State Of Chhattisgarh Vs Kishore Mahanand

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Digitally Chhawani, District Durg, Chhattisgarh. ... Appellant signed by ALLENA ANJANI

KUMAR versus Date: 2025.12.11 14:10:34 +0530 Kishore Mahanand S/o Jaldhar Mahanand Aged About 22 Years R/o Sector5, Street 40, Qrt. 7 A, Bhilai, P.S. Bhilai Nagar, District Durg, Chhattisgarh.

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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ACQA No. 58 of 2016

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State Of Chhattisgarh Aged About 18 Years Through Police Station Chhawani, District Durg, Chhattisgarh. ... Appellant

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... Respondent

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For Appellant : Shri Atanu Ghosh, Deputy Government Advocate. For Respondent : __

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(HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

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Judgment on Board

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08/12/2025

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Heard on admission.

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This Acquittal Appeal filed by the appellant / State under Section 378(1) of the Cr.P.C. arises out of the judgment dated 23.01.2016 passed by the Special Judge (N.D.P.S. Act), Durg (C.G.) in NDPS Case No. 02/2015, whereby the learned trial trial Court acquitted the respondent herein of the charge under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘NDPS Act’) by giving benefit of doubt.

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Case of the prosecution, in brief, is that on 26.12.2014 P.W.7 Alexandar Kirro, Police Inspector of Police Station Chhawni received information

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from the informant that the accused/respondent was involved in carrying brown sugar illegally, which was reduced in writing in Roznamchasanha vide Ex.P.24-C. Thereafter, he along with two independent witnesses, namely, Shekhar Pandey (Ex.P.5) and Nazir Ahmed (P.W.4) and staff, rushed to the spot at 03.10 pm and caught the accused/respondent and issued notice (Ex.P.10) under Section 50 of the NDPS Act to him and after search proceedings, they found total 90 packets of white coloured paper wrapped in a plastic membrane which were kept in the left pocket of his pants and thereafter the substance was found to be brown sugar, which was seized vide recovery panchanama Ex.P.16. Thereafter, P.W.7 got the 90 paper packets weighed and it found to be total 8.5 grams and after that, he weighed the brown sugar and found to be 6 grams 5 milligrams whereas empty paper packets were found to be 2 grams and then Samaras Panchanama vide Ex.P.18 was prepared. He then prepared seizure memo vide Ex.P.19. After completing all formalities, the accused was arrested by the Police and after reaching to the Police Station, F.I.R. against the respondent was lodged under crime No.738/2014. The seized items were deposited in the Thana Malkhana. The seized substance was sent to F.S.L., Raipur and the F.S.L. report is Ex.P.38, according to which, the seized substance was found to be Diacetylmorphine.

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After completion of investigation, charge sheet was filed against the accused/respondent before the Special judge under NDPS Act, Durg. The respondent abjured the guilt and claimed trial.

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In order to bring home the offence, the prosecution examined as many as 7 witnesses and exhibited 38 documents in support of case of the

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prosecution. Statement of accused/respondent was recorded under Section 313 of Cr.P.C. In his defence, the respondent examined one witness, namely Sudhir Jain as D.W.1 and exhibited no documents.

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After appreciation of evidence, oral as well as documentary, the learned trial Court acquitted the respondent of the charge by giving benefit of doubt, as mentioned in opening paragraph.

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Learned counsel for the appellant/State submits that the trial Court is unjustified in acquitting the accused/respondent herein of the said charge by recording perverse findings. He further submits that there is cogent and clinching evidence available on record, more particularly, the evidence of P.W.7 Alexander Kirro, Police Inspector and also the evidence of independent witnesses, namely, Nazir Ahmed (P.W.4) and Shekhar Pandey (P.W.5), who admitted their signatures over seizure memo, which is sufficient to connect the accused/respondent with the offence alleged against him. He also submits that the learned trial Court has committed grave error in acquitting the accused/respondent without appreciating the evidence on record in its true perspective. Thus, the impugned judgment of acquittal suffers from perversity and illegality, therefore, the same is liable to be set aside.

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I have heard learned counsel for the appellant/State and perused the record with utmost circumspection.

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The Supreme Court in the matter of Jafarudheen and others vs. State of Kerala reported in (2022) 8 SCC 440 has considered the scope of interference in Appeal against acquittal in judgment at para 25, which reads as under:-

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While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be terms as a

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possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

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As regards involvement of the respondent in the crime in question, P.W.7 Alexander Kirro deposed in his examination-in-chief that on 26.12.2014, he received the information of informant that the respondent was illegally trying to sell the brown sugar at Shastri Market and after receipt of such information, he rushed to the spot along with staff and witnesses, namely, Nazir Ahmed (P.W.4) and Shekhar Pandey (P.W.5) and caught the respondent/accused and told him about the information with respect to brown sugar, which he possessed. For the search, a notice was given under Section 50 of the NDPS Act and after thorough search, found total 90 packets of white coloured paper wrapped in a plastic membrane which were kept in the left pocket of his pant and thereafter the same were opened and found it to be brown sugar, which was recovered vide panchanama Ex.P.16. Thereafter, the seized substance was weighed and the total weight was found to be 8 grams 5 mg and the empty sample packet contains 2 grams and thereafter he sealed the seized articles and carried out the recovery Panchanama vide Ex.P.16 and then made Samaras Panchanama vide Ex.P.18. He then prepared seizure memo vide Ex.P.19. He further deposed that after the above formalities were completed, returned to the Police Station and F.I.R. bearing crime No.738/2014 against the respondent was lodged.

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In his cross-examination, he admitted that the accused/respondent was not informed under Section 50 of the NDPS Act that he has right to be searched before a gazetted officer of Magistrate and further admitted that during search proceedings no independent witness was present nor does bear the signatures of the accompanied staff in the Ex.P.13 (search panchnama). It appears that no strict compliance has been followed by him while issuing notice to the respondent/accused under Section 50 of the NDPS Act and would also reveal that P.W.7 Alexander Kirro merely provided him with the option to conduct a search and did not inform him of his right, It also revealed that apart from the memo dated 29.12.2014 (Ex.P.3) of Superintendent of Police, no other documents including seizure memo, Thana Malkhana Register, etc., state that the seized articles were marked with ‘A and B’.

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On perusal of Thana Malkhana register, marked as Ex.P.1C, it is clear that nowhere it is mentioned that on which date the seized sealed packet was given to constable Krishna Singh for its examination to F.S.L., Raipur. In column 12 of Ex.P.1-C, an entry was made in this regard showing the receipt of deposit of article vide Ex.P.2, but a perusal of receipt would reveal that seized article was deposited in the F.S.L. on 30.12.2014 whereas the relevant page of Thana Malkhana Register (Ex.P.1-C) would not show on which date the seized brown sugar was taken out and that, on 29.12.2014, the memo (Ex.P.3) was prepared. Thus, the memo (Ex.P.3) was prepared on 29.12.2014, but the same was alleged to have been deposited in F.S.L. on 30.12.2014, which raises the doubt as to who was in possession of the seized packet between 29.12.2014 and 30.12.2014 and that there is no entry in this regard that on which date the seized packet was sent for F.S.L.

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thus, it cannot be said that sample packet would be tampered with. Moreover, the independent witnesses, namely, Nazir Ahmed (P.W.4) and Shekhar Pandey (P.W.5) and P.W.3 Shivbhavan Soni, weighing witness and also other independent witnesses have also turned hostile as they did not support the prosecution case.

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If the case of the prosecution is taken as it is, then it can safely be inferred that the prosecution has not been able to prove its case beyond reasonable doubt.

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The learned trial Court has elaborately discussed the evidence led by the prosecution and after analyzing the entire evidence has come to the conclusion that the prosecution has failed to prove the charge levelled against the respondent beyond reasonable doubt, as such, acquitted the accused/respondent of the said charge levelled against him.

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After considering the material available on record as well as the elaborate judgment impugned passed by the trial Court, I am of the considered opinion that the judgment impugned acquitting the accused/respondent herein of the charge under Section 21 (b) of the NDPS Act is just and proper and does not call for any interference.

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Accordingly, this acquittal appeal by the appellant/State against the acquittal of the accused/respondent is hereby dismissed at the admission stage.

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Sd/-

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(Radhakishan Agrawal) JUDGE

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Anjani

State Of Chhattisgarh v. Kishore Mahanand

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State Of Chhattisgarh v. Kishore Mahanand

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