Sumer Singh Vs State of Chhattisgarh

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2025:CGHC:33700-DB

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on: 22.04.2025 Judgment delivered on: 17.07.2025

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CRA No. 1018 of 2019

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1 - Sumer Singh, S/o Pitambar Singh, Aged About 42 Years, R/o Bagpat, Police Station- Baraud, District- Bagpat Uttar Pradesh, At Present R/o Palan Colony, Shadnagar, Delhi.

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2- Gagan Kumar Jha, S/o Ugres Jha, Aged About 25 Years, R/o Shivdatpur, Police Station- Sakri, Madhubani (Bihar), At Present Address Inderpur, Delhi.

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... Appellants

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versus

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1 - State of Chhattisgarh Through the Station House Officer, Police StationGandhinagar, District Surguja Chhattisgarh.

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... Respondent

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For Appellants	:Ms. Sofia Khan with Ms. Anju Ahuja, Advocates
For Respondent(s)/ State	:Mr. Anurag Tripathi, P.L.

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Hon'ble Smt. Justice Rajani Dubey

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Hon’ble Shri Justice Sachin Singh Rajput

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CAV Judgment

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Per Rajani Dubey, Judge

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1 . This appeal under Section 374(2) of Cr.P.C. has been filed by the appellant against the judgment of conviction and order of sentence dated 15.04.2019 passed by learned Special Judge (NDPS Act), Surguja, Ambikapur (C.G.) in Special Criminal (NDPS) Case No.11/2017 whereby, the trial Court convicted the appellants and sentenced them as under:-

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Conviction	Sentence
U/s 20 (ii) (C) of Narcotic	Rigorous imprisonment for 15 years and
Psychotropic Substances Act	fine of Rs.1,50,000/- in default of
	payment of fine amount, to undergo
	additional RI for 3 years

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2 . Case of the prosecution, is that the investigating officer- Pushpendra Singh Baghel was posted as trainee Deputy Superintendent of Police at Police Station- Gandhinagar. On 04.01.2017, information was received from an informer that both the appellants were going towards Banaras in a Honda City Car bearing Registration No. CG-04 AH 2341 from Bilaspur. On the basis of said information, informant information was registered as per Ex.P/4 and sent the information to CSP Ambikapur. On reaching Banaras Road Gandhinagar, the said vehicle was stopped and the driver Sumer Singh and Gagan Kumar Jha were searched. Thereafter, notice under Section 50 of the NDPS Act was served vide Ex.P/9 to the appellants. The suspects were told that an information has been received from the informer that they are keeping ganja and hence their vehicle has to be searched. They can get

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themselves and their vehicle searched by any magistrate or gazetted police officer. The suspects gave their consent for their search as per Ex.P/10. Thereafter, the witnesses were searched by the accused in which no objectionable item was found from them. Search panchnama of witnesses was prepared vide Ex.P./11 and in front of the said witnesses, the entire accompanying police staff and the investigating officer were searched by the accused in which no objectionable item was found from them either, due to which search panchnama of police staff was prepared vide Ex.P/12 and search panchnama of the officer who conducted the search was prepared vide Ex.P/13. Thereafter, when the accompanying police staff searched the suspects and the vehicle in their possession, 20 packets of narcotic substance were found in the rear trunk of the said vehicle. Thereafter, vehicle search panchnama was prepared vide Ex.P/14 and the seized narcotic substance was recovered from the trunk of the said vehicle and recovery panchnama was prepared vide Ex.P/15 and after recovery, opening the packets, smelling and burning a small quantity and identifying it as ganja, identification panchnama of the narcotic substance was prepared vide Ex.P/16. Notice (Ex.P/1) was given to Vishal Soni for weighing the narcotic substance ganja recovered from the possession of the accused. After physically verifying the weighing scale and finding it to be correct, the physical verification of the weighing panchnama was prepared vide Ex.P/2. The drugs recovered from the accused were given to weigher Vishal Soni for weighing. On weighing, the total weight of the drugs including polythene was found to be 161.800 kg and the weight of ganja without polythene was found to be 160.00 kg. Weighing panchnama was prepared vide Ex.P/3 and

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twenty sample packets of 100-100 grams were separated from each packet of ganja and a sealed sample panchnama was prepared vide Ex.P/19 and the twenty packets of ganja seized from the accused, sample packets prepared from it and the vehicle Honda City Car No. CG-04 AH 2341 were seized and, thereafter seizure memo was prepared vide Ex.P/18. The accused were arrested and arrest memo were prepared vide Ex.P/20 and P/21 respectively and the accused were informed about the reasons for arrest as per Ex.P/22. Spot map was prepared vide Ex.P./35. The sealed packets, sample packets of the seized drug, the seized vehicle and the accused were brought back to the police station and twenty sealed sample packets of seized drug ganja and twenty sealed packets and the vehicle CG-04 AH 2341 were handed over to the store in-charge for safekeeping. The first information report (Ex.P/38) was registered against the accused/appellants. After completion of investigation, the charge-sheet was filed before the trial Court for the offence punishable under Section 20 (b)(ii)(C) of the NDPS Act against the appellants followed by framing of charge, to which they abjured their guilt and claimed to be tried.

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3 . So as to hold the accused/appellants guilty, the prosecution examined as many as 09 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, they did not adduce any evidence in their defence.

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4 . Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 15.04.2019 finding

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evidence adduced by the prosecution trustworthy, convicted and sentenced them as mentioned in para 1 of this judgment. Hence, this appeal.

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5 . Learned counsel for the appellants submits that the impugned judgment is perverse, erroneous, contrary to law, facts and circumstances of the case, therefore, it is liable to be set aside. The learned trial Court has failed to appreciate that the independent seizure witnesses have not supported the case of prosecution and they turned hostile. The learned trial Court has failed to appreciate that there are major contradictions and omissions in the statement of Investigating Officer, which cannot be relied upon. The prosecution agency has unable to prove about safe keeping of seized article in Malkhana, therefore, the entire case of prosecution being vitiated, is unbelievable. The learned trial Court failed to appreciate that before the search of the accused were made, they were not given any option as to whether they desired to be searched in the presence of a Gazetted Officer or a Magistrate as envisaged by Section 50 of NDPS Act. In this case, the mandatory provisions of Sections, 42, 50 of NDPS Act and Standing Order No. 1/89 are not complied with by the police officials. The prosecution has utterly failed to prove its case beyond reasonable doubt against the appellants, even then the learned trial Court has held the appellants guilty of the above offence. Therefore, the impugned judgment is liable to be set aside.

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Reliance has been placed on this Court’s order dated 24.02.2023 passed in MCRC No. 10104 of 2022 in the matter of Manish Kumar Agrawal Vs. State of Chhattisgarh, judgment dated 03.07.2024

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passed in CRA No. 1697 of 2018 in the matter of Hemant Singh and another Vs. State of Chhattisgarh, judgment dated 26.06.2024 passed in CRA No. 808 of 2023 & other connected appeals in the matter of Chandrashekhar Shivhare and another Vs. Intelligence Officer, judgment dated 04.05.2022 passed in CRA No. 501 of 2014 in the matter of Dhansai Vs. State of Chhattisgarh and judgment dated 21.07.2022 passed in CRA No. 199 of 2019 & another connected appeal in the matter of Chandrabhan Yadav Vs. State of Chhattisgarh.

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6 . On the other hand, learned counsel for the State supporting the impugned judgment submits that the investigating officer at the time of effective search and seizure proceedings has substantially complied with all the mandatory provisions of the NDPS Act. Learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellants which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed.

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Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Ranjan Kumar Chadha Vs. State of Himachal Pradesh reported in 2023 SCC OnLine SC 1262.

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7 . Heard learned counsel for the parties and perused the material placed on record including the impugned judgment.

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8 . It is clear from record of learned trial Court that the learned trial Court framed charges under Section 20(ii)(C) of the NDPS Act on this ground that on the date of incident, accused/appellants were found in illegal

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possession of 1.60kg of contraband ganja. Prosecution has examined 9 witnesses and exhibited 50 documents in support of its case.

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9 . Vishal Soni (P.W.-1) stated that he was called to Police StationGandhinagar where he took his weighing scale with him. He weighed 20 packets of ganja, which was about one quintal sixty kilograms. From the said packets, 100-100 grams of sample ganja was weighed separately. He admitted his signature from A to A part on notice (Ex.P/1), physical verification panchnama of weighing scale (Ex.P/2) and intoxicant weighing panchnama (Ex.P/3).

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He did not identify the accused persons, therefore, the prosecution declared him hostile and cross-examined him, then he admitted this suggestion of prosecution that total weight of ganja including plastic was 1.61 kg and without plastic it was 1.60 kg.

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10. Rajesh Pathak (P.W.-3) stated that on 04.01.2017, ganja was seized from the car of the accused persons. He admitted his signature from A to A part on notice (Ex.P/8), search notice (Ex.P/9), consent panchnama for search of accused (Ex.P/10), search panchnama of witnesses (Ex.P/11), search panchnama of police staff (Ex.P/12), search panchnama of police officer (Ex.P/13), search panchnama for suspect and vehicle (Ex.P/14), Recovery panchnama of Narcotics (Ex.P/15), identification panchnama of Narcotics (Ex.P/16), Samras Panchnama (Ex.P/17), Seizure Memo (Ex.P/18), Panchnama of seal sample (Ex.P/19), Arrest memo (Ex.P/20 and 21), Arrest information (Ex.P/22). Prosecution declared him hostile and cross-examined him then he admitted this suggestion of prosecution that on 04.01.2017, the police has given him a notice to join the verification proceedings as per

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Ex.P/8. He further stated that the checking of vehicles of the accused persons was done in front of him. Accused- Sumer Singh was sitting in the said vehicle and accused- Gagan Jha was driving the said vehicle.

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In his cross-examination, he stated that at about 10:00 a.m., he received information over phone about seizure of ganja. The time of seizure of ganja was about 8-9.00 p.m.

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In para 8 of his cross-examination, he stated that when he reached police station, at that time, the vehicle was inside the police station. The police opened the trunk of the car and took out the packets of ganja in front of him.

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Further, in para 10, he stated that even a day before the above proceeding, when he had gone to the police station for some work, the police stopped the vehicle of the accused persons and searched it at about 8.00 p.m. The next day, at about 10.00 a.m., his signature was taken at the police station. The seized vehicle was seized at about 8- 9.00 p.m. however, he did not remember the date of that day when the seized vehicle was seized but he signed the documents at about 10.00 a.m. the next day.

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11. Another independent witness namely Digvijay Singh was not examined by the prosecution.

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12. Shailesh Tiwari (P.W.-2) stated that he was posted as constable in the office of Superintendent of Police, Ambikapur. On 04.01.2017, Constable- Vikas Sinha of police station- Gandhinagar brought two copies of the informer information panchnama and information about going to verify the information without obtaining search warrant to the

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office of City Superintendent of police. The City Superintendent of Police was not present in the office at that time. Therefore, he received copies of both the letters and gave acknowledgment vide Ex.P/4 and P/5 respectively. On 05.01.2017, the same constable came to the City Superintendent of Police office with two copies of the detailed description of the entire proceedings in the case, he received the same and gave acknowledgment vide Ex.P/6.

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13. Constable- Vikas Sinha (P.W.-7) stated that on 04.01.2017, he was a member of trap party. Trainee DSP Pushpendra Baghel had given him a report in an envelope to inform the CSP office Ambikapur and he gave the same to reader of the CSP office and receive its acknowledgment vide Ex.P/4 and P/5. During cordon, a black honda city car was stopped and checked. He admitted his signature on Ex.P/15 and Ex.P/29.

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14. Pushpendra Singh Baghel (P.W.-8) stated that on 04.01.2017, he received information from an informer that a black Honda City car bearing number CG 04 AH 2341 was being used for illegal transportation of narcotic substance ganja to Banaras for sale via Bilaspur road. The information received from the informer was entered by him in the daily diary bearing Sanha No. 43 dated 04.01.2017. The said original Sanha is Ex.P./30, and its true copy enclosed in the case is Ex.P./30C. To verify the informer information, Constable No. 139 Vikas Sinha was sent to summon witnesses to prepare the informer panchnama, whose entry has been made in Sanha No. 44, which is Ex.P./31, and its true copy enclosed in the case is Ex.P./31C. Thereafter, Constable No. 139 served notice to two witnesses namely

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Rajesh Pathak and Digvijay Singh and brought to the police station, whose entry has been made in FIR No. 45, which is Ex.P/32, its true copy is attached in the case as Ex.P/32C.

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He admitted his signature from B to B part of the notice (Ex.P/8) issued to witness Rajesh Pathak. The notice issued in the name of witness Digvijay Singh is Ex.P/33 and admitted his signature on it from A to A part. The witnesses were informed about the informer information and a panchnama was prepared. He admitted his signature from C to C part of the informer information panchnama (Ex.P/4). He admitted his signature from A to A part of notice (Ex.P/5) issued under Section 42(2) of NDPS Act. He stated that as to how he stopped the vehicle and gave notice to accused persons and during search, he recovered contraband. Thereafter, he prepared sample packets and conducted other proceedings.

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15. Jabloon Kujur (P.W.-5) stated that he was posted as Head Constable at police Station- Gandhinagar. On 04.01.2017, he kept the contraband in the malkhana and made its entry in the original malkhana register vide Ex.P/26. Copy of register is Ex.P/26C and he gave acknowledgment of keeping the ganja in malkhana vide Ex.P/27. On 06.01.2017, the said sample packets were sent for FSL.

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In his cross-examination, he admitted that he did not mention that 20 packets were sealed. Further, he admitted that on 06.01.2017, in the Malkhana Register (Ex./26), there is a mention in red ink about taking out the contraband for F.S.L. but in the said register, there is no mention about as to how many packets were taken out. On

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25.01.2017, 20 packets of tested sample contraband which was sent for FSL, were called back and the same is mentioned in Ex.P/26.

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16. Main objection of the appellant is that the mandatory provisions of NDPS Act were not complied with by the prosecution. Investigating Officer did not comply with the provisions contained under Sections 42, 52A of NDPS Act and Standing Order No. 1/89.

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17. It is clear from record that informer memo was prepared under Section 42 (2) of NDPS Act vide Ex.P/4 wherein the date was mentioned as 04.01.2017 and time as 19:45.

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18. Ex.P/5 is notice of departure for verification of information under Section 42(2) of NDPS Act. In the said document, there is no mention about the time as to on what time the contraband was received in SSP office. Ex.P/9 is notice for consent to search the accused under Section 50 of NDPS Act.

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19. In his cross-examination, Pushpendra Singh Baghel (P.W.-8) admitted that, “21………….सा�क्षी�सा�यहप्रश्नकि�य�जा�न�परकि�प्र०प�०-9 में�वकि��त�सा�� भा�गकि�सान�लि�खा�ह�, इसापरसा�क्षी��हन�ह�कि�आर�प�सा में�रलिसा!ह��द्वा�र�लि�खा�गय� ह�।

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यह�हन�ग�तह�कि�प्र०प�०-9 ��सा��भा�गएव! खासा�खाभा�ग��ए�ह� व्यकि& द्वा�र�ए�ह��मेंसा�लि�खा�गय�ह�।यह�हन�साह�ह�कि�प्र०प�०-9 परसासा�सा भा�ग��हस्त�क्षीरएव! दसा�दभा�ग��हस्त�क्षीरअ�गअ�गव्यकि&य* द्वा�र�कि�य�गय�ह�।यह �हन�साह�ह�कि�प्र०प�०-9 ��दस्त�व�जामें�ईसा�ईभा�ग��ह�थसा�लि�खा�गय�ह�।यह �हन�ग�तह�कि�में-न�सा�द��गजापरआर�प�सा में�रलिसा!हएव! गगन� में�रझा��हस्त�क्षीर � � रबा�दमें�अन्यबा�त* ��खाबाद्धकि�य�ह�।सा�क्षी�सा�यहप्रश्नकि�य�जा�न�परकि�उ& व�हन��में�लि��3नथ�, इसापरसा�क्षी��हन�ह�कि�घटन��सामेंयउ& व�हन�� में�लि��3नथ�, में झा�नह6 में��7मेंथ�. कि�न्त उ& व�हनमें�द�न* आर�प�ग�में3जा7दथ�।यह

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�हन�ग�तह�कि�प्र०प�०-9 में�स्वय! एव! व�हन�8 त��शी��न��8 साहमेंकित�8 बा�तद�न* आर�प�ग�न�लि�खा�ह�. क्यकि�उसा�बा�दमें�जा�ड़ा�गय�ह�।इसा��पश्चा�त= में�न�सा�किक्षीय, स्वय! तथ�हमेंर�हस्ट�फ�8 त��शी�आर�प�ग�सा��र�य�थ�।यह�हन�ग�तह�कि�सा�किक्षीय* �� त��शी�प!चान�में�प्र०प�०-11 ��में�न�फजा? तर��सा�त�य�रकि�य�ह�।यह�हन�ग�तह�कि� प लि�साअलि@��रिरय* ��त��शी�प!चान�में�फजा? तर��सा�बा�दमें�थ�न�में�त�य�रकि�य�ह�।यह �हन�ग�तह�कि�स्वय! ��त��शी�प!चान�में�फजा? तर��सा�बा�दमें�थ�न�में�त�य�रकि�य�ह�।"

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20. It is clear from Ex.P/9 that it is a typed form which was filled up by blue ink and black ink. It is clear from original record that the A to A part and B to B part which are the consent of both the accused persons, have been written in blue ink and C to C part and D to D part is signature of both the accused persons whereas the E to E part was added by black ink which reads as under:-

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" ईसा�थह�सा!द�किहय* ��बात�य�गय�कि�यकिदव�अपन�त��शी�में झासा��र�न�

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चा�हत�ह�त�लि�लिखातसाहमेंकितद�व�।ई"

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21. Investigating Officer – Pushpendra Singh Baghel (P.W.-8) admitted this suggestion of defence that on Ex.P.-9, the signatures from C to C and from D to D parts have been made by different persons. However, he denied this suggestion that the E to E part was added after signing the document.

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22. Upon perusal of the record, it is clearly visible that E to E part was added after signing the document.

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23. It is evident from the record that the date and time mentioned in Ex.P/4 is 04.01.2017 and 19:45 respectively.

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24. Relevant portion of Rojnamchasanha (Ex.P/30C), Ex.P/31C and Ex.P/32C reads as under:-

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सा�. क्र.	रिरप�ट�	सामेंय	किववर�
43.	रिरप�ट� प्र�प्त सा7चान� में खाकिबार �� में�ध्यमें सा� अव�@ रूप सा� ह�ण्डा� लिसाट� ��र क्र. CG04 AH 2341में� ग�!जा� ��डा �र आन� �8	19/45	बाजा� में� सा7चान� में झा उप प लि�साअ@�क्षी�(P)प ष्प�न्द्र लिसा!हबाघ थ�न�प्रभा�र� ग�!@�नगरसा�ह�कि� जारिरय� में खाकिबारसा7चान�प्र�प्तहJईकि� ह�ण्डा�लिसाट��र!ग�� ��र CG04AH 02341 किबा��साप र�8 ओरसा�आ रह�ह�वबान�रसा�8 ओर जा�न�व��ह�कि�सा7चान�पर सा7चान�प!चान�में�पLथ�सा� त�य�रकि�य�जा�त�सा7चान� र�जान�मेंचा�आमेंमें�दजा��8 गई।
44.	रव�न� आर. 139सा�किक्षीय* �� त�बा �रन� ह�त	20/00	बाजा� में� सा7चान� उप प लि�सा अ@�क्षी�(P)प ष्प�न्द्र लिसा!ह बाघ� सा� ह� कि� प7व� सा�न्ह� ह�लिसाय� में� प्र�प्त में खाकिबार सा7चान� प!चान�में� त�य�र �रन� ह�त तथ� ��य�व�ह� में� साहय�ग �रन� उपस्थिस्थकित बा�वत थ�न� �� आसाप�सा �� द� सा�किक्षीय* �� त�बा �रन� ह�त आर०139 किव��सा
			लिसान्ह� �� रव�न� कि�य� गय�

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			रव�नग� दर्ज़� ह�।
45.	व�पसा� आर.139सा�किक्षीय* �� त�बा �र	20/20	बाजा� में� सा7चान� उप प लि�सा अ@�क्षी�(P)प ष्प�न्द्र लिसा!ह
			बाघ� सा� ह� कि� प7व� सा�न्ह� हलिसाय� में� प्र�प्त में खाकिवर कि�
			सा7चान� �� प!चान�में� त�य�र �रन� ह�त तथ� ��य�व�ह� में� साहय�ग �रन� उपस्थिस्थकित
			बा�वत थ�न� �� आसाप�सा �� द� सा�किक्षीय* �� त�बा �रन�
			ह�त आर०139 किव��सा
			लिसान्ह� �� रव�न� कि�य� गय�
			थ� जा� इसा सामेंय थ�न� ��
			आसाप�सा सा� द� गव�ह(1)
			र�जा�शी प�ठ�S /oअजा �न
			प�ठ�(2)किदलिPवजाय लिसा!ह
			S /oस्व.हर�हर किनव�सा�
			ग�!@�नगर �� न�किटसा तकिमें�
			�र सा�थ ��र आय� आर.
			कि� व�पसा� दजा� ह-।

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25. It is clear from Ex.P/4, Ex.P/31C and Ex.P/32C that the name of both

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the witnesses were written in Ex.P/4 at 19:45 and as per Sanha, both the witnesses reached at police Station at 20:20.

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26. Investigating Officer- Pushpendra Singh Baghel (P.W.-8) admitted in para 17 that “में-न�आरक्षी��द�गव�ह* ��बा ��य�जा�न�बा�बात= भा�जा�थ�, में झा�जा�न��र� नह6 ह�कि�सा�क्षी�ग��ह�Q रहत�ह- औरउन्ह��ह�Q सा�आरक्षी�� रआय�थ�।यह�हन�

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साह�ह�कि�आरक्षी� 20 किमेंनटबा�दसा�क्षी�ग�� रथ�न�में�उपस्थिस्थतहJआथ�।यह �हन�साह�ह�कि�में खाबा�रसा7चान�प!चान�में�प्र०प�०-4 परसा�क्षी�ग��हस्त�क्षीरह-, उसा�में�र� द्वा�र�किद० 04.01.17 ��सामेंय 19.45 बाजा�त�य�रकि�य�गय�ह�।सा�क्षी�सा�यहप्रश्नकि�य� जा�न�परकि�प्र�र�में�प्रस्त तसा�न्ह�न० 45 में�दजा�अन सा�रगव�हर�जा�शीप�ठ�एव! किदलिPवजाय��आरक्षी�न० 139 द्वा�र�अपन�सा�थथ�न�में�उपस्थिस्थत�रन��उल्ले�खाह�और सामेंय 20:20 बाजा�अ!कि�तह�, जाबाकि�आप��द्वा�र�प्रस्त तमें खाबा�रसा7चान�प!चान�में�प्र०प�०-4 सामेंय 19:45 बाजा�त�य�र�रन��खाकि�य�गय�ह�, लिजासापरसा�क्षी�ग��भा�हस्त�क्षीरह�, इसा ” परसा�क्षी��हन�ह�कि�हस्तलि�किपत्रु किट��र�ऐसा�लि�खा�गय�ह�।

¶84

27. Rajesh Pathak (P.W.-3) who has admitted his signature on search and seizure, also stated that he was present at that time of search and seizure but he stated that vehicle was stopped by the police party on 04.01.2017 at about 8-9:00 p.m. and he signed all documents the next day at about 10:00 a.m.

¶85

In para 8, he also stated that when he reached the police station where the vehicle was already there and in front of him, the police opened the trunk of the said vehicle and took out the packets of ganja.

¶86

28. Pushpendra Singh Baghel (P.W.-8) also stated that he mixed all sample packets and prepared Samrash Panchnama vide Ex.P/17.

¶87

29. Vide judgment dated 03.07.2024 passed in CRA No. 1697 of 2018 in the matter of Hemant Singh and another vs. State of Chhattisgarh , this Court held in paras 15 and 16 as under:-

¶88

“15. Though no procedure is prescribed either in the N.D.P.S. Act or in the N.D.P.S. Rules regarding the manner in which the samples are to be drawn but a Standing Order 1/89 has been issued by the Central Government in this regard, wherein general procedures for sampling, storage etc, have been given which reads as under:-

¶89

16

¶90

“2.1. All drug shall be properly classified, carefully weighed and sampled on the spot of seizure.

¶91

2.2. All the packages/containers shall be serially numbered and kept in lots for sampling Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this Neutral Citation 2024:CGHC:23608-DB effect should invariably be made in the panchanama drawn on the spot.

¶92

2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 tams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

¶93

2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.

¶94

2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating

¶95

17

¶96

that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each soch lot of packages/containers, one sample (in duplicate) may be drawn.

¶97

2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

¶98

2.7. If such remainder is & or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

¶99

2.8. While drawing one sample (in duplicate) from a particular lot, it must he ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

¶100

2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample

¶101

18

¶102

has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also he sealed and marked "Secret Drug sample/Test memo", to be sent to the chemical laboratory concerned."

¶103

From perusal of Instruction 2.4, it is evident that it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container Instruction 2.5 provides an exception to Instruction 2.4. It has been provided in Instruction 2.5 that when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.”

¶104

30. Further, vide judgment dated 26.06.2024 in the matter of Chandrashekhar Shivhare & another Vs. Intelligence Officer and other connected appeals passed in CRA Nos. 808 of 2023, 1028 of 2023 and 1294 of 2023 , this Court held in paras 45 and 46 as under:-

¶105

“45. Recently, the Supreme Court in the matter of Yusuf @ Asif v. State reported in 2023 SCC OnLine SC 1328 has held as under:-

¶106

"16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the

¶107

19

¶108

presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.

¶109

Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.”

¶110

The Supreme Court in the matter of Sanjeet Kumar Singh alias Munna Kumar Singh v. State of Chhattisgarh reported in 2022 SCC OnLine SC 1117 has held as under:-

¶111

“18. But if the Court has - (i) to completely disregard the by independent witnesses; and (ii) to turn a Nelson's eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent

¶112

20

¶113

witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats."

¶114

31. In light of above, in the present case, looking to rojnamcha sanha i.e. Ex.P/31C, P/32C and Ex.P/4 appear to be suspicious and the same should be complied under the mandatory provisions of Section 42(2) of NDPS Act. Upon perusal of Ex.P/9, it is also evident that different ink was used by the investigating officer in taking consent of both the accused persons as mandatory provision under Section 50 of the NDPS Act. Investigating Agency has failed to comply with the instructions given in the Standing Order No. 1/89. Independent witness also admitted this suggestion of defence that he signed all the documents on the next day and on that day when he reached there the vehicle was already in the police station and thereafter, all the documents were prepared. Prosecution also failed to prove this fact that as to what time, the sample packets were sent for FSL.

¶115

32. For every default made in the document, the Investigating officer stated that the said default might be occurred due to inadvertence. Further, it is also evident from the evidence of Pushpendra Singh Baghel (P.W.-8) that he was not trying to enquire about owner of the vehicle. When it was asked in para 22, he stated that he did not know about the owner of the said vehicle whereas at the time of searching, both the accused were present in the vehicle.

¶116

21

¶117

33. Considering the facts and circumstances of the case, statements of all witnesses, in particular the manner in which the investigation was carried out where the investigating officer has failed to comply with mandatory provisions of NDPS Act as well as instructions given in Standing Order No.1/89, keeping in view the settled legal position referred to above, we are of the considered opinion that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. Thus, the learned trial Court was not justified in convicting the appellants under Section 20 (ii)(C) of the NDPS Act.

¶118

34. In the result, the criminal appeal is allowed. The impugned judgment of the learned trial Court is hereby set aside. The appellants are acquitted of the charge under Section 20(ii)(C) of the NDPS Act by extending them benefit of doubt. They are reported to be in jail since 04.01.2017, therefore, they be set free forthwith if not required in any other case.

¶119

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

¶120

Sd/Sd/-

¶121

(Rajani Dubey) (Sachin Singh Rajput) Judge Judge

¶122

Ruchi

¶123

RUCHI YADAV Digitally signed by RUCHIYADAV

Sumer Singh v. State of Chhattisgarh

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Sumer Singh v. State of Chhattisgarh

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