State of Chhattisgarh Vs Brijesh Tiwari

1 This appeal is preferred under Section 378(1) of the Code of Criminal Procedure, 1973, against the judgment dated 22.02.2021 passed in Special Criminal (NDPS Act) Case No. 10/2018 by learned Special Judge (NDPS Act), Surguja, Ambikapur (C.G.), whereby the respondent has been acquitted for the offence punishable under Section 20(B)(ii) (b) of NDPS Act, in connection with Crime No. 05/2018

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Digitally signed by HEERA HEERA LAL LAL SAHUDate: SAHU 2026.01.03 17:03:34 +0530

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registered at Police Station – Excise Circle Sitapur, District – Surguja (C.G.).

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2 The prosecution's case, in brief, is that on 03.05.2018, during patrolling, the Excise Sub-Inspector (PW-8), acting on information received from an informant at Lamgaon bus stand, and due to lack of time, proceeded without obtaining a search warrant to the house of Brijesh Tiwari, a resident of Belkota Main Road. Upon arrival, they observed a man fleeing from the house. An excise constable pursued and apprehended him. Witnesses were summoned vide Ex.P-2, and after a personal search of the officers and their staff, a search panchnama was prepared vide Ex.P-6. Upon searching the accused, Excise Sub-Inspector Ranjit Gupta (PW-8) recovered a polythene bag containing a moist, budlike substance from a satchel. On-the-spot examination of the substance by visual inspection, smell, and rubbing with water revealed it to be cannabis. After examination, the cannabis was mixed, and a samras panchnama and a weighing panchnama were prepared vide Exs. P-9 and P- 10, respectively. The cannabis weighed 1.400 kilograms. 90 grams were separated and divided into three polythene bags, each containing 30 grams. These bags were sealed with string and labelled as samples A, B, and C. The remaining cannabis was placed back into the original polythene bag and sealed. The sealed samples of cannabis

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were seized, and a seizure memo was prepared. The remaining cannabis, along with the sealed samples A, B, and C, and the signature samples, were taken into custody by the Excise Department. Samples were sent for chemical examination to FSL. After due investigation, charge sheet was filed against the accused/respondent.

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3 To bring home the offence, the prosecution has examined as many as 9 witnesses and exhibited 51 documents in support of its case. The statement of the accused has been recorded under Section 313 of Cr.P.C., in which the accused denied the evidence against him, claiming that he has been falsely implicated and that he is innocent. However, the accused has not adduced any evidence in his defence. After hearing both parties, the trial Court passed the aforesaid impugned judgment, which has been challenged in this appeal.

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4 Learned counsel for the appellant/State submits that the trial Court has failed to appreciate the fact that there was no specific mode or manner prescribed under Section 50 of the NDPS Act with regard to the search of the accused. The authorized police officer is only required to grant a reasonable opportunity in just procedure to be adopted, in the instant case, the accused was enough of his right with regard to search and seizure with the Magistrate or

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Gazetted Officer and he has also given a choice whether he was intended to ready for search with the sub inspector, i.e. authorized officer under Section 42 of the NDPS Act to search and in this regard a written intimation was made to the accused and he was consented and showing his ready and willingness for search with the authorized officer, i.e. sub inspector of police. Therefore, the provisions of Section 50 of the NDPS Act have sufficiently complied with. He also submits that in the instant case raid has been conducted on the basis of secret information received from the informant and he was arrested at a remote place, therefore, otherwise the authorized officer have a reason that it is not possible to take a person to be searched at the nearest Gazetted Officer or the magistrate and the accused has also opted his choice for search with the duly authorized officer under Section 42 of the NDPS Act. Learned trial Court has failed to appreciate the statements of the witnesses in its prospective way. Therefore, the order of acquittal under question is liable to be set aside, the appeal may be allowed, and the accused may be convicted and sentenced as per law.

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5 No one appeared on behalf of the respondent.

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6 Heard learned counsel for the appellant and went through the entire record with utmost circumspection.

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7 In the matter of Mallappa and other vs. State of

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Karnataka , reported in (2024) 3 SCC 544 , some judicial principles have been laid down by the Hon’ble Supreme Court to resolve the appeal against acquittal, which are as follows in paragraph 42:-

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“42. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarised as:

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(i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive inclusive of all evidence, oral or documentary;

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(ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge;

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(iii) If the court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed;

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(iv) If the view of the trial court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal;

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(v) If the appellate court is inclined to reverse the acquittal in appeal on a reappreciation of evidence, it must specifically address all the reasons given by the trial court for acquittal and must cover all the facts;

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(vi) In a case of reversal from acquittal to conviction, the appellate court must demonstrate an illegality, perversity or error of law or fact in the decision of the trial court. ”

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8 In light of the above principles laid down by the Hon’ble

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Supreme Court, it is pertinent to consider whether sufficient evidence is available in the present case to overturn the acquittal and convert it into a conviction?

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9 In the instant case, the independent witnesses have not supported the case of the prosecution and from the statement of constable, Gopalji Ram Soni (PW-1) who is the witness of proceedings, it is clear that the accused himself took the narcotics from his house and handed them over to Excise Sub Inspector Ranjit Kumar Gupta (PW-8), whereas I.O. Ranjit Kumar Gupta (PW-8) has stated that the said narcotics have been seized during the search of the accused. As such, there is a contradiction in the statements.

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10 Further, looking to Mukhbir Panchnama (Ex.P-26), which indicates that the information was conveyed to the Excise Commissioner via his mobile number, however, there is no mention in Ex.P-26 of any written information being provided regarding the departure. Ex.P-27 (document related to Section 165 of the Code of Criminal Procedure and Sections 42/2/43 of NDPS Act states that a delay in obtaining the necessary authorization could allow the accused to escape or tamper with the evidence, therefore, I.O. along with his staff proceeded to search the person, however, Ex.P-27 does not specify to which senior officer it

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was addressed. Furthermore, Anil Kumar Gupta (PW-7) has stated that he delivered Ex.P-26 to the District Excise Officer, Ambikapur, Surguja, but neither any receipt of the same has been produced, nor the I.O. made the District Excise Officer, Ambikapur, Surguja, or any of his employee as a witness in this case. As such, it is not established that Section 42 of the NDPS Act has been complied with.

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11Furthermore, Section 55 of NDPS Act has also not been complied with which is evident from a photocopy of Malkhana Register Ex.P-51C as according to the prosecution’s case, three packets of 30 grams each were prepared, however, Ex.P-51C does not show these three packets being deposited in the Malkhana and neither the I.O. has given any clear statement in this regard. As such, it is also not established that Section 55 of the NDPS Act been complied with.

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12 In light of the analysis of the evidence above, this Court finds that the judgment of acquittal passed by the trial Court is not contrary or inconsistent with the facts and evidence available on record, and no illegality or irregularity appears in the impugned judgment of acquittal. Therefore, no interference is required.

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13 Accordingly, the appeal against the acquittal is liable to be and is hereby dismissed .

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14 The Registry is directed to send a copy of this judgment along with the original record, forthwith to the trial/appellate Court for information and compliance if any.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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H.L. Sahu

State of Chhattisgarh v. Brijesh Tiwari

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State of Chhattisgarh v. Brijesh Tiwari

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