1 - Swaminath Rawat S/o Shri Dharichhand Rawat Aged About 39 Years R/o Village v. 1 - State Of Chhattisgarh Through The Police Station Sariya District Raigarh Chhattisgarh
Case Details
1 2025:CGHC:5804 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1390 of 2021 1 - Swaminath Rawat S/o Shri Dharichhand Rawat Aged About 39 Years R/o Village Kureji, P. S. Gadwar, District Baliya, Uttar Pradesh 2 - Manbodh Kumar Sah S/o Vijay Kumar Sah Aged About 34 Years Occupation Driver, R/o Sakin Belthara Road, Chowkiya Mod, P. S. Ubhaw, District Baliya U. P. ... Appellant versus 1 - State Of Chhattisgarh Through The Police Station Sariya District Raigarh Chhattisgarh ... Respondent(s) For Appellant
Legal Reasoning
: Mr. Sanjay Agrawal along with Ms. Vidhi Matlani, Advocate For Respondent(s) : Ms. Laxmeen Kashyap, Panel Lawyer Hon’ble Shri Justice Arvind Kumar Verma, Judge Judgment on Board 31/01/2025 1. With the consent of the parties, the present appeal is heard finally. 2. The present appeal is filed by the appellants under Section 374(2) of Cr.P.C., 1973 against the judgment dated 27.10.2021 passed 2 by Special Judge for NDPS Act at Raigarh (C.G.) in Special Criminal Case under the NDPS Act No. 1/2018 wherein the Special Judge has sentenced the appellants to undergo RI for 10 years and fine of Rs. 1,00,000 under Section 20(b)(ii)(C) of NDPS Act, 1985. 3. Brief facts of the case are that on 27.12.2017 Station House Officer received information that appellants and other acquitted person were fond carrying 25 kg Ganja. After receiving the above said information the concerned officer along with his staff reached the spot where they seized 25 kg ganja has been seized from the possession of the appellants. The learned Trial Court on perusal of material evidence on record, convicted the appellant under Section 20(b)(ii)(C) of NDPS Act, 1985 and punished them as has been explained in para 1 of this judgment. 4. Learned counsel for the appellants contended that the mandatory provisions of NDPS Act such as procedure under Section 42,50,52 and 57 has not been complied during search and seizure. The independent seizure, Panchnama witness Murlidhar Panigrahi (PW-1) and Suresh Ijardar (PW-2) have not supported the prosecution case. The alleged contraband article was not seized from the exclusive possession of the appellant and there is no direct evidence available on record. He further contended that the Trial Court completely overlooked that the Dehati Nalasi has not been prepared by the prosecution. Also there is non- compliance of Section 42(2) and Section 50 of NDPS Act. 3 5. On the other hand, learned counsel for the State submits that the learned Trial Court is fully justified in passing the judgment. There is ample evidence on record to convict the appellants guilty of offence. Hence, the finding recorded by the learned Trial Court is just and proper. 6. I have heard learned counsel for the respective parties and perused the judgment passed by the learned trial Court as well as other material available on record with utmost circumspection. 7. On perusal of records, it transpires that the Investigation Officer has seized total 25 packets of Ganja from the joint possession of the appellants and he has not drawn the samples from each packet. Further, Ex. P/15 reveals that the Investigating Officer has mixed the contraband of all 25 packets and has prepared only 2 samples of 50 gms each. Therefore, it is crystal clear that there is violation of Standing Order of 1/89 as well as Section 52 A of NDPS Act, 1985. Section 52A. Disposal of seized narcotic drugs and psychotropic substances. (2)Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the 4 packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a)certifying the correctness of the inventory so prepared; (b)taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or (c)allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. 8. PW-7/Investigating Officer has not sent the seized contraband to the Judicial Magistrate for certifying the correctness of the Inventory and taking the samples in the presence of the Magistrate, photographs of the contraband and certifying such photograph as proof and allowing to draw representative samples of such contraband in the presence of Magistrate. Therefore, the Investigating agency has violated the mandatory provisions of Section 52 A of NDPS Act, 1985. 9. The Hon’ble Supreme Court in Mohd. Khalid and another Vs. State of Telangana (2024) 5 SCC 393 has observed in para 26 as “26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating 5 officer PW-5 for preparing an inventory and obtaining samples in the presence of the jurisidictional Magistrate. In this view of the matter, the FSL report (Ex. P/11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot.” 10. Considering the submissions of the counsel for the appellants, the records available and the observation of the Hon’ble Supreme Court in Mohd Khalid (supra), I am of the firm opinion that the prosecution has miserably failed to prove the charges against the appellants. The evidence of the prosecution is thoroughly unconvicing. 11. Resultantly, the judgment dated 27.10.2021 passed by the learned Trial Court convicting and sentencing the appellants for charge under Section 20(b)(ii)(C) of the NDPS Act is hereby set aside. The appellants are acquitted of all the charges levelled against them. 12. The present appeal is accordingly allowed. SD/- (Arvind Kumar Verma) JUDGE Madhurima