Nafr High Court
Case Details
1 2025:CGHC:322-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1703 of 2024 1 - Bijendra Verma S/o Narayan Verma Aged About 34 Years, R/o Village - Rakkas Tank, Krishnanagar, Sagartal Road, Near Dani Baba Mandir - Gwalior, P.S. Malgada Distt - Madhya Pradesh versus ... Appellant 1 - State of Chhattisgarh Through The Station House Officer, P.S. - Komakhan Distt - Mahasamund Chhattisgarh ... Respondent For Appellant : Mr. A.N. Pandey, Advocate. For State/Respondent : Mr. Shailendra Sharma, Panel Lawyer. Division Bench Hon'ble Shri Justice Ramesh Sinha, Chief Justice Hon'ble Shri Justice Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 03-01-2025 1. Present criminal appeal has been filed by the appellant against the impugned judgment of conviction and sentence dated 03-08-2024 passed by the learned Special Judge (NDPS Act 1985) Kondagaon, District Kondagaon in Special Criminal Case (NDPS Act 1985) No.17/2020 whereby the appellant has been convicted for the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS Act’) and sentenced for R.I. for 12 years with fine of Rs.1,20,000/-, in default of payment of fine 1 year’s additional R.I. Digitally signed by MOHAMMAD AADIL KHAN 2. The brief facts of the case are that on 28-05-2020 at about 09:15 a.m. 2 Mr. Jitendra Nandey, who was Sub-Inspector of police posted at Police Station Keshkal, received a secret information that some persons are illegally trafficking Ganja in Truck No. UP 95 T 3528 and they are going to Raipur from Orissa via Jagdalpur Keshkal road. The secret information was reduced in writing in Rojnamcha and he called the witnesses Narendra Netam and Haresh Korram. The witnesses were informed about the secret information and the intimation of secret information was sent by post to the SDO(P), Keshkal. Considering the necessity to be searched immediately and delay in obtaining the search warrant, the police authority proceeded towards the place of incident without obtaining any search warrant and they reached at NH No.30, main road near temple at turning No. 6 at Keshkal valley. They stopped truck No.UP 95 T 3528 and then the driver disclosed his name as Bijendra Verma. He was informed about the secret information and his right to be searched has also been informed, then the accused/appellant has given his consent to be searched by the Investigating Officer/police authority. Thereafter, the accused himself has taken search to the police party and nothing incriminating article has been recovered. On search of the appellant, a coloured photocopy of his Adhar Card, Driving Licence, 2 ATM Card, 1 touch screen mobile and cash of Rs.3740/- were seized and on search of the truck it was found loaded with 11 bags, out of which total 12 packets of suspected contraband, 600 pack of 50 Kg. each having level of India Sodium Carbonate were found and from the dash board of the vehicle the RC book, insurance policy, national permit and builty have been recovered. The recovered 3 contraband was physically identified by the witnesses and they verified it to be Ganja. A notice under Section 67 of the NDPS Act was given to the appellant for submission of any valid document for transporting of the said Ganja, but he failed to produce any valid document. The recovered contraband was weighed on the spot by electronic weighing machine by its weighment witness Jhaduram Dhruv. The 12 bags of contraband were marked as A1 to A12 and on being its weight, it was found total 123.550 kg. The recovered contraband was homogenized on the spot and two sample packets of 50 gram each were drawn. Remaining quantity of contraband was refilled in 7 bags which were again marked as B1 to B7 and it was again weighed which comes to 122.540 kg. including the samples. The polythene bag, paper and 11 items of plastic bag was filled up in another bag and its weight comes to 2.430 kg. The recovered contraband was seized by the police and the appellant was arrested. Dehati Nailisi for the offence under Section 20(b) of the NDPS Act was registered against the appellant and the appellant, seized contraband, its sample and the vehicle was taken to police station and the seized articles were given to Malkhana Moharrir for keeping it in safe custody.
Legal Reasoning
On the basis of the Dehati Nalisi the FIR has been registered vide Crime No.59/2020 at Police Station Keshkal. The inventory was prepared by the Tahsildar-cum-Executive Magistrate and the sample packets were sent to regional FSL Jagdalpur for its chemical examination. From the FSL report it was found that the sample packets contained with Ganja. The details of the report have been sent to SDO(P) Keshkal. Statement of the witnesses have been recorded and after completion of usual investigation charge 4 sheet was filed before the learned trial Court for the offence under Section 20(b)(ii)(C) of the NDPS Act. 3. The learned trial Court has framed charge against the appellant for the offence under Section 20(b)(ii)(C) of the NDPS Act. The appellant denied the charge and claimed trial. In order to prove the charge against the appellant the prosecution has examined as many as 14 witnesses. The statement of the appellant under Section 313 of the Cr.P.C. has also been recorded in which he denied the circumstances appeared against him, pleaded innocence and has submitted that he has been falsely implicated in the offence. After appreciation of the oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of the judgment. Hence, this appeal. 4. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the evidence available on record. Learned trial Court has failed to appreciate that the independent witnesses have not supported the prosecution case. Further, there are material omissions and contradictions in the evidence of the witnesses and their evidence are inconsistent. The mandatory provisions of Section 50, 52, 52A, 55 and 57 of the NDPS Act have not been complied with. In the present case, the contraband allegedly seized from the appellant was not even produced before the trial court as an exhibit, which is fatal for the prosecution case. The procedure prescribed in Standing Order 1/89 issued by the Central Government for drawing samples from the seized contraband, have not followed, the police should have drawn samples from each packets, but the same has not been done in the present case. The 5 prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant by adducing cogent and reliable evidence, yet the learned trial Court has held the appellant guilty of the alleged
Decision
offence. Therefore, the impugned judgment is liable to be set aside and the appellant is entitled for acquittal. 5. On the other hand, learned counsel for the State supporting the impugned judgment has submitted that the investigating officer at the time of effecting search and seizure proceedings has substantially complied with all the mandatory provisions of the NDPS Act. The official witnesses have fully supported the prosecution case and their evidence cannot be discarded merely on the ground of they being official witnesses particularly in absence of any evidence on record to show their ill-intention or animosity as against the appellant for his false implication in this case. Learned trial Court having appreciated the overall oral and documentary evidence available on record has rightly recorded a finding of guilt against the appellant which needs no interference by this Court and the appeal filed by the appellant is liable to be dismissed. 6. We have heard learned counsel for the parties and perused the material available on record. 7. PW-1, Sanjay Bisen who is Head Constable posted at Police Station Keshkal has stated in his evidence that he was informed by the Sub- Inspector Jitendra Nande about the secret information and asked to call two independent witnesses. The Sub-Inspector Jitendra Nande has made correspondence with SDO(P) Keshkal and thereafter the police party along with the independent witnesses proceeded towards the place of incident. They reached at turning No.6 at Keshkal valley 6 and were checking the vehicles. When the suspected truck came there they stopped it and the number of the said truck was UP 95 T 3528 and its driver has disclosed his name as Bijendra Verma. The Sub-Inspector Jitendra Nande has informed about the secret information that they received information about transportation of Ganja by the said truck, therefore, the truck is to be searched by them. On being searched of the appellant one mobile phone and other documents were seized. The appellant has taken search of the police party, but no any incriminating articles were seized. Talashi Panchnama Ex.-P/1 was prepared in presence of the witnesses. When the truck was searched, in between the bag of urea fertilizer, some other bags were also found which were 11 in numbers. When it was opened on the spot it contained with 12 brown colour packets which was packed by cello tape. The Sub-Inspector Jitendra Nande has torn all the packets and on being smell, rubbing and burning it was found to be Ganja. The weighment witness was called on the spot and the witness Jhaduram Dhruv came there along with electronic weighing machine. On being weighed, the total quantity of Ganja was found approximately 123 kg. The Ganja was homogenized on the spot and two samples of 50 gram each were separated and the remaining Ganja was again refilled in 7 plastic bags and was again weighed. Thereafter, the Ganja, mobile phone, cash amount, document of the truck No.UP 95 T 3528 were seized on the spot and the appellant was arrested. Thereafter, along with the seized articles and the appellant they came back to the Police Station Keshkal. In cross-examination this witness has reaffirmed the procedural part of the investigation, however, he would further stated that the seized packet of Ganja was 7 opened and it was homogenized on the spot and two sample packets of 50 gram each were separated. 8. PW-2, Ajay Tekam who is the Head Constable at SDO(P) office Keshkal and has received the intimation of secret information from the Police Station Keshkal and given acknowledgment Ex.-P/2 on 28-05- 2020. On 29-05-2020 again another envelop was received which contained with the FIR in two copies, homogenization and sample panchnama in two copies, seizure memo in two copies and one copy of arrest memo and details of the proceeding of search and seizure in two copies were there. The detail report is Ex.-P/3. 9. PW-3, Aajuram Markam is the Head Constable at Police Station Keshkal and member of search party, he proved that on 28-05-2020 the Sub-Inspector Jitendra Nande has received secret information about illegal transportation of Ganja and he prepared the panchnama and the entire proceeding of search and seizure were drawn in his presence. He also confirms that 12 packets of Ganja seized from the appellant were initially separately weighed and thereafter, the Ganja was homogenized after opening of 12 packets, two samples of 50 gram each were drawn and remaining Ganja was refilled in 7 plastic bags. But for minor variations in the procedural aspect of the case the defence could not extracted any material so that the procedural aspect can be disbelieved in the case. 10. PW-4, Lokeshwar Nag is also the Sub-Inspector posted at Police Station Keshkal and one of the members of the search party. He also proved the search procedure from its initiation to end. He also stated that in his evidence that 11 bags were contained with 12 packets of Ganja. The said 12 packet of Ganja were marked as A-1 to A-12. 8 Thereafter, it was weighed and total weight of Ganja came to about 123 kg. After taking small part of the Ganja from all the packets two sample packets of 50 gram each were prepared which were marked as X-1 and X-2 and thereafter, the remaining Ganja was refilled in 7 packets which were marked as B-1 to B-7. 11. PW-5, Haresh Kumar is photographer who has proved the inventory Ex.-P/5 and his certificate of photography is Ex.-P/6. The photographs which he has taken during the proceeding of inventory is article A1 to A4. He admitted in his cross-examination that in the present digital era, the photograph of a person can be mixed easily with photograph of any other person by using digital technology. 12. PW-6, Kanak Netam is Assistant Sub-Inspector and was In-charge of Malkhana at Police Station Keshkal at relevant point of time. He received the seized article for keeping it in safe custody of the police station and he made relevant entries in the Malkhana register Ex.-P/8 and its attested true copy is Ex.-P/8C. In cross-examination he admitted that while taking out the articles from Malkhana he has not prepared any panchnama. He admitted that there is over righting in three places in the said Malkhana register and his initial is not there in the register. He further admitted that in the Malkhana register there is no endorsement of weight of the seized articles. He also admitted that when the seized article was resubmitted at Malkhana there is no endorsement of its sealing. 13. PW-7, Onkar Banjare is Assistant Sub-Inspector posted at Police Station Keshkal at the relevant point of time and did part of the investigation, he took the seized article to the office of Tahsildar and Executive Magistrate, Keshkal along with electronic weighing machine 9 and the witnesses for inventory proceeding. During inventory proceeding he received seized articles from Head Constable Kanak Netam, which was endorsed in Maalkhana register Ex.-P/8. The 7 bags were marked as B1 to B7. The weight of B1 was 18.750 kg., B2 was 15.500 kg., B3 was 17.720 kg., B4 was 17.530 kg., B5 was 17.680 kg., B6 was 18.900 kg. and B7 was 16.630 kg. The total weight of Ganja including the bag was 122.630 kg. All the bags were opened and Ganja was homogenized and two sample of 50 gram each were separated which were marked as S1 and S2 and which was sealed with the seal of Police Station Keshkal and the remaining Ganja was again refilled in its bag. The inventory order sheet is Ex.-P/5 and the certificate of weighing machine is Ex.-P/12. The photograph certificate issued by the photographer Haresh Kumar is Ex.-P/6 and photographs are article A1 to A4. After inventory he again handed over the seized article to Kanak Netam for keeping it in safe custody of Maalkhana and relevant entries have been made in Rojnamcha Sanha Ex.-P/13. He recorded the statement of witnesses Ishwar Netam, Aajuram Markam, Mahendra Kumar Netam, Lileshwar Dhruv, Om Prakash Nareti, Sanjay Bisen and Lokeshwar Prasad Nag and also Haresh Korram and Narendra Netam. After completion of the investigation he filed the charge sheet before the learned trial Court. In cross- examination he admitted that in the Malkhana register there is no signature of any person who handed over the seized article to him and there no separate panchnama has been prepared. He admitted that at the time when the seized article was taken out from the Malkhana it was not weighed. He further admitted that at the time of inventory seized Ganja was not separately weighed as per its bagwise. He 10 further admitted that at the time of inventory there is no mention of any tarpolene in any documents. 14. PW-8, Manohar Lal Nishad is a Constable who is taken the sample from Malkhana of Police Station Keshkal to the FSL Jagdalpur. He admitted in his cross-examination that he has not taken the specimen seal along with him while going to FSL. 15. PW-9, Kshama Yadu who is the Tahsildar posted at Keshkal at the relevant time, has stated in her evidence that on 29-05-2020 the Sub- Divisional Magistrate has ordered for inventory which is endorsed in the document Ex.-P/16. On 19-06-2020 the seized articles were produced before her along with the witnesses in her office at Keshkal. The seized contraband was in 7 plastic bag sealed with seal impression of Police Station Keshkal and its weight is mentioned in the seizure memo as 123.140 kg. The bags were marked as B1 to B7 which was opened by the witnesses and after homogenization of the contraband two samples of 50 gram each were separated which were marked as S-1 and S-2 and it was again sealed with the seal impression of Police Station Keshkal. The remaining Ganja was refilled in the same bag B-1 to B-7 and when it was again weighed, total weight came to 122.630 kg. The weighment was done by Jhaduram Dhruv and photography of inventory was done by Haresh Dhruv. The order of inventory proceeding is Ex.-P/5. The inventory proceeding is Ex.-P/17. The certificate of weighment apparatus is Ex.- P/12 and photography certificate is Ex.-P/6. In the photograph article A-1 to A-4 her photo is also there. After completion of the inventory proceeding she handed over the entire material to Assistant Sub- Inspector Onkar Banjare. In cross-examination she admitted that there 11 is variation in the weight of Ganja in the case diary as well as the weight done in her presence. She further admitted that she has not physically verified the electronic weight apparatus. 16. PW-10, Sunita Uikey, another Assistant Sub-Inspector of police has registered the FIR on 28-05-2020 Ex.-P/19 on the basis of Dehati Nalisi Ex.-P/18 and copy of the FIR was forwarded to Judicial Magistrate First Class Keshkal and its acknowledgment is Ex.-P/20. 17. PW-11 Teejuram Mandavi is Constable of Police Station Keshkal who has taken the sample X-1 to FSL Jagdalpur and after submitting it on 02-06-2020 he returned back to police station, his duty certificate is Ex.-P/21 and acknowledgment is Ex.-P/22. 18. PW-12, Jitendra Nande is Sub-Inspector of police and investigating officer who received the secret information. He also proved the procedure adopted during search and seizure proceeding right from receiving secret information upto the registration of the FIR. He proved the various panchnamas and entire search and seizure proceeding after duly compliance as per law. He also stated in his evidence that the seized contraband was kept in 11 bags. On opening of 11 bags total 12 brown packets were found which was packed by brown colour cello tape and blue polythene. After opening of the bags small quantity of contraband was taken out from all the packets and it was physically verified by rubbing, smelling and burning that it was Ganja and identification panchnama Ex.-P/49 was prepared. He marked all the packets as A-1 to A-12. All packets were separately weighed by weighment witness in which the weight of each packet were found as below:- Sl. No. Article (packet) No. weight 1 2 3 4 5 6 7 8 9 10 11 12 12 A1 A2 A3 A4 A5 A6 A7 A8 A9 A10 A11 A12 10.030 KG 10.310 KG 10.430 KG 10.450 KG 10.350 KG 10.170 KG 10.500 KG 10.130 KG 10.100 KG 10.200 KG 10.630 KG 10.250 KG He further stated that on the spot all 12 packets were opened and homogenized and two samples of 50 gram each were separated which were marked as X-1 and X-2 and the remaining contraband was again refilled in 7 plastic bags which were marked as B-1 to B-7 and the empty packets, cello tape and polythene were refilled in an empty bag which was marked as Z. The homogenization, weighment and sample panchnama is Ex.-P/57. The sample packets and refilled bags were again sealed by the seal of Police Station Keshkal. The seizure memo prepared by him is Ex.-P/59. He proved the entire process of search and seizure proceeding and panchnamas upto coming to the police station after completion of the proceeding. In his cross-examination he re-affirmed the entire proceeding done by him. 19. PW-13, Manjul Godeshwar is the Patwari who prepared the spot map Ex.-P/69 and panchnama Ex.-P/70 and report Ex.-P/71. 20. PW-14, Devendra Kumar Darro is Inspector of police of Police Station Keshkal who issued notice under Section 133 of the Motor Vehicles Act to Surendra Singh S/o Sudarshan Singh, R/o Samad Nagar, District Mahoba, U.P. which is Ex.-P/72. He also issued a letter to the Special Judge, NDPS Act, Kondagaon which is Ex.-P/73 and P/74. He also wrote a letter to Sub-Divisional Magistrate for inventory 13 proceeding which is Ex.-P/75 and the Tahsildar was directed to draw the inventory proceeding which is made in Ex.-P/16. He recorded the statement of Sudha Singh, vehicle owner and Surendra Singh on 04- 06-2020. He also recorded the statement of Vijay Kumar Sharma on 07-06-2020 and attached the authorization letter of the vehicle in the case which is Ex.-P/76. 21. It is case of the appellant that the investigating officer has not complied with the Standing Order 1/89 and has not taken sample from each of 12 packets. The seized Ganja was found in 12 packets from the vehicle and only two samples were taken out form the contraband after mixing the same which is not permissible under the law. It is necessary to reproduce the contents of homogenization and sample panchnama Ex.-P/57 which is as under:- lejl rkSy ,oa lSEiy iapukek xxxxxx xxxxxx xxxxxx fooj.k %& vkjksih ds dCts ls cjken Vªd dzekad UP 95 T-3528 ds Mkyk esa fNikdj j[kk gqvk ls cjken 12 iSdsV voS/k eknd inkFkZ xkatk dk lejl djus gsrq lkFk esa yk;s f=iky dks tehu ij fcNk dj izR;sd iSdsV dks rkSydrkZ ,oa gejkg LVki ds lg;ksx ls [kksydj xkatk tSlk eknd inkFkZ dks vPNh rjg vkil esa feyk dj lejl fd;k x;k rr~i’pkr lQsn jax ds diM+s dh FkSyh dks 50&50 xzke xkatk tSls eknd inkFkZ dks rkSydj 02 iSdsV lSEiy ,Q,l,y ijh{k.k gsrq rS;kj fd;k x;kA 'ks"k eknd inkFkZ dks [kkyh IykfLVd cksjh esa Hkjk x;k ,oa Hkwjs jax dk lsyksVsi dks ,d vyx cksjh esa Hkj dj rkSy fd;k x;k ,oa ekSds ij lqbZ /kkxk ls lhy dj lHkh esa izn’kZ vafdr fd;k x;k ftldk fooj.k fuEulkj gSA dzekad 01 02 03 04 05 06 07 dqy otu 08 09 10 dqy otu vafdr fd;k x;k izn’kZ 0.100 KG 0.100 KG 0.100 KG 0.100 KG 0.100 KG 0.100 KG 0.100 KG 0.700 KG [kkyh cksjh dk otu Hkjs x;s xkatk tSlk eknd inkFkZ dk otu 18.740 KG 15.450 KG 17.680 KG 17.480 KG 17.630 KG 18.860 KG 16.600 KG 122.440 KG ,Q,l,y ijh{k.k gsrq fudkyk x;k lSEiy 01 iSdsV ,Q,l,y ijh{k.k gsrq fudkyk x;k lSEiy 01 iSdsV [kkyh iSdsV lsyksVsi ,oa iUuh isij 11 lQsn IykfLVd cksjh dk B-1 B-2 B-3 B-4 B-5 B-6 B-7 x-1 x-2 18.840 KG 15.550 KG 17.780 KG 17.580 KG 17.730 KG 18.960 KG 16.700 KG 123.140 KG 0.050 KG ¼50xzke½ 0.050 KG ¼50xzke½ 1.010+1.320 = 2.430 KG 14 otu cjken xkatk tSlk inkFkZ dk 'kq) out 07 cksjh;ksa esa Hkjs x;s xkatk tSlk inkFkZ 122.440+,Q,lQy ijh{k.k gsrq fudkyk x;k xkatk tSlk eknd inkFkZ 100 xzke = 122.540 fdyks xzke gS iapukek rS;kj dj ekSds ij vkjksih ,oa xokgks dks i<+dj lquk;k ,oa le>k;kA 22. Further, the contents of the seizure memo Ex.-P/59 is also necessary to be reproduced which is as under:- lEifRr tIrh iapukek xxxxxx xxxxxx xxxxxx fooj.k%& vkjksih ds dCts ls cjken Vªd dzekad &UP 95 T-3528 ds Mkyk ls cjken 11 IykfLVd cksjh esa 12 iSdsV voS/k eknd inkFkZ xkatk ftls lejl djus i’pkr~ ,Q,l,y ijh{k.k gsrq 50&50 xzke xkatk tSls eknd inkFkZ fudky dj ’ks"k eknd inkFkZ dks 07 [kkyh IykfLVd cksjh esa Hkjk x;k ,oa Hkwjs jax dk lsyksVsi iUuh ,oa isij 11 ux IykfLVd cksjh dks ,d vyx cksjh esa Hkj dj lqbZ /kkxk ls lhy dj lHkh esa izn’kZ vafdr dj lHkh iSdsVks dks ihry dk ’khy yxkdj ’khy can fd;k x;k gS mDr lHkh oLrq,a ,oa vkjksih ls cjken oLrq,a ,oa ?kVuk esa iz;qDr Vªd dks mijksDr ekeys esa otg lcwr esa tIr fd;k x;k ftldk fooj.k fuEukuqlkj gS%& 01& xkatk tSlk eknd inkFkZ ls Hkjk gqvk ,d IykfLVd ds cksjh ftlesa Hkjs gq, xkatk dk otu 18-740 fdyksxzke cksjh lfgr dqy otu 18-840 fdyksxzke gS ftl ij ink’kZ B-1 vfdra gS ’khy can voLFkk esaA 02& xkatk tSlk eknd inkFkZ ls Hkjk gqvk ,d IykfLVd ds cksjh ftlesa Hkjs gq, xkatk dk otu 15-450 fdyksxzke cksjh lfgr dqy otu 15-550 fdyksxzke gS ftl ij in’kZ B-2 vfadr gS ’khy can voLFkk esaA 03& xkatk tSlk eknd inkFkZ ls Hkjk gqqvk ,d IykfLVd ds cksjh ftlesa Hkjs gq, xkatk dk otu 17-680 fdyksxzke cksjh lfgr dqy otu 17-580 fdyksxzke gS ftl ij izn’kZ B-3 vafdr gS ’khy can voLFkk esaA 04 & xaktk tSlk eknd inkFkZ ls Hkjk gqvk ,d IykfLVd ds cksjh ftlesa Hkjs gq, xkatk dk otu 17-480 fdyksxzke cksjh lfgr dqy otu 17-7580 fdyksxzke gS ftl ij izn’kZ B-4 vafdr gS ’khy can voLFkk esaA 05 & xkatk tSlk eknd inkFkZ ls Hkjk gqvk ,d IykfLVd ds cksjh ftlesa Hkjs gq, xkatk dk otu 17-630 fdyksxzke cksjh lfgr dqy otu 17]730 fdyksxzke gS ftl ij izn’kZ B-5 vafdr gS ’khy can voLFkk esaA 06 & xktk tSlk eknd inkFkZ ls Hkjk gqvk ,d IykfLVd ds cksjh ftlesa Hkjs gq, xkatk dk otu 18-860 fdyksxzke cksjh lfgr dqy otu 18-960 fdyksxzke gS ftl ij izn’kZ B-6 vafdr gS ’khy can voLFkk esaA 07 & xkatk tSlk eknd inkFkZ ls Hkjk gqvk ,d IykfLVd ds ckjh ftlesa Hkjs gq, xkatk dk otu 16-600 fdykxzke cksjh lfgr dqy otu 16-700 fdyksxzke gS ftl ij izn’kZ B-7 vafdr gS ’khy can voLFkk esaA 08 & ,Q,l,y ijh{k.k gsrq fudkyk x;k lSEiy 50&50 xzke dk 02 iSdsV in’kZ X-1 X-2 ’khy can voLFkk esa A 09 & [kkyh iSdsV lsyksVsi uhyk jax dk iUuh isij ,oa 11 ux IykfLVd cksjh dk ’khy can iSdsV otu 2- 430 fdyksxzke izn’kZ z 10 &vkjksih lansgh fctsUn oekZ ls cjken fctsUnz oekZ dk vk/kkj dkMZ uEcj 429724956605] jxhau Nk;kizfr] Mªk;foxa yk;lsal uEcj MP0720100004975 ewy izfr] ,lchvkbZ cSad dk ,Vh,e dkMZ uEcj 6075320817154494 ,ao iatkc us’kuy cSad dk ,Vh,e dkMZ 5126522023222608 ,d fooks daiuh dk Ldzhu Vp eksckbZy jax dkyk ftl ij ftvksa dEiuh dk lhe yxk gqvk gS ftldk eksckbZy uEcj 9516553023 ,o ch,l,u,y daiuh dk lhe ftldk uEcj 9407286206 yxk gS rFkk uxnh jde 3740 :i;sA 08 & Vªd dzekad &UP 95 T-3528 dh Mkyk ls IykfLVd cksjh esa lafnX/k eknd inkFkZ 11 cksjh cjken gqvkA bafaM;k lksfM;e ckbZdkcksZesV dh izR;sd cksjh esa 50 fdyksxzke] 600 cksjh rFkk okgu ds MsLd cksMZ ls okgu Vªd dzekad & UP 95 T-3528 dk jftLVs’ku lVhZfQdsV dh ewyizfr] bU’;ksjsl dh ewy izfr] us’kuy ijehV ewyizfr] ,oa bafM;k lksfM;e ckbZdkcksZesV dk chYVh fjrok jksM++ ykbZUl fo’kk[kkiVue ls tkjh chYVh 600 cksjh dqy otu 30] 000 fdyksxzke dulkbZesaV uEcj 017&2803] fy[kk gqvk 14 izfr 15 09& Vªd dzekad & UP 95 T-3528 dk ftldk psfpl uEcj MAT541089J1B05176 batu uEcj ISBE5.91804081B63666131 gS e; pkch ds pkyw gkyr esaA ftldk jftLVs’ku lq/kkflag ifr lqjsUnz flag fuoklh Nrjiqj jksM+ lekn uxj eksgck mRrjizns’k ds uke ij gSA fderh yxHkx lkr yk[k :i;sA” 23. Though no procedure is prescribed either in the NDPS Act or in the NDPS 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 : “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. 16 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 17 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.” 24. 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 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 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn. 25. 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 18 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 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 19 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.” 26. In the present case, PW-9 Kshama Yadu, Tahsildar, has also stated in her deposition that she prepared inventory on 19-06-2020. It is clear that the incident took place on 29-05-2020 and seizure was effected on the spot whereas the Tahsildar/Executive Magistrate prepared inventory on 19-06-2020. Section 52 of the NDPS Act provides as under: "52. Disposal of persons arrested and articles seized.— (1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub- section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to— (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article." 20 27. Thus, considering the facts and circumstances of the case, the nature and quality of evidence adduced by the prosecution; 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 appellant beyond all reasonable doubt. Being so, the learned trial Court was not justified in recording conviction of the appellant under Section 20(b)(ii)(C) of the NDPS Act. 28. In the result, the criminal appeal is allowed. The impugned judgment passed by the learned trial Court is hereby set aside. The appellant is acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act by extending them benefit of doubt. The appellant is reported to be in jail since 29-05-2020, therefore, he be set free forthwith if not required in any other case. 29. Keeping in view the provisions of Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the appellant- Bijendra Verma is directed to furnish a personal bond for a sum of Rs. 25,000/- with two sureties in the like amount before the Court concerned which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 30. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. 31. Before parting with the judgment, it is worthwhile to observe that earlier 21 this Court while considering Criminal Appeal Nos. 565/2023 and 1196/2023 also noticed such lethargic approach of the investigating agency which led this Court to allow the appeals by giving benefit of doubt to the appellants vide judgment dated 1.5.2024. Hence we directed the Director General of Police, Raipur and other investigating agencies to issue necessary advisory for strict compliance of the mandatory provisions of the NDPS Act so that the accused may not take benefit of such lapses as the offence like the presence one is the offence against the society which weakens the basic structure of the society and so it must be dealt with heavy hand strictly in accordance with law and procedure prescribed therefor to protect the future of this country. 32. The Registrar (Judicial) of this Court is directed to send a copy of this judgment to the Director General of Police, Raipur (CG) forthwith for necessary information and further compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Aadil