Nafr High Court
Case Details
1 2025:CGHC:13602-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1253 of 2024 Akshay Kurre S/o. Late Shri Chhannu Kurre Aged About 25 Years R/o. Village- Mini Basti, Jarhabhatha, P.S. Civil Line, Bilaspur, Distt. Bilaspur (C.G.) --- Appellant versus State of Chhattisgarh Through- Station House OfÏcer, P.S. Civil Line, Bilaspur, District- Bilaspur (C.G.) --- Respondent CRA No. 1260 of 2024 1 - Smt. Jogni Kurre W/o Late Chhannu Kurre, Aged About 42 Years R/o Mini Basti Jarhabhatha, Police Station Civil Line District Bilaspur C.G. 2 - Smt. Manisha Tandan W/o Late Dharmendra Tandan, Aged About 22 Years R/o Mini Basti Jarhabhatha, Police Station Civil Line, District Bilaspur C.G. ---Appellant Versus State Of Chhattisgarh Through Station House OfÏcer, Police Station Civil Line Bilapsur, District Bilaspur C.G. For Appellant (s) : Mr. Amit Kumar Chauhan, Advocate {Cr.A. No. 1253/2024} Mr. Rajeev Kumar Dubey, Advocate {Cr.A. No. 1260/2024} --- Respondent 2 For Respondent/State : Mr. Sangharsh Pandey, Government Advocate and Mr. S.S.Baghel, Deputy Government Advocate. Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 21/03/2025 1. Since both the above appeals arise out of one sessions trial, they are
Decision
being disposed of by this common judgment. 2. The appellant(s) have preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, the Cr.P.C) questioning the impugned judgment dated 19.06.2024 passed in Special Sessions (NDPS) Case No.54/2023 by which the learned Special Judge (NDPS) Bilaspur, District Bilaspur, has convicted the appellants as under: Conviction under Jail Sentence Fine Default Section (Rigorous) Sentence 22(c) read with Section 29 15 years Rs. 6 months R.I. of the Narcotic Drugs & 1,50,000/- Psychotropic Substances Act, 1985 (for short, the NDPS Act) 3. The appellants/convicts were charged for the under Section 22 (c) read with Section 29 of the NDPS Act 1985 for keeping, selling, purchasing, transporting, importing inter-state, exporting inter-state or using 62 pieces of Iuprine injection (each 02 ml) containing Buprenorphine in 3 commercial quantity by the appellants in their joint and conscious possession, despite the prohibition of Section 8 of the NDPS Act, in violation of Central Government Notification No. S.O. 1055 (E) dated 19.10.2001, at Mini Basti Jarhabhata Swaraj, near Kabadi Shop, under Police Station Civil Line, District Bilaspur, Chhattisgarh. 4. The case of the prosecution, in brief is that on the date of incident, i.e. on 28.03.2023, the Investigating OfÏcer (for short, the IO) Assistant Sub- Inspector Awadhesh Singh (PW-11), of Police Station Civil Line, Bilaspur, received information from the secret informer that the appellants Jogni Kuren along with her partner Manisha Tandan were illegally keeping and selling banned narcotic drugs i.e. injection and medicines and earning illegal profit near Mini Basti Jarhabhatha Swaraj Kabadi Shop. PW-11 registered the said information in the diary Sanha No. 62/2023 and provided a duty certificate to constable Ajay Sahu (PW-3) and sent him for summoning the witnesses. The said Constable summoned witnesses Raja Jagjit Singh (PW-1) and Tikeshwar Singh (PW-2). The witnesses were informed about the information and by preparing the secret informant information panchnama (Exhibit P/2) and panchnama for proceeding without warrant (Exhibit P/3) and the information of the said action was sent to the City Superintendent of Police, Civil Line Bilaspur. After preparing the informer information panchnama, PW-11, along with staff and witnesses left in a patrolling vehicle for raid action with essential material related to NDPS Act such as seal, shellac, laptop, printer, battery operated inverter along with documents. On reaching near Swaraj Kabadi Shop in Mini Basti Jarhabhatta, appellant-Jogni Kurrey and her companion appellant- Manisha Tandon were found. They were given notice (Exhibit P/4) under section 50 of NDPS Act regarding search. After obtaining consent 4 (Exhibit P/5) and conducting a proper search, 12 pieces of Buprenorphine containing IP Iuprine injection (2 ml each) was recovered from appellant-Jogni Kurre and 19 pieces of Buprenorphine containing IP Iuprine injection (2 ml each) was recovered from appellant-Manisha Tandon and a recovery panchnama (Exhibit P/10) was prepared. The recovered narcotic drug was identified in presence of witnesses and an identification panchnama (Exhibit P/11) was prepared. The contraband drugs were seized from the appellants and sealed after marking it with ‘A’ and ‘C’ and a Dehati Nalishi (Exhibit P/31) was prepared against the appellants under Sections 21, 22 and 29 of the NDPS Act. A spot map (Exhibit P/27) of the place of incident was also prepared. On returning to the Police Station, FIR bearing Crime No. 339/2023 (Exhibit P/32) for the offences under Sections 21, 22, 29 of the NDPS Act was registered against the appellants and the appellants were arrested. After conducting physical verification of the seized property, 02 samples from the seized injections were separated and sealed and the remaining injections were sealed separately. The seized samples were tested by the Drug Inspector and thereafter, when the seized samples were tested by the Regional Forensic Science Laboratory, Bilaspur, the seized samples were found to contain Buprenorphine. During the investigation, on the basis of the memorandum of appellant-Jogni Kurre, it was found that appellant-Akshay Kurre, who is her son, had purchased the narcotic drugs and brought them to her and Manisha Tandon for sale and when he was found to be involved in the crime, appellant- Akshay Kurre was also arrested on 08.05.2023. The statements of the witnesses were recorded and after necessary investigation, the charge sheet was presented before the court for trial against the appellants. 5 5. Charges were framed against the appellants under Section 22 (c) read with Section 29 NDPS and were read out to the accused. Upon being explained the same, the appellants abjured the guilt and prayed for trial. 6. In order to bring home the offence, the prosecution examined as many as 11 witnesses namely, the independent witnesses Raja Jagjeet Singh (PW-1) and Tikeshwar Singh Thakur (PW-2), the police witnesses namely Ajay Kumar Sahu (PW-3), Smt. Reena Singh (PW-4), Ravi Shankar Yadav (PW-5), Jagdish Rathore (PW-6), Rakesh Khandey (PW-7), Rajeshdhar Diwan (PW-8), Venkatesh Shrivas (PW-9), Drug Inspector Smt. Sonam Jain (PW-10), and the Investigating OfÏcer, Awdhesh Singh (PW-11) and exhibited as many as 81 exhibits. 7. The statement of the appellants/convicts under section 313 Cr.P.C was recorded wherein they stated that they were innocent and had been falsely implicated in this case. However, they have not led any evidence or exhibited any document in support of their defence. 8. The learned trial Judge, after considering the evidence on record, convicted the appellant/convict as detailed in the opening paragraph. Hence, the present appeal by the appellant/convict. 9. Mr. Rajeev Kumar Dubey and Mr. Amit Singh Chauhan, learned counsel appearing for the respective appellants submit that the conviction and sentence is based on conjecture and surmises. Firstly the charge has wrongly been framed as according to the seizure memo (Exhibit P/10), 12 Nos. of Buprenorphine injection IP Iuprine each 2 m.l. and 7 Nos. of Avil each 10 m.l. was seized from appellant Jogni Kurre and from appellant-Manisha Tandon, 19 Nos. Buprenorphine Injection IP Iuprine each 2 m.l. and 10 Nos. of Avil injection was recovered. Avil is not 6 covered under the NDPS Act, he, however, fairly submits that there is no charge framed with regard to the Avil. The sample drawn by the Magistrate on 29.03.2023 (Exhibit P/25) was never sent to the FSL for examination. In the deposition of Drug Inspector Smt. Sonam Jain (PW- 10) in cross examination, at paragraph 7 she has stated that the samples which she received, in the seal in the centre, ‘CG’ was written and in the periphery, ‘PS Civil Lines’ was written and except that, there was no other seal. The independent witnesses namely Raja Jagjeet Singh (PW-1) and Tikeshwar Singh Thakur (PW-2) have not supported the prosecution case and turned hostile. Section 35(2) of the NDPS Act provides that a fact can be said to have proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of 10 years, absence of any provision for remission, do not dispense with the requirement of prosecution to establish a prima facie case beyond reasonable doubt after investigation only after which the burden of proof shall shift to the appellants. The case of the prosecution cannot be allowed to rest on preponderance of probabilities. 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 and strict adherence to the said requirement that the contraband recovers pursuant to personal search of a person can be relied upon as a circumstance against the person. It is mandatory for the prosecution that the ofÏcer shall record the reason for such belief which necessitated such search and within 72 hours sent a copy thereof to his immediate ofÏcer but in the present case, same could not be conducted by the prosecution. The IO did not mention the reason for belief nor he informed the appellants regarding their rights for search by a gazetted ofÏcer or 7 any of the Department mentioned in Section 42 of the NDPS Act or to the nearest Magistrate. The independent prosecution witnesses have turned hostile. The mandatory provisions of Section 55 was not complied with 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 in the seizure and sample packet were not duly signed and stamped by the IO. The entire prosecution story appears to be a concocted one and as such, these appeals deserve to be allowed. In support of their contentions, they place reliance on the decision of a three-Judge Bench of the Supreme Court in Union of India v. Bal Mukund & Others {Cr.A. No. 1397/2007, decided on 31.03.2009} and a judgment of this Court in Kondru Dharmarao v. Directorate of Revenue Intelligence, {2024 SCC OnLine Chh 2932}. 10. On the other hand, learned counsel for the State submits that the entire procedure as prescribed under the NDPS Act has been followed in its letter and spirit and after considering the evidence available on record, the learned trial Court has rightly convicted and sentenced the appellant for the alleged offence. The appellants were found in possession of the aforesaid contraband articles and there has been no explanation offered by the appellants as to how they came into the possession of the same. All the mandatory provisions of the NDPS Act were duly complied with, therefore, there is no irregularity or infirmity in the impugned judgment passed by learned trial Court and the appeals filed by the appellants are liable to be dismissed. It is further submitted that the appellant-Akshay Kurrey has a criminal history of 10 cases and out of which, three cases relate to NDPS Act. 11. We have heard learned counsel for the parties and perused the record 8 of the trial Court with utmost circumspection. 12. The appellant-Jogni Kurre and appelant-Akshay Kurre are mother and son and the appellant-Manisha Tandon is their neighbour. 13. Raja Jagjit Singh (PW-1) is the independent witness. Though he has turned hostile and not supported the prosecution case, but he admits of having signed Exhibit P/1, P/2, P/3, P/4, P/5, P/6, P/7, P/8, P/9, P/10, P/11, P/12, P/13, P/14, P/15, P/16, P/17, P/18, P/19, P/20, P/21, P/22, P/23, P/24, P/25, P/26 and P/27 which are various documents relating to the search, seizure, identification, panchnama etc. He has denied of even knowing the other witness Tikeshwar Singh Thakur (PW-2). He further stated that it was incorrect to state that he had signed the documents after reading and has also not identified the accused persons. He has denied the entire proceedings of the police viz. Exhibit P/1 to P/27 and also denied of having given the police statement Exhibit P/28. So far as the other witness namely Tikeshwar Singh Thakur (PW- 2) is concerned, he has also turned hostile and deposed in the same manner as that of PW-1. However, he has also admitted of having signed the Exhibits as aforesaid. 14. Though Raja Jagjit Singh (PW-1) has turned hostile before the learned trial Court, however, in his police statement (Exhibit P/28), he has clearly stated that after doing all the formalities by the police, narcotic drugs were seized from the possession of the appellant-Jogni Kurre and Manisha Tandon. Similarly, the independent witness Tikeshwar Singh Thakur (PW-2) who has also turned hostile, has made similar statement before the Police as has been made by PW-1. 15. Exhibit P/13 and Exhibit P/14 are the memorandum statement of the appellants-Jogni Kurre and Akshay Kurre. Jogni Kurrey has stated that 9 his son Akshay Kurre used to bring them the narcotic injection for sale and she gets the said injection sold through accused-Manisha Tandon and she used to give Rs. 200/- per day to her. Akshay Kurrey has stated that he used to get the supply of the narcotic injection from a person belonging to Jabalpur (M.P.) and used to give it to her mother and neighbour for its sale. 16. Prior to the search and seizure, the appellants-Jogni Kurrey and Manisha Tandon were duly given the notice under Section 50 of the NDPS Act (Exhibit P/4) by the IO (PW-11). They had consented for their search by the Lady Constable, Asha Netam (Exhibit P/5). The IO (PW- 11) was also searched by the appellants Jogni Kurre and Manisha Tandon vide Exhibit P/6. The force and vehicle of the police was also searched by these appellants vide Exhibit P/7. They had further searched the independent witnesses (PW-1) and PW-2) vide Exhibit P/8. All these proceedings bear the signature of the two appellants. Thereafter, the appellants were searched by the IO vide Exhibit P/9 wherein 12 Nos. of Buprenorphine Injection IP Iuprine each 2 m.l. and 7 Nos. of Avil each 10 m.l. was recovered from the appellant-Jogni Kurre and from appellant-Manisha Tandon, 19 Nos. of Buprenorphine Injection IP Iuprine each 2 m.l. and 10 Nos. of Avil each 10 m.l. was recovered and seized. Accordingly narcotic substance panchnama was prepared vide Exhibit P/10. Thereafter, the narcotic substance identification panchnama was prepared vide Exhibit P/11. The appellants-Jogni Kurre and Manisha Tandon were given notice under Section 67 of the NDPS Act asking them to produce any documents/licence regarding possessing those narcotic drugs vide Exhibit P/12. Thereafter, memorandum statement of appellant-Jogni Kurre was recorded vide Exhibit P/13 upon which the name of the other appellant-Akshay Kurre 10 was disclosed and his memorandum statement was also recorded vide Exhibit P/14. A counting panchnama (Exhibit P/15) was also prepared by the IO (PW-11) wherein the total quantity of Buprenorphine was found to be 61 m.l. and Avil to be 170 m.l. The said seized articles were weighed and a panchnama (Exhibit P/16) in this regard was prepared and the Buprenorphine injection was found to be 24 grams and Avil to be 70 grams which was seized from appellant-Jogni Kurrey and the buprenorphine and Avil recovered from appellant-Manisha Tandon was found to be 28 gram and 100 grams respectively. The seized narcotic drugs were sealed vide Exhibit P/17 which is seal panchnama. Property seizure memo was prepared vide Exhibit P/18 and P/19, in respect of narcotic drugs seized from appellant Jogni Kurre and Manisha Tandon. A sample panchnama (Exhibit P/25) was also prepared and 2 Nos. of Buprenorphine injection and 2 Nos. of Avil were taken and marked as Exhibit A-1, C-1 and B-1 and D-1. 17. The seized Buprenorphine Injection IP Iuprine (Exhibit A-1) and Avil (Exhibit B-1) seized from the possession of appellant-Jogni Kurre and (Exhibit C-1 and D-1) i.e. Buprenorphine Injection IP Iuprine and Avil, seized from the possession of appellant-Manisha Tandon was sent to the FSL, Regional OfÏce, Bilaspur for examination alongwith the report (Exhibit P/36) of the Drug Inspector, Sonam Jain (PW-10). In the FSL report (Exhibit P/74), the Exhibits A-1 and C-1 were found to have Buprenorphine. 18. From perusal of the materials available on record, it transpires that the investigation conducted by the IO (PW-11) in the case is lawful and transparent. The evidence and investigation proceedings of the IO have also been supported by other police prosecution witnesses in the case. Hence, there is no reasonable doubt to disbelieve the proceedings and 11 the statements made by the IO. In this case, no such evidence or fact has been presented before the court by the appellants to show any satisfactory reason for the possession of 31 pieces of Iuprine Injection (each injection is 02 ml) containing Buprenorphine, totaling 62 ml (62 grams) seized in excess of the commercial quantity from the appellants. Therefore, criminal intent of the appellants is presumed under Section 35 of the NDPS Act and Section 22 (C) of the NDPS Act read with Section 29 of the NDPS Act in relation to illegal possession of 31 pieces of Iuprine Injection (each injection is 02 ml) containing Buprenorphine, totaling 62 ml (62 grams) seized in excess of the commercial quantity from the appellants. 19. Sonam Jain (PW-10), has stated in her examination-in-chief that she was posted as Drug Inspector in the ofÏce of Deputy Director, Food and Drug Administration, Bilaspur from February 2021 till date. On 31.03.2023, the Police Station In-charge, Civil Line Police Station, in Crime No. 339/2023 for the offence under Section 21, 22, 29 NDPS Act, provided a letter dated 31.03.2023 along with the attached document for testing the seized sealed packets "A1" and "C1" containing 2-2 pieces of Buprenorphine injection and sealed packets "B1" and "D1" containing 2- 2 pieces of Avil injection and submitting a report, which is Exhibit P-81. The letter of Exhibit P-81 was received in the ofÏce of Deputy Director Food and Drug Administration District Bilaspur on 31/03/2023. Along with the letter of Exhibit P20, injections containing Buprenorphine in sealed packets "A1", "C1" and Avil injections in sealed packets "B1", "D1" were also sent. On opening the sealed packets A1, B1, C1, D1 enclosed with the letter of Exhibit P/81 on 03.04.2023, packets A1 and C1 were found to contain Iuprine Buprenorphine injection and packets B1 and D1 were found to contain Avil injection. She tested the sample 12 on the basis of the label of the above injection. In the test, Avil and Iuprine Buprenorphine injection was found to contain Pheniramine maleate and Buprenorphine respectively, the main ingredient pheniramine maleate in 'Avil' was found to be under Schedule G of the Drugs and Cosmetics Act 1940 Rules 1945 and the main ingredient Buprenorphine in "Iuprine injection" was found to be under the category of Schedule H-1 of the Drugs and Cosmetics Act 1940 Rules 1945. After testing, the injections obtained in packets A1, B1, C1, and D1 presented by her were again placed in the said packets and re-sealed with a seal, which had SJ engraved at the center and DRUG INSPECTOR CG in the periphery, and marked with A1, B1, C1, and D1 respectively, and the test report was returned to the police station in-charge, Police Station Civil Line, along with the details of the tested medicines dated 03.04.2023. The test report given by her is Exhibit P/36. She had also advised through the report of Exhibit P-36 that the seized medicines should be chemically tested by the lab and the substance present in it should be tested. 20. The IO (PW-11) has stated in his chief examination that after FSL examination, the examination report/opinion dated 16.05.2023 (Exhibit P/74) of the OfÏce of Regional Forensic Science Lab, Bilaspur was received by Police Station Civil Line through Superintendent of Police District Bilaspur. According to Exhibit P 74, crime number of Police Station Civil Line 339/2023 Fodder 21, 22 and 29 NDPS Act, 4 sealed packets seized from the appellants in this FSL ofÏce by constable number 182 Venkatesh Shrivas of Police Station Civil Line on 17.04.2023, which were found to be marked with A-1, B-1, C-1 and D-1 and the sample seal found in them was found to be similar to DRUG INSPECTOR SJ CG. As per the FSL report (Exhibit P/74) on opening 13 the sealed packet A-1, 2 pieces of Iuprine injection article of 2.0 ml capacity white colored ampoule containing colorless liquid were found, which were marked A1-1 and A1-2 respectively. As per the FSL report (Exhibit P/74) on opening the sealed packet B-1, 2 pieces of Avil 10.0 ml capacity brown coloured glass bottle containing colourless liquid were found, which were marked B1-1 and B1-2 respectively. As per Exhibit P- 74, on opening the sealed packet C-1, 2 pieces of Ayuprin injection article 2.0 ml capacity white coloured ampoule containing colourless liquid were found, which were marked C1-1 and C1-2 respectively. As per Exhibit P-74, on opening the sealed packet D-1, 2 pieces of Avil article 10.0 ml capacity brown coloured glass bottle containing colourless liquid were found, which were marked D1-1 and D1-2 respectively. As per FSL report Exhibit P 74, necessary physio- chemical and TLC tests were carried out on the liquids of A1-1, A1-2, B1-1, B1-2, C1-1, C1-2, D1-1 and D1-2 and Buprebnorphine was found to be present in the liquid of Exhibit A1-2, C1-1 and C1-2 and Pheniramine Maleate was found present in the liquid of Exhibit B1-1, B1- 2, D1-1 & D1-2. After testing by FSL OfÏce, 4 sealed packets were received at Civil Line Police Station which were presented before the learned trial Court wrapped in Khakhi coloured enveloped and tied from all sides. 21. There is no dispute with regard to the ratio laid down by the Apex Court in Bal Mukund & Others (supra), however, the facts of the case are distinguishable. 22. In Rajesh Dhiman v. State of Himachal Pradesh {(2020) 10 SCC 740}, another three-Judge Bench has observed that although in some cases, certain actions (or lack thereof) by the IO might indicate bias; but mere deficiencies in investigation or chinks in the prosecution case 14 cannot be the sole basis for concluding bias. The appellants herein have at no stage claimed that there existed any enmity or other motive for the police to falsely implicate them and let the real culprits walk free. On the contrary, as per the submission of the learned State counsel, there are as many as 10 cases registered against the appellant-Akshay Kurrey out of which three cases relate to the NDPS Act which goes to suggest that the appellant-Akshay Kurrey is a habitual offender and it is not the first case where he is involved in sale of contraband narcotic drugs. 23. It is necessary to have reasonable doubts in the entire investigation proceedings regarding the defense and acquittal of the appellants, but no such circumstances appear to exist in the case. Even the independent witnesses (PW-1 and P/2) turning hostile would be of no relevance as they have admitted to have signed various documents relating to search, seizure and other procedural aspects. There is no explanation offered by these witnesses as to how their signatures came to be there when they were not present at the spot during the course of entire proceedings. Even the appellants have not given any suggestion in their statement under Section 313 Cr.P.C. as to why the police would falsely implicate them in the said crime. 24. From the above analysis, we are of the considered opinion that the prosecution has been successful in proving its case beyond reasonable doubt and the learned trial Court has not committed any legal or factual error in arriving at the finding with regard to the guilt of the appellants/ convicts. 25. Accordingly, both the appeals being devoid of merit are liable to be and are hereby dismissed. 15 26. The appellants are stated to be in jail. They shall serve out the remaining part of the sentence as has been awarded to them by the learned trial Court. 27. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentences to serve the same on the appellants informing them that they are 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. 28. Let a certified copy of this judgment alongwith the original record be transmitted to trial Court concerned forthwith for necessary information and action, if any. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) CHIEF JUSTICE JUDGE Amit AMIT KUMAR DUBEY Digitally signed by AMIT KUMAR DUBEY Date: 2025.04.01 15:16:27 +0530