Afr High Court
Case Details
1 Digitally signed by AVANISH KUMAR PATHAK Date: 2025.02.13 12:30:22 +0530 2025:CGHC:7417 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 504 of 2024 Reserved on 28/01/2025 2- 2025 Delivered on 12- 1 - Satish Sharma S/o Shri Ramnarayan Sharma Aged About 27 Years R/o Village Mehra, Tahsil Mehgaon, P.S. Amayan, District Bhind (M.P.) 2 - Smt. Rita Sharma w/o Shri Pramod Sharma @ Sonu Sharma Aged About 27 Years R/o Village Mehra, Tehsil Mehgaon, P.S. Amayan, District Bhind (M.P.) versus ... Appellants State Of Chhattisgarh Through S.H.O. Of P.S. Keshkal, District Kondagaon (C.G.) ... Respondent For Appellants For Respondent/State : : Mr. Abhishek Saraf, Advocate Mr. Keshav Prasad Gupta, Govt. Advocate (Hon’ble Shri Justice Naresh Kumar Chandravanshi) CAV Judgment 1. This criminal appeal has been preferred under Section 374(2) of the Cr.P.C. against judgment of conviction and order of sentence dated 06.02.2024 passed by Special Judge, NDPS Act 1985 Kondagaon Distt. Kondagaon (CG) in Special Criminal Case (NDPS Act 1985) No.15/2019, 2 whereby the learned Special Judge, after holding the appellants guilty, convicted and sentenced them in the following manner:- Sl. No. 01. Conviction Jail Sentence Fine Default under Section Sentence stipulation 20(b)(ii)(C) RI for 10 years Rs. 1,00,000/- RI for 01 year 2. Case of the prosecution in brief is that, on 11.08.2019 at about 01:05 am (night), Sub Inspector Krishna Sahu (PW. 7) received information through an informer that some people are going from Jagdalpur to Raipur via Jagdalpur Keshkal in a silver coloured car bearing registration number DL-5 CD-6440 with ‘Jai Rajputana’ written on the front number plate and ‘Thakur Saheb’ written on the back, hiding illegal narcotic substance Ganja. He reduced the information in writing in Rojnamcha Sanha, called two independent witnesses Mujeeb Usman and Jeremiah Masih, served them notice under Section 160 of the Cr.P.C., prepared Mukhbiri Panchnama, sent the information to concerned S.D.O.P. to remain present on the spot, complied mandatory provisions, rushed to Borgaon Chowk Keshkal NH 30 Main Road along with independent witnesses and other police officials and necessary articles, set up a check post at aforesaid place. At about 0.05 a.m., aforesaid vehicle was seen coming, which was stopped in which 4 accused persons, 2 male and 2 female were sitting. On being asked , driver of aforesaid vehicle told his name as Diwan Singh Pal, the woman sitting on the seat next to the driver told her name as Ku. Amu Singh, the person sitting on the back seat told his name as Satish Sharma, and the woman sitting next to him told her name as Mrs. Rita Sharma. They were informed about the secret information. After complying mandatory provisions, police searched aforesaid 3 4 persons and the aforesaid Swift Dzire car bearing registration No. DL – 5 CD – 6440. On personal search of aforesaid persons, some money, their mobiles were recovered and on being searched the aforesaid car, 22 packets of contraband substance wrapped in cellotape and green colour plastic polythene were found in the dickey of the car. On identification made by tasting, smelling, etc, it was found Ganja, on being weighed by the weighing person Anit Kunjam, total weight of 22 packets was found 106.830 kg. Thereafter, packets were opened and the Ganja present in those packets was homogenized in a lot and two samples, each of 50 gram were prepared, thereafter remaining Ganja was kept in 8 bags (Bori) and marked as ‘A’ to ‘H’, cellotape and empty plastic polythene were kept in other bag (bori) and sealed. Appellants and other accused persons were arrested. Necessary panchnama and seizure memo were prepared. Dehati Nalishi (Ex. P-64) was
Facts
written by IO Krishna Sahu (P.W. 7), based on which, numbered FIR (Ex. P-6) was registered by Sub Inspector Shekhar Lal Kashyap (P.W. 5), seized article Ganja was sent for chemical examination, in which vide FSL report (Ex. P- 74), it was reported that, substance sent for chemical examination is found ‘Gajna’. After investigation, charge sheet under Section 20(b)(ii)(C) of the NDPS Act was filed against appellants and two accused persons namely Diwan Singh Pal and Ku. Amu Singh before the Special Judge, Kondagaon. 3. Learned Special Judge, Kondagaon framed charge under Section 20(b)(ii)(C) of the NDPS Act against all the accused persons, read over and explained the same, which they denied and claimed trial. During trial accused Ku. Amu Singh and Diwan Pal Singh absconded. Learned Special Judge examined the appellants under Section 313 of the Cr.P.C., in which 4 appellants denied the circumstances appearing against them in the prosecution evidence, pleaded not guilty and claimed false implication, but they have not examined any witness in their defence. 4. Learned trial Court after appreciating the evidence adduced by the prosecution, convicted and sentenced both the appellants under Section 20(b)(ii)(C) of the NDPS Act and sentenced them as mentioned in opening paragraph of this judgment. Hence, this appeal. 5. Learned counsel for the appellants submits that in respect of Crime No.93/2019 registered at Police Station Keshkal, by which, instant Special Criminal case arises, FIR has been lodged against 04 accused persons and charge sheet was also filed against 04 showing 02 accused persons, namely Diwan Singh Pal, who was driving the vehicle and Ku. Ammu Singh, who was sitting in the front seat of the vehicle, are absconding. As such, in the instant case, vide impugned judgment, present appellants have been convicted and sentenced by the trial Court. 5.1
Legal Reasoning
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 12 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.” 20. Recently, Supreme Court in the case of Bharat Aambale vs. The State of Chhattisgarh (judgment date 06.01.2025 passed in Cr.A. No. 250/2025 arising out of SLP (Cr.) 14420/2024), has held that non-compliance or delayed compliance with the procedure prescribed Under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution, but such lacking will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence. In this regard para 26 and 27 of the Bharat Aambale’s case (supra) is reproduced as under :- “26. Non-compliance or delayed compliance with the procedure prescribed Under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done. What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution 13 and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non- compliance of the procedure envisaged Under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution's case. In such instances of procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place. 27. In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material Under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the Accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid Under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the Accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.” 21. In instant case, as has been discussed above that, provisions of Section 52A of the NDPS Act has not been complied with. Further, independent witnesses of search and seizure along with other proceedings 14 namely Mujeeb Usman and Jeremiah Masih, have not been examined by the prosecution, even Anit Kunjam, who is said to have weighed alleged contraband substance Ganja, has also not been examined. IO Krishna Sahu (P.W. 7) has deposed that, after completion of proceedings on the spot, he had deposited said Ganja along with other seized article to Malkhana handing over the same to Malkhana Muharrir, PS Keshkal and got receipt Ex. P-68, but neither said Head Constable Satyendra Damak, Malkhaha Muharrir has been examined nor Ex. P-68 has been proved by the person, who had drawn said receipt by putting his signature. This document does not contain signature of IO Krishna Sahu (P.W. 7) to prove the facts that he had deposited said articles. Constable Sukhdev Sing Dhruw (P.W. 1), who had deposited alleged Ganja after receiving it from Malkhana PS Keshkal has admitted the suggestion of defence counsel in his cross-examination para 5 that, sample seal was not handed over to him along with Ex. X-1 and he has not deposited that sample seal in FSL, whereas as per receipt (Ex. P-6) given to him by the FSL shows that, alleged Ex. X-1 was deposited by him along with seal. Thus, there is various discrepancies and gross lacking of evidence of prosecution, therefore, non-compliance of provisions of Section 52A of the NDPS heavily hammers trustworthiness of case of prosecution. As such, it is found that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has committed grave legal error in convicting and sentencing the appellants for the offence under Section 20(b) (ii)(C) of the NDPS Act, therefore the impugned judgment deserves to be set aside. 22. Consequently, instant criminal appeal filed by the appellants is 15 allowed. Impugned judgment of conviction and order of sentence dated 6-2- 2024 passed by learned Special Judge, NDPS Act, 1985, Kondagaon in Spl. Criminal Case No. 15/2019 is set aside. Appellants are acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act. They are in jail. They be set at liberty forthwith, if no longer required in any other case. 23. Appellants are directed to file a personal bond and two sureties in the like amount to the satisfaction of concerned Court in compliance of Section 480 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 24. Let a copy of this judgment and the original record be transmitted to the Special Court concerned forthwith for compliance and necessary action. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak
Arguments
Learned counsel would further submit that as per the deposition of the investigating officer, Sub-Inspector Krishna Sahu (PW-7), total 22 packages of contraband substance ganja were seized from the dickey of the vehicle in question i.e. Swift Dzire bearing registration No.DL 05 CD-6440, but only two samples were prepared after homogenization of said contraband substance present in all the packets, which were wrapped in green plastic cover with brown cello tape. But, such sampling is against Standing Order No.1/89 issued by Department of Revenue, Ministry of Finance, Govt. of India, New Delhi dated 13.6.1989. He would further submit that said two 5 samples were collected after homogenization of said ganja after taking it from all the packets and mixing the same, whereas, as per the Instruction 2.4 of the Standing Order No.1/89, it has not been proved by the prosecution that all the 22 packets were identical in size and weight, bearing identical marking, contents of each package given identical result on colour test by drug identification kit. Thus, said sampling is clear violation of standing order No.1/89. Therefore, sanctity of collection of samples sent to the FSL cannot be held proved beyond reasonable doubt, hence, FSL report also cannot be relied upon. He further submits that provisions of Section 52(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) has also not been complied with, as neither samples has been drawn nor inventory has been prepared in front of nor certified by Judicial Magistrate. It is next submitted that the learned Special judge without considering the non- compliance of mandatory provisions of the Act has convicted and sentenced the appellants, which is perverse and illegal, therefore, it is prayed that the appeal may be allowed and the appellants may be acquitted. 6. In reply, learned counsel for the State submits that alleged contraband substance ganja was seized from the joint possession of present appellants along with two other accused persons, who are absconding. He would further submit that two samples were collected after homogenization of said seized ganja and the same were sent to FSL for chemical examination and report of the FSL is against the appellants, thus, impugned judgment is well reasoned judgment based on evidence. Therefore, the appeal is liable to be rejected. 6 7. I have heard learned counsel for the parties and perused the material available on record including the record of the trial Court. 8. In instant case, Mujeeb Usman and Jeremiah Masih are said to be independent witnesses of search, seizure and other proceedings conducted by the Investigating Officer Krishna Sahu (P.W. 7), Anit Kunjam is said to be the person who weighed the seized Ganja, but they have not been examined by the prosecution before the Court. 9. Krishna Sahu (P.W. 7) is investigating officer of instant case. He has stated in his deposition that, after receiving secrete information from informer, he reduced in writing the same in Rojnamcha Sanha (Ex. P-11-C), informed about that information to concerned SDOP through constable Ishwar Netam (P.W. 2), called two independent witnesses Mujeeb Usman and Jeremiah Masih and after following mandatory provisions and preparing necessary documents, rushed to Borgaon Chowk, Keshkal National Highway 30 along with aforesaid independent witnesses. Police set up blockade. After some time, Swift Dzire car bearing registration No. DL – 05 CD 6440 was seen coming, they stopped it, in which 4 persons including appellants were sitting and on being searched the dickey of aforesaid vehicle, 22 packets wrapped with green coloured plastic polythene and brown coloured cellotape were found. On being taken some quantity from aforesaid packets and examined, it was found to be contraband substance Ganja, to which appellants were not having any valid documents, thereafter it was weighed by Anit Kunjam and total weight of 22 packets were found to be 106.830 kg, Ex. P-52, its weighing panchnama was prepared by him. He has further 7 stated that, all 22 packets were opened and material present therein was mixed well and two samples of 50 gm each were prepared and sealed and marked it as ‘X-1’ and ‘X-2’. Remaining contraband substance was kept in plastic bags (bori) and were marked as ‘A’ to ‘H’. Other articles i.e. empty packets, cello tape and polythenes were kept in separate packets and marked the same Ex. Z. After completion of proceedings on the spot, he handed over all the seized material i.e. Ganja seized from Swift Dzire Care, mobile, Adhar card, cash amount, etc. to the Head Constable Satyendra Damak, Malkhana Muharrir of PS Keshkal and obtained receipt Ex. P-68. 10. Constable Ishwar Netam (P.W. 2) and A.S.I. Om Prakash Nareti( P.W. 4) are the accompanying police personnel to IO Krishna Sahu (P.W. 7), who had also gone to spot along with him. They have also supported the deposition of IO Krishna Sahu (P.W. 7) pertaining to the proceedings conducted by him on the spot. 11. Kshama Yadu (P.W. 6) is Tehsildar, who has prepared inventory (Ex. P-7) on 14-9-2019 of seized Ganja, which was deposited in the Malkhana of PS Keshkal. She has stated that, she has also prepared two samples ‘S-1’ and ‘S-2’, each containing 50 gm from that homogenized Ganja. Said contraband substance Ganja was seized by Krishna Sahu (P.W. 7) on 11-8-2019, but inventory (Ex. P-7) was prepared by the Tahsildar Kshama Yadu (P.W. 6) on 14-9-2019 i.e. after about more than one month from the date of seizure. 12. Learned defence counsel raised objection that search and seizure, preparation of inventory and sampling of seized Ganja, has not been 8 been got done as per provisions of Section 52A of the NDPS Act and even certification has not been got done from the Judicial Magistrate. 13. In order to examine above contention, it would be relevant to refer the provisions of Section 52A(2), (3) and (4) of the NDPS Act, which provides procedure and manner of seizure, preparation of inventory of seized material, forwarding the same and getting inventory certified by the Magistrate concerned. It further provides that, inventory or the photograph of the seized substance and any list of samples prepared in connection thereof be certified by the Magistrate and the same shall be recognized as primary evidence in connection with the offence lodged under the NDPS Act. 14. For the sake of convenience, relevant sub-section of Section 52 of the NDPS Act are reproduced hereinbelow : “52A. Disposal of seized narcotic drugs and psychotropic substances. (1) … … … (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 sub-section (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 9 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, 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 sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, 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 sub- 10 section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]” 15. A simple reading of the aforesaid provisions, as also stated earlier, reveals that 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. 16. A perusal of evidence as has been stated in preceding paragraphs clearly shows that, in instant case, procedure prescribed under sub-section (2), (3) and (4) of Section 52A of the NDPS Act was not followed while making seizure and drawing sample, preparing inventory and getting it certified by the Magistrate concerned. It is evident from the evidence that, samples were drawn by IO Krishna Sahu (P.W.7) himself, and list of samples drawn, has also not been certified by the Magistrate. Even samples Ex. S-1 and S-2 marked by the Tahsildar Kshama Yadu (P.W. 6) have not been got examined from FSL, rather, as per deposition of Sukhdev Sing Dhruw (P.W. 1), sample Ex. X-1 prepared and marked by IO Krishna Sahu (P.W. 7), was sent to the FSL, based on which, FSL report Ex. P-74 has been obtained. 17. Thus, undisputedly, in instant case, samples from seized substances were drawn by the police but it was not in presence of 11 Magistrate. It has not been proved by the prosecution that the Magistrate has certified the inventory of the substance seized or list of samples so drawn. 18. In the case 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 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. 19. The Supreme Court in the matter of Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) 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.