Bharat Jagat Vs State of Chhattisgarh

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2025:CGHC:12693

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRA No. 239 of 2024

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1 - Bharat Jagat S/o Indro Jagat Aged About 27 Years R/o Station Chowk Kumhari Mahamaya Road Udiya Basti P.S. - Kumhari District - Durg, Chhattisgarh.

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... Appellant versus 1 - State of Chhattisgarh Through The Police Station Amanaka Raipur, District - Raipur, Chhattisgarh. ... Respondent For Appellant : Mr. Pravin Kumar Tulsyan, Advocate For State : Ms. Vaishali Mahilong, PL (Hon’ble Shri Justice Arvind Kumar Verma)

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Order on Board

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17/03/2025

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Challenge in this criminal appeal is to impugned judgment of conviction

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and sentence dated 22/12/2023 passed by learned Special Judge, (NDPS Act), Raipur, District Raipur (CG) in Special Criminal Case No.19/2023, whereby the appellant stands convicted and sentenced as under:

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	Conviction		Sentence
Under	Section 22-C of	Rigorous	imprisonment for 10 years &
NDPS	Act.	fine of payment RI.	Rs.1,00,000/-, in default of of fine 06 months additional

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ASHUTOSHMISHRA Digitallysigned byASHUTOSHMISHRADate:2025.03.2214:41:45+0530

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Case of the prosecution, in brief, is that on 13/11/2022 on the basis of secret information the police of police station Amanaka, Raipur conducted a raid and recovered 2832 capsules (48 strips) of Spasmo Proxyvon Plus having Tramadol Drugs from the illegal possession of the appellant. Thereafter, the crime No.426/2022 was registered against the appellant for the offence punishable under Section 22-C of NDPS Act and after completing necessary investigation, the charge-sheet was submitted before the concerned Court below.

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In order to prove guilt of appellant, prosecution examined total 09 witnesses and their statements were recorded. Statement of appellant (accused) was recorded under Section 313 CrPC in which he pleaded innocence and false implication.

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After completion of trial, trial Court convicted and sentenced the appellant as mentioned in paragraph -1 of this judgment. Hence, this appeal.

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Learned counsel for the appellant submits 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. Apart from this, general procedure for sampling provided in Standing Order No.01 of 1989 dated 13.06.1989 has not been complied with by the prosecution. Learned Counsel further submits that the Investigating Officer received prior information but he has not complied with provision of Section 42(2) of the NDPS Act. There are major

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contradictions and omissions in the statement, which cannot be relied upon. Trial Court has wrongly appreciated that the investigation has been done properly and mandatory provisions of the NDPS Act have been complied with. 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. There is serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. The learned trial Court failed to appreciate that the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act provides for the procedure and manner of seizing, preparing 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 in the NDPS Act. In the present case, it is evident from evidence of Investigating Officer that the procedure as prescribed under Section 52A(2), (3) and (4) of the NDPS Act was not followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. 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

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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. 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.

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On the other hand, learned counsel for the State supporting the impugned judgment would submit that the investigating officer at the time of effecting 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 appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed.

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Heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment.

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In order to test the above facts and submissions/evidences, it would be appropriate to refer to the mandatory provisions of the NDPS Act.

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Relevant Sections of the NDPS Act read as under :-

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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

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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 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 sub-section (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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55. Police to take charge of articles seized and delivered. — An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the

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purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station."

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As per provision of Section 52A(2), (3) & (4) of the NDPS Act 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.

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In the matter of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379, 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

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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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Recently, the Supreme Court in the matter of Yusuf @ Asif versus State (Criminal Appeal No.3191/2023), decided on 13.10.2023, 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 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 v. State of C.G.

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reported in 2022 SCC OnLine (SC) 1117, 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

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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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31. 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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32 . 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 went by the law in theory, without applying the same to the facts of the case.”

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The Supreme Court in the matter of State of Rajasthan versus Bher Singh reported in (2009) 16 SCC 293 has held as under:-

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“ 2. We have perused the evidence of PW 7 who seized the opium in question, as also the evidence of PW 9 who was the officer in charge of the malkhana and from their evidence, we find that it is not possible to hold that the seal allegedly put by PW 7 while taking the sample opium remained intact right through the time it reached the forensic science laboratory. This being a mandatory requirement to establish the fact that the seized goods was in fact a prohibited drug under the NDPS Act, we agree with the High Court on facts of this case that the prosecution has failed to establish this part of its case, hence, we find no reason to interfere in this appeal. Therefore, we dismiss the same.”

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From perusal of Standing Order No.01 of 1989 dated 13.06.1989, 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.

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The I.O. Suresh Mishra has been examined as (PW-9) and he in his cross-examination in para 54 has admitted that the Article P-1 & A-1 are the same material and no panchnama and inventory was prepared for the same.

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Perusal of the record would further show that total 2832 pieces of capsules were seized and out of which only one strip was taken out for sample test. Further as per Ex. P/32 C all the 2832 pieces of capsules i.e. 48 strips were kept in Malkhana and when one strip of capsule was taken out and after taking out it was sent for examination, whereas as per Ex. P/29 1-1 strips were sent for FSL and as per FSL Report Ex. P/54 three strips have been received and examined. Further, as per Ex. P/52 Article P-1 & P-2 were sent for examination and quantity was 6x3 = 18 tablet in one strip, whereas in the FSL report the quantity was 8x3 = 24. Therefore, it shows that there is a difference in the seized article and the article sent for chemical examination and in such circumstances the benefit of doubt should lean in favour of the appellant.

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The Supreme Court in the matter of Kali Ram vs. State of H.P. reported in (1973) 2 SCC 808 has reiterated the proposition laid down in the

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matter of Pradeep Kumar vs. State of Chhattisgarh reported in (2023)

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5 SCC 350 and has held thus in para 27 :-

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“27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.”

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Therefore, on over all examination of the evidence and record, it is apparent that no compliance of Section 52-A of the NDPS Act was done and there is discrepancy with regard to quantity of the seized tablets.

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Considering above facts of case, submissions advanced by the learned counsel for the parties, evidence of witnesses and other evidence/material available on record, particularly Standing Order No.01 of 1989, further considering the mandatory provisions of NDPS Act and the principle of law laid down by the Supreme Court in Mohanlal (supra), Yusuf @ Asif (supra), Sanjeet Kumar (supra) & Bher Singh (supra), I am 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 appellant for offence under Section 22-C of the NDPS Act. As such, the judgment impugned deserves to be set aside.

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For the foregoing reasons, the Criminal Appeal is allowed and the impugned judgment dated 22/12/2023 passed by the learned Special Judge (N.D.P.S. Act), Raipur, District Raipur in Special Criminal Case No.19/2023 is hereby set-aside. The appellant is acquitted of the charge

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under Section 22-C of NDPS Act. Appellant is reported to be in jail, therefore, he be set free forthwith if no longer required in any other criminal case.

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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/-

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(Arvind Kumar Verma) JUDGE

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ashu

Bharat Jagat v. State of Chhattisgarh

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Bharat Jagat v. State of Chhattisgarh

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