1 - State Of Chhattisgarh Through Police Station - Lalpur, District - Mungeli, Chhattisgarh v. 1 - Anil Kumar Marco S/o Dashru Kumar Marco Aged About 32 Years R/o
Case Details
1 2025:CGHC:43558 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 565 of 2019 1 - State Of Chhattisgarh Through Police Station - Lalpur, District - Mungeli, Chhattisgarh ... Appellant versus 1 - Anil Kumar Marco S/o Dashru Kumar Marco Aged About 32 Years R/o Village - Mamkena, Police Station Kota, District Bilaspur Chhattisgarh. 2 - Surendra Kumar Yadav S/o Bholaram Yadav Aged About 23 Years R/o Village - Kanteli, Police Station - Lalpur, District Mungeli Chhattisgarh. ... Respondent(s) For Appellant : Shri S.K. Puriya, Panel Lawyer. For Respondent(s) : Shri Vikash Pandey with Shri Rishikesh Sharma, Advocates. Hon'ble Shri Deepak Kumar Tiwari, J Judgment on Board 28/08/2025 : 1. The present Acquittal Appeal has been preferred under Section 378 (1) of the CRPC against the judgment dated 29.11.2018 passed by the Special Judge (constituted under NDPS), Mungeli in Special Criminal Case No.20/2016 whereby the learned KRISHNA KUMAR BARVE Digitally signed by KRISHNA KUMAR BARVE Date: 2025.08.28 17:20:44 +0530 2 Special Judge has acquitted the respondents/accused of the charge under Section 20 (b)(ii)(A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”). Respondent No.1/accused Anil Kumar Marco has also been acquitted of the charge under Section 25 (1-b)(a) of the Arms Act. 2. Case of the prosecution, in brief, is that on 31.7.2016, MR Bhagat (PW-13) SHO Lalpur, District Mungeli has received secret information which was recorded and notice has been given to the independent witnesses namely, (PW-2) Kashiram and (PW-5) Chitwan. Mukhbir Panchnama has been prepared vide Ex.-P/26 and an intimation has been given to the senior Police Officers in compliance of Section 42 (2) of the Act. Panchnama for search in respect of members of the raid party and independent witnesses was prepared. The Investigating Officer has also informed about the rights of the accused persons either to be searched by the Magistrate/Gazetted Officer or by the SHO in compliance of Section 50 of the Act vide Ex.-P/3 & P/4 respectively. After obtaining their consent vide Ex.-P/5 & P/6 respectively, from possession of the accused persons contraband Ganja has been recovered vide Ex.-P/9 & P/10. From accused Anil Kumar, 1.28 kg of Ganja in a plastic bag, one Pulsar motorcycle & one Desi Katta were seized vide Ex.-P/19. From accused Surendra Kumar Yadav, 200 gm contraband Ganja which was kept in a plastic bag was seized vide Ex.-P/20. Specimen seal which was used for the 3 proceeding has been prepared vide Ex.-P/21. 3. Crime details form and sketch map were prepared vide Ex.P/25. Patwari NK Pandey has drawn the spot map vide Ex.-P/24. The seized contraband has been sent for examination to the FSL and
Legal Reasoning
the same has been confirmed to be Ganja vide Ex.-P/65. The proceedings have been recorded in daily dairy. Statements of the witnesses were recorded. After completion of investigation, charge sheet was filed. During trial, the respondents/accused abjured their guilt and claimed to be tried. 4. In order to prove its case, the prosecution has examined as many as 15 witnesses and exhibited 65 documents (Ex.-P/1 to Ex.-P/65). In the statements recorded under Section 313 Cr.P.C., the respondents/accused have pleaded false implication and did not adduce any defence evidence. After evaluating the evidence, the trial Court has acquitted the respondents/accused of the charge as mentioned in para-1 of this judgment. Hence this Appeal. 5. Learned counsel appearing on behalf of the appellant/State would submit that the trial Court has not appreciated the evidence in proper perspective and he prays to allow the Appeal. 6. On the other hand, learned counsel for the respondents/ accused would support the impugned judgment. 7. I have heard learned counsel for the parties and perused the impugned judgment of acquittal as also other material available on record with utmost circumspection. 8. MR Bhagat (PW-13), the then SHO of Police Station Lalpur 4 would depose that on 31st July, 2016, a secret information was received which was recorded vide Ex.-P/26. He has also given notice (Ex.-P/1) to the independent witnesses (PW-2) Kashiram and (PW-5) Chitwan. (PW-2) Kashiram and (PW-5) Chitwan, both are Kotwars and they have not supported the case of the prosecution and they have been declared hostile. Even they have not supported the fact that any proceeding was conducted by the I.O. and any contraband has been seized from the accused persons. They have also not identified the accused persons. (PW-5) Chitwan has explained that when he had gone to the Police Station in connection with some work, his signatures were obtained by the Police Officers. Similar is the statement of (PW-2) Kashiram. From the above evidence, it is explicit that both the independent witnesses have not stated that any proceeding was conducted by the I.O. in their presence. The Investigating Officer (PW-13) would depose that he has also given notice under Section 50 of the Act to the accused persons vide Ex.-P/3 & P/4, respectively, in response to which they have given their consent vide Ex.-P/5 & P/6 respectively. 9. The trial Court has rightly recorded a finding after perusing the consent Panchnama vide Ex.-P/5 & P/6 that no consent was given by the accused persons to be searched by the SHO. 10. It is well settled that even in the matter of independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. The said proposition has also been 5 reiterated in the matter of Rizwan Khan Vs. State of Chhattisgarh, {(2020) 9 SCC 627}. Similarly, it is also well settled that if evidence of a police officer is found to be reliable and trustworthy then basing the conviction thereupon cannot be questioned. However, when the prosecution comes up with a story that at the time of search and seizure, there are two independent witnesses and both have turned hostile which creates a gaping hole in the prosecution theory about the very search and seizure, in such circumstances, the Hon’ble Supreme Court in the matter of Sanjeet Kumar Singh Alias Munna Kumar Singh vs. State of Chhattisgarh {(2022) 16 SCC 58} has materially observed at Para 18, which reads 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 a 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.” 11. In the case at hand,the Investigating Officer has not complied with the provision of Section 50 of the Act, as no clear consent 6 of the accused persons to be searched by the I.O. himself was obtained and both independent witnesses have also been declared hostile and nothing has been elicited from their evidence to depose otherwise. 12. Furthermore, the seized contraband was forwarded for examination to the FSL (vide Ex.-P/28) by the S.P. Mungeli through Constable (PW-3) Manasmani Paikra, but in the said document, no date has been mentioned. Moreover, samples of the contraband were received by the FSL vide Ex.-P/29 on 3rd August, 2016 whereas the seizure was effected on 31st July, 2016. However, (PW-3) Manasmani Paikra has not deposed as to when the samples were received by him from Malkhana of the concerned Police Station. This witness in cross-examination has admitted the fact that when he has received the samples, he has not immediately deposited the same to the FSL and he has deposited the samples next day. From the above evidence, it appears that there are chances of tampering with the samples. 13. In the matter of Budh Singh vs. State of U.P. [(2006) 9 SCC 731], the Hon’ble Supreme Court held that in a matter of Appeal against acquittal, the High Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to 7 whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law. 14. Further, in the matter of V.N. Ratheesh vs. State of Kerala, (2006) 10 SCC 617, the Hon’ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon’ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is further held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was also observed that the principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial 8 reasons for doing so. If the impugned judgment is clearly unreasonable and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. 15. Recently, in the matter of Constable 907 Surendra Singh & another vs. State of Uttrakhand, 2025 INSC 114, the Hon’ble Supreme Court has observed that the interference with the finding of acquittal recorded by the trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record. 16. Considering the aforesaid infirmities found in the case of the prosecution and the view taken by the Hon’ble Supreme Court in the aforesaid judgments, this Court is of the opinion that the view taken by the trial Court is possible one. 17. In the result, no case is made out for interference in the impugned judgment. In consequence, this Appeal fails and is hereby dismissed. Sd/- (Deepak Kumar Tiwari) Judge Barve