Criminal Appeal No. 1285 of 2023 · Nafr High Court
Case Details
1 2025:CGHC:31028 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 1285 of 2023 HARNEET KAUR Digitally signed by HARNEET KAUR Date: 2025.07.09 11:12:10 +0530 Shantanu Behera S/o Trinath Behera Aged About 24 Years R/o Village Sahaj Bahal, Oskapli, P.S. Kishore Nagar District Angul (Odisha). ... Appellant versus State Of Chhattisgarh Through The Police Station Bamhanidih, District Janjgir Champa Chhattisgarh ... Respondent For Appellant : Ms. Pushpa Dwivedi, Advocate
Legal Reasoning
not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a Panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of PWs. 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails.” 11. NDPS Act is a complete code in itself. Once the procedure enumerated in Sections 42, 43, 49 and 50 is scrupulously followed, it is for the accused from whose possession the substance is recovered to explain how he came into possession of the same. It has also been held by their Lordships of the Supreme Court in Mukesh Singh v. State (NCT of Delhi)2 that it is not always necessary to corroborate the testimony of police officials through the testimony of independent witnesses. 12. In the matter of Dharampal Singh v. State of Punjab3, it has been held that lack of independent witness is not fatal to the case of the prosecution. By adopting same analogy, it has further been held in Rizwan Khan v. State of Chhattisgarh4 that the independent witnesses turning 2 (2020) 10 SCC 120 3 (2010) 9 SCC 608 4 (2020) 9 SCC 627 8 hostile cannot be a ground for acquittal under the NDPS Act. 13. As such, from the aforesaid legal discussion, it is vividly clear that merely because the two independent witnesses namely Rahul Singhania (PW-3) and Naveen Saraf (PW-4) have turned hostile and have not supported the case of the prosecution, it cannot be said that the entire prosecution’s case stands vitiated, particularly, when in the present case, the Investigating Officer namely Ramkumar Tonde (PW-9) has duly proved and supported the recovery of ganja from the appellant and co-accused vide Ex. P/14 and as per the FSL report (Ex. P/45), it has been found that the contraband article seized from the appellant is ganja, therefore, I do not see any good ground to disbelieve the fact of recovery and seizure of ganja from the appellant vide Ex. P/14 as there is no procedural lapse on the part of the prosecution as per the material available on record. 14. The next contention raised by learned counsel for the appellant is that appellant is not the owner of the vehicle from which seizure of ganja has been made. However, in this regard, the statement of the owner of the vehicle namely Sanjeep Kumar Pradhan (PW-2) has clearly stated before the Court that in October, 2021, co-accused Sushant Sagar had come to him and had borrowed the 9 vehicle in question for taking his father to the Hospital citing that he is unwell, however, after two days, younger brother of co-accused Sushant Sagar had informed him that his vehicle has been found involved in commission of crime under the NDPS Act in the State of Chhattisgarh and has accordingly been seized. As such, it is quite apparent that the vehicle in question was in possession of the appellant and co-accused when seizure of contraband Ganja was made vide Ex. P/14. Thus, the plea taken by learned counsel for the appellant appears to have no merit in view of the statement of Sanjeep Kumar Pradhan (PW-2), owner of the vehicle. In view of the aforesaid legal analysis, I do not find any good ground warranting interference in the impugned judgment (Annexure A-1) passed by learned Special Judge. The appellant has rightly been convicted for the offence punishable under Section 20(b)(ii)(c) of the NDPS Act. 15. Accordingly, this criminal appeal is liable to be and is hereby dismissed. 16. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal under Article 136 of the Constitution 10 of India before the Hon’ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Sanjay K. Agrawal) Judge Harneet
Arguments
For Respondent/State : Mr. Sharad Mishra, Panel Lawyer SB- Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 07.07 .2025 1. This Criminal Appeal under Section 374(2) of CrPC has been filed by the appellant herein against impugned 2 judgment of conviction and order of sentence dated 22/05/2023 (Annexure A-1) passed by the Special Judge (NDPS Act), District Janjgir-Champa in Special Criminal Case (NDPS Act) No. 01/2022 whereby he has been convicted for offence punishable under Section 20(b)(ii)(c) of the NDPS Act and has been sentenced to undergo R.I. for 10 years with fine of Rs. 1 lakh and in default of payment of fine, further S.I. for 1 year. 2. Case of the prosecution, in brief, is that on 11/10/2021 within the ambit of Police Station Bamhanidih District Janjgir-Champa, the appellant, along with co-accused Sushant Sagar, was found in unauthorized possession of 26.120 kgs of ganja and thereby, committed the aforesaid offence. 3. Further case of the prosecution is that on 11/10/2021, the Station House Officer of Police Station Bamhanidih, District Janjgir-Champa received a secret information that two persons are coming from Odisha to Bamhanidih via Birra in a white coloured Honda City car bearing registration No. OR-2BU-2829 with ganja. Thereafter, notice under Section 160 of CrPC was issued to two independent witnesses namely Rahul Singhania (PW-3) and Naveen Saraf (PW-4) and duty certificate (Ex. P/26) was prepared and it was informed to the SDOP Office 3 which was received vide Ex. P/27. Mukhbir Suchna Panchnama was prepared vide Ex. P/6 and notice under Section 50 of the NDPS Act was served to the accused persons vide Ex. P/7 and P/8. Spot map was prepared vide Ex. P/23. Consent panchnama of the accused persons giving consent for search in the presence of independent witnesses was prepared vide Ex. P/9 and search was conducted by the SHO/IO vide Ex. P/10. Seizure of contraband article was made from the car and seizure panchnama was prepared vide Ex. P/14 and thereafter, identification memo of the seized contraband was prepared vide Ex. P/15. Weighing panchnama was prepared vide Ex. P/17 and it was found that the seized contraband article weighed 26.120 kg. Samples were prepared and were sent for forensic examination and as per the FSL report (Ex. P/45), the seized contraband was identified to be Ganja. Dehati Nalishi was prepared vide Ex. P/39 and first information report was registered against the accused persons vide Ex. P/40. After due investigation, the accused persons were charge-sheeted for offence punishable under Section 20(b)(ii)(c) of the NDPS Act which was committed to the Court of Special Judge for trial in accordance with law. The accused persons abjured their guilt and entered into defence. 4 4. In order to bring home the offence, prosecution examined as many as 12 witnesses and brought on record 50 documents. The statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and neither brought any document on record. 5. Learned Special Judge, after consideration of oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Section 20(b)(ii)(c) of the NDPS Act and sentenced him as aforesaid. 6. Ms. Pushpa Dwivedi, learned counsel appearing for the appellant, would submit that the Special Court is absolutely unjustified in convicting the appellant for the offence in question as the two independent witnesses namely Rahul Singhania (PW-3) and Naveen Saraf (PW-4) have turned hostile and have not supported the case of the prosecution and the conviction has been made on the self- serving statement of Investigating Officer namely Ramkumar Tonde (PW-9). She would further submit that appellant is not the owner of the vehicle from which seizure of ganja has been made and he was not aware that there was contraband substance in the vehicle, as such, the appellant is innocent, therefore, the instant appeal be 5 allowed and the appellant be acquitted from the charges levelled against him. 7. Per contra, Mr. Sharad Mishra, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt as though the independent witnesses namely Rahul Singhania (PW-3) and Naveen Saraf (PW-4) have turned hostile but the seizure has been duly proved by the Investigating Officer namely Ramkumar Tonde (PW-9). He would further submit that the owner of the vehicle namely Sanjeep Kumar Pradhan (PW-2) has clearly stated in his statement before the Court that in October, 2021, co-accused Sushant Sagar had come to him and had borrowed the vehicle in question for taking his father to the Hospital citing that he is unwell, however, after two days, younger brother of co-accused Sushant Sagar had informed him that his vehicle has been seized on account of commission of offence under NDPS Act in the State of Chhattisgarh. As such, the instant appeal is liable to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 9. In the instant case, on 11/10/2021, contraband substance 6 ganja was recovered from the possession of the appellant as well as co-accused Sushant Sagar present in a white coloured Honda City Car bearing registration No. OR-2BU- 2829 vide Ex. P/14 in the presence of two independent witnesses namely Rahul Singhania (PW-3) and Naveen Saraf (PW-4), however, the first contention raised by learned counsel for the appellant is that the said two independent witnesses have turned hostile and have not supported the case of the prosecution, therefore, recovery is unsustainable and bad in law. However, the Investigating Officer namely Ramkumar Tonde (PW-9) has duly proved the recovery of ganja from the accused persons vide Ex. P/14. 10. In this regard, in the matter of P.P. Fathima v. State of Kerala1, their Lordships of the Supreme Court have held that mere fact that a panch witness did not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made and observed in paragraph 7 as under :- “7. Learned counsel then contended that in view of the fact that the Panch witness to the seizure has 1 (2003) 8 SCC 726 7