Act), Jagadalpur, Bastar, District – Bastar (C.G.) in Special Criminal Case (NDPS Act) No. 06/2022, whereby the learned Special Judge after holding the appellant guilty for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drug and Psychotropic Substance Act, 1985 (hereinafter refereed to as ‘the Act’) and sentenced him to undergo R.I. for 10 years and to pay fine of Rs. 1,00,000/-, in default of payment of fine to further undergo R.I. for 1 year. 4. The judgment of conviction and order of sentence is challenged on the ground that without there being any evidence relating to conscious possession of illicit contraband article (Ganja) and ignoring the fact that the prosecution has not complied with the mandatory provisions of the Act which is meant for providing the safeguard to the accused, learned trial court has committed an illegality in convicting and sentencing the appellant as aforementioned. 5. Case of the prosecution, in brief, is that on 13.10.2021 at around 4:30 AM, Assistant Sub-Inspector Ajit Singh of Police Station Nagarnar received information from an informant that a 12-wheeler truck bearing registration No. HR 74 A 8344 covered with a black tarpaulin, was transporting illegal narcotic substances (suspected to be ganja) from Odisha to Jagdalpur with two persons on board. 3 The information was recorded in the station diary, and senior ofÏcers were informed. Necessary legal formalities, including a memo for the informant’s tip-off and a search warrant non- availability memo, were prepared. OfÏcers, along with independent witnesses, proceeded to Forest Naka NH-63 for interception. Upon stopping the truck, the driver identified himself as a minor named Taufiq, while the passenger was Naseem Khan. The accused were informed of their legal rights under Section 50 of the NDPS Act, and a search of the truck revealed five white plastic sacks containing a total of 200 kg. of ganja. The appellanrt failed to produce any valid documents for possession or transportation of the contraband. A seizure memo (Ex.P-13) was prepared in the presence of witnesses, and the recovered ganja, exceeding the commercial quantity limit, was confiscated. The accused were arrested under Section 20(b)(II)(C) of the NDPS Act after being served a notice under Section 52, and their families were duly informed. Identification of the property was conducted vide Ex.P/9. Seized articles were weighed Ex.P/11 which was found carrying five white plastic sacks to contain a total of 200 kg of narcotic drug Ganja. Samples were taken and same were seized from the accused vide Ex.P/14. Accused was arrested vide Ex.P/18. Spot map was prepared vide Ex.P/19. Investigating ofÏcer and other staff along with accused and property came to police station where he lodged F.I.R. vide Ex.P/47. Rojnamcha Sanha were recorded vide Exs.P/29C, P/30C, P/31C, P/32C and P/33C. Samples were taken from each bag and same were sent for chemical analysis to 4 Forensic Science Laboratory vide Ex.P/50. Dehati Nalishi was prepared vide Ex.P/46. 6. After recording the statement under Section 161 of the Code of Criminal Procedure, 1973 and after completion of investigation, charge sheet was filed in the Court of the Special Judge (N.D.P.S. Act), Jagadalpur, Bastar. 7. In order to prove the guilt of the appellant/accused, the prosecution has examined as many as 09 witnesses and exhibited 53 documents in support of its case. Statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973, in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case. 8. Learned Special Judge after affording an opportunity of hearing to the parties, convicted and sentenced the accused/appellant as aforementioned. 9. Learned counsel for the appellant submits that the prosecution has utterly failed to prove conscious possession of contraband article and in the absence of conscious possession, the appellant is entitled for acquittal. She further submits that the appellant has completed 3½ years out of 10 years and the period already undergone by him is sufÏcient for conviction of the aforesaid offence. She also submits that learned trial Court failed to appreciate that independent witnesses P.W.1 and P.W.2 did not support the prosecution case and turned hostile. Learned counsel 5 placed reliance on the decision of the Supreme Court in the matter of Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh reported in 2022 SCC OnLine SC 1117 in which if the court disregards the lack of corroboration by independent witnesses and ignores their turning hostile, the prosecution’s case must be highly convincing, and ofÏcial witnesses’ testimony notably trustworthy. However, if independent witnesses present a version that creates a gaping hole in the prosecution’s case regarding search and seizure, then the case collapses like a pack of cards. 10. Learned counsel for the appellant further submits that in the present case, P.W.7 (Investigating OfÏcer) claimed that all procedures were conducted in the presence of independent witnesses. However, these witnesses denied their presence, participation, and even explained how their signatures appeared on documents. This raises serious doubt about the search and seizure process, which the Special Court failed to properly assess. She further argued that the opposite party failed to follow the sampling procedure prescribed under Standing Order No. 01/1989, Clauses 2.1 to 2.8, which mandates in which, Drugs must be classified, weighed, and sampled on the spot (Clause 2.1), samples must be drawn in the presence of search witnesses and the accused, with a clear mention in the panchnama (Clause 2.2), each packet/container must have an individual sample drawn (Clause 2.4). She later submits that in this case, five packets were allegedly recovered, but instead of taking separate samples from each, the investigating ofÏcer mixed all packets and drew a common sample, violating the 6 standing order. This compromises the integrity of the sample and raises doubts about whether all five packets contained contraband. 11. Learned counsel placed reliance on the decision of the Supreme Court in the matter of Noor Aga v. State of Punjab, (2008) 16 SCC 417 in which, Standing Orders must be strictly complied with. Their contravention is not a mere procedural lapse but impacts the very legality of the seizure. Similarly, in Union of India v. Bal Mukund & Ors., 2009 SCC Online SC 673, the Supreme Court emphasized that Compliance with Standing Order 1/88 is mandatory. Failure to take adequate samples from each bag and to establish which seized bag was sent for analysis makes the prosecution case unsustainable. She finally submits that the investigation suffered from serious procedural lapses regarding independent witness testimony and non-compliance with the mandatory sampling procedure. These violations cast grave doubt on the prosecution’s case, making the conviction cannot be sustained and the appellant is entitled for acquittal. 12. On the other hand, judgment impugned is supported on behalf of the respondent/State and submits that conscious possession of the appellant has been established by the prosecution by adducing evidence. The prosecution has complied with the provisions of Special Act and conviction and sentence is sustainable under the law. 13. I have heard learned counsel for the parties, perused the impugned judgment and records of the trial Court. 14. In order to establish the complicity of the accused/appellant in the 7 crime in question, the prosecution has examined Inspector Ajit Singh (PW-08), Assistant Sub Inspector, who has categorically deposed that he searched a truck in the presence of witnesses and found 200 kg. of illegal cannabis in five white plastic bags at the back. The search panchnama was recorded (Ex.P-7). Ramesh Paswan (PW-04), Head Constable No. 80, verified the accuracy of a 50 kg electronic scale at Dhanpunji Forest Naka, NH-63, in the presence of witnesses Jugal Kishore Sethia and Hemant Kumar Sethia. The weighing verification panchnama was recorded (Ex.P- 10). The seized cannabis was weighed, confirming 200 kg. The identity of the substance was tested by burning, smelling, and rubbing in front of witnesses, recorded as Narcotic Identification Panchnama (Ex.P-09). Accused Naseem Khan was issued a notice under Section 67 NDPS Act to present legal documents for possession and transportation of cannabis, recorded (Ex. P-39). A 50g sealed sample (A1) was sent for chemical testing to Jagdalpur Forensic Science Laboratory (FSL) through Constable Dularu Adil (447), under the Superintendent of Police, Jagdalpur’s Letter No. 439-A/2021, recorded as (Ex. P-49). On 24/12/2021, the FSL report (Ex. P-50) confirmed the sample as cannabis. The receipt of the exhibit was recorded as (Ex. P-51). On 24/11/2021, SHO Nagarnar submitted an application to SDM Jagdalpur for sampling and pre-trial procedures under Section 52A(2) NDPS Act, recorded as (Ex. P-44). The process was conducted under the supervision of Naib Tehsildar Gautam Gaure, who verified the inventory and seal, 8 documented in (Ex. P-45). The seized cannabis and sample handling were recorded in the Malkhana Register. Constable Dularu Adil (447) transported the sealed sample (A1) to FSL Jagdalpur, and Constable Lakshmiwar Nag (952) retrieved the FSL report and sample, recorded in Malkhana Register (Ex. P-28). The five seized bags of cannabis were handed over for sampling to ASI Devendra Roy. The FSL report (Ex. P-50) confirmed that Sample A1 matched the pre-trial sampling record (Ex. P-45). The sample contained dry, green-brown leaves, seeds, and flowering tops, which tested positive for cannabis through physical, chemical, microscopic, and TLC tests. The evidence, including oral and documentary proofs, establishes that the 200 kg of cannabis seized from Naseem Khan was properly stored, sampled, tested, and confirmed as cannabis beyond doubt. 15. After appreciating the evidence available on record, the learned Special Judge has arrived at a finding that the appellant was found in possession of 200 kg. contraband articles (Ganja) and convicted and sentenced the appellant as aforementioned. 16. Taking into consideration the quantum of Ganja and the evidence adduced by the prosecution and material available on record, the trial Court has sentenced the appellant R.I. for 10 years and fine of Rs.1,00,000/-, in default of payment of fine to further undergo R.I. for 01 year. Taking into consideration the quantity of Ganja, sentence is neither excessive nor unjust. Conviction and sentence 9 is sustainable under the law. I do not find any scope for interference in the judgment impugned. 17. Accordingly, the criminal appeal being devoid of merit is liable to be and is hereby dismissed. 18. The appellant/convict is stated to be in jail. He shall serve out the sentence awarded by the trial Court by means of the impugned judgment and order dated 01.02.2023. 19. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Ramesh Sinha) Chief Justice Rahul Dewangan