High Court of Chhattisgarh
Case Details
1 AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.08.19 14:33:56 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR ACQA No. 69 of 2015 Judgment Reserved on 06.08.2025 Judgment Delivered on 19.08.2025 • State of Chhattisgarh, Through District Magistrate, District Bastar, Chhattisgarh. ...Appellant versus 1. Shrikant Mishra, S/o Balram Mishra, aged about 25 Years, Occupation- Driver, R/o Lendra, P.S. Barpali, District Bargad Orissa. 2. Santosh Verma, S/o Naturam Verma, aged about 35 years, Occupation- Tea Stall, R/o Sajri Tikra, Ward No. 8 P.S.-Bargar, Distt.- Bargad, Orissa. 3. Subhash Maharana S/o Gopinath Maharana, aged about 35 years, Occupation- Carpenter, R/o Sajri Tikra, Ward No. 8, P.S.-Bargad, Distt.- Bargad, Orissa. 4. Jagarnath Choudhary, S/o Labnu Choudhary, aged about 38 years, Occupation Agriculturist, R/o Village Fafni, P.S. Sabri Jaipur, Distt.- Koraput, Orissa. ... Respondents For Appellant
Legal Reasoning
: Mr. Deepak Kumar Singh, Panel Lawyer. For Respondent No.1 : Mr. Alok Kumar Dewangan, Advocate. For Respondent Nos. 2 to 4 Mr. Shishir Dixit, Advocate. Hon'ble Shri Justice Sanjay S. Agrawal & Hon'ble Shri Justice Radhakishan Agrawal CAV Judgment Per Radhakishan Agrawal, J. 1. This acquittal appeal filed by the Appellant/State arises out of the judgment dated 04.09.2010 passed by the Special Judge under NDPS Act, Jagdalpur, C.G. in Special Case No.01/2010, whereby the learned 2 trial Court acquitted the accused persons/respondents herein of the charge under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') on the basis of benefit of doubt. 2. Case of the prosecution, in brief, is that on 01.09.2009, PW-6 Rajendra Prasad Mishra, Assistant Sub-Inspector, Police Station-Kondagaon, received a secret information from the informant that present respondents/accused persons are travelling in a white Indica Car bearing registration No.OR15/A/4486, carrying ganja illegally and are proceeding to Raipur via Jagdalpur from Orissa and acting upon such information, he reduced the same in Rojnamcha Sanha. Thereafter, independent witnesses were summoned to the police station along with weighing machine and informed them about the information received from the informant. After that, he prepared panchnama of informer's information vide Ex.P-9. Thereafter, through one Constable Naresh, he sent the informer's information to the SDOP Office, Kondagaon vide Ex.P-5. Thereafter, he along with staff and witnesses rushed to the spot as informed by the informer and after reaching the spot, they stopped the said Indica Car and found accused persons/respondents sitting there and police party told them about the information received by them from informer. As no Senior Officer was present on the spot, he himself took charge and prepared the proceeding panchnama vide Ex.P-11. In compliance of Section 50 of NDPS Act, a notice vide (Ex.P-12) was given to the respondents. Thereafter, personal search of the police party and the witnesses was also made by the respondents. As per the consent of the respondents, Police team searched the respondents and did not find anything in their possession, but in Indica Car, they 3 found ganja like substance in 7 sacks vide Ex.P-14 and the same was seized vide Ex.P-15. In presence of the witnesses, after smelling, burning and rubbing the same, the recovered substance was found to be ganja vide Ex.P-16. Thereafter, following the provisions of law, ganja was weighed and weighing panchnama was prepared vide Ex.P-3 and total ganja of 76 Kg 200 gms were recovered vide Ex.P-7 and the seized substance was mixed together and thereafter sample of 100-100 gms each were taken out from each sack and Samras Panchnama was prepared vide Ex.P-17. Thereafter, 100-100 gms packets were segregated into 50-50 gms each and total 14 sample packets were prepared. Marks 'A, B, C, D, E, F & G' were affixed on the seven seized sacks, while the sample packets were marked from 'A-1 to G-2', sealed vide Ex.P-18 and after that, the remaining ganja was sealed vide Ex.P-19. Accused persons/respondents were taken into custody vide Exs.P-20 to P-23. After completion of proceedings, FIR (Ex.P-32) was registered against the respondents. Seized articles were given to Mohirir to keep the same in Malkhana and then sent them to FSL for chemical examination and as per FSL report (Ex.P-39), the recovered substance was confirmed to be ganja. 3. After completion of investigation, charge sheet was filed against the accused persons / respondents before the Special Judge under NDPS Act. The respondents abjured the guilt and prayed for trial. 4. The learned trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused persons/respondents herein of said charge leveled against them. 5. Learned counsel for the appellant/State would submit that the trial 4 Court is unjustified in acquitting the accused persons/respondents herein of said charge by recording perverse findings. He would further submit that there is cogent and clinching evidence available on record, more particularly, the evidence of PW-6 Rajendra Prasad Mishra, Investigating Officer, to connect the accused persons/respondents with the offence alleged against them. He would also submit that mandatory provisions of NDPS Act have been complied with by the prosecution and despite that, the learned trial Court has committed grave error in acquitting the accused persons/respondents without appreciating the evidence on record in its correct perspective. Thus, the impugned judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside. 6. On the other hand, learned counsel for the respondents/accused persons would support the impugned judgment and submit that there are material contradictions and omissions in the statement of PW-6 Rajendra Prasad Mishra, the Investigating Officer, whose evidence does not inspire confidence. They would further submit that both independent witnesses have been declared hostile as they did not support the alleged search and seizure proceedings. They would also submit that despite a weigher being present at the spot, the police personnel weighed the seized substance themselves, which vitiates the prosecution’s case. They would also submit that there was no mention in the Thana Malkhana Panji (Ex.P-6C) of any marks on the articles deposited there. They would further contend that the seized articles were not kept in safe custody. They would also contend that the trial court, after appreciating the evidence on record and material 5 documents, rightly concluded that the prosecution failed to prove its case beyond reasonable doubt to connect the respondents with the crime in question, which led to their acquittal. Therefore, the appeal is liable to be dismissed. 7. We have heard learned counsel for the parties and perused the material available on record. 8. The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal, which reads as under:- 25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.” 9. As regards the complicity of the respondents in the crime in question, the evidence of PW-6 Rajendra Prasad Mishra, Investigating Officer, is very significant. He has deposed that on 01.09.2009, he received a secret information that the present respondents/accused persons are travelling in a white Indica Car bearing registration No.OR15/A/4486, carrying ganja illegally and are proceeding to Raipur via Jagdalpur from Orissa which was reduced in writing by him in Rojnamcha Sanha. After that, he along with staff and witnesses rushed to the spot and after reaching the spot, they stopped the said Indica Car and found accused persons/respondents sitting inside and gave a notice under Section 50 of NDPS Act to the respondents. Thereafter, a personal search of the 6 police party and the witnesses was also made by the respondents. With the consent of the respondents, the Police team searched the respondents and did not find anything and when the said Indica Car was searched, they found ganja like substance in seven sacks and the same was seized vide Ex.P-15. He has further stated that in presence of the witnesses, after smelling, burning and rubbing the same, the recovered substance was found to be ganja vide Ex.P-16. Thereafter, ganja was weighed and total ganja of 76 Kg 200 gms were recovered vide Ex.P-7. Thereafter, he conducted the further proceedings vide Exs.P-17 to P-41 according to the provisions of NDPS Act. However, in this case, independent witnesses to the alleged seizure and search proceedings namely PW-4 Avinash Awasthi and PW-5 Ashim Shah have turned hostile and did not support the prosecution case stating that in their presence, Police Personnel did not conduct any proceedings against the accused persons and that they signed the documents at the Police Station, Kondagaon itself. Furthermore, it appears from the statement of PW-6 Rajendra Prasad Mishra, I.O., that he received information at 9:05 am and proceeded to the spot at 10:15 am and at this stage, he had sufficient time to comply with the provisions contained in Section 42(2) of the NDPS Act, but he failed to do so. There is no material on record to show that any information was reduced in writing and forwarded to the immediate Superior Officer before conducting the search and seizure and non-compliance of such provision to Section 42(2) of the NDPS Act vitiates the prosecution case. This apart, a question was put to PW-6 Rajendra Prasad Mishra, I.O. as to how the same time has been mentioned in informer's information panchnama (Ex.P-9), roznamcha sanha (Exs.P-26 & P-28) 7 and panchnama of not being able to obtain search warrant (Ex.P-10), to which, he admitted in cross-examination that although these documents were prepared at different times, but inadvertently, the same time has been mentioned in these documents. It is pertinent to mention here that if the same person (PW-6) is preparing documents, i.e. Exs.P-9, P-26, P-28 & P-10, all bearing the same time, it becomes implausible to believe how he could have prepared the roznamcha sanha and panchnama at the same time, which creates serious doubt in the prosecution’s story. Further, PW-6 Rajendra Kumar Mishra, I.O, has stated that he took out each 100 gms of ganja from the seized articles and by separating 50 gms each from it, prepared a total 14 sample packets. However, when the sample packets were produced before the trial Court, they were found to contain 100 gms each, instead of 50 gms. In this regard, PW-6 in his cross-examination admitted that a total 14 separate packets of 100 gms each were prepared, but this version is contrary to documents Exs.P-18 & 19 wherein it is clearly mentioned that sealed packets of 50 gms each were prepared, which is indicative of the fact that there is inconsistency in sampling procedure. Furthermore, PW-16 Rajendra Prasad Mishra, I.O, admitted that he affixed the seal of RNT Hospital, Kondagaon on sample panchanama and other documents, whereas the FSL report reflected a seal of Police Station, Kondagaon. This mismatch in seals also casts a serious doubt on the integrity of the sample packets and raises a possibility of tampering or replacement. 10. That apart, the report of the Office of the Superintendent of Police, Bastar District Jagdalpur, C.G. indicates that the seized sample packets were sent to FSL for chemical examination on 03.09.2009, but on the 8 contrary, PW-7 Laxmikant Rawate, Constable, has stated in his deposition that he left the police station to deposit the seven sealed sample packets at the FSL on 11.09.2009, deposited them on 15.09.2009 and returned to Police Station on 17.09.2009. It is pertinent to mention here that prosecution has not furnished any explanation regarding where and in what condition the seized sample packets were kept during this intervening period, nor has it established whether they were kept in safe custody, which creates doubt of tampering of sample packets. Additionally, in several documents, the vehicle number has been mentioned as OR15A/4486, whereas the actual vehicle number was OR15M/4486. This discrepancy strikes at the identity of the vehicle allegedly involved and raises the possibility of false implication. Further, there was no mention in the Thana Malkhana Panji (Ex.P-6C) about the sign of any marks on the articles which were deposited in the Thana Malkhana. This apart, there are also variations of mentioning of time in the documents (Exs.P-1, P-3, P-7, P-10 to P-19) with pen and the flow of writing does not appear to be natural, suggesting that certain portions may have been added subsequently. 11. Thus, from perusal of the above evidence brought on record, it is quite vivid that there are major contradictions and omissions in the statement of PW-6 Rajendra Prasad Mishra, Investigating Officer and his statement does not corroborate with the statements of other witnesses and the documents available on record with respect to search, seizure and investigation, which makes his version doubtful and untrustworthy. Further, the independent witnesses to the alleged search and seizure proceedings, namely PW-4 Avinash Awasthi and PW-5 Ashim Saha, have turned hostile and did not support the prosecution’s case. That 9 apart, PW-1 Afjal Ahmad, Constable, admitted in his cross-examination that although a weigher was present at the time of weighing the seized ganja, but the said weigher did not weigh it; rather, PW-1 himself weighed the alleged seized substance and no explanation has been offered by the prosecution for this. Moreover, the said weigher has also not been examined by the prosecution for reasons best known to it. PW-1 has also stated that upon weighing, he found total ganja of 67 kg 200 gms, but on the contrary, PW-6 Rajendra Prasad Mishra, I.O. has stated that upon weighing, ganja was found to contain 76 kgs 200 gms, making the whole prosecution story doubtful. Besides above, the evidence on record would show that the mandatory provisions of NDPS Act have also not been complied with by the prosecution and also there is no cogent evidence on record to show that after seizure, the alleged seized property was kept in safe custody. Even if the case of the prosecution is taken as it is, then it appears that the entire proceedings conducted by the prosecution are vitiated and doubtful. 12. The learned trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence, came to the conclusion that the prosecution has failed to prove all the facts of the charge leveled against the respondents beyond all reasonable doubt and it has also miserably failed to bring on record any clinching and reliable evidence to show the complicity of the respondents in the crime in question and as such, acquitted the accused persons/respondents of the said charge leveled against them on the basis of benefit of doubt. 13. After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court, we are of the 10 considered opinion that the judgment impugned acquitting the accused persons/respondents herein of the charge under Section 20(b)(ii)(C) of the NDPS Act, is just and proper and does not call for any interference. 14. Accordingly, this acquittal appeal by the appellant/State against the acquittal of the accused persons / respondents is hereby dismissed. Sd/- (Sanjay S. Agrawal) Judge Sd/- (Radhakishan Agrawal) Judge Akhilesh