Uparfabsi Khari, Police Station Subarnpur, District Subarnpur, Orrisa vs District-Bilaspur (C.G.)

Shri Vikas Pradhan, Advocate Shri Vivek Sharma,PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board

19.11.2025 Being aggrieved by the judgment of conviction and order of sentence dated 19.07.2024 passed by the Special Judge (NDPS Act), Bilaspur (CG) in Special Criminal Case (NDPS Act) No. 451/2023 the appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”). 2

2. The prosecution case,as presented in detail with reference to exhibits and witness testimonies, unfolds as follows: On 28.03.2023, Assistant Sub Inspector Jeevan Jaiswal, received secret information from an informer alleging that ganja was illegally kept for sale near Rajkishore Nagar adjacent to Smriti Van Shiv Mandir in Sarkanda Police Station Area, Bilaspur. Acting promptly, the ASI registered a rojnamcha sanha (Ex.P-55,58C,60C-63C) and issued official notices summoning witnesses Munendra Singh and Umesh Verma to the spot. The informer information panchanama was duly recorded in their presence vide Ex.P-2 and P-29.

3. Without the presence of a gazetted officer or obtaining a search warrant, due to suspicion of possible destruction or misappropriation of evidence by the accused, police staff comprising Constables Vivek Rai (1140), Mithlesh soni (562), Sanjeev Jangde (1023) and witnesses proceeded to the location equipped with a police vehicle, investigation kit, recording devices including a lap top and battery operated printer and necessary material for documenting the proceedings (Ex.P-31,6,5 and 16). Constable Rahul Singh was dispatched to inform CSP Sarkanda (PW-1). The applicant Rajesh Nag was formally notified under Section 50 of the NDPS Act through a witness notice Ex.P-30.

4. A consent panchanama authorizing the search of the accused was prepared vide Ex.P-27. The appellant voluntarily allowed the search operations. Search was conducted on the persons of the investigating staff and witnesses returned negative results for any objectionable 3 items, thereby validating procedural propriety. Subsequently, the ganja was recovered from the bags in possession of the appellant from a bag vide Ex.P-34. The recovered quantity was identified by the witnesses by physical inspection, rubbing and smelling vide Ex.P-35.

5. Second search was conducted in the presence of villager and police personnel, which did not reveal any further objectionable articles on the person of the accused (Ex.P-32 and 33). The weighing panchnama was conducted on the spot by Jaleshwar Yadav (PW-6) using an electronic weighing scale physically verified by police vide Ex.P-20 and 21. The total ganja weighed 18 kgs. 100 gram, exceeding the threshold of a small quantity but below commercial quantity per NDPS Act notifications (Ex.P-19, 66 and 67).

6. Samples of 100 grams each were separated, sealed and panchnama executed for evidentiary preservation Ex.P-37 & 38. the appellant was issued notice under Section 67 of the NDPS Act to produce valid ownership or licensed documents regarding the seized narcotic substance, to which he admitted his inability to produce any such documents (Ex.P-54). The contraband was accordingly confiscated.

7. Upon return to police station, an FIR No. 451/2023 was lodged under Section 20(b)(ii-B) of the NDPS Act and the appellant was arrested after completion of procedural formalities including the preparation of arrest warrants and sealing of evidence (Exhibits. P-39 to 43, 46C to 53C). The seized samples of ganja was sent to the Forensic 4 Science Laboratory, Bilaspur for chemical analysis which conclusively established the substance as marijuana (Ex.P-74). During investigation, site map and Patwari maps were prepared to delineate the spot of recovery vide Exhibits P-43,44 and73. Panchnamas were recorded during various stages of the investigation and seizure process to maintain evidentiary integrity vide Exs. P-4,22,23,24,25,26,28,31,33 and

8. On examination under Section 313 Cr.P.C. the accused denied the charges, claiming false implication and procedural irregularity alleging wrongful arrest and coercive practices by the police. He produced his brother as a witness and submitted documentary evidence marked as Exhibits D-1 to D-3 in his defence.

9. Contention of the counsel for the appellant is that the trial court has failed to properly appreciate the factual matrix and evidence leading to a wrongful conviction. He has placed his reliance on the Apex Court Judgments in Mohanlal Vs. State, Yusuf @ Asif Vs. Sanjeet Kumar Vs. State and Bher Singh Vs. State highlighting the mandatory procedural safeguards under Section 52-A of the NDPS Act. He submits that the samples were not drawn in the presence of the magistrate, inventory was not properly certified, infringing the requirement of primary evidence needed for conviction. The independent witnesses who allegedly witnessed the search and seizure turned hostile, thus casting serious doubt on the credibility of the prosecution story. Based on these lapses, the conviction of the appellant deserves to be set aside or at least sentence may be reduced on the ground of mitigating 5 circumstances. It has been further submitted that there are contradictions and procedural irregularities warranting interference. Lastly, it is submitted that there is procedural non-compliance under Section 52-A of the NDPS Act, reliability of prosecution witnesses and absence of corroboration by independent witnesses.

10. Per contra, learned counsel for the State submits tht the prosecution has complied all the mandatory provisions under Sections 41 to 55 of the NDPS Act including proper seizure, sample collection and submission of material to the Forensic Science Laboratory (FSL). The presumption under Sections 54 and 35 of the NDPS Act is attracted as the seized quantity is commercial. Therefore, the judgment of the trial court is well reasoned and supported by evidence. He submits that the embargo under Section 37 of the NDPS Act excludes bail in cases of commercial quantity adding to adverse inference.

11. Heard counsel for the parties and their rival submissions and perused the records.

12. The issues for determination are : (i) Whether the prosecution has complied with the procedural safeguards under Section 52-A of the NDPS Act and other relevant provisions to ensure the siezue and sample collection was valid? (ii) Whether the conviction recorded under Section 20(b)(ii-B) of the NDPS Act is sustainable in light of the evidentiary facts and the Apex Court Precedents? 6 (iii) Whether the sentence imposed by the trial court requires any modification?

13. Section 20(b)(ii-B) NDPS Act prescribes rigorous imprisonment for intermediate quantity of cannabis upto 10 years. Section 52-A of the Act mandates inventory preparation and sample drawing in the presence of a Magistrate to constitute primary evidence.

14. In Mohanlal vs. State, the Apex Court emphasized strict compliance with Section 52-A for the sample toe form primary evidence. In Yusuf @ Asif Vs. State, failure to follow Section 52-A vitiates the trial and conviction. In Sanjeet Kumar Vs. State, the Court observed the importance of corroboration by independent witnesses and warned against relying solely on official witnesses when independent witnesses turn hostile. In Bher Singh Vs. State, the Court held that the integrity of seal and handling of seized goods till FSL is imperative for sustaining conviction.

15. The trial court has found that all procedural safeguards including preparation of inventory, seizure, sample, drawing and dispatch to FSL were duly complied with. Eleven witnesses were examined, including the investigating officer (PW-11) who detailed the compliance with mandatory provisions of NDPS Act. The prosecution agency has complied with the provisions of Section 52-A of the NDPS Act.

16. The contention that the samples were not drawn in the presence of the Magistrate, is not supported by any concrete evidence. The trial court accepted the inventory and seizure list which were also certified. 7 The magistrate’s certification, an essential factor for primary evidence is on record as per case file.

17. Though the independent witnesses turned hostile during trial, the court cannot ignore the settled legal position that lack of independent witness corroboration, while important is not fatal to prosecution if the official witnesses testimony is cogent and credible. Seizure of intermediary quantity (18.100 kgs) of ganja clearly triggers the presumption under Sections 54 and 35, shifting the burden on the accused, which the appellant failed to discharge.

18. Regarding sentence, the trial court imposed RI for 7 years, which is at the lower threshold given the procedural compliance and conviction on merits, sentence is justified but can be modified considering the mitigating factors like the appellant’s conduct during trial and the possibility of reform thereto.

19. The appeal is thus allowed in part. The conviction under Section 20(b)(ii-B) of the NDPS Act is upheld. The prosecution has proved its case beyond reasonable doubt and the procedural safeguards under Section 52-A are complied with. However, considering the fact that the appellant has no previous criminal record, this Court is of the opinion that it would be in the interest of justice if the sentence imposed upon him is modified and reduced from seven years to that under 2 ½ years rigorous imprisonment. 8

20. Thus, the sentence of RI for seven years under Section 20(b)(ii-B) of the NDPS Act to the appellant is reduced to that of 2 ½ years. However, fine imposed by trial Court is maintained.

21. The appellant shall be entitled to set off the period of actual custody undergone during investigation, trial and appeal as per section 428 of the BNSS Act, 2023. The appeal is partly allowed to the extent indicated above. Appellant is in jail therefore, no order in respect of arrest etc. of the accused/appellant is required. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY DUBEY 11:10:06 +0530