Khalid Vs State of Chhattisgarh

For Appellant: Mr.Vikash Pradhan, Advocate in CRA No.1125/2024 For Appellant: Mr.Adhiraj Surana, Advocate in CRA No.1335//2024 For Respondent/State: Mr.Malay Jain, Panel Lawyer

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H on'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Judgment on Board

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Per Ramesh Sinha, C.J.

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06/01/2025

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Today, the matters are listed for hearing on I.A.Nos.01/2024 (both cases) i.e. application for suspension of sentence and grant of bail to the appellants. However, with the consent of learned counsel for the parties, the appeals are heard finally.

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Since the aforesaid two criminal appeals have been filed against the impugned judgment dated 10.04.2024 passed by the Special Judge (N.D.P.S. Act), Mahasamund in N.D.P.S.Act Case No.H37/2020, they were clubbed & heard together and are being disposed of by this common judgment.

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Appellant-Khalid has preferred Criminal Appeal No.1125/2024 under Section 374(2) of the CrPC questioning the impugned judgment dated 10.04.2024 passed by the Special Judge (N.D.P.S. Act), Mahasamund in N.D.P.S.Act Case No.H-37/2020, by which he has been convicted for offence under Section 20(b) (ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') and sentenced him undergo rigorous imprisonment for 20 years and fine of Rs.2,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 year.

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Appellant-Sakir Hussain has preferred Criminal Appeal No.1335/2024 under Section 374(2) of the CrPC questioning the impugned judgment dated 10.04.2024 passed by the Special Judge (N.D.P.S. Act), Mahasamund in N.D.P.S.Act Case No.H37/2020, by which he has been convicted for offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced him undergo rigorous imprisonment for 20 years and fine of Rs.2,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 year.

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Case of the prosecution, in brief, is that on 25.09.2020, while the Investigating Officer was on duty at Police Station Komakhan, he received information from an informer that illegal drugs were going to be transported from Odisha to Komakhan in an Isar 10wheeler vehicle. He recorded this information in the daily diary and sent constable 821 Rajkumar Verma with a work certificate to summon two independent witnesses for legal action. The constable then appeared at the police station along with witnesses Kanhaiya Dhiwar and Mukesh Yadav after giving them notice (Ex.P-22) about an illegal drugs and asking them to be present during the proceedings. In the presence of the witnesses, the document of informer information panchanama Ex.P-2 and search without warrant panchanama Ex.P-3 were prepared. Thereafter, constable Indrajeet Thakur was sent with a work certificate and instruction to deposit the informer's information and the documents of search panchanama without warrant in the

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SDOP office and get the receipt. The constable deposited the aforesaid documents in the SDOP office, got the receipt and came to the police station and reported. Assistant Sub-Inspector Sushil Sharma and Head Constable 68 Narendra Sahu, Constable Nos. 821, 724, 367, 589, Lady constable No. 607 along with the witnesses present, went to the spot in village Temri Forest Barrier, which was recorded in diary No. 09 on dated 25.09.2020 at 09:25.

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Later, on the spot, as per the information given by the informer, a truck bearing registration No.RJ 02 GA 5686 was stopped. There were two persons in the vehicle. On questioning, the driver told his name as Khalid, son of Ismail, Ward No. 08, Haibara, Thana Gopalganj, District Bharatpur, Rajasthan and the person sitting next to him told his name as Sakir Hussain, son of Saukat Ali, resident of Ward No. 02, Pata, Thana Navgaon, District Alwar, Rajasthan. They told that they were carrying narcotics in the above vehicle from Bhawanipatnam, Odisha to Delhi. Then, for legal action, notices were given under Section 50 NDPS Act vide Ex.P-3 and Ex.P-4 in front of witnesses and made them aware of their legal rights that can get the investigation done by any Gazetted Officer or Magistrate.

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After the proceedings, the accused had given their consent for search by the police personnel and prepared a consent panchnama Ex.P-5. The search of the police party/police vehicle was done by the accused and when no objectionable material

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was found except the investigation kit, the police party's search panchnama Ex.P-6 was prepared. The accused also searched the witnesses present and on not finding any objectionable material, the police party prepared a search panchnama Ex.P-7. Thereafter, in the presence of the accused, on searching the truck (RJ 02 GA 5686), 165 small and big packets of psychotropic substance like ganja wrapped in a khaki coloured polythene were found inside the container of the truck, upon which the search panchnama Ex.P-8 was prepared. The narcotics found in the vehicle were recovered and recovery panchnama Ex.P-9 was prepared. A small quantity was taken out from the packets of the recovered narcotic substance and after rubbing, smelling and burning it, when it was found to be ganja, then Ex.P-10 identification panchnama was prepared. Constable No. 724 Santosh Sanwara was sent by giving him notice to bring the weigher for weighing the contraband recovered on the spot. Then the constable had summoned the weigher Jitendra Dhiwar by notice and he came to the spot with his electronic weighing scale and reported his presence. Physical verification of the electronic scale brought by the weigher was done by keeping a weight of one kg. salt packet and on finding it correct, physical verification panchnama of the weighing scale Ex.P-12 was prepared. After proceedings, 165 small and big packets recovered were torn and kept in a plastic polythene/tarpaulin and mixed together and a comprehensive panchnama was prepared in front of witnesses

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vide Ex.P-13. When the recovered narcotics were weighed separately, it was found to weigh 8 quintal and 10 kilograms. Panchnama for weighing the narcotics was prepared Ex.P-14. Thereafter, two samples of 100 grams each from the drugs were taken out and marked them with articles A-1 and A-2. The remaining drugs of 8 quintals 9.800 kilograms were packed in separate bags and marked with Articles 01 to 27. Sample panchnama Ex.P-15 was prepared on the spot. A sample seal panchnama was prepared by affixing a seal with P.S. Komakhan written on it on the marked drugs vide Ex.P.16. The clothes of both the accused were searched on the spot and a search panchanama Ex.P-17 was prepared.

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After proceedings, the vehicle recovered from the joint possession of both the accused and the drugs present in the vehicle, separately one mobile phone, debit card, driving licence, vehicle insurance, notice under Section 50 and Section 91, cash amount of Rs. 3300/- were seized and property seizure memo Ex.P-18 was prepared. Accused were arrested on the spot under Section 20 of the NDPS Act and arrest panchnama Ex.P- 19 and Ex.P-20 were prepared. Spot map of the incident site was prepared vide Ex.P-31.

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Statements of witnesses present on the spot, Mukesh Yadav, Kanhaiya Dhiwar, Jitendra Dhiwar, constable Rajkumar Verma, constable Santosh Sanwara, head constable Narendra, subinspector Kaushal Sahu were recorded as per their information.

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After proceedings, a rural complaint No.0/20 was registered on the spot against the accused vide Ex.P-32. After completion of aforesaid procedure, the drugs recovered from the accused and the vehicle was taken along with the accused were taken back to the police station. On the basis of rural complaint of 0/20, FIR has been registered under Crime No. 180/20 against the accused under section 20B of the NDPS Act vide Ex.P-33. Seized two sample packets of 100 grams each of narcotic substance were sent to the Forensic Science Laboratory, Raipur through Superintendent of Police vide Ex.P-36 and receipt of the same was obtained vide Ex.P-27. Test report of the sample packet sent was received by the police station through Superintendent of Police, Mahasamund whose test report is Ex.P-38 on testing of which article A-1 and A-2 were found to be ganja.

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After completion of investigation, charge-sheet was filed against the accused persons before the Special Judge under NDPS Act. The appellants abjured the guilt and entered into defence.

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In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 49 documents Exs.P-1 to P- 49 in support of case of the prosecution. However, none has examined on behalf of the appellants nor any document has been exhibited in their support.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 10.04.2024,

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convicted the appellants for offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced them as mentioned herein-above in opening paragraph of this judgment, against which, these criminal appeals have been preferred.

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Mr.Vikash Pradhan, learned counsel appearing for appellant Khalid in CRA No.1125 of 2024 and Mr.Adhiraj Surana, learned counsel appearing for appellant Sakir Hussain in CRA No.1335 of 2024 would submit that the impugned judgment passed by the learned trial Court is illegal, perverse and contrary to the evidence available on record, hence liable to be set aside. Learned trial Court has failed to appreciate that there are major contradictions and omissions in the statement of investigating officer Pradeep Minj (PW-5), which cannot be relied upon. They would further submit that general procedure for sampling provided in Standing Order No.01 of 1989 dated 13.06.1989 has not been complied with by the prosecution. From perusal of the Standing Order, it appears that the police was required to draw a sample from each packet allegedly recovered with the help of field testing kit. The mixing of the material from all the packets and then drawing of representative sample is not provided in the Standing Order, as if, such a course is adopted the sample would seize to be representative sample of the corresponding packet. In the present case, 165 packets were recovered from the possession of two accused persons and the procedure given in clause 2.4 of the Standing Order No.1 of 1989 was strictly

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required to be followed since there were only 165 packets in all from which the sample was to be drawn. At this point of time, it cannot be ascertained whether all 165 packets contained the alleged contraband ganja or not. They would also submit that learned trial Court has failed to observe that the prosecution has completely failed to prove its case beyond all reasonable doubt, hence, the impugned conviction and sentence are liable to be set aside. The learned trial Court failed to appreciate that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. Further, there is a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. They also contended that the learned trial Court failed to appreciate that the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act provide for the procedure and manner of seizing, preparing inventory of the seized material, forwarding the seized material and getting inventor certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged in the NDPS Act. A bare perusal of the provisions contained in

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Section 52A(2), (3) and (4) of the NDPS Act reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. No evidence has been brought on record that the samples were drawn in presence of the Magistrate and the lists of samples so drawn were certified by the Magistrate. Mere fact that the samples were drawn in presence of the witnesses and/or Gazette Officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. In the present case, it is an admitted position on record that the samples from the alleged seized substance were drawn in presence of the alleged witnesses and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn. The learned trial Court failed to appreciate that in absence of any material on record to establish that the samples of the seized contraband were drawn in presence of the Magistrate and that the inventory of the seized contraband was duly certified by

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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. Hence, in absence of the same, conviction is vitiated and deserves to be set aside. It is submitted that there are several discrepancies in the prosecution case which makes the custody of the seized articles and sampling extremely doubtful. As such, the criminal appeals deserve to be allowed and the impugned judgment deserve to be set aside. They relied upon the judgments of the Supreme Court in the matters of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379, Yusuf @ Asif v. State reported in 2023 LiveLaw (SC) 890 and Sanjeet Kumar v. State of C.G. reported in 2022 SCC OnLine (SC) 1117 .

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On the other hand, Mr.Malay Jain, learned Panel Lawyer appearing for the respondent/State, would support the impugned judgment and submit 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 convicted the appellants for offence under Section 20(b)(ii)(C) of the NDPS Act, in which no interference is called for.

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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.

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Independent witnesses Mukesh (PW-1) and Kanaiya Dhiwar (PW-2) have not supported the prosecution case and they have turned hostile.

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Investigating officer Pradeep Minj (PW-5) has admitted in para 41 of his cross-examination that he did not get 165 packets weighed separately and did not prepare a table for the same. This witness himself stated that it was done during the proceedings itself. He has admitted that when he left for the proceedings, he did not take a big polythene, sack etc. with him. In para 42, he has admitted that material received in 165 packets was not weighed till the time Ex.P-13 was recorded. He has admitted that the sample was not taken till the mixing process of Ex.P-13 was done at 14:20. He has admitted that after that the mixed material was kept in 27 bags, even then no sample was taken for sampling. In para 43 he has admitted that as per Ex.P-13, till 14:20 the mixed Ganja was not filled in 27 bags and its marking and table was not made. He has admitted that no table was made of how much ganja was filled in 27 bags. He has admitted that in Ex.P-14 , the part from F to F and part from Bha to Bha has been added after writing Ex.P-14 by making a small signature. The witness himself stated that it has been added during the proceedings. He has admitted that in Ex.P-14, there is no separate description of how much drug was found in which bag out of 27 bags shown in Ex.P14. In 44 of his cross-examination, he has admitted that no chart table has been prepared for weighing process done in Ex.-14. He

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has also admitted that sample of the drug was not done till 15:20 in Ex.P-14. He has denied that the proceedings of Ex.P-14 were not done in front of witnesses and accused. He has admitted that he has found polythene for mixing the drug in the truck itself, which he had used and there is no document or note in this regard in the case. In para 45, he has admitted that in Ex.P-15, out of 8 quintal 10 kg. of mixed drug, 100 grams of ganja each is an article prepared in two sample boxes. He has admitted that said sample box of 100 grams of drug is not an article taken out by him from the mixed drug kept in open or from the drug packed in sacks. In para 47 the investigating officer Pradeep Minj (PW-5) has admitted that in Ex.P-15, it is not mentioned from which sack numbered 01 to 27, 100 grams narcotic substance was sampled for sampling in Ex.P-15. He has admitted that as per Ex.P-15, 100 grams narcotic substance was sampled first and later the sacks were numbered from 01 to 27. He has also admitted that in Ex.P-15, it is not mentioned from which sack numbered 100 grams narcotic substance was sampled for sampling. In para 51, the investigating officer has admitted that he has not prepared a sample seal panchnama regarding what seals have been applied on the samples A-01 and A-02 taken out for sampling. He has admitted that during the proceedings, sealing the sample received at the time of taking the sample and mentioning its seal and preparing a panchnama of the seal applied in front of

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witnesses indispensable. He has also admitted that the above action has not been taken in this case.

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18.At this stage, it would be relevant to refer to the provisions of Section 52A(2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.

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For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:-

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"52A. Disposal of seized narcotic drugs and psychotropic substances.-

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(1) .......

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(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying

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particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of

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(a) certifying the correctness of the inventory so prepared; or

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(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or

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(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

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(3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application.

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(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."

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A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.

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Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.

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In the matter of Mohanlal (supra), the Supreme Court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.

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The Supreme Court in the matter of Yusuf @ Asif (supra) has held as under:-

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

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17. 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

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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.”

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The Supreme Court in the matter of Sanjeet Kumar (supra) has held as under:-

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“18. But if the Court has - (i) to completely disregard the lack of corroboration of the testimony of police witnesses 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 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.

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Therefore, it is clear that the I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in those documents.

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In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. But unfortunately, both the Special Court and the High Court

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went by the law in theory, without applying the same to the facts of the case.”

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Considering the submissions advanced by the learned counsel for the parties, material available on record, also considering the evidence of investigating officer Pradeep Minj (PW-5), the fact that independent witnesses Mukesh (PW-1) and Kanhaiya Dhiwar (PW-2) have turned hostile and they have not supported the case of the prosecution, also considering the provisions contained in Section 52A of the NDPS Act and applying the principle of law laid down by the Supreme Court in Mohanlal (supra), Yusuf @ Asif (supra) and Sanjeet Kumar (supra), we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in convicting and sentencing the appellants for offence under Section 20(b)(ii)(C) of the NDPS Act. As such, the impugned judgment deserves to be set aside.

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For the foregoing reasons, Criminal Appeal No.1125/2024 filed on behalf of appellant- Khalid and Criminal Appeal No.1335/2024 filed on behalf of appellant- Sakir Hussain are allowed and the impugned judgment dated 10.04.2024 passed by the Special Judge (N.D.P.S. Act), Mahasamund in N.D.P.S.Act Case No.H37/2020 is set-aside. The appellants are acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act. They are in jail. They shall be set at liberty forthwith if no longer required in any other criminal case.

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The appellants are directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973.

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Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.

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Sd/- Sd/( Ravindra Kumar Agrawal ) ( Ramesh Sinha ) Judge Chief Justice

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Bablu

Khalid v. State of Chhattisgarh

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