Mukhtiyar Asgar Khan Vs State of Chhattisgarh

This appeal is against the judgment of conviction and order of sentence dated 01.02.2025 passed by the Special Judge, Narcotics Drugs and Psychotropic Substance Act, 1985 Raipur, District Raipur

¶17

2

¶18

(CG) in Special Criminal Case No. 08/2004, whereby the accused/appellant has been held guilty under Section 20(b)(II) (B) of the NDPS Act and sentencing him to undergo RI for ten years and pay fine of Rs. 1,00,000/-, in default of payment of fine to further undergo RI for two years.

¶19

The prosecution case, as unfolded during the trial, is that on 20.12.2023 at about 23:00 hours, Assistant Sub-Inspector Jeevan Lal Parkar, Police Station Purani Basti, Raipur, received a specific and credible secret information that one person wearing a black jacket, blue chequered shirt and grey coloured pant was standing near Sai Mandir, Radhaswami Nagar, Raipur, carrying a blue coloured bag containing ganja , and was waiting to transport the said contraband for sale. Upon receipt of the said information, the Station House Officer was informed and a written report of the information was made as per law. A police team consisting of ASI Jeevan Lal Parkar along with other police officials was constituted and two independent witnesses, namely Krishna Yadu and Bablu @ Sheikh Aslam, were called to witness the proceedings. The raiding party thereafter proceeded to the spot. On reaching near Sai Mandir, Radhaswami Nagar, the police intercepted and on enquiry he disclosed his name as Mukhtiyar Asgar Khan, the present appellant. He was apprised of the information received against him and was informed of his legal right to be searched before a Gazetted Officer or a Magistrate. The appellant, after understanding his rights, gave his written consent for his search to be conducted by the searching officer himself. Accordingly, a consent panchnama was prepared on the spot in

¶20

3

¶21

presence of independent witnesses.

¶22

Before conducting the personal search of the appellant, the searching officer offered his own search to the appellant to ensure fairness, and nothing incriminating was found in the search of the police officer. Thereafter, the search of the appellant was conducted, in which nothing objectionable was found from his person. However, on searching the blue coloured bag carried by the appellant, two big packets wrapped with brown tape were found inside. On opening the packets, a greenish leafy substance resembling ganja was found. The substance was tested on the spot by rubbing and burning, which gave positive indication of being ganja. Accordingly, a spot identification panchnama was prepared. Thereafter, the police summoned electronic weighing machine to the spot through Tolak Ram Narayan Soni. In presence of the appellant and the independent witnesses, the weighing machine was checked and verified. The ganja recovered from the appellant’s bag was weighed and its total weight was found to be 12 kilograms 200 grams. The appellant was issued a notice under Section 67 of the NDPS Act, calling upon him to explain the lawful possession of the seized contraband. The appellant failed to produce any licence, permit or authorization in respect of the ganja.

¶23

The seized ganja was thereafter sealed on the spot, samples were drawn, and a detailed seizure panchnama was prepared in presence of the independent witnesses and the appellant. The seized articles were taken into possession and duly sealed with proper markings. The appellant was informed of the grounds of his arrest and

¶24

4

¶25

was taken into custody. Dehati Nalishi was registered on the spot and thereafter FIR No. 497/2023 was registered at Police Station Purani Basti, Raipur for the offence under Section 20(b)(ii)(B) of the NDPS Act. The seized ganja and the samples were deposited in the malkhana and subsequently sent to Forensic Science Laboratory, Raipur, for chemical examination. The FSL report confirmed that the seized substance was ganja (cannabis). After completion of investigation, statements of witnesses were recorded, and upon collecting sufficient material, charge-sheet was filed before the learned Special Judge (NDPS Act), Raipur, leading to the trial of the appellant.

¶26

Prosecution in order to establish its case, has examined as many as 16 witnesses. Statement of the appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied his guilt and pleaded for trial.

¶27

Learned Court below vide judgment under challenge has convicted and sentenced the appellant herein as mentioned above. Hence the appeal filed by the present appellant.

¶28

Learned counsel for the appellant assailed the judgment on the following grounds:

¶29

(i) that the judgment impugned being contrary to the material available on record is liable to be set aside and there is serious lacuna in procedure adopted by the prosecution.

¶30

(ii) That the alleged recovery is doubtful as the entire case is based upon police witnesses and no truly independent witness has supported

¶31

5

¶32

the prosecution.

¶33

(iii) That there are material contradictions in the evidence regarding receipt of secret information, compliance of Section 42 and Section 50 of the NDPS Act, and sealing of the seized contraband.

¶34

(iv) that there is non-compliance of mandatory provisions of Section 52-A of the NDPS Act and that the drawing of samples, taking photographs and preparing the inventory of the contraband either before or in the supervision of the Magistrate as is mandatorily required by Section 52-A of the Act is not resorted to which creates doubt about the involvement of the appellant in the crime in question, therefore the judgment impugned may be set aside and the appellant may be acquitted of the charge levelled against him.

¶35

(v) That the appellant is a poor person with no criminal antecedents and has already undergone a substantial period of incarceration. (vi) That even assuming the conviction is sustainable, the quantity involved falls within intermediate quantity, and therefore the sentence deserves to be reduced to the period already undergone. (vii) That the appellant has been in jail since December 2023 and has undergone more than one year of custody, which is sufficient to meet the ends of justice.

¶36

On the other hand, learned counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the trial court being strictly based on the evidence adduced by the parties, do not call for any interference in this appeal. She submits that the recovery of 12.200 kg ganja has been proved through cogent

¶37

6

¶38

evidence and the mandatory provisions of the NDPS Act have been duly complied with. However, she fairly conceded that the quantity recovered is intermediate quantity and the appellant is a first-time offender.

¶39

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

¶40

This Court has carefully evaluated the entire evidence on record, including seizure memos, panchnamas, FSL report, statements of prosecution witnesses and the impugned judgment, in the light of the statutory scheme of the NDPS Act and binding precedents of the Supreme Court. The NDPS Act is undoubtedly a stringent statute, but it equally mandates strict adherence to procedural safeguards, since conviction entails severe penal consequences. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, the Constitution Bench held that compliance with statutory safeguards is integral to the fairness of NDPS trials.

¶41

The prosecution has established that the appellant was apprehended with a blue coloured bag containing 12 kg 200 grams of ganja, which falls within the category of intermediate quantity. The recovery has been proved through seizure memo, independent witnesses and FSL report. In Madan Lal v. State of H.P., (2003) 7 SCC 465 , the Supreme Court held that once possession is established, the presumption under Section 54 operates and the burden shifts on the accused to explain lawful possession. The appellant failed to produce

¶42

7

¶43

any licence or authority. Accordingly, this Court finds no perversity in the finding of conscious possession.

¶44

Section 52-A of the NDPS Act mandates that seized narcotic substances must be inventoried, photographed, sampled and certified by the Magistrate, and that only such certified samples are admissible in evidence.

¶45

In Union of India v. Mohanlal, (2016) 3 SCC 379 , the Supreme Court authoritatively held:

¶46

Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

¶47

The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.

¶48

Be that as it may, a conflict between the statutory provision governing taking of

¶49

8

¶50

samples and the standing order issued by the Central Government is evidence when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.”

¶51

The above decision of the Supreme Court in Union of India Vs. Mohanlal (supra) has lately been followed in the matter of Simarnjit Singh Vs, State of Punjab reported in 2023 SCC Online SC 906, wherein it has been held as under:

¶52

“10. Hence the act of PW-7 drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution’s case that substance recovered was a contraband.”

¶53

Strict compliance of Section 52-A is mandatory and failure to draw samples in the presence of a Magistrate seriously affects the sanctity of the seized contraband. The Court further observed that the entire chain of custody must remain intact to rule out tampering or substitution.

¶54

In the present case, although seizure and sealing were proved, the record does not clearly establish that samples were drawn and certified before the Magistrate in the manner mandated by Section 52-A.

¶55

9

¶56

This procedural lapse does not vitiate the conviction because recovery is otherwise proved; however, it does have serious bearing on the degree of certainty and sentencing severity. This principle has been reiterated in Noor Aga v. State of Punjab, (2008) 16 SCC 417 , wherein the Supreme Court held that NDPS prosecutions demand higher degree of proof due to stringent punishment.

¶57

The accused was informed of his right to be searched before a Gazetted Officer or Magistrate and a consent panchnama was prepared. Thus, substantial compliance of Section 50 is evident. In G urbax Singh v. State of Haryana, (2001) 3 SCC 28 , the Supreme Court held that unless prejudice is shown, minor deviations do not vitiate recovery. Hence, the conviction under Section 20(b)(ii)(B) is sustainable.

¶58

The recovered quantity (12.200 kg ganja) is intermediate quantity. Section 20(b)(ii)(B) does not prescribe any minimum sentence. In Rafiq Qureshi v. Narcotic Control Bureau, (2019) 5 SCC 311, the Supreme Court held that sentencing under NDPS Act must be proportional to the quantity and role of the accused. In Mohd. Muslim v. State (NCT of Delhi), (2023) 9 SCC 376, the Supreme Court held that prolonged incarceration for non-commercial quantity violates Article 21.

¶59

The appellant has been in custody since December 2023 and has undergone more than one year of imprisonment, and is not shown to be a repeat offender or part of any drug syndicate. In Union of India v. Rattan Mallik, (2009) 2 SCC 624, the Supreme Court affirmed that where minimum sentence is not prescribed, sentencing discretion must be exercised to ensure proportionality.

¶60

10

¶61

Thus, it is evident that 12 kg 200 grams of ganja was recovered from the possession of the appellant. The recovery witnesses, the seizure memo and the chemical examination report support the prosecution case. Minor discrepancies pointed out by the defence do not go to the root of the matter so as to discredit the prosecution version. Therefore, this Court finds no ground to interfere with the finding of guilt recorded by the trial Court. However, with regard to sentence, this Court finds considerable merit in the submissions of the appellant.

¶62

In view of the above, while maintaining the conviction of the appellant under Section 20(b)(ii)(B) of the NDPS Act, this Court is of the considered opinion that the sentence deserves to be reduced to the period already undergone. The appeal is partly allowed in the following terms:

¶63

The conviction of the appellant Mukhtiyar Asgar Khan under Section 20(b)(ii)(B) of the NDPS Act, 1985 is affirmed.

¶64

The sentence imposed by the learned Special Judge, Raipur is modified, and the appellant is sentenced to imprisonment for the period already undergone by him. Accordingly, the appeal is partly allowed.

¶65

Sd/-

¶66

(Arvind Kumar Verma) Judge

¶67

Digitally signed by SUGUNA SUGUNA DUBEY Date: DUBEY 2026.02.03 11:37:50 +0530

Mukhtiyar Asgar Khan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Mukhtiyar Asgar Khan v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Vinay Kumar Yadav @ Binnu Yadav Vs State of Chhattisgarh

Mohan Netam Vs State of Chhattisgarh

Nokhram Verma Vs State of Chhattisgarh

Shatrughan Kosle Vs State of Chhattisgarh

Kushal Sahu Vs State of Chhattisgarh

Subhash Sahu Vs State of Chhattisgarh