Prasanna Kumar Naik Vs State of Chhattisgarh

This criminal appeal has been preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’) challenging the judgment of conviction and order of sentence dated 159-2022 passed by learned Special Judge (under NDPS Act) Raigarh (CG) in Special Criminal Case under the NDPS Act No. 7/2018, whereby the appellant/accused has been convicted for the offence punishable under Section 21(c) of the Narcotic Drugs and Psychotic Substances Act (henceforth, referred to as ‘NDPS Act’) and sentenced to undergo RI for 10 years with fine of Rs.1,00,000/- and in default of payment of fine, to undergo additional RI for 3 years.

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The case of the prosecution, in brief, is that, on 27-1-2018, Crime Branch team of Raigarh police intercepted an unnumbered cargo auto driven by the appellant/accused, in which he was carrying six cartons EsKuf Cough Syrup, to which he was not having any valid licence/document. Therefore, FIR (Ex. P-18) was lodged against the appellant for the offence under Section 21 of the NDPS Act. Six cartons were seized from the possession of the appellant vide seizure memo (Ex. P-7), each carton contained 160 bottles, total 160 x 6 (cartons) = 960 bottles of EsKuf Cough Syrup was seized. Each bottle contained 10 ml Codeine Phosphate. Two receipts (Article 1 and Article 2) issued by Devsar Roadlines, Transport Contractor and Fleet Owner, Telghani Naka, Station Road, Branch Office Raigarh (Kamal Agrawal) along with Driving Licence of the appellant were also seized vide Ex. P-7. The appellant was arrested vide arrest memo (Ex. P-8). Seized cough syrup was sent for chemical examination to the Forensic Science Laboratory, Raipur in which, vide Ex. P-23, it was reported that seized material Ex. A-1, A-2, A-3, A-4, A-5 and A-6, contained Codeine and Triprolidine. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After investigation, charge sheet under Section 21 of the NDPS Act was filed before the Special Judge, Raigarh against the appellant.

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Earlier, learned Special Judge framed charge against the appellant/accused under Section 21 (b) of the NDPS Act, which was subsequently amended as Section 21(c) of the NDPS Act. The appellant denied the charge and claimed trial.

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In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 8 witnesses and exhibited 33 documents. Statement of appellant/accused under Section 313 of the Cr.P.C. was recorded, in which he denied the incriminating circumstances appearing against him in the evidence adduced by the prosecution claiming himself to be innocent and false implication. No witnesses have been examined by the appellant-accused in his defence.

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The Special Judge upon appreciation of oral and documentary evidence available on record, vide its impugned judgment, finding evidence adduced by the prosecution trustworthy, convicted and sentenced the appellant/accused as mentioned in the opening paragraph, against which, this appeal has been filed by him.

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Learned counsel for the appellant submits that, appellant is an auto driver. He had purchased new cargo auto to earn his livelihood. Even registration number was also not allotted to the auto at the time of incident. On the date of incident, Kamal Agrawal (P.W. 3), who was commission agent of the transporter- Devsar Roadlines, Branch Office, Raigarh had engaged the appellant/accused to transport six cartons from branch office of aforesaid transport agency to Rahul Agency, Raigarh. All six cartons were seal packed. The appellant/accused was not knowing about the material kept in the cartons, therefore, bonafidely, he obtained that consignment. In this regard, the branch office of aforesaid Roadlines had also issued two receipts - ‘Article 1’ and ‘Article 2’, which were seized by the police vide seizure memo Ex. P-7. Kamal Agrawal (P.W. 3) has also proved aforesaid fact.

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Investigating Officer Salim Tigga (P.W. 8) has also admitted in his cross-examination para 24 that, he had seized photocopy of receipts ‘Article A-1’ and ‘Article A-2’, which also contained his signature. Thus, it is very clearly proved from the evidence collected by the Investigating Officer himself that, the appellant/accused was only transporting six nos. of cartons as per instruction of Kamal Agrawal (P.W. 3), to which, he has also issued transportation receipts (Article A-1 and Article A-2). Despite that, the appellant/accused has been convicted for the said offence, whereas it was not in his knowledge that aforesaid six cartons of Cough Syrup contained Codeine and Triprolidine. He further submits that search and seizure witness Jageshwar Chauhan (P.W. 1) is a pocket witness of the Police. He also submits that, alleged narcotic drug was seized on 27-1-2018, but the same was sent to deposit in the Malkhana of concerned police station on 12-2-2018 vide Ex. P-12-C. It has not been stated by the prosecution or the Investigating Officer that for about 15 days, where the alleged narcotic drug was kept. He further submits that six bottles from seized cartons were recovered, which were sent for chemical examination on 24-2-2018, but it has not been proved by the prosecution that, these samples were taken out from the Malkhana of concerned police station for sending them to the FSL, Raipur. Therefore, he prays that, the impugned judgment completely lacks with the evidence, on the basis of which, the appellant could be convicted. Hence, the appeal may be allowed and the appellant may be acquitted of the said charge.

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Per contra, learned State Counsel supports the impugned judgment.

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I have heard learned counsel for the parties, considered their rival submissions and also went through the record of the case including record of the Special Court with utmost circumspection.

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In instant case, allegation against the appellant/accused is that, on the date of incident, he was found in illegal possession of EsKuf Cough Syrup kept in six cartons, containing total 960 bottles, each bottle containing 100 ml cough syrup, which contained 200 mg Codeine Phosphate, to which he was not having any valid document, whereas it is evident from the case of prosecution as well as from the deposition of Investigating Officer Salim Tigga (P.W. 8) that, the appellant was transporting seal packed cartons, six in number, in his un-numbered auto. Kamal Agrawal (P.W. 3) has also deposed in his deposition that, he had handed over those cartons to the appellant for delivering the same to Rahul Agency, Raigarh. He has also deposed that, six cartons were received by him from Mangal Pharma, Raipur for Rahul Agency, Raigarh. In para 24, the Investigating Officer Salim Tigga (P.W. 8) has stated that he seized photocopy of two receipts (vide Ex. P-7), which were marked as Article A-1 and Article A-2. These receipts were issued by Devsar Roadlines, Branch Office, Raigarh for transportation of said cartons. Thus, the appellant/accused was only transporter/courier of alleged cartons, which were handed over to him by Kamal Agrawal (P.W. 3). Therefore, it is found that implicating the appellant/accused in this case by the police is completely illegal. If those cartons were containing alleged narcotic drug, then police ought to have sought receipts from Kamal Agrawal (P.W. 3) with regard to obtaining

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possession of those cartons from Mangal Pharma, instead thereof, the police implicated the appellant/accused only, in this case.

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Since the appellant/accused was only carrying those six seal packed cartons from Devsar Roadlines, Branch Office, Raigarh to Rahul Agency, Raigarh, hence he cannot be held liable for illicit possession of alleged narcotic drug. But learned Special Court, without considering aforesaid fact, held the appellant/accused guilty for the alleged offence.

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Even otherwise, if other merits of the case are seen, then it is found that, alleged narcotic drug was seized by the Police on 27-1-2018, but as per the Malkhana register (Ex. P-12-C), PS Pusor, it was deposited in the Malkhana on 12-2-2018. It has not been proved by the Investigating Officer Salim Tigga (P.W. 8) that, between aforesaid period i.e. for about 15 days, where the alleged narcotic drug was kept and in whose possession, it was kept. As per the receipts (Ex. P-13) issued by the FSL, Raipur, said narcotic drug was received by it on 242-2018, but it has not been proved by the prosecution that, when it was brough out from the Malkhana of PS Pusor to send it for chemical examination. Sampling of alleged narcotic drug has also not been proved as per Section 52A of the NDPS Act.

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Recently, in the case of Surepalli Srinivas Vs. State of Andhra Pradesh (2025 SCC OnLine 683) where the seized contraband (Ganja) was not properly sealed and it was kept by the Investigating Officer with him in a separate room in his office for 15 days, in these circumstances, Hon’ble Supreme Court has observed that, it could give rise to an allegation that, the seized contraband was by itself substituted and some other article planted to falsely implicate the

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accused. Hon’ble Supreme Court has further held that, to avoid suspicious circumstances and to ensure fair procedure in respect of search and seizure, it is always desirable to follow Standing Orders, which provide suitable guidance for the officers investigating crime under the NDPS Act. Should there be any departure, the same must be based on justifiable and reasonable grounds. On the basis of aforesaid fact, Hon’ble Supreme Court held that, in aforesaid situation, possibility of tampering during these 15 days period cannot be totally ruled out and that, not only has there been no substantial compliance of the standing order, the departure has also not been justified.

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In instant case also, it has not been proved by the prosecution that, after seizure of said narcotic drug, it was seal packed by the Investigating Officer (P.W. 8). It has also not been proved that, after seizure of the narcotic drug, where it was kept for 15 days and when it was brought out from the Malkhana of concerned police station to send it to the FSL, Raipur, therefore, tampering alleged contraband substance during aforesaid period, that too, which was not kept in sealed condition, cannot be totally ruled out. In view of above discussion, it is found that, the prosecution has also failed to prove its case on merit against the appellant/accused.

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Thus, since the appellant/accused was only carrying the alleged six cartons under the receipts Article A-1 and Article A-2 issued to him by Devsar Roadlines, Branch Office, Raigarh, therefore, it cannot be said that, he was in conscious possession of those alleged contraband substance and further, the prosecution has also failed to prove its case

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on merit as the proceeding conducted by the Investigating Officer Salim Tigga (P.W. 8) is full of laches and lacunae.

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In view of above discussion, it is found that, without any valid and lawful evidence, learned Special Judge has convicted the appellant/accused for the offence under Section 21(c) of the NDPS Act, therefore, it is not found to be sustainable. Hence, I feel inclined to allow instant appeal.

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In the result, the Appeal is allowed. Conviction and sentence imposed on the appellant/accused by the impugned judgment under Section 21(c) of the NDPS Act are set aside and he is acquitted of the said charge. The appellant/accused is on bail. The bail bonds furnished by the appellant/accused shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

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Let a certified copy of this judgment along with the original record be transmitted to the Special Court concerned forthwith. The Criminal Appeal is allowed.

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Sd/-

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(Naresh Kumar Chandravanshi) Judge

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pathak

Prasanna Kumar Naik v. State of Chhattisgarh

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Prasanna Kumar Naik v. State of Chhattisgarh

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