Afr High Court
Case Details
1 / 43 2025:CGHC:49199-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1899 of 2017 Judgment Reserved on : 30.07.2025 Judgment Delivered on : 25.09.2025 1. Rinku Kumar S/o Ramesh Prasad, Aged About 31 Years, R/o Wiskoman Colony, Thana- Alamganj District Patna, Bihar, Civil District Patna Bihar. 2. Nakul Singh, S/o Hareram Singh Rajput, Aged About 24 Years, R/o Mathurapur Thana Koielwar District Bhojpur, Bihar, Civil District Bhojpur, Bihar. ... Appellants versus State Of Chhattisgarh Through The Police Station Arjuni, District Dhamtari Chhattisgarh. Civil District Dhamtari, Chhattisgarh. ... Respondent For Appellants : Mr. Shrinivas Rao, Advocate appears on behalf of Mr. Gagan Tiwari, Advocate. For Respondent/State : Mr. Ankur Kashyap, Dy. Govt. Advocate. Hon'ble Smt. Justice Rajani Dubey, J Hon’ble Shri Justice Amitendra Kishore Prasad 2 / 43 (CAV Judgment) Per Rajani Dubey, J 1. The appellants in this appeal under Section 374(2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 06.10.2017 passed by the Special Judge (NDPS Act), Dhamtari (C.G.) in Special Criminal Case (N.D.P.S. Act 1985) No.146/2017, whereby the appellants stand convicted and sentenced as under: Conviction Sentence Under Section 20(b)(ii)(C) RI for 12 years with fine of of Narcotic Drugs and Rs.1,00,000/- each, in Psychotropic Substances default of payment of fine Act, 1985. amount to further undergo R.I. for 02 years. 2. Case of the prosecution, in brief, is that on 23.03.2017, Assistant Sub-Inspector Ramesh Sahu (PW-8), in-charge of District Crime Branch, along with staff Head Constable 147, 183, 196, Constable No. 254, 262, 371 were on patrolling duty in government vehicle No. CG 03-5396. During patrolling, he received a secret information from an informer that two persons were transporting narcotic substance ganja from Jagdalpur to Raipur for illegal sale in a maroon coloured Tata Manza Car bearing registration No. WB 22-U- 3 / 43 0348. On receiving the information, the witnesses Head Constable Pradeep Singh (PW-7) and Rakesh Mishra (PW- 4) were made aware about the secret information and a panchanama to this effect was prepared on the spot and a copy of it was sent to D.S.P. office Dhamtari by giving a duty certificate to Constable Kuldeep Rajput (PW-6). Head constable Rakesh Mishra (PW-4) was sent with a duty certificate to summon two independent witnesses. After some time, Rakesh Mishra (PW-4) brought two independent witnesses Gulzar Khan (not examined) and Mukesh Kumar (not examined). Both the witnesses were made aware about the secret information and gave them summon under section 160 of the Indian Penal Code and were asked to co- operate in the proceedings. Thereafter, a Panchnama was prepared in front of witnesses regarding non-receipt of search warrant. Assistant Sub-Inspector Ramesh Sahu (PW-8), in-charge of District Crime Branch, along with his staff and witnesses, then went to Sambalpur Railway Crossing NH 30 Road and barricaded the road. After some time, a maroon coloured Tata Manza car No. WB 22-U-0348 came and was stopped by waving hands. There were two persons sitting in the said car. On questioning, the person sitting on the driver's seat told his name as Nakul Singh, son of Hareram Singh Rajput, age 24 years, resident of 4 / 43 Mathurapur, police station- Koilwar, District- Bhojpur (Bihar) and the person sitting behind told his name as Riku Kumar, son of Ramesh Prasad, age-31 years, resident of Viscoman Colony, police station Alamganj, District- Patna (Bihar). The accused/appellants were informed about the secret information and were told that he wanted to search them and their car. It was also told to the accused persons that they can also get themselves searched by any gazetted officer or the nearest Magistrate. In this regard, notice was given to the accused persons and they agreed to search themselves by Assistant Sub Inspector Ramesh Sahu (PW- 8) and the police party was searched in front of witnesses in which no objectionable item was found from the police party and a search panchanama was prepared accordingly. The investigating officer Assistant Sub Inspector Ramesh Sahu (PW-8) searched the Tata Manza car of the accused persons and found a white colored sack filled with 27 packets. After opening the sack and packets, the substance like ganja was found therein and search panchanama was prepared in presence of the witnesses. The sack and packets were marked from 1 to 28. Upon sniffing, rubbing and burning the substance like ganja kept in sack and 27 packets, it was found to be contraband article ganja and identification panchanama was accordingly prepared. 5 / 43 Thereafter, Head constable Pradeep Singh (PW-7) got the electronic weighing machine physically verified in front of witnesses and physical verification panchnama was prepared. On weighing the packets and sacks marked as 1 to 28 separately, the total weight was found to be 91.290 kg. 50-50 gram ganja was taken out separately for sample from the packets and sacks marked 1 to 28 and sealed. The sealed packets were marked 1A-1B to 28A-28B. All the 28 packets and sacks were sealed separately and a weighing panchnama was prepared. Thereafter, Asstt. Sub Inspector Ramesh Sahu (PW-8) issued a notice to the accused persons under Section 91 of CrPC to produce valid documents regarding possession, sale or transportation of the recovered ganja and documents related to the ownership of the vehicle Tata Manza car, on which the suspects admitted that they did not have any documents regarding the narcotic substance ganja and said that the vehicle belonged to one Santosh Singh, resident of Patna. Thereafter, Tata Manza car No. WB-22-U-0348 recovered from the possession of the accused along with keys and total sealed ganja weighing 91.290 kg were seized as per seizure memo. Upon being found the involvement of the accused persons in the crime, they were arrested in presence of the witnesses. Thereafter, the spot map of the 6 / 43 incident, dehati nalishi and statements of witnesses were recorded on the spot itself. Thereafter, the seized property and the accused were taken to Arjuni police station and a numbered crime was registered. The seized ganja was duly deposited in the maalkhana and the sample packets were sent to the Forensic Science Laboratory, Raipur for its chemical examination through Superintendent of Police Dhamtari from where a report was obtained which reveals the seized items to be ganja. An unnumbered crime was
Facts
registered on the spot, on the basis of which, a First Information Report (FIR) was registered against the accused persons at Police Station Arjuni under Section 20 (b) (11) (c) of the NDPS Act and after due investigation, a charge sheet was filed against the accused/appellants before the jurisdictional Court under section 20 (b) (11) (c) of the Narcotic Drugs and Psychotropic Substances Act. 3. Thereafter, the learned trial Court framed charge under Section 20(b)(ii)(C) of the NDPS Act against the accused/appellants, to which the accused/appellants abjured their guilt and prayed for trial. 4. In order to prove its case, the prosecution examined as many as 10 witnesses. Statements of the accused/appellants were also recorded under Section 313 of CrPC in which they denied all the incriminating 7 / 43 circumstances appearing against them in the prosecution case, pleaded innocence and false implication. 5. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment. 6. Learned counsel for the appellant No.1-Rinku Kumar submits that the vehicle of the appellant was intercepted, searched and contraband article ganja alleged to have been seized by Assistant Sub Inspector Ramesh Sahu (PW-8) at the spot and then he brought the accused to the police station where the FIR (ExP-12) was registered. The first informant police officer himself assumed the role of Investigating Officer by drawing further proceedings of the investigation after registration of FIR, therefore, the entire investigation and the consequential trial and conviction are vitiated. Learned counsel further submits that the two independent seizure witnesses namely Gulzar Khan and Mukesh Sahu have given up the case of the prosecution in respect of any of the proceedings including search, seizure etc., which clearly shows that the entire case of the prosecution is a concocted and is a case of false implication of the appellant. Learned counsel also submits that the conviction of the appellant is vitiated on account of violation 8 / 43 of the mandatory provisions contained in Section 50 of the NDPS Act in as much as the notice was not proper as it was a joint communication, which is not permissible under the law. Each of the appellant was entitled to individual notice of their right to be searched by the gazetted officer or by a Magistrate. Therefore, Section 50 of the NDPS Act has been violated and consequently, the conviction of the appellant is liable to be set aside.
Legal Reasoning
in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure. (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules/Standing Order (s) thereunder would have to be mandatorily treated as primary 33 / 43 evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not. (IV) The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure lald therein. (V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses. (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused 34 / 43 guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. (VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse Inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. (VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities. (X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the 35 / 43 prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non- compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.” 26. And in Surepally (supra), Hon’ble Apex Court held in para 13 as under :- “13. In Bharat Aambale (supra), this Court held that the purport of Section 52-A, NDPS Act read with Standing Order No. 1/89 extends beyond mere disposal and destruction of seized contraband and serves a broader purpose of strengthening the evidentiary framework under the NDPS Act. This decision stresses upon the fact that what is to be seen is whether there has been substantial compliance with the mandate of Section 52-A and if not, the prosecution must satisfy the court that such non-compliance does not affect its case against the accused. This is also what has been held in Kashif (supra).” 27. It is clear from the record of the learned trial Court that both the independent witnesses in the case were not examined by the prosecution. 36 / 43 28. The Hon’ble Apex Court in Gorakh Nath (supra) held in para 6 and 7 as under :- “6. 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 (Ext. 8), being available is no confirmation either of the seizure or that what was seized was ganja, in the 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. 7. 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 v. State of M.P.2 and reiterated in Ashok v. State of M.P.3 as follows: (SCC pp. 126-27, paras 12-13) 37 / 43 "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 Jitendra v. State of M.P.2, 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, the Court observed and held as under: (SCC pp. 564-65. paras 5-6) ‘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 38 / 43 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 b from the drugs seized from the possession of the accused.” 29. Investigating Officer Ramesh Sahu (PW-8) has also admitted in para 24 that he had not prepared the seal sample panchanama separately in presence of the witnesses and seal sample of ink pad has been affixed in seizure memo (Ex.P-26) and in weighment panchanama (Ex.P-16). He has admitted that the part of chapda were missing in Ex.P-26 and P-16. 30. In this regard, Birendra Bais (PW-2) – Head Constable-cum- Maal Munshi has admitted in para 6 of his evidence that in Ex.P-3 at Sl. No.31 there is mention of depositing seal sample but the details of the seal sample were not mentioned. Further in para 7, he admitted that there was no 39 / 43 mention in maalkhana register (Ex.P-3) that he weighed the seized article on a scale before depositing it in the maalkhana. He has also admitted that there was no mention in maalkhana register ( Ex.P-3) that he received the seized article in sealed condition. 31. The Hon’ble Apex Court in the matter of Surepally Srinivas (supra) held in para 14 as under :- “14. In the present case, from the evidence on record, it can be seen and it is clear that the seized contraband was not properly sealed. Coupled with this is the fact of the seized contraband not being produced before the trial court prior to 3rd July, 2010. It is difficult to accept the prosecution case that though there may not have been strict compliance of Standing Order No. 1/89, the seized contraband was not tampered at all. Keeping of the seized contraband by PW-3 in a separate room in his office for fifteen days could give rise to an allegation that the seized contraband was by itself substituted and some other items planted to falsely implicate the accused. To avoid suspicious circumstances and to ensure fair procedure in respect of search and seizure, it is always desirable to follow the standing order which provides suitable guidance for the officers investigating crimes under the NDPS Act. Should there be any departure, the same must be based on justifiable and reasonable grounds. We are, 40 / 43 satisfied, on appreciation of the evidence on record, that the possibility of tampering during this fifteen-day period cannot be totally ruled out and that not only has there been no substantial compliance of the standing order, the departure has also not been justified.” 32. In the light of all the above quoted guidance of Hon’ble Apex Court and looking to the facts and circumstances of the case, it is clear that in this case, the prosecution has only examined the police witnesses who were part and parcel of the police party, and they (police) caught and searched the accused persons. No strict compliance of Sections 50, 52 and 55 of the NDPS Act was made in the case. It is also clear that joint search notice was served upon both the accused persons for their personal search and car search & also joint consent was obtained from them. The investigating officer (PW-8) has completely failed to prove beyond reasonable doubt that all the samples packets were properly sealed and deposited in maalkhana and seals of the seized article were intact during whole proceeding right from the seizure to its depositing to FSL, Raipur. Most importantly both the independent witnesses in the case were not examined before the learned trial Court, which creates suspicion in the prosecution case. The police have also failed to prove the ownership of seized vehicle Tata 41 / 43 Manza car. In Ex.P-25, it was written that the car was belonged to Santosh Soni, resident of Patna, Bihar, and the contraband was also belonged to him but no inquiry whatsoever was made in this regard by the prosecution against that person who was named by the accused/appellants in notice (Ex.P-25). 33. It is also clear that the Standing Order 1/89 was also not complied with in its letter and spirit by the prosecution as is evident by the evidence of Investigating officer (PW-8) who has stated in para 7 of his evidence that ganja filled in all the 27 packets and sack No. 28 was mixed separately and 50- 50 grams of ganja was weighted out as sample from each packet and sack, which was put in polythene and filled in cotton cloth bags, sealed and packed separately. 34. It is also clear from the statement of Birendra Bais (PW-2) – Head Constable/Maalkhana Moharrir that 56 packets of samples ganja were taken out on 04.03.2017, and as per the acknowledgment of FSL and statement of Ashok Sahu (PW-1) – Constable, it was deposited on 05.03.2017 in FSL, Raipur and PW-2 has admitted that there was no mention of time of taking out the sample of contraband from maalkhana. As such, there is non-compliance of mandatory provisions of N.D.P.S. Act. 42 / 43 35. From the above evidence of Investigating Officer (PW-8), it is evident that the prosecution has utterly failed to proved this fact that the appellants are owner of the seized vehicle. 36. Considering the aforesaid facts and circumstances of the case and the submissions advanced by the learned counsel for the parties, material available on record and also considering the evidence of Investigating Officer (PW/8) and also considering the fact that instructions given in Standing Order No. 1/89 issued by the Central Government has not been followed in the instant case. This Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and that the learned trial Court has also committed grave legal error in convicting and sentencing the appellants for the offence under Section 20(b)(ii)(C) of the NDPS Act. As such, the judgment impugned deserves to be set aside.
Arguments
In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the matter of State Vs. Rajangam reported in (2010) 15 SCC 369 and State of Rajasthan V. Parmanand reported in (2014) 5 SCC 345. 7. Learned counsel for appellant No.2-Nakul Singh submits that in the case two independent witnesses namely Gulzar Khan and Mukesh Kumar were not examined by the prosecution. The learned trial Court was absolutely unjustified in convicting the appellant under Section 20(b)(ii) (c) of the NDPS Act, as the prosecution has failed to prove the said offence beyond reasonable doubt. The independent witnesses namely Gulzar Khan and Mukesh Kumar have not been examined by the prosecution as they have been given up by the trial Court. As such, the prosecution case is not supported by the independent witnesses. Learned 9 / 43 counsel further submits that the provisions contained under Section 50 of the NDPS Act has not been complied with as at the relevant time and place, all the two accused persons were jointly served with the notice under Section 50 of the NDPS Act, and therefore, there is no valid compliance of the same. Learned counsel also submits that the articles were examined by the Sr. Scientist Officer R.D. Adhirwar and Scientist Officer Smt. Alma Minj at State Forensic Science Laboratory, Raipur viz Ex.P-38 but non of the examiner has been examined by the prosecution, therefore, the FSL report Ex.P-38 is not admissible in the evidence. Learned counsel also submits that there is non-compliance of Sections 52 and 52A of the NDPS Act by the investigating agency. As per Section 52(2) of the NDPS Act, every article seized under sub-section 41, 42, 43 or 44 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued which has not been done in the instant case. Further, as per sub-section 3 of Section 52 of the NDPS Act, the articles seized under sub-section 2 of 41, 42, 43 or section 44 was further to be forwarded to (a) officer-in-charge of the nearest police station or (b) the officer empowered under Section 53 of the NDPS Act, which was also not done. Thus, the impugned judgment of 10 / 43 conviction and order of sentence is liable to be set aside the the appellants are entitled for acquittal. In support of his submission, learned counsel placed reliance on the decision of Hon’ble Apex Court in the matter of Krishan Chand Vs. State of Himachal Pradesh reported in (2018) 1 SCC 222, State of Rajasthan Vs. Parmanand and Anr. reported in (2014) 5 SCC 345, Surepally Srinivas Vs. State of Andhra Pradesh reported in 2025 SCC OnLine SC 683, Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in (2011) SCC 609, S.K. Raju alias Abdul Haque Vs. State of West Bengal reported in (2018) 9 SCC 708, Gorakh Nath Prasad Vs. State of Bihar reported in (2018) 2 SCC 305 and Bharat Aambale Vs. State of Chhattisgarh reported in 2025 SCC OnLine SC 110. 8. On the other hand, learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the learned trial Court minutely appreciated oral and documentary evidence and the prosecution has proved its case beyond reasonable doubt. Learned counsel also submits that it is well settled principle of law that when prosecution duly complied with mandatory provisions of NDPS Act, mere non examination of independent witnesses would not be fatal to the prosecution case if the other 11 / 43 material on record adduced by the prosecution inspires confidence and satisfy the Court as regards recovery as well as cautious possession of the contraband from the accused persons. The Court can proceed further to hold the accused guilty. In support of his contention, learned State counsel placed reliance on the decision of Hon’ble Apex Court in the matter of Bharat Aambale Vs. State of Chhattisgarh reported in 2025 SCC OnLine SC 110. 9. We have heard learned counsel for the parties and perused the material available on record. 10. It is apparent from the record of the learned trial Court that the learned trial Court framed charge under Section 20 (b) (ii)(C) of the NDPS Act and as per the prosecution, the accused persons found in possession of 91.290 contraband article cannabis in vehicle Tata Manza Car No. WB-22-U- 0348. 11. Ramesh Sahu (PW-8) is the Investigating Officer. He has stated that on 02.03.2017 while on patrolling duty with Head Constable Pradeep Singh, Rakesh Mishra, Prahlad Banchor, Constable Harish Sahu, Dinesh Turkane and Kuldeep Rajput, entry of which was made in rojnamcha sanha vide Ex.P-17, received a secret information near N.H.30 that two persons were illegally transporting 12 / 43 contraband article Ganja from Jagdalpur to Raipur in marron colour Tata Manza vehicle bearing registration No. WB-22- U-0348. On the said information, witnesses Head Constable Rakesh Mishra and Pradeep Singh were made aware about the secret information and prepared secret panchanama vide Ex.P-7 and has admitted his signature on ‘C to C’ part on it. Thereafter, he immediately prepared a report of this information for DSP Headquarter, Dhamtari vide Ex.P-18 and sent Constable Kuldeep Rajput with secret information panchanama with duty certificate (Ex.P-13), on which he signed on ‘A to A’ part. Thereafter, Head Constable Rakesh Mishra was sent with the duty certificate (Ex.P-8) to summon two independent witnesses and bring them to the spot, on which he signed on ‘A to A’ part'. After some time, Head Constable Rakesh Mishra brought two independent witnesses Gulzar Khan and Mukesh Kumar, both residents of Dhamtari. Both the witnesses were informed about the secret information and they were given a notice (Ex.P-19) under Section 160 CrPC regarding staying with them and cooperating in the entire proceedings, on which he admitted his signature on ‘A to A’ part and stated that witness Gulzar signed on ‘B to B’ part and witness Mukesh signed on ‘C to C’ part. This witness has also stated that thereafter, in presence of the witnesses, a panchanama regarding not 13 / 43 obtaining a search warrant was prepared vide Ex.P-20 wherein he admitted his signature on ‘A to B’ part and witness Gulzar Khan signed on ‘B to C’ part. This witness has also stated that he along with the accompanying staff and witnesses made a blockade at Sambalpur Railway Crossing NH 30 Road. After some time, a maroon colour Tata Manza car bearing registration No. WB-22-U-0348 came which was stopped by waving hands. One person was found sitting on the driver's seat and one person on the rear seat. On being inquired, the accused sitting on the driver's seat told his name as Nakul Singh, son of Hareram Singh Rajput, age 24 years, resident of Mathurapur, Police Station Koilwar, District Bhojpur, Bihar, and the person sitting on the rear seat told his name as Rinku Kumar, son of Ramesh Prasad, resident of Viscoman Colony, Police Station Alamganj, District Patna, Bihar. Both the accused persons were informed about the secret information that they were transporting contraband article ganja in the said Tata Manza car for illegal sale. They were also told that they can get their belongings and themselves searched by any gazetted officer or the nearest Magistrate. In this regard, notice under Section 50 of the NDPS Act was served upon both the accused persons vide Ex.P-21, on which he admitted his signature on ‘A to A’ part. Accused Rinku Kumar signed on 14 / 43 ‘B to B’ part. Accused Nakul Singh signed on ‘C to C’ part, witness Gulzar on ‘D to D’ and witness Mukesh on ‘F to F’ part. This witness has also stated that both the accused persons gave their written consent vide Ex.P-22 to be searched by him (this witness). Thereafter, the accused persons got the police party and the witnesses searched vide Ex.P-10 one by one in front of both the witnesses. During search, apart from pen, papers, mobile and purse, no other objectionable item was found, on which he admitted his signature on ‘D to D’ parts. This witness has also stated that thereafter, the Tata Manza car bearing registration No. WB-22-U-0348 was searched in presence of witnesses. Upon removing the rear seat of the car, a white sack and 27 other packets packed in polythene were found in the trunk. The said sack and packets were opened in presence of witnesses and the contents were found to be contraband article like ganja. 12. This witness has also stated that the search panchnama of the said car and suspected persons is Exhibit P-23, on which he admitted his signature on ‘A to A’ part. Thereafter, in front of the witnesses and the accused, the narcotic substance Ganja, packed in 27 packets and filled in a white sack recovered from the possession of accused Rinku Kumar and Nakul Singh. On rubbing, burning and smelling, 15 / 43 it was found to be ganja. The ganja found in a white sack and 27 packets numbered from 1 to 28 respectively. The identification panchnama of the narcotic substance is Exhibit P-24, on which this witness signed on ‘A to A’ part. Thereafter, the weighing machine was checked and physical verification panchnama of the weighing machine was prepared vide Ex.P-15, on which he signed on ‘B to A’ part. Thereafter, in front of the witnesses, the white sack and 27 packets recovered from the possession of accused Rinku Kumar and Nakul Singh, in which numbers from 1 to 28 were marked, weighed separately along with the sack and packets, and it was found that the total weight of Ganja was 91.290 kg. He has also stated that Ganja filled in all the 27 packets and sack No. 28 was mixed separately and 50-50 grams Ganja was weighed out as sample from each packet and sack, which was put in polythene and filled in cotton cloth bags, sealed and packed separately. Each sample bag was marked from 1A-1B to 28A-28B. All the 27 packets and sacks were sealed separately and a weighing panchnama was prepared vide Ex.P-16, on which he admitted his signature on ‘B to B’ part. This witness has also stated that he gave notice under Section 91 of Cr.P.C. vide Ex.P-25 for producing valid document for possessing, selling or transporting the narcotic substance Ganja packed in 27 16 / 43 packets in a white sack in the trunk of a maroon colour Tata Manza car bearing registration number WB-22-U-0348 recovered from their possession, on which he admitted his signature on ‘A to A’ part and identified signature of both the accused persons on ‘B to B’ and ‘C to C’ part. Thereafter, he prepared seizure memo of 28 sacks of ganja and one car vide Ex.P-26, and prepared search memo of accused Rinku vide Ex.P-27 and accused Nakul Singh vide Ex.P-28. This witness has also stated that the accused persons, after preparing separate arrest memo, were arrested in presence of the witnesses vide Ex.P-29 and P-30 & also sent a notice to their relatives vide Ex.P-31. He prepared spot map vide Ex.P-32 and dehati nalishi vide Ex.P-11 & after completing all the proceedings, they returned to Police Station – Arjuni and made entry in rojnamcha sanha at Sl. No. 46 on 02.03.2017 at 19.45 PM vide Ex.P-33, the certified copy of which is Ex.P-33C, in which he admitted his signature on ‘A to A’ part. This witness has also stated that on 03.03.2017, he prepared entire proceeding report under Section 57 of N.D.P.S. Act and sent it to Deputy Superintendent of Police, Dhamtari, as per dispatch No.41, vide Ex.P-14 and he admitted his signature on ‘A to A’ part. He also admitted his signature on dispatch register Ex.P-34 on ‘A to A’ part. 17 / 43 13. Rakesh Mishra, Head Constable (PW-4), Dinesh Turkane, Constable (PW-5), Kuldeep Singh Rajput, Constable (PW- 6), Pradeep Singh, Head Constable (PW-7) have supported the statement of Investigating Officer (PW-8). They have stated that they went with Ramesh Sahu (PW-8) on 02.03.2017 and while they were on patrolling duty, PW-8 received information from informer about the transportation of illegal contraband article Ganja and after that they intercepted the described vehicle Tata Manza car and on search, contraband article Ganja was seized from the said car. Rakesh Mishra (PW-4) has admitted his signature on Mukbir Panchanama (Ex.P-7), duty certificate (Ex.P-8), written information (Ex.P-9) and police search panchanama (Ex.P-10). 14. Kuldeep Singh Rajput (PW-6) has stated that on 02.03.2017, he along with Assistant Sub-Inspector Ramesh Sahu (PW-8), in-charge of the Crime Branch, along with Head Constables Pradeep Singh, Rakesh Mishra, Prahlad Banchhor, Constables Dinesh Turkane, and Harish Sahu, went on patrolling. During patrolling, PW-8 received information from an informant near the Sambalpur Railway Station that a Tata Manza car was illegally transporting the narcotic substance. Based on this information, secret information report was prepared, and he was sent to the 18 / 43 DSP office in Dhamtari along with a duty certificate. He then went to the DSP office in Dhamtari with the Dak and handed it to Balram Kose, Reader of the DSP office in Dhamtari, and received a receipt. The duty certificate issued to him is Exhibit P-13, and its carbon copy is Exhibit P-13C. He has also stated that On 3.3.2017, all proceeding report was obtained from the Crime Branch Incharge and gave it to Balram Kose, Reader of the DSP Office, Dhamtari, for which a receipt was obtained. The complete action report is Exhibit P-14, and the receipt was returned and handed to the Crime Branch Incharge. 15. Birendra Bais (PW-2), Head Constable, has stated that on 02.03.2017, he was posted in police Station Arjuni, District Dhamtari as Head Constable/Maalmunshi. On 02.03.2017, A.S.I. Ramesh Sahu (PW-8) brought and presented Tata company car with registration No. WB-22-U-0348 and 27 packets, 01 sack in sealed condition and 56 sample packets of narcotic substance Ganja in sealed condition with total weight of 91.290 kg, and after making entry in the police station's seizure register with serial No. 31/17 dated 02.03.2017. The seized articles were kept in the police station's store room/maalkhana and the seized vehicle was kept in the police station premises. He has also stated that 56 packets of sample ganja seized in this case were sent to 19 / 43 FSL Raipur for its chemical examination on 04.03.2017 through constable No. 426 - Ashok Sahu of Police Station Arjuni. On 14.05.2017, total 56 packets of tested sample Ganja was received from FSL Raipur through constable No. 148 Virendra Chauware. On 03.05.2017, seized contraband ganja were again taken out for its physical verification by the Executive Magistrate at Police Station premises Arjuni. The entry of the seized articles were at page No. 44 to 46 of the seized items register and its photocopy was already attached in the case which were in three pages (Ex.P- 03"C") and its original was Ex.P.-3, entry of which was made by him. He has also stated that the acknowledgment receipt of seized articles was given to Assistant Sub-Inspector Ramesh Sahu by him vide Ex.P-4. 16. Constable Ashok Sahu (PW-1) has stated on 04.03.2017, he received sample packets marked as ‘A-1 to A-28’ and ‘B- 1 to B-28’ in Crime No.56/2017 and had gone to office of Superintendent of Police, Dhamtari for obtaining draft number, entry of which was made in rojnamcha sanha at Sl. No.14, and after obtaining draft number from the office of Superintendent of Police, he went to FSL, Raipur and after his return from Raipur on 05.03.2017, he marked his presence in police station, entry of which was made in rojnamcha sanha at Sl. No.41. He has also stated that the 20 / 43 duty certificate given to him is Ex.P-1 and acknowledgment of FSL is Ex.P-2. 17. Udyayan Behar (PW-3) is the D.S.P., Dhamtari. He has stated that on 03/03/17, on receipt of the case diary of Crime No. 56/17 for investigation, a letter was written to the Superintendent of Police, Dhamtari for providing draft number for sending contraband article ganja in 27 packets, total weight 91.290 kg, to FSL Raipur for chemical examination, vide Ex.P-5. He has also stated that on the same date, a letter was also written to the District Magistrate, Dhamtari to initiate proceedings for confiscation of the vehicle Tata Manza car number WB-22U-0348 seized in the same crime number vide Ex.P-6. 18. According to the prosecution, all the proceeding was carried out before two independent witnesses namely Guljar Khan and Mukesh Kumar but both the independent witnesses were not examined by the prosecution before the learned trial Court to substantiate its case. 19. The main objection of accused/appellants is that the entire proceeding of seizure was conducted by police and raid party & mandatory provision of Sections 50, 52-A and 55 of the N.D.P.S. Act were not complied with by the police persons and both the accused persons taken this plea in their statement recorded under Section 313 of Cr.P.C. in 21 / 43 Question No.43 and also in the cross-examination of Ramesh Sahu (PW-8) – Investigating Officer, as such, the prosecution has failed to prove seizure of article from appellants. 20. It is evident from the record of the learned trial Court that both the independent witnesses were not examined by the prosecution before the trial Court. Investigating Officer Ramesh Sahu (PW-8) has admitted in para 24 of his cross- examination that he did not prepare separate seal sample panchnama in presence of witnesses and they did not get their Govt. vehicle Sumo searched from the accused/appellants. He has also admitted that there was no mention of presence of electronic weighing machine in search panchnama (Ex.P-10). He has also admitted that he had not issued any duty certificate to Constable Kuldeep Rajput regarding sending all proceeding panchanama (Ex.P-14) to D.S.P. office. This witness in para 25 has denied this suggestion that the accused/appellants have dispute with constables of crime branch and because of this, the accused/appellants have been falsely implicated in the crime. He has admitted this suggestion that according to the dehati nalishi, he is the complainant of this case and all proceeding viz. seizure, search, arrest etc. was done by him. In para 26, this witness has admitted that sample 22 / 43 proceeding was not done by the Magistrate and he did not seize the documents of Tata Manza car seized in the case. He has also denied this suggestion that he pressurized the accused/appellants to sign on blank papers. He has admitted this suggestion that while on patrolling, after receiving the secret information, he did not inform any police station lying between Raipur to Jagdalpur road. He has also admitted this suggestion that he served the notice (Ex.P-25) upon both the accused persons jointly. He has also admitted that notice (Ex.P-21) under Section 50 of NDPS Act was given to the accused/appellants for search of police personnel and their articles. He has also admitted that in consent letter (Ex.P-22), Section 50 of the NDPS Act was not mentioned. 21. It is clear from notice (Ex.P-21) that Investigating Officer gave notice to the accused/appellants jointly to get themselves and their official vehicle searched. It is written in the said notice, which reads thus : “fooj.k %& vki nksuks ds ikl lkeku@dkj es voS/k :i ls eknd inkFkZ xkatk feyus dh lwpuk eq[kchj ds tfj, izkIr gqbZ ftldh cjkenxh gsrq vki nksuks ds cnu] lkekuks dh ryk’kh fy;k tkuk gS vki nksuks dks vkxkg fd;k tkrk gS fd vki viuh ,oa vius lkekuks dh ryk’kh fdUgh l{ke jktif=r vf/kdkjh vFkok fudVre eftLVsªV lsa Hkh djk ldrs gS vkSj ;fn vki nksuks pkgs rks viuh ,oa vius lkekuks dh ryk’kh eq> iqfyl vf/kdkjh jes’k lkgw lmfu ftyk dzkbZe czkap /kerjh ls Hkh djk ldrs gS ryk’kh uksfVl ls nksuks dks voxr djk;k x;kA izkIr fd;k 23 / 43 gLrk{kj xokg Sd/- Sd/- Sd/- gLrk{kj ftls uksfVl fn;k x;k Sd/- iqfyl vf/kdkjhß” On the notice (Ex.P-21), the accused/appellant gave their consent to get themselves checked by the police. The contents of consent letter (Ex.P-22) are as under :- Þlgefr i= ge fjadq dqekj firk jes’k izlkn ,oe udqy flag firk gjsjke flag fuoklh fcgkj ds gSA ge viuh ,oe lkeku dkj dh ryk’kh fdlh eftLVsªV vFkok jkti=hr vf/kdkjh ugh djkuk pkgrs gSA vki iqfyl vf/kdkjh jes’k lkgw ls ryk’kh djkuk pkgrs gSA ß gLrk{kj xokg Sd/- Sd/- After giving consent, the accused/appellants were searched vide Search memo (Ex.P-23). The content of Ex.P-23 are as under :- Þfooj.k %& mijksDr lk{kh;ks ds le{k fjadw dqekj izlkn ,oa udqy flag ds lkeku dkj] cnu dh fof/kor ryk’kh fy;k x;k lansgh fjadq dqekj ,oa udqy flag ds cnu] lkeku ,oa buds esg:u dyj dh VkVk ekatk dkj dzekad WB-22-U-0348 dh ryk’kh ij dkj ds ihNs lhV dks gVkus ij fMDdh esa ,d lQsn cksjh esa Hkjk ,oa 27 vU; iWdsV ftls ikyhFkhu esa Hkjdj vPNh rjg ls Vsihax dj iWd fd;k x;k gS j[kk feykA ml cksjh ,oa iWdsVks esa Hkjh lkeku eknd inkFkZ xkatk tSlk gksuk ik;k x;k fMDdh dks xkatk j[kus ds fy, yksgs ds pknj ls osfYMax dj [kkapk cuk;k x;k gSA cnu ,oa lkeku dh ryk’kh iapukek rS;kj fd;k x;k gSA gLrk{kj xokg Sd/- Sd/- 24 / 43 Sd/- gLrk{kj ftlds cnu@lkeku dh ryk’kh fy;k x;k ryk’kh ysus okys iqfyl vf/kdkjhß Sd/- In notice (Ex.P-25) which was given to accused/appellants under Section 91 of Cr.P.C., it is written in ‘B to B’ part as under :- Þgekjs dCts ls cjken dkj es j[ks xkatk dks fcdzh djus] j[kus ,oe ifjogu djus dk dksbZ Hkh nLrkost ugh gS] dkj dza- WB-22-U-0348 iVuk fcgkj fuoklh larks”k flag dk gS rFkk cjken xkatk Hkh mlh dk gSß 22. The investigating officer (PW-8) has admitted in para 26 that he had not seized any document with regard to ownership of the vehicle seized in the crime. The statements of both the accused persons were recorded under Section 313 of Cr.PC., and in question No.43, accused/appellant Rinku Kumar (A-1) answered/taken his defence as under :- ÞeS funksZ”k gwW] eSus xkatk dk ifjogu ugha fd;k gSA tc dzkbZe czkap ds iqfylokys esjs fo:) tcjnLrh >wBk izdj.k cuk jgs Fks rc eSus iqfylokyks dks crk;k Fkk fd eS fi/kys 09 o”kksZ ls ,M~l dh chekjh ls xzflr gwW rFkk esjk bykt Hkh py jgk gS ,oa eq>s fu;fer :i ls nokbZ [kkuh iMrh gSA blds ckn Hkh dzkbZe czkap fd iqfyl okys us esjh ckr ugha ekuhA eSus iqfylokys dks viuh nok Hkh fn[kkbZ mlds ckn Hkh os esjk ckr ugh lqusA orZeku esa Hkh Þ,M~lß dh chekjh dk mipkj esdkgkjk vLirky jk;iqj esa py jgk gS rFkk /kerjh tsy ls efgus esa ,d ckj eq>s bykt gsrq ys tk;k djrk gSA bl izdkj iqfylokys us esjs f[kykQ >wBk izdj.k cuk;k gSA oRkZeku es tks esjk nok py jgk gS mldk uke ÞZLNß gSß 25 / 43 Likewise, in question No.43, accused/appellant Nakul Singh (A-2) answered/taken his defence as under :- ÞeS funksZ”k gwW] eq>s >wBk Qlk;k x;k gSA eSus xkatk dk ifjogu ugha fd;k gSA eq>s rFkk fjadq dks dzkbZe czkap ls fookn gksus ds dkj.k gekjs fo:) >wBk izdj.k rS;kj fd;k gSA ,oa fjadw us viuh ,M~l tSlh xaHkhj fcekjh ls xzflr gksus dh ckr crkbZ mlds ckn Hkh dzkbZe czkap /kerjh ds iqfylokyks us ge yksxksa dh dksbZ ckr ugh lquh rFkk fdlh vU; okgu ls tIr eknd inkFkZ dks gels tIr gksuk n’kkZdj gekjs fo:) >wBk izdj.k rS;kj fd;k gSA bl izdkj eS vkSj fjadw funksZ”k gS gesa >wBk Qalk;k x;k gS ß 23. Hon’ble Apex Court in Vijaysinh (supra) held in para 25, 26 and 27 as under :- “25. As noted above, sub-sections (5) and (6) were inserted in Section 50 by Act 9 of 2001. It is pertinent to note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub-sections viz. when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, etc., or article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases a safeguard against any arbitrary use of power has been provided under sub-section (6). Under the said sub-section, the empowered officer is obliged 26 / 43 to send a copy of the reasons, so recorded, to his immediate official superior within seventy- two hours of the search. In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate. 26. The object and the effect of insertion of sub-sections (5) and (6) were -considered by a Constitution Bench of this Court, of which one of us (D.K. Jain, J.) was a member, in Karnail Singli v. State of Haryana 13. Although in the said decision the Court did observe that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev Singh case is diluted but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away completely. The Court observed: (Karnail Singh case13, SCC p. 553, para 31) "31.... Through this amendment the strict procedural requirement as mandated by Baldev Singlı case was avoided as relaxation and fixing of the reasonable time to send the record to the superior official as well as exercise of Section 100 CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance with Section 50 by Baldev 27 / 43 Singh case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baldev Singh case is diluted." 27. It can, thus, be seen that apart from the fact that in Karnail Singh, the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search, seizure and arrest without warrant or authorisation, the said decision does not depart from the dictum laid down in Baldev Singh case insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in sub-section (1) of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub- 28 / 43 section (6) of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub-section (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial.” 24. Further Hon’ble Apex Court in the matter of Raju (supra) held on para 20 and 22 as under :- “20. The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. Further, if the first question is answered in the affirmative, whether the requirements of Section 50 were strictly complied with by PW 2 and PW 4. 21. xxxx 22. 2. PW 2 conducted search of the bag of the appellant as well as of the appellant's trousers. Therefore, the search conducted by PW 2 was not only of the bag which the appellant was carrying, but also of the appellant's person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW 2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, 29 / 43 the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW 2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a Magistrate. From Ext. 3, it can be discerned that the appellant was informed of his legal right to be searched in the presence of a Magistrate or a gazetted officer. The appellant opted for the latter alternative. Ext. 4 is a record of the events after the arrival of PW 4 on the scene. After the arrival of PW 4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a Magistrate. This was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer, PW 4 inquired of the appellant whether he wished to search PW 2 before his own search was conducted by PW 2. The appellant agreed to search PW 2. Only the personal belongings of PW 2 were found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant's search was conducted, both PW 2 and PW 4 on different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a Magistrate. The options given by both PW 2 and PW 4 30 / 43 were unambiguous. Merely because the appellant was given an option of searching PW 2 before the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the Magistrate, the detainee was given a "third" alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW 2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW 4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW 2 and PW 4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh.” 25. In Bharat Aambale (supra) Hon’ble Apex Court held in para 49 and 50 as under :- “49. However, a close reading of the aforesaid decision reveals that this onus on the prosecution will only encumber once such an issue of non-compliance arises for consideration. Although, we are in complete 31 / 43 agreement with the aforesaid observations inasmuch as it would be for the prosecution to establish and prove compliance of Section 52A of the NDPS Act, yet at the same time, we are of the considered opinion, that mere assertion by the accused that there has been non-compliance of the said provision may not be sufficient. The initial burden will always be on the accused to lay down the foundational facts for establishing that there has been a non-compliance of Section 52A of the NDPS Act, either by leading evidence of their own or by relying upon the evidence of the prosecution itself such as by putting direct and specific questions to the police officers and key witnesses. Such burden on the accused to establish contravention of Section 52A of the NDPS Act will only be on the mere preponderance of probabilities, whereas once the foundational facts are established that raises an issue as regards the non- compliance of Section 52A of the NDPS Act, the onus will entirely be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt. 50. We summarize our final conclusion as under:- 32 / 43 (I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the Immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act. (II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held
Decision
37. For the foregoing reasons, this appeal is allowed and the impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted from the charge under Section 20(b)(ii)(C) of the NDPS Act. The appellants are in jail. They be set at liberty forthwith if no longer required in any other criminal case. 38. Keeping in view the provisions of Section 481 of BNSS 2023, the appellants are directed to furnish a personal bond 43 / 43 for a sum of Rs.25,000/- each before the Court concerned forthwith, which shall be effective for a period fo 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 appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 39. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Rajani Dubey) (Amitendra Kishore Prasad) Judge Judge Digitally signed by pekde VIJAY BHARATRAO PEKDE