High Court of Chhattisgarh
Case Details
1 AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.08.08 18:12:21 +0530 HIGH COURT OF CHHATTISGARH AT BILASPUR AFR ACQA No. 125 of 2015 Judgment Reserved on 25.07.2025 Judgment Delivered on 08.08.2025 • State of Chhattisgarh, Through Station House Officer, Police Station GRP, Bhilai, District Durg, Chhattisgarh. ... Appellant versus • Vikas Yadav, S/o Gopal Yadav, aged about 19 Years, R/o Pahadipara, Near Sai Temple, Gudiyari, Raipur, District Raipur, Chhattisgarh. ... Respondent For Appellant : Ms. Pragya Pandey, Deputy Government Advocate. For Respondent : Mr. Navin Shukla, Advocate.
Legal Reasoning
(Hon'ble Shri Justice Radhakishan Agrawal) CAV Judgment 1. This acquittal appeal filed by the Appellant/State arises out of the judgment dated 04.05.2015 passed by the Special Judge under NDPS Act, Durg, C.G. in NDPS Case No.14/2014, whereby the learned trial Court acquitted the accused/respondent herein of the charge under Section 21(b) 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 16.07.2014, PW-6 Smt. Daya Kurre, In-charge Sub-Inspector, received a secret information from the informant that the respondent, who is travelling in Ahmedabad - Howrah Express (General Coach), is carrying brown sugar for sale in Nagpur. Upon receiving this information, PW-6 2 Smt. Daya Kurre reduced the same into writing in the Roznamcha Sanha (Ex.P-19). She then summoned witnesses through a constable and proceeded to the spot along with police personnel. At the spot, she apprehended the respondent near the gate of train and informed about the information received by her from informer. In compliance of Section 50 of NDPS Act, a notice (Ex.P-4) was given to the respondent. Thereafter, personal search of the police party and the witnesses was also made by the respondent. As per the consent of the respondent, PW-6 Smt. Daya Kurre along with other police personnel searched the respondent (vide Ex. P-5) in the presence of witnesses and found a dark-coloured narcotic substance wrapped in a white polythene bag, which was kept in the right pocket of his full-length pants. Thereafter, PW-6 Smt. Daya Kurre, by smelling and touching the substance, identified it to be brown sugar and prepared the identification panchnama vide Ex. P-7. When the recovered substance was weighed in presence of the witnesses, it was found to be 105 gms. Two sample packets were prepared by taking 10 grams of brown sugar each from the seized material vide Ex. P-9. Thereafter, the samples were sealed and a sample seal panchnama was prepared vide Ex.P-10 and vide Ex.P-11, seizure memo of alleged substance was prepared. After completion of proceedings, FIR (Ex.P-25) was registered against the respondent and information about the same was sent to the CJM, Durg vide Ex.P-26. After that, PW-6 Smt. Daya Kurre handed over the sealed seized packets to PW-4 Permanand Bhoi to keep it in safe custody and after making the necessary entry in the store register, the remaining seized articles were sent to Malkhana vide Ex.P-16. Thereafter, statements of the witnesses were recorded and seized samples packets were sent to FSL for chemical examination vide 3 Ex.P-24 and as per FSL report (Ex.P-30), the recovered substance was found to be brown sugar. Accused/respondent was taken into custody vide Ex.P-13. 3. After completion of investigation, charge sheet was filed against the accused/respondent before the Special Judge under NDPS Act, Durg. The respondent abjured the guilt and entered into defence. 4. In order to bring home the offence, the prosecution examined as many as 6 witnesses and exhibited 30 documents in support of case of the prosecution. In his defence, the respondent has examined none and not exhibited any document. 5. The learned trial Court, after hearing counsel for the parties and appreciating the evidence on record, by the impugned judgment acquitted the accused/respondent herein of said charge leveled against him. 6. Learned counsel for the appellant/State submits that the trial Court is unjustified in acquitting the accused/respondent herein of said charge by recording perverse findings. She furthers submit that there is cogent and clinching evidence available on record, more particularly, the evidence of PW-2 Shivshankar Chaturvedi and PW-6 Smt. Daya Kurre, I.O, to connect the accused/respondent with the offence alleged against him. She also submits 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/respondent 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. 7. On the other hand, the learned counsel for the respondent/accused 4 supports the impugned judgment and submits that during the search proceedings, the accused was not informed of his right to be searched before a Gazetted Officer or Magistrate, which indicates that the prosecution has failed to comply with the provisions contained in Section 50 of the NDPS Act. He further submits that PW-2, Shivshankar Chaturvedi, a witness to the seizure, did not support the prosecution’s case, and another witness to the seizure, namely Rajaram Mishra, has also not been examined. He also submits that there is no sample seal affixed on the narcotic seal panchnama (Ex.P-10) and that there is no entry in the malkhana register indicating that the sample packets were ever taken out from it. He contends that the trial Court, after appreciating the evidence available on record and the material documents, has rightly come to the conclusion that the prosecution has not been able to prove its case beyond reasonable doubt to connect the respondent with the crime in question, which resulted in his acquittal. Therefore, the appeal is liable to be dismissed. 8. We have heard learned counsel for the parties and perused the material available on record. 9. 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 5 the accepted legal parameters.” 10. As regards the involvement of the respondent in the crime in question, the evidence of PW-6 Smt. Daya Kurre, the Investigating Officer, is very significant. She deposed that on 07.06.2014, upon receiving a secret information from the informant that the respondent, who is travelling in the Ahmedabad–Howrah Express (General Coach), is carrying brown sugar for sale in Nagpur and after that, she recorded the information in the roznamcha sanha (Ex. P-19). After summoning witnesses through a constable, she rushed to the spot along with police personnel and apprehended the respondent on the spot. She has further deposed that in compliance of Section 50 of NDPS Act, a notice vide (Ex.P-4) was given to the respondent informing him that he can get the search done by a Gazetted Officer or a Magistrate or by her, to which, accused/respondent had given his consent to be searched by her. Thereafter, personal search of the police party and the witnesses was also made by the respondent. As per the consent of the respondent vide Ex.P-8, she along with other police personnel searched the respondent vide Ex.P-5 in presence of witnesses and found a dark coloured narcotic substance wrapped in a white polythene bag which was kept in the right pocket of his full pant and the same was seized vide Ex.P-6. Thereafter, she, by smelling and touching the substance, identified it to be brown sugar and prepared the identification panchnama vide Ex. P-7. The seized article was then weighed vide Ex. P-8 and found to be 105 gms. She also deposed that two sample packets were prepared by taking 10 grams of brown sugar each from the seized material vide Ex. P-9. The samples were then sealed and a sample seal panchnama was prepared vide Ex. P-10. Subsequently, a seizure memo of the alleged substance 6 was prepared (vide Ex. P-11) and after that, conducted further proceedings. However, on the contrary, in cross-examination, she admitted that accused/respondent did not search her, but she showed her pockets to him. She further admitted that in Ex.P-5 (search panchnama), she did not mention about the pockets being opened and then shown to the accused/respondent. She also admitted that in Ex.P-4 (notice under Section 50 of NDPS Act) given to accused/respondent, she did not mention that accused/respondent has the right to get his search done by a Magistrate or a Gazetted Officer nor did mention in the case diary about the same fact. 11. At this stage, it would be apt to reproduce the provisions contained in Section 50 of the NDPS Act herein under:- “50. Conditions under which search of persons shall be conducted.— (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2)If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3)The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4)No female shall be searched by anyone excepting a female. (5)When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6)After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” Obje 7 12. A careful reading of above provision would provide that when a person is to be searched, they must be informed of their right to be searched before a Gazetted Officer or a Magistrate. Compliance with this provision has been held mandatory by the Hon’ble Supreme Court in K. Mohanan vs State of Kerala, reported in (2000) 10 SCC 222, wherein the Supreme Court, relying on its own judgment in State of Punjab vs Baldev Singh, reported in (1999) 6 SCC 172, considered various aspects of compliance with Section 50 of the NDPS Act. Paragraphs 5, 6 & 7 are relevant and reproduced hereunder:- “5. The Constitution Bench of this Court in Baldev Singh (supra) has considered various aspects of the compliance with Section 50 of the Act. The Bench has laid down the propositions of law of which the first and second are extracted below: (SCC pp. 208-09, para 57) "57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused." 6. If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW 1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with. 7. We, therefore, hold that there was non-compliance with Section 50 of the Act and consequently the evidence of search spoken to by PW 1 cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article.” 13. When the present case is examined in the light of aforesaid decision of Supreme Court coupled the provisions contained in Section 50 of the 8 NDPS Act, it is quite vivid that it is imperative for the Investigating Officer to inform the person/accused concerned of his right under sub- section (1) of Section 50 of NDPS Act of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search, however, failure to inform the person concerned about the existence of his right to be search before a Gazetted Officer or a Magistrate would cause prejudice to an accused. In the present case, PW-6 Smt. Daya Kurre, Investigating Officer, in her evidence admitted that after giving the notice (Ex.P-4) under Section 50 of NDPS Act to the accused/respondent, she did not inform the accused/respondent of his right to be searched by a Magistrate or a Gazetted Officer nor did mention the above fact in the case diary. It is pertinent to mention here that PW-6 Smt. Daya Kurre, I.O., had merely given the accused/respondent the option to conduct a search, whereas she ought to have clearly conveyed and informed him of his right to be searched by a Magistrate or a Gazetted Officer. In the absence of such information, in my considered opinion, the search conducted by PW-6 Smt. Daya Kurre stands vitiated due to non-compliance with this mandatory procedural safeguard. 14. Apart from above, although PW-2 Shankar Chaturvedi, witness to seizure proceedings, has stated that he put his signatures over the documents Exs.P-3 to P-13, but in cross-examination, he admitted that in Exs.P-3 & 4, what the police had written has not been read out before him. He further admitted that the documents from Exs. P-7 to P-13 were not written in his presence and he was only made to sign them. He also admitted that no weighment of the seized substance was conducted in his presence, nor did any seizure proceedings take place before him. It is also admitted by him that being a vendor, he knew the constables of 9 GRP police station and he used to visit the GRP police station and due to such acquaintance, he signed over the documents as per the instructions given by GRP police. He further admitted that he is a poor person and signed the documents out of fear of the police. Thus, this witness has not supported the prosecution’s case with respect to alleged seizure and other proceedings (Exs.P-4 to P-13). This apart, another witness to the alleged seizure and other proceedings (Exs.P-4 to P-13), namely Rajaram Mishra, has also not been examined by the prosecution for the reasons best known to it. Furthermore, a perusal of documents Exs. P-9 and P-10, the weighment panchnama and the seal panchnama of the narcotic substance reveals that they do not bear the sample seal of the concerned department. Besides above, in Ex.P-16C, a copy of seized Malkhana register, there was no mention of taking out the sample packets from the Malkhana and that Constable No.152 Jageshwar Rawate, who deposited the seized substance in the FSL, has also not been examined by the prosecution to bring the correct facts on record. That apart, although PW-4 Parmanand Bhoi has deposed that seized narcotic substance was kept in the store room, but he has not stated in his evidence that the said substance was ever taken out from the store room for chemical examination, making the prosecution’s story doubtful. 15. The learned trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence come to the conclusion that the prosecution has failed to prove that PW-6 Smt. Daya Kurre, Investigating Officer, had strictly followed the provisions contained in Section 50 of the NDPS Act and that the prosecution has failed to prove all the facts of the charge leveled against the respondent beyond reasonable doubt and as such, acquitted the 10 accused/respondent of the said charge leveled against him on the basis of benefit of doubt. 16. After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court, I am of the considered opinion that the judgment impugned acquitting the accused/respondent herein of the charge under Section 21(b) of the NDPS Act is just and proper and does not call for any interference. 17. Accordingly, this acquittal appeal by the appellant/State against the acquittal of the accused/respondent is hereby dismissed. Sd/- (Radhakishan Agrawal) Judge Akhilesh