Bilaspur (C.G.) v. State Of Chhattisgarh Through The Station House Officer, Police
Case Details
1 2025:CGHC:18089-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1822 of 2024 1 - Saddam Khan S/o Aftab Khan, Aged About 23 Years R/o Hemu Nagar, Near Chandan Paan Shop, P.S.-Torwa, District-Bilaspur (C.G.) 2 - Mohammad Razik S/o Late Mohammad Salim Khan, Aged About 23 Years R/o Chuchuhiyapara, Ganesh Nagar, P.S.-Sirgitti, District-Bilaspur (C.G.) 3 - Sheikh Salman S/o Late Sheikh Habib, Aged About 32 Years R/o Nayapara, Ganesh Nagar, P.S.-Sirgitti, District-Bilaspur (C.G.) ... Appellant(s) versus State Of Chhattisgarh Through The Station House Officer, Police Station-Koni, District-Bilaspur (C.G.) ... Respondent(s) (Cause-title taken from Case Information System) For Petitioner(s) : Mr. Siddhant Tiwari, Advocate For Respondent/State : Mr. Malay Jain, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Arvind Kumar Verma, Judge Judgment on Board 2 Per Ramesh Sinha , Chief Justice 22/04/2025 Proceedings of this matter have been taken through video conferencing. 1. The appellants have preferred this appeal under Section 374(2) of the Cr.P.C questioning the impugned judgment of conviction and order of sentence dated 29.08.2024 passed by the learned Special Judge (NDPS Act), Bilaspur, CG in Special Session (NDPS) Case No.117/2023, by which they have been convicted for offence under Section 21 (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as'NDPS Act') and sentenced them to undergo rigorous imprisonment for 15 years and fine of Rs.1,50,000/- (each), in default of payment of fine to further undergo RI for six months. 2.
Legal Reasoning
Brief facts of the case are that on 03.08.2023, at about 16.25 hrs. after receiving secret information from the informant that the appellants had kept 240 pieces of WIN CEREX-T cough syrup (each 100 ml. Totaling to 24,000 ml.) containing codeine in commercial quantity with them in their vehicle Accent Car No. CG 10 AB 6062. The appellant were having conscious and joint possession without any license. And were proceeding towards Ratanpur from Bilaspur. On the said information, after entering in the rojnamcha sanha, notice Ex.P-1 was served to the independent witnesses through Constable Durgesh Yadav and witnesses Vijay Kumar Tanwani and Kishan Sahu were summoned and a copy of the information was sent to the City Police Superintendent of Police, Sarkanda and since he was busy in his work, on the oral 3 direction the informer information and informer information panchnama Ex.P-2 was prepared in front of the witnesses and search panchanma was prepared without warrant Ex.P-3. Thereafter the Investigating Officer along with the team of Constable Ajay Baare, Head Constable Balbir Singh, Constables Tarun Kesharwani, Sarfaraj Khan, Mahadev Kujur, Ashish Rathore and the above mentioned witnesses, in Government vehicle No. CG 10 AH/6482 with necessary documents and kit, left for the spot ie. in front of Santosh Petrol Pump, Lucky Raja Auto Parts. On reaching the place mentioned by the informant, the area was cordoned off and as per the description given by the informer and at about 12.45 pm the white car bearing CG 10AB/6062 and the three accused persons were caught and interrogated, who told their names as Mohammad Razik, Saddam Khan and Sheikh Salman. The suspects were informed about the informer's information and were given notice Ex.P-4 under Section-50 NDPS Act, on which the suspects gave acceptance for their respective search as per Ex.P-10. Thereafter, the accused were made to search the witnesses, accompanying staff, and their own vehicle one by one. When no suspicious or objectionable item was found with them, then search panchnama Ex.P-4 for witnesses was prepared. Search panchnama Ex.P-11 for police staff was prepared. Thereafter, on search of the vehicle of the suspects two white color plastic bags were kept beneath the seat of appellant No.1 Saddam Khan whereas one blue color plastic bag containing one carton of syrup bottles was found in their possession vide seizure Ex.P-18 which was opened and searched. The seized bags contained Winrex -T COUGH SYRUP and the identification panchnama was prepared. Notice Ex.P- 22 under Section 67 of the NDPS Act was summoned to the suspects 4 and 240 pieces, each of 100 ml in vials with labels containing a substance called Codeine Phosphate which was narcotic drug, due to which recovery panchnama Ex.P-29,30, 31 of the suspects was prepared and the bags recovered from the possession of the accused contained total of 240 psychotropic substance syrups were recovered and recovery panchnama Ex.P.-18 was prepared. After reading the label on the bottles of syrup recovered from the possession of the accused, it was found that a substance called Codeine Phosphate was mixed in it. Thereafter 8 bottles recovered from the possession of accused were separated for sampling and the remaining 232 cough syrup bottle were separated and sealed separately and a seal sample panchnama Ex.P- 27 & 28 was prepared. The syrup was marked as A, B & C and labeled as A-1 and C-1. Thereafter, cough syrup and bags were seized as per Ex.P.-29,30 & 31. The accused were arrested and arrest papers Ex.P.- 36,37 and 38 were prepared respectively. The spot map of the incident was prepared as per Ex.P.-39. The accused and the cough syrup seized from them were brought for physical verification before the Judicial Magistrate First Class and they were attested vide Ex.P-41 and 42. Seized exhibits were sent for chemical examination and as per the FSL report, the seized sample contained Codeine and thereafter dehati nalishi was prepared against the appellants under Sections 21, 22 of the NDPS Act and after returning to police station, where FIR No. 406/2023 was registered against them under Sections 21 and 22 of the NDPS Act and after informing the family members of the appellants, they were arrested on 03.08.2023. In the sequence of investigation, the statements of witnesses were recorded by the Investigating Officer. 5 3. After completion of investigation, charge-sheet was presented before the Court of Special Judge (NDPS Act), Bilaspur (C.G.). On being reading out the charges mentioned in Clause-1 and explaining it to the accused, they denied the above crime. 4. In order to bring home the offence, the prosecution examined as many as 12 witnesses and exhibited 56 documents in support of case of the prosecution. 5. In the trial under section 313 Cr.P.C., the accused denied the facts stated by the prosecution, except for the admitted facts, and pleaded ignorance or innocence, stating that they were falsely implicated and framed. They did not examine any defense witnesses. 6. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 29.08.2024 convicted and sentenced the appellants as aforementioned. Hence, the present appeal. 7.
Legal Reasoning
Contention of the learned counsel for the appellants is that the learned trial Court has committed an error in holding that the quantity of the Narcotic Drugs was a commercial quantity, which in fact was the intermediate quantity. He submits that the prosecution has failed to prove this case beyond reasonable doubt, because two independent seizure witnesses namely Vijay Kumar Tanwani PW-1 and Kishan Sahu PW-2 have not supported the prosecution case and turned hostile. He submits that there was discrepancy in the sampling because there were total three bags containing 240 psychotropic substance syrups and out 6 of which 3-3 bottles each were taken and prepared as A-1, B-1 and C-1 and in the final stage A-1 and B-1 was taken as combined and C-1 is taken and the sealed panchnama was made by the investigating officer and no independent witness was present. He further submits that no special reason has been assigned by the learned trial Court for awarding punishment/sentence of more than 15 years. He relied upon the decisions of the Supreme Court in Sanjeet Kumar Singh @ Munna Kumar Singh v. State of Chhattisgarh reported in (2022) 16 SCC 58 and Rafiq Qureshi v. Narcotic Control Bureau, Eastern Zonal Unit reported in (2019) 6 SCC 492 to prop up his submissions. Hence, the present appeal deserves to be allowed. 8. On the other hand, Mr. Malay Jain, learned Panel Lawyer, appearing for the State/respondent opposed the aforesaid submissions and submits that in view of the Judgment of Hon’ble Supreme Court in the Case of Hira Singh and Another Vs. Union of India and Another reported in (2020) 20 SCC 272, it is apparent that the quantity so seized would fall in the category of commercial quantity. He further submits that though the independent witnesses namely, Vijay Kumar Tanwani PW-1 and Kishan Sahu PW-2 have not remained firm, but they have admitted their signatures in the seizure documents and the entire seizure of contraband has been proved from reliable coherent evidence of Investigating Officer, who effected seizure. It is next submitted that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering the material available on record and evidence adduced by the prosecution has rightly convicted and sentenced the appellants as mentioned above, in which no interference is called for. 7 9. We have heard the learned appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 10. In the instant case, though the independent witnesses, namely, Vijay Kumar Tanwani PW-1 and Kishan Sahu PW-2 have not remained firm, but they have admitted their signatures in the seizure documents and the entire seizure of contraband has been proved from reliable coherent evidence of Investigating Officer-Surendra Tiwari, PW-11, who effected seizure. In this way, the prosecution story regarding the action taken at the spot in the case in hand has not been supported by the panch witnesses. 11. Now, it is worth considering in the case that if the fact of seizure of contraband article has not been proved by the independent witnesses, then whether the evidence of the police witnesses presented by the prosecution can be believed. In this regard, it has been held by the Hon’ble Supreme Court in many judicial precedents that if the evidence of police witnesses is worthy of belief then the accused can be convicted on the basis of their reliable evidence also. Similarly, in the judicial precedent Nathusingh Vs. State of Madhya Pradesh reported in AIR 1973 SC 2783, the Hon’ble Supreme Court has opined that there is no law that the statement of a police office or excise officer cannot be accepted in the absence of support. If the police officer’s single evidence is of such a quality that it cannot be disbelieved, then on the basis of his sole evidence, a conclusion can be drawn about the 8 recovery of something (narcotic substance). In the context of the opinion expressed in the above honorable judicial precedents, it is now to be considered whether as per the evidence in the case, the Investigating Officer has conducted the investigation by following the mandatory and directive provisions of the NDPS Act which is supported by other evidence in the case. 12 At this stage it has to be seen as to whether as per the provision of Section 42(1) of the NDPS Act, the Investigating Officer, Surendra Tiwari Sub Inspector ASI is allowed to investigate or not ? 13. Section 42(1) of the NDPS Act is reproduced hereunder : - “42. Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset, 9 enter into and search any such (a) building,conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector: Provided further that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. 14. A careful perusal of the aforesaid provision would show that under Section 42 only officers mentioned therein and so empowered officers can make the arrest or search as provided if they have reason to believe from personal knowledge or information qua offence(s). In both these provisions there are two important requirements. One is that the Magistrate or the officers mentioned therein firstly be empowered and they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other 10 purposes mentioned in the provision. It has been held in paragraph 11 of State of Punjab v. Balbir Singh (1994) 3 SCC299 as under: - “11. But there are certain other embargoes envisaged under Sections 41 and 42 of the NDPS Act. Only a Magistrate so empowered under Section 41 can issue a warrant for arrest and search where he has reason to believe that an offence under Chapter IV has been committed so on and so forth as mentioned therein. Under sub-section (2) only a Gazetted Officer or other officers mentioned and empowered therein can give an authorization to a subordinate to arrest and search if such officer has reason to believe about the commission of an offence and after reducing the information, if any, into writing. Under Section 42 only officers mentioned therein and so empowered can make the arrest or search as provided if they have reason to believe from personal knowledge or information. In both these provisions there are two important requirements. One is that the Magistrate or the officers mentioned therein firstly be empowered and they must have reason to believe that an offence under Chapter IV has been committed or that such arrest or search was necessary for other purposes mentioned in the provision. So far as the first requirement is concerned, it can be seen that the Legislature intended that only certain Magistrates and certain officers of higher rank and empowered can act to effect the arrest or search. This is a safeguard provided having regard to the deterrent sentences contemplated and with a view that innocent persons are not harassed. Therefore if an arrest or search contemplated under these provisions of NDPS Act has to be carried out, the same can be done only by competent and empowered Magistrates or officers mentioned thereunder.” Furthermore, their Lordships in paragraph 14 have held that whether there was such reason to believe and whether the officer empowered acted in a bona fide manner, depends upon the facts and circumstances of the case and will have a bearing in appreciation of the evidence. 11 15. Even in Baldev Singh’s case (supra), their Lordships of the Constitution Bench of the Supreme Court with regard to Section 42(1) of the NDPS Act have held in paragraphs 9 & 10 as under: - “9. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. 10. The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub- section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or 12 psychotropic substance in a public place where such possession appears to him to be unlawful.” 16. Reverting to the facts of the case, in the instant case, it is undisputed that the investigation of the instant case was done by Surendra Tiwari who was posted as Assistant Sub-Inspector of the Police Station, Koni, District – Bilaspur on the date of incident, as such, we are of the considered view that he is entitled to proceed in the matters falls under the NDPS Act. In the present case, on search of suspects, three bags of psychotropic substance were found in their possession, which was opened and searched and 240 pieces of WIN CEREX-T cough syrup (each 100 ml. Totaling to 24,000 ml.) containing codeine in commercial quantity was found in it in vials with labels which was a narcotic drug, due to which search panchnama Ex.P-14 to 16 of the suspects was prepared. Thus, in the light of Judgment of Hon’ble Supreme Court in the Case of Hira Singh (supra), we are of the considered opinion that the quantity so seized from the possession of the accused/ appellants would fall under the category of commercial quantity. 17. The next point is that in the present case, Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not applicable because it is required to be complied in the case of personal search only with but not in the case of search of vehicle. Moreover the entire search and seizure proceedings have found genuine and the correct procedure have been drawn by the police persons. The independent witnesses have duly supported the prosecution case that when the vehicle was being stopped two persons were found sitting, they 13 disclosed their names, on being checked the said narcotic substance kept in two white color plastic bags beneath the seat of appellant No.1 Saddam Khan whereas one blue color plastic bag containing one carton of syrup bottles was kept beneath the backseat was found in their possession from the vehicle and seizure Ex.P-17,8 & 9 was made. The appellants were not able to impute any palpable to make good their case that there has been non-compliance of any mandatory provisions of the NDPS Act. 18. Delving into the question of compliance of Section 42(2) of the NDPS Act 1985, from the statement of Surendra Tiwari, IO (PW-11) with respect to receiving secret information from the informant and conveying it to his superior officer stands established by consistent testimonies as he had sent the same through Constable Durgesh Yadav to the City Police Superintendent of Police, Sarkanda. The investigating officer had seized the pyschotropic substance from the vehicle of the appellants and recovery panchnama was prepared vide Ex.P-18. The said substance was kept in two white color plastic bags in a carton beneath the front seat whereas one carton kept in a blue color plastic bag which was kept in the backseat was also found with syrup and recovery panchnama was made vide Ex.P-19 and seizure of 240 pieces of WIN CEREX-T cough syrup (each 100 ml. Totaling to 24,000 ml.) containing codeine in commercial quantity was made from the accused/appellants. The investigating Officer has stated that after following due procedure, arrested the accused persons vide arrest memo Ex.P36, 37 & 38 and their arrest have been informed to their family members vide intimation Ex.P/89, Ex.P-90, and Ex.P-91. 14 19. 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 Surendra Tiwari (PW-11) and in the light of Judgment of Hon’ble Supreme Court in the Case of Hira Singh (supra), we are of the considered opinion that the prosecution has proved its case beyond reasonable doubt. There is no material available on record so as to arrive at finding that the accused/appellants have been falsely implicated in the case. The judgment passed by learned trial Court is quite detailed judgment which has dealt with every aspect of the matter and the analysis made therein clearly proves that the appellants have committed the offence in question. 20. The FSL report Ex.-P105 further proves that the sampling was done from the total quantity of the psychotropic substance seized and it was found to be contained with contents of Codeine phosphate which further corroborates the allegation against the appellants. 21.
Decision
In view of the above discussion, this Court is of the considered opinion that the judgment passed by learned trial Court is based on proper appreciation of evidence which is neither perverse nor contrary to the record as well as law laid down by the Hon'ble Supreme Court and the same needs no interference as such the judgment of conviction and order of sentence awarded to the appellants is hereby affirmed. 22. In the result, the appeal filed by the appellants is hereby dismissed. The appellants are reported to be in jail. They shall serve the 15 remaining period of jail sentence as has been awarded to them by the learned trial Court. 23. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 24. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Arvind Kumar Verma) Judge (Ramesh Sinha) Chief Justice SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.04.24 15:34:25 +0530