Rizwan Lala v. State of Chhattisgarh Through - Station House Officer Police Station Nagarnar, District

Judgment

1. These two appeals are arising out of the same crime number, same sessions trial and by a common judgment, therefore, they are being heard and decided together.

2. The present appeals have been filed by the respective appellants against the impugned judgment of conviction and sentenced dated 07.09.2022 passed by Learned Special Judge (N.D.P.S Act) Jagdalpur, District Baster in Special Case No. 01/2020, whereby the appellants have been convicted for the offence under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic 2 Substances Act, 1985 (in short N.D.P.S Act) and sentenced for R.I. for 10 years with fine of Rs. 1,00,000/- in default of payment of fine further imprisonment for 01 year.

Brief facts of the case are that on 28.07.2019, the Sub Inspector of police Khomraj Thakur (PW-12) received secret information that two persons were going from Orissa towards Jagdalpur by Mahindra KUV Car No. M.P. 09/WB/0660 having contraband Ganja with them. Upon secret information, the police has constituted a search party. The intimation of secret information was sent to the higher authorities and the panchnama regarding Talashi warrant was prepared, the independent witnesses were called and they reached on the place of incident. When they stopped the car which was mentioned in the secret information, two persons were found in the car who disclosed their names as Rizwan Lala and Alamshah. They gave notice under Section 50 of N.D.P.S. Act to them and informed their right to search. After conducting search, Ganja like substance were found in the car which was kept in plastic bags. Talashi panchnama was prepared and then accused persons have informed that they are not having any legal document with respect to the possession of the said contraband. Total 102 kg. of Ganja have been seized from the possession of the appellants. The appellants were arrested. Two samples of 50 gms each were drawn and separately sealed. The F.I.R. has been registered against the appellants. The seized sample of Ganja were kept in the safe custody of Malkhana and ultimately sent it to FSL for chemical examination. Inventory was also got prepared and after completion of entire investigation, charge-sheet was filed before the learned trial Court for the offence under Section 20(b) of N.D.P.S. Act.

4. The learned trial Court has framed charge against the appellants for the offence under Section 20(b)(ii)(C) of the N.D.P.S. Act. The appellant denied the charge and claimed trial.

5. In order to prove the charge against the appellants, the prosecution has 3 examined as many as 12 witnesses. The statement under Section 313 of Cr.P.C. have also been recorded in which they denied the circumstance appears against them, plead innocence and have submitted that they are going to visiting Visakhapatnam as tourist and on the way the police persons stopped them and demanded money from them and when they refused to give money to them, they committed marpeet with them and falsely implicated in the offence.

6. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted the appellants and sentenced them as mentioned in the earlier part of this judgment. Hence this appeal.

7. Learned counsel for the appellants would argue that the prosecution has failed to prove its case beyond reasonable doubt. The mandatory provisions of Section 50, 52, 52-A, 55 and 57 of N.D.P.S. Act, have not been complied with. The learned trial Court has failed to appreciate that there are material omissions and contradictions in the evidence of prosecution witnesses which cannot be relied upon for holding conviction of the appellants. He would further submits that the general procedure for sampling provided in Standing Order No. 01/1989 dated 13.06.1989 has not been complied with by the prosecution. From the perusal of the Standing Order, it appears that the police was required to draw the sample from each box the allegedly recovered with the help of field testing kit. The mixing of the material from all the packets and then drawing of represented sample is not provided in the Standing Order. In the present case the Ganja was found in three separate bags which were allegedly recovered from the possession of the accused person and the procedure given in Clause 2.4 of the Standing Order No. 1/1989 was strictly required to be followed and the samples from all the three bags was to be drawn separately. In absence of the same, it cannot be 4 said that all the 3 bags contained the alleged contraband Ganja or not. he would also submits that there is total non-compliance of Section 52-A of the NDPS Act. Once there is no primary evidence available, the trial as a whole stand vitiated. Hence in absence of the same, the conviction of the appellants vitiates and they deserves to be acquitted. They relied upon the judgment of the Hon'ble Supreme Court in the matter of Union of India Vs. Mohan Lal and Another reported in 2016 (3) SCC 379, Union of India Vs. Jarooparam, reported in AIR 2018 SC 1927, Sajeet Kumar Vs. State of Chhattisgarh reported in 2022 SCC OnLine SC 1117, Arun Kumar Jatav Vs. State of Chhattisgarh (Criminal Appeal No. 147/2022) decided on

10.11.2023 by Hon'ble Division Bench of this Court.

8. On the other hand, learned counsel for the State would support the conviction and sentence and argue that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering the material available on record and the evidence adduced by the prosecution, has convicted the appellants for the offence under Section 20(b)(ii)(C) of N.D.P.S. Act, in which no interference is called for.

9. I have heard learned counsel for the parties, considered their rival submissions and also went through the records with utmost circumspection.

10. The independent witnesses PW-2 Vahid Ahmad and PW-4 Prafull Mahapatra have not supported the prosecution case and stated that on the instance of police persons they have signed the document.

11. PW-12 Khomraj Thakur, the Investigating Officer have stated in his evidence that on 12.07.2019 at about 05:01 a.m. he received secret information that the black colour Mahindra KUV Car bearing registration no. M.P.09 WB/0660 coming from Orissa towards Jagdalpur having Ganja with them. The secret information was reduced in Rojnamacha Ex.-P/40. The intimation about secret information was given to the Senior Police Officers. Inability to obtain search warrant Ex.P/7 was prepared and secret information panchnama 5 Ex.P/8 was also prepared. The independent witnesses were called and entry regarding the same were also made in Rojnamacha Ex.P/41. The secret information panchanama and duty certificate was duly forwarded to the SDOP Jagdalpur which was endorsed in Rojnamacha Ex.-P/42. The independent witnesses were noticed vide Ex.-P/26 and Ex.-P/4. They proceeded from the police station to the place of incident and their departure was recorded in Rojnamacha Ex.-P/44. The vehicle of the accused persons was stopped, the accused persons disclosed their names as Rizwan Lala and Alamshah. He informed the accused persons about there right to search from the police persons, through any Magistrate or Gazetted Officer vide Ex.-P/9 to Ex.-P/10. They gave their consent to be searched by the Police Officers which was also reduced in writing. The police party gave their own search to the accused persons and the panchanama Ex.-P/11 was prepared. The panchnama of search of the police jeep was also prepared vide Ex.-P/12. Talashi panchanama of the car of the accused persons Ex.- P/13 was also prepared and the seizure memo Ex.-P/14 was prepared on the spot they have given notice to the accused persons about any document with respect to the possession of the said Ganja which is Ex.-P/44 and Ex.- P/46. After identification of the Ganja by rubbing, smelling and burning, identification panchnama Ex.-P/15 was prepared. The weighment apparatus has also been verified and panchnama Ex.-P/16 was prepared. On being weighed, the seized Ganja was found to be of 102 kg, the weighment panchnama Ex.-P17 was prepared. The contraband was found in 3 different bags and the Ganja of all the 3 bags were homogenized and the homogenization panchnama Ex.-P/28 was prepared.

12. The Car, and 102 kg. Ganja has been seized vide seizure memo Ex.-P/18 and Ganja was sealed on the spot and specimen seal panchnama was Ex.- P/9 was prepared. Dehati Nalsi Ex.-P/49 was prepared on the spot. Both the accused persons have been arrested. The arrest of the accused persons 6 have been informed through wireless message to their family members. The spot map Ex.-P/24 was prepared by the police and took the appellants Car, Ganja and other material to the police station where the F.I.R. Ex.-P/35 was registered. Returning at police station was also reduced in Rojnamacha Ex.- P/50 and the seized articles have been kept in safe custody of Malkhana of police station. The detailed information and report of the search and seizure proceeding have been sent to SDOP Office Jagdalpur which is Ex.-P/20. The pre trial sampling was done by the Executive Magistrate and two samples of 50 gms each were taken from the seized Ganja which were marked as A-1 and A-2 and the same was reduced in writing in Ex.-P/51.

13. After the inventory, the marked sample A-1 was sent to State FSL Raipur for chemical examination through letter Ex.-P/53 and the report of FSL Raipur is Ex.-P/55. He brought the sample A-2 before the Court in which seal and signature of Sundarlal Dhiratlahre, Tehsildar, Jagdalpur is there.

14. In cross-examination he admitted that when the vehicle crossed from one State to another, it was being checked at check post in the State border. He did not know as to whether at the time of incident any check post was there at Orissa State or not and he did not investigate about the same. He did not take the fingerprint of the accused persons. Even he did not take the mobile location of the accused persons. He further stated that in the secret information, he received about 2 persons coming in the Car but in the document Ex.-P/4-Ex.-P/26 there is no endorsement about the two persons. He did not deny that there is no physical verification of the seized Ganja by its burning or smelling. He admitted that in homogenization panchnama Ex.- P/28, it has been mentioned about the manner of its homogenization. He further admitted that by mistake it has been missed in writing in Ex.-P/28 that the Ganja were re-filled in Jute bag. It is also not mentioned in Ex.-P/28 as to what were re-filled and in how many bags. He further admitted that seizure Ex.-P/18, it is not mentioned that the Ganja was sealed after its 7 seizure. He admitted that in Ex.-P/53 the name of the constable who has taken the sample to FSL, Raipur is left blank. He further admitted that in the letter Ex.-P/53 the reference letter of 266-A dated 25.09.2019 is mentioned whereas in the FSL report Ex.-P/55 the letter No. 266 dated 25.09.2019 is mentioned in the acknowledgment Ex.-P/54 FSL/266 is mentioned.

15. PW-1 Devendra Singh Thakur, who is the Patwari has prepared spot map Ex.-P/2 and Ex.-P/3.

16. PW-3 Tularam Baghel who is the constable at police station Nagarnar has proved the document Ex.-P/25 which is the service report of witnesses who have been called as the member of search party.

17. PW-5 Chaitu Ram Netam and PW-6 Navlesh Kashyap is also constable a member of search party PW-7 Satyanarayan Goyal, PW-8 Sunil Manhar Head Constable and Malkahana Moharir, PW-9 Aeman Kumar Sahu Inspector/Station House Officer police station, Jagdalpur PW-10 Yashwant Kumar Dhruw constable PW-11 Sudhram Netam Assistant Sub Inspector are the witnesses of the proceeding of search and seizure and they being the procedural witnesses have stated about the procedure which they have done during the search and seizure.

18. It is case of the appellants that the Investigating Officer had not complied with the Standing Order 1/89 and not taken sample from each of the 3 bags. Total 3 bags of ganja were seized from the vehicle and only two samples were taken out from the contraband after mixing them, which is not permissible as per law.

19. Though no procedure is prescribed either in the N.D.P.S. Act or in the N.D.P.S. Rules regarding the manner in which the samples are to be drawn but a Standing Order 1/89 has been issued by the Central Government in this regard, wherein general procedures for sampling, storage etc. have been given which reads as under: 8 “2.1. All drug shall be properly classified, carefully weighed and sampled on the spot of seizure. 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. 2.7. If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container. 2.8. While drawing one sample (in duplicate) from a particular lot, it must he ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also he sealed and marked "Secret Drug sample/Test memo", to be sent to the chemical laboratory concerned.”

20. From perusal of Instruction 2.4, it is evident that it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Instruction 2.5 provides an exception to Instruction 2.4. It has been provided in Instruction 2.5 9 that when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour, test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.

21. Thus, in the aforesaid situations, a representative sample can be drawn after bunching together the contents of numerous packages. The essential requirement before such an action of drawing a representative sample can be undertaken is that the contents of each package have to be subjected to colour test by U.N. drug testing Kit. Once the test is conducted and the result indicates that all the packages are identical in all respects, then a representative sample can be taken out after bunching the packages. Hence, the Investigating Officer was under an obligation to collect separate samples from each of the packets so that the analysis of the contents of each of the packets could be performed individually. As the investigating officer before drawing the samples, proceeded to mix the contents of the all the packets without subjecting them to the test by the U.N. Kit, the accused has a right to contend that one of the packets might not have contained contraband ganja. If at all the prosecution desired to prove that all the packets contained ganja, then it was essential for the samples to have been collected and analysed individually from all the packets or else, the test by U.N. Kit should 10 have been carried out on the material present in all the packets. The Hon'ble Apex Court considered a similar issue in the case of Gaunter Edwin Kircher v. State of Goa reported in AIR 1993 SC 1456 and observed as below:- “5. We shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. From this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.”

22. From the evidence of aforesaid witnesses, it appears that the provisions prescribed under Section 52-A of the NDPS Act has not been complied with the by the investigating officer during the course of investigation. The said provisions is relevant for the purpose which is quoted hereinbelow:- "Section 52-A: Disposal of seized narcotic drugs and psychotropic substances. (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance 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 11 particulars of the narcotic drugs or psychotropic substances or the 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; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances 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. (3) When an application is made under sub-section (2), the Magistrate shall, as may be allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]"

23. While interpreting the aforesaid provision, the Hon'ble Supreme Court in the matter of Union of India Vs. Mohanlal and Another, reported in (2016) 3 SCC 379 has held at paragraphs 15 to 17 as under :- "15. It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the Police Station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of - things arise. This is so especially when according Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. 12 That is perhaps why none of the States claim to be taking samples at the time of seizure."

24. In view of the principles laid down by the Hon’ble Supreme Court in the above mentioned judgment, which was thus, the duty of the investigating officer to conduct an inquiry while following the provisions prescribed under Section 52-A of the NDPS Act. From the evidence of the witnesses and the investigating officer, it appears that after recovery of the alleged article, the investigating officer has failed to comply with the provisions prescribed under Sub Section (2) and (3) of Section 52-A of NDPS Act, therefore, it cannot be said that the prima facie evidence was available with the prosecution for the purpose of trial. In view of such circumstances, the conviction as made by the learned trial Court cannot be held to be sustainable in the eyes of law. Further the seized Ganja was not produced before the learned trial Court at the time of trial.

25. In the matter of Gorakh Nath Prasad v. State of Bihar reported in AIR 2018 SC 704, the Hon’ble Supreme Court has held that non-production of seized material at the time of trial before the court is fatal to prosecution’s case and the accused in entitled to benefit of doubt. In paras 7 & 8, the Hon’ble Supreme Court has held as under:-

7. In the facts of the present case, the independent witnesses with regard to the search and seizure PW-2 and PW-3, having turned hostile deposing that their signatures were obtained on blank paper at the police station, the mere fact of a FSL Report (Exhibit 8), being available is no confirmation either of the seizure or that what was seized was Ganja, in absence of the production of the seized item in Court as an exhibit. The non-production of the seized material is therefore considered fatal to the prosecution case. The issue whether there has been compliance with Sections 42 and 50 of the NDPS Act loses its relevance in the facts of the case.

8. The remaining prosecution witnesses being police officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself either with regard to recovery or the seized material being Ganja. No explanation has also been furnished by the prosecution for non-production of the Ganja as an exhibit in the trial. The benefit of doubt will, therefore, have to be given to the Appellant and in support of which learned Senior Counsel Shri Rai has relied upon Jitendra and another v. State of M.P., (2004)10 SCC 562: (AIR 2003 SC 4236), and reiterated in Ashok alias Dangra Jaiswal v. State of Madhya Pradesh, (2011) 5 SCC 123: (AIR 2011 SC 1335), as follows: 13 "12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused.

13. It may be noted here that in Jitendera v. State of M.P., (2004) 10 SCC 562: (AIR 2003 SC 4236), on similar facts this Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra (supra), the Court observed and held as under:-(SCC PP. 564-65, paras 5-6) (at P. 4237-38 of AIR) "5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused........-

6.... ..The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them, Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned...."

26. The Executive Magistrate who drawn the sample in compliance of Section 52-A of the N.D.P.S. Act has not been examined. There is no evidence as to when the seized Ganja was taken out from Malkhana and when the sample was drawn, and when the Ganja and sample again kept in Malkhana. Further what seal was affixed after drawing sample. The manner in which the sample is drawn has also not been proved and no documents relied by the prosecution for the same.

27. Thus, considering the facts and circumstances of the case, the nature and quality of evidence adduced by the prosecution; the fact that independent 14 witnesses have not supported the prosecution case; the manner in which the investigation was carried out where the investigating officer has failed to comply with the instructions given in Standing Order No.1/89; keeping in view the settled legal position referred to above, we are of the opinion that the prosecution has not been able to prove guilt of the appellants beyond all reasonable doubt. Being so, the learned trial Court was not justified in recording conviction of the appellants under Section 20(b)(ii)(C) of the NDPS Act.

28. In the result, both the criminal appeals are allowed. The impugned judgment passed by the learned trial Court is hereby set aside. The appellants are acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act by extending them benefit of doubt. They are reported to be in jail since

12.07.2019, therefore, they be set free forthwith if not required in any other case.

29. Keeping in view the provisions of Section 437-A of CrPC, each of the appellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure for a sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court.

30. The record of the trial Court along with copy of this judgment be sent back to the trial Court concerned for compliance and necessary action. Sd/- (Ravindra Kumar Agrawal) JUDGE Alok