Anuj Saini Vs State of Chhattisgarh

judgment of conviction and order of sentence dated 26.02.2022 passed by the Special Judge (NDPS Act), Jagdalpur, District Bastar in Special Criminal Case (N.D.P.S.) Act No.14/2021, whereby the appellant stands convicted and sentenced as under:

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Conviction Sentence Under Section 20(b)(ii)(C) RI for 10 years with fine of of Narcotic Drugs and Rs.1,00,000/-, in default of Psychotropic Substances payment of fine amount to Act, 1985. further undergo R.I. for one year.

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Case of the prosecution, in brief, is that on 02.09.2020, Assistant Sub-Inspector of police station Nagarnar received a secret information that three persons traveling in vehicle Innova bearing registration No.HR/55-E/0907 were transporting contraband article ganja from Orissa to Jagdalpur. The above information was recorded in the Rojnamcha Sanha and senior officers were informed over phone and after preparing the information panchanama, panchnama for not being able to obtain search warrant, and after summing two independent witnesses, sent constable No. 1242 - Harish Korram with constable No. 688 Satyanarayan Goyal. Constable No. 688 Satyanarayan Goyal brought two independent witnesses Duryonarayan

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Sethia and Waheed Ahmed and made them aware about the secret information and told them to be present in the NDPS proceedings to be conducted with the police and written consent was obtained by giving them notice under Section 160 CrPC. Thereafter, on the directions of senior officers, police personnel left for village Dhanpunji. Mandinaka NH 63 main road with NDPS Act investigation kit, independent witness and staff. After reaching there, barricade was set-up and after some time, a vehicle as described by the informer, was seen coming from Odisha, which was intercepted, in which three persons were sitting as per the description given by the informant, in which one person was sitting beside the driver and the other in the middle. After seeing the police, the person who sat behind the driver and middle of the vehicle ran away from the spot, who were extensively searched but could not be found. Thereafter, the person who caught by the police party told his name Anuj Saini, resident of Uttar Pradesh, the appellant herein.

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As per the case of the prosecution, the accused/appellant was informed about his legal rights by giving him a notice under Section 50 of the NDPS Act regarding the search. On search being made, the contraband article ganja was found in a chamber where the stepney was kept at the back of the

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vehicle Innova. On being given notice, a search panchnama was prepared on suspicion and when he did not produce any documents regarding the possession of the seized article, a total of 54 kg of the contraband article ganja found in the bags in his possession, was recovered and a recovery panchnama was prepared in presence of witnesses. Thus, the accused, in connivance with other absconding coaccused, kept more than the commercial quantity of ganja in his possession and did not produce valid and relevant documents/licenses for transporting it and seized 54 kg of contraband article ganja. Upon finding the the act of the accused punishable under Section 20 (b)(ii)(C) of the NDPS Act, he was served with a notice under Section 52 of the NDPS Act and information of the arrest of the accused/appellant was given to his family members. Further case of the prosecution is that during investigation, Nazri Naksha was prepared, the seized contraband article ganja was sent to FSL for examination and patwari map was also prepared. The statement of witnesses were recorded and after returning police station, numbered FIR was registered.

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4 . After completing the usual investigation, charge sheet under Section 20 (b) of the NDPS Act was filed against the accused/appellant before the concerned jurisdictional Magistrate. Thereafter, learned trial Court framed charge

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under Section 20(b)(ii)(C) of the NDPS Act, to which he abjured his guilt and prayed for trial.

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5 . In order to prove its case, the prosecution examined as many as 10 witnesses. Statement of the accused was also recorded under Section 313 of CrPC in which he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication.

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6 . Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment.

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Learned counsel for the appellant submits that the judgment, finding and order of conviction passed by the learned Trial Court being illegal, improper and incorrect is liable to be set-aside. The learned Trial Court has misapprehended and miss-appreciated the evidence on record and arrived an erroneous finding. There is no admissible evidence against the appellant in the case. Learned counsel further submits that the learned trial Court failed to appreciate the mandatory provision of the N.D.P.S. Act has not been complied with by the Investigating Officer. The learned trial Court ought to have seen that the alleged Ganja was not seized from the exclusive possession of the

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appellant. Furthermore, the independent witnesses have not supported the case of prosecution and turned hostile. It has been also argued that the trial Court did not evaluate the evidence which was available on record for acquitting the appellant under the NDPS Act. The prosecution has not proved its case beyond reasonable doubt and has failed to produce any evidence regarding ownership of seized vehicle Innova car. The fact of involvement of the appellant in the crime in question has not been established beyond reasonable doubt by the prosecution witnesses. Thus, the impugned judgment of conviction and order of sentence is liable to be set aside.

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Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of Makhan Singh V. State of Haryana reported in (2015) 12 SCC 247, State of Rajasthan V. Tara Singh reported in 2011 AIR SCW 6651, Kuldeep Singh V. State of Punjab reported in AIR 2011 SC (Supp.) 787, Sanjeet Kumar Singh @ Munna Kumar Singh V. State of Chhattisgarh reported in 2022 SCC OnLine SC 1117, Mohammed Khalid and Anr. V. State of Telangana reported in AIR Online 2024 SC 134 , Simarnjit Singh V. State of Punjab reported in 2023 SCC OnLine SC 906 , Yusuf @ Asif V. State reported in 2023 SCC OnLine SC 1328 , Mohammed Khalid and Anr. V. State of Telangana

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reported in AIR Online 2024 SC 134 and this Court’s judgment in the matter of Raj Kumar Sharma V. State of Chhattisgarh reported in 2024 SCC OnLine Chh 3561 .

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Learned State counsel supporting the impugned judgment of conviction and order of sentence submits that the learned trial Court minutely appreciated oral and documentary evidence and has rightly convicted the appellant. Thus, the appeal being without any merit is liable to be dismissed.

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10. Heard learned counsel for the parties and perused the material available on record.

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11. It is clear from the record of the learned trial Court that the learned trial Court framed charge under Section 20 (b)(ii) (C) of the NDPS Act against the accused/appellant.

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12. Independent witnesses namely Duryonarayan Sethia (PW/3) has admitted only his signature on Ex.P/5 to P/19 and Wahid Ahmed (PW/7) admitted his signature on Ex.P/7 to P/19 & Ex.P/30 and P/31 but they have denied the procedure drawn-up before them and the prosecution declared them hostile.

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13. Harwan Singh (PW/10), Investigating Officer, in examination-in-chief has stated in detail about the procedure carried out by him and as per this witness, he prepared mukhbir panchanama (Ex.P/23) and panchnama for not being able to obtain search warrant under Ex.P/25

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and sent notice to D.S.P. AJAK Jagdalpur. In para 14, this witness has also stated that after seizure of contraband in presence of witnesses, he thoroughly mixed all the plastic bags containing contraband article ganja recovered from the vehicle in the possession of the appellant and prepared Samras Panchanama under Ex.P/15.

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This Court in the matter of Rajkumar Sharma (supra) held in paras 20 and 22 as under :-

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“20. It is case of the appellants that the Investigating Officer had not complied with the Standing Order 1/89 and not taken sample from each packet. Total 34 packet of ganja was seized from the vehicle and only two samples were taken out from the contraband after mixing them, which is not permissible as per law. The sample of contraband was not immediately sent to FSL for chemical examination and it was sent to FSL on 24.08.2020 and delay in sending is not explained by the Investigating Officer.

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21. xxxx

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22. From a perusal 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

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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.”

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It is apparent from the statement of Investigating Officer (PW/10) that essential requirement before such action of drawing a representative sample can be undertaken is that the contents of each package have to be subjected to colour test by U.N. Kit. Once the test is conducted and the result indicates that all the packages are identical in all respects, then a representative sample can be taken out after bunching the packages. In the case in hand, the Investigating Officer at first mixed all the contraband article together and thereafter, taken sample thereof, as such he failed to comply with Standing Order 1/89.

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It is also apparent from the statement of Satyendra Banjara (PW/4) who produced Maalkhana Registere (Ex.P/20) that after sampling procedure, three sealed bags of contraband weighing 53.947 kilogram and two sample packets of 50-50 gram each on which “A1 and A2” is written were deposited

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in maalkhana and on 30.12.2020, sample bags Ex.A/1 was sent to F.S.L. Jagdalpur for examination. He has also stated that after receiving the report from FSL, on 23.01.2021 examined sample A/1 was deposited in maalkhana in sealed condition. This witness, in para 10 of his cross-examination, has admitted that on 18.12.2020, two samples ‘A-1 and A-2’ of contraband article kept in three bags were prepared and only sample A-1 was sent to FSL for its chemical examination. Thus, it is apparent from the statement of this witness that only one sample ‘A-1’ was sent to FSL and as per the Investigating Officer (PW/10), it is quite vivid that he had first mixed all the contraband articles and thereafter prepared sample thereof. It is also clear from the statement of independent witnesses that they have not supported the prosecution case and other witnesses namely Satya Narayan Goel (PW/2), Sushma Rana (PW/5), Shiv Shankar Gendle (PW/6), Harish Korram (PW/8) and Anant Ram Baghel (PW/9) are the police witnesses.

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It is clear from the statement of Investigating Officer (PW/10) and other witnesses that in Innova Car there were three persons, out of which, two persons fled away from the spot and the appellant was caught/arrested on the spot. The prosecution has not filed any registration book of the seized

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vehicle Innova Car and only charge sheet was filed against the appellant.

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Considering the aforesaid facts and circumstances of the case and the submissions advanced by the learned counsel for the parties, material available on record and also considering the evidence of Investigating Officer (PW/10) and also considering the fact that instructions given in Standing Order No. 1/89 issued by the Central Government has not been followed in the instant case. This Court is of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and that the learned trial Court has also committed grave legal error in convicting and sentencing the appellant for the offence under Section 20(b)(ii)(C) of the NDPS Act. As such, the judgment impugned deserves to be set aside.

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For the foregoing reasons, this appeal is allowed and the impugned judgment of conviction and order of sentence is set aside. The appellant is acquitted from the charge under Section 20(b)(ii)(C) of the NDPS Act. The appellant is in jail. He be set at liberty forthwith if no longer required in any other criminal case.

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The appellant is directed to file personal bond and one surety in the like amount to the satisfaction of the Court

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concerned in compliance with Section 437-A of the Criminal Procedure Code, 1973.

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21. 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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(Rajani Dubey) Judge

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Digitally signed by VIJAYBHARATRAO PEKDE pekde Date: 2025.01.25 14:21:47 +0530

Anuj Saini v. State of Chhattisgarh

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Anuj Saini v. State of Chhattisgarh

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