Hathras (U.P.) v. State of Chhattisgarh Through Station House Officer, Police Station G.R.P. Raipu
Case Details
1 Digitally signed by RAVVA UTTEJ KUMAR RAJU 2025:CGHC:16043 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgement Reserved on: 03.02.2025 Judgement Delivered on: 04.04.2025 CRA No. 956 of 2024 Raunat Gupta @ Ranjit Gupta S/o Shyam Gupta, aged about 20 years, R/o Sasni, Agrawal Mohalla, Police Station- Kotwali, District : Hathras (U.P.) ... Appellant Versus State of Chhattisgarh Through Station House Officer, Police Station G.R.P. Raipur, District : Raipur (C.G.) ... Respondent For Appellant For Respondent : : Mr. Dharmesh Shrivastava, Advocate. Ms. Sunita Manikpuri, Dy. G.A. Hon'ble Smt Justice Rajani Dubey C.A.V. Judgment 1. This appeal has arisen out of the impugned judgment of conviction and order of sentenced dated 04.05.2024 passed by learned Special Judge, (Narcotic Drugs and Psychotropic Substances Act, 1985) Raipur, for short the “NDPS Act 1985”, Raipur, District- Raipur (C.G.) in Special Criminal Case No. 161/2023, whereby the appellant has been convicted for offence punishable under Section 20 (b) (ii) (B) of the NDPS Act, 1985 and sentenced to undergo rigorous imprisonment for 07 years and fine of Rs. 50,000/-, in default, to 2 further undergo rigorous imprisonment for 05 months. Prosecution Story:- 2.
Legal Reasoning
Brief facts of the case are that the Assistant Sub-Inspector of Railway Protection Force (RPF)/C.I.B. Raipur received a secret information on 24.07.2023 at 10:50 pm through informant, that a person aged about 20-22 years, having Ganja in a violet colour bag and standing near ladies toilet at platform No. 1, Raipur Railway station. The police party conducted a raid and a notice under Section 160 of Cr.PC was given to him and thereafter, the police party after conducting the entire formalities to satisfy the mandatory provisions under Section 50 of Narcotic Drugs and Psychotropic Substances Act and conducted the search and seizure. Upon search, police recovered Psychotropic Substance Ganja which when weighed was of total 13.5 Kgs. The entire articles were seized as per seizure memo, appellant was incarcerated and the same information was given to his family members. The first information report was registered and after conducting the entire investigation, charge-sheet was filed before the learned Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985, District-Raipur (C.G.). 3. The charges were also framed under the above mentioned section to which the appellant had denied the circumstances appearing against him. It was stated in his accused statement recorded under Section 313 of Cr.P.C. that he is innocent and has been falsely implicated in this case and the witnesses are also giving wrong statements. 3 4. In order to establish the charges against the appellant, the prosecution has examined as many as 12 witnesses to prove the guilt against the appellant, however, 01 defence witness has been adduced by the appellant. 5. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned Trial Court has convicted the appellant and sentenced him as mentioned in the opening paragraph of this judgment. Hence, this appeal. Submission of the parties:- 6. Learned counsel for the appellant submits that the learned Special Judge under Narcotic Drugs and Psychotropic Substances Act 1985, Raipur District-Raipur (C.G.) erred in convicting the appellant. The judgment, sentence and findings are against the law, facts and evidence of the case. The judgment of conviction against the appellant is very harsh and not according to law. The main witnesses in this case i.e., A.K. Mahana (PW-01), Ankit Singh (PW-02), Prahlad Patel (PW-03), Shubham Upadhyay (PW-04), C.M.K. Bhushan Dubey (PW-05), Rajdeep Singh (PW-06), Neelmani Choudhary (PW-07), Sunil Chate (PW-08), Veer Kishore Toppo (PW-09), Satish Kumar Rathore (PW-10), Rajendra Singh (PW-11) were examined before the learned trial Court, but no witnesses have supported the case of the prosecution except the Investigating Officer. A fair trial to an accused on constitutional guarantee under Article 21 of Constitution of India, would be a hollow promise if the investigation in an NDPS case were not to be fair or raise serious question about its fairness apparent on the face of investigation. The appellant was not just and fair therefore, the appellant is entitled to be acquitted. The prosecution has utterly failed to prove its case beyond 4 reasonable doubt. Section 35(2) of the NDPS Act provides that a fact can be said to be proved if it is established beyond reasonable doubt and not on preponderance of probability. He further submits that in this case, the Investigating Officer of the entire case is also the informant. The fair investigation, which is foundation of fair trial, postulates that informant and investigator must not be same person. The provisions under Section 50(1) of the NDPS Act is mandatory and it requires strict compliance, but in the present case it is failed and failure to comply with provision would render recovery of illicit article suspect and vitiate conviction if same is recorded only on the basis of recovery of illicit article from person of accused during such search, therefore, the present appellant is entitled to be acquitted. Section 50 of the NDPS Act affords protection to a person in matters concerning “personal search” and stipulates various safeguards, it is only upon fulfillment of an strict adherence to the said requirements that the contraband recovers pursuant to “personal search” of a person can be relied upon as a circumstance against the person. It is mandatory to the prosecution that the offer shall record the reasons for such belief which necessitated such search and within 72 hours sent a copy thereof to his immediate officer support, but in the present case same could not be conducted by the prosecution. The Investigation Officer did not mention the reason for belief nor he told the appellant regarding their right for search by a gazetted officer or any of the department mentioned in Section 42 of the NDPS Act or to the nearest Magistrate. So, judgment of conviction and order of sentence is not sustainable and the appellant is entitled to be acquitted. The statements of independent witnesses PW-02, PW-03 & PW-12 are contradictory to that of the statements of the prosecution case, as such 5 the independent witnesses have not supported the prosecution case. The mandatory provisions under Sections 50 & 55 were not complied by the prosecution. The identification of the seized contraband was not prepared properly and the nature of the contraband was also not stated anywhere in the entire charge-sheet and the seizure and sample packets were not duly signed and stamped by the Investigating Officer. The evidence of the prosecution witnesses have not supported the case of the prosecution and there are material contradiction, omission and improvement in the version of the statements of the witnesses. There is nothing on record on the basis of which the present appellant has been convicted and sentenced. 7. Reliance has been placed on this Court’s order dated 09.09.2024 in the matter of Pratyush Kumar Pradhan and Ors. Vs. State of Chhattisgarh passed in CRA No. 1417/2023, in the decision of Hon’ble Supreme Court dated 01.03.2024 in the matter of Mohammad Khalid and Another Vs. State of Telangana reported in 2024 SCC OnLine SC 213 and in this Court’s order dated 02.01.2024 in the matter of Bhupendra Singh alias Rana Vs. State of Chhattisgarh and other connected apppeal passed in CRA No. 718 of 2022. 8. On the other hand, learned counsel for the State supporting the impugned judgment and submits that the learned trial Court has not committed any error by convicting and sentencing the appellant as the appellant has been found in possession of huge quantity of contraband article (Ganja). The mandatory provisions of the NDPS Act have been followed in its later and spirit and minor variation of the statements of witnesses cannot make the entire prosecution case to be false or suspicious. There has been no explanation offered by the appellant as to how such a huge quantity of 6 Ganja came to be in his possession, as such the order passed by the learned trial Court warrants no interference. The learned trial Court after minutely appreciating the oral and documentary evidence available on record has rightly convicted the accused/appellant and there is no illegality or infirmity in the findings of the learned Trial Court, therefore the impugned judgment of conviction and sentence is bereft of any merit and liable to be dismissed. 9. I have heard learned counsel for the parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. Discussion & Analysis:- 10. It is clear from record of learned Trial Court that learned Trial Court framed charges under Section 20 (b) ii (B) of NDPS Act on this ground that the appellant posseses 13.5 Kg of Ganja in his illegal possession on 25.07.2023 and after appreciation of oral and documentary evidence, the learned trial Court convicted and sentenced the appellant as described in opening paragraph of this judgment. 11. (PW-02) Ankit Singh and (PW-03) Prahlad Patel are independent witnesses of search and seizure and other proceedings, but they only admitted their signatures on Ex. P/02 to Ex. P/16 and denied all proceedings before them. The prosecution declared them hostile and cross-examined them, but they denied all suggestions of the prosecution in their cross- examination. 12. (PW-12) Vikas Khatik is the witness of weighing process, but he also turned hostile and denied to identify the accused/appellant. He stated that on 7 the date of incident police persons called him and asked him to weigh the unclaimed property and this witness only admitted his signature on notice Ex. P/09. Physical verification of weighing machine Ex. P/10 and weight memo Ex. P/14. The prosecution declared him hostile and cross-examined him, but he denied all suggestions of the prosecution and stated that no weighing proceeding was conducted in his presence. He has specifically denied that he had weighted the contraband article and found 13.5 Kg of Ganja seized from the appellant. 13. (PW-10) Investigating Officer Satish Kumar Rathore stated that on receiving information from the informer, he sent his Head Constable to call the witnesses and the Head Constable brought (PW-02) Ankit Singh and (PW-03) Prahlad Patel and then the Investigating Officer (PW-10) along with his party and the independent witnesses went to the spot and upon search, he found illegal contraband article (Ganja) and the same was seized from the appellant. 14. (PW-09) Veer Kishore Toppo stated that he was posted as Malkhana Mohrer at police station GRP on January, 2022. He received three packets of contraband and he gave his acknowledgment (Ex. P/24) regarding the seized article Ganja, and its entry was made by him in the Register at Sr. No. 60/23 on 25.07.2023. The Register is Ex. P/25 and the copy of the Register is Ex. P/25-C. On. 27.07.2023 he gave sample packet (Ex. S/1) to Constable Rajdeep Singh to deposit the same at FSL and on 18.08.2023, he received a report and on 02.11.2023 he received a sample packet whose seal was closed. 8 15. (PW-06) Rajdeep Singh stated that he received sample packet on 27.07.2023 and he deposited all sample packets in the FSL and received the acknowledgment (Ex. P/20) and his duty certificate is Ex. P/22. 16. This Court observed in CRA No. 718/2022 in the matter of Bhupendra Singh (supra) and other connected appeal after observing provisions of Section 52A of NDPS Act in paras 18, 19, 20 & 21 which reads as under :- “18. 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. 19. 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. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act. 20. It is an admitted position on record that the samples from the seized substances were drawn by the police in the presence of the Gazetted Officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn. 21. In the matter of Mohanlal (supra), 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 9 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. In the light of above cited judgment, and in the present case also it is not clear from the statement of Investigating Officer (PW-10) Satish Kumar Rathore that he followed the provisions of under Section 42, 52A and 55 of the NDPS Act. It is an admitted position of the record that the samples from the seized substances were drawn by the Investigating Officer (PW-10) and it is clear from Ex. P/32 that before preparing sample packets, all the contraband article were mixed and then the sample packets were prepared, which is clearly violation of standing order of 01/89 issued by the Central Government and as per this order it is advisable to draw one sample duplicate from each packet/container in case of seizure of more than one packet/container. 18. Hon’ble Apex Court held in the decision of Union of India Vs. Mohanlal and others reported in (2016) 3 SCC 379 while dealing with Section 52A of NDPS Act clearly laid down that it is manifest from the said provisions 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 being certified alone would constitute primary evidence for the purpose of trial. But, in the preset case no documents in relation to Section 52A of NDPS 10 Act was attached or proved by the prosecution. All independent witnesses have not supported the prosecution case. 19. Defence witness (DW-01) Shivam Vachne stated that he and the appellant were going over the railway bridge to board the train at Raipur Railway Station, at that time two persons came near them and asked them to come to police station so that they can be interrogated. At that time, (DW-01) Shivam Vachne had opposed them and asked the policemen as to why they are taking them to the police station, then they left him and took the accused/appellant with them to the police station on the pretext of interrogation and a case was made against the accused/appellant in this matter. The prosecution has utterly failed to prove this fact that the prosecution has followed all mandatory provisions of the NDPS Act. 20. As per Ex. P/32, it is clear that before making sample packets, the learned Magistrate has mixed all contraband and prepared three sample packets which are S1, S2 & S3. It is also clear from the statement of Malkhana Moharir (PW-09) Veer Kishore Toppo that only one sample packet was sent to chemical examination. 21. Though no procedure is prescribed either in the N.D.P.S. Act or in the N.D.P.S. Rules regarding the manner in which the samples are to be drawn but a Standing Order 1/89 has been issued by the Central Government in this regard, wherein general procedures for sampling, storage etc. have been given which reads as under : “2.1. All drug shall be properly classified, carefully weighed and sampled on the spot of seizure. 11 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. 12 2.7. If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container. 2.8. While drawing one sample (in duplicate) from a particular lot, it must he ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also he sealed and marked "Secret Drug sample/Test memo", to be sent to the chemical laboratory concerned.” 22. From perusal of Instruction 2.4, it is evident that it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Instruction 2.5 provides an exception to Instruction 2.4. It has been provided in Instruction 2.5 that when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the 13 packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 22. This Court observing the guidelines of Hon’ble Apex Court held in the matter of Bhupendra Singh Vs. State of Chhattisgarh and other connected appeal held in para 23 which reads as under:- 23. The Supreme Court in the matter of Sanjeet Kumar (supra) 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 on 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 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-07 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-07. 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.” 14 23. In the light of above cited judgment, and in the present case also it is clear that the prosecution has failed to prove all mandatory provisions of the NDPS Act. As per Ex. P/32, 03 sample packets were prepared, but as per Malkhana Moharir only one sample packet was sent for FSL. So, it is clear that before preparing sample packets all contraband article were mixed together and both independent witnesses have not supported the prosecution case and it is clear that the prosecution agency did not follow the mandatory provisions of Section 42, 52A and 55 of NDPS Act. So, this Court is of the opinion that prosecution has failed to prove its case beyond reasonable doubt and the learned trial Court did not appreciate all these provisions looking to the statements of the witnesses. Being so, the learned trial Court was not justified in recording conviction of the appellant under Section 20 (b) ii(B) of the NDPS Act, 1985. 24.
Decision
For the foregoing reasons, the appeal is allowed and the impugned judgment dated 04.05.2024 passed by learned Special Judge (NDPS Act, 1985) in Special Criminal Case No. 161/2023 is set-aside. The appellant is acquitted of the charge under Section 20 (b) ii (B) of the NDPS Act, 1985. The appellant is in jail since long and he shall be set at liberty forthwith, if no longer required in any other cases. 25. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs. 50,000/- in the like amount before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 15 26. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. U.K. Raju Sd/- (Rajani Dubey) JUDGE