Parmesh Nayak Vs State of Chhattisgarh

This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment and order of sentence dated 15.01.2020 passed by the learned Special Judge of N.D.P.S. Act, 1985, Kondagaon, District- Kondagaon (C.G.) in Special N.D.P.S. Case No.

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02/2018 whereby and whereunder, the appellants have been held

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guilty of commission of offence and sentenced as described below:-

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Conviction	Sentence
Under Section 20 (b) (ii) (C)	R.I. for 10 years each, to pay a
of NDPS Act, 1985	fine of Rs. 1,00,000/- each and in
	default of payment of fine, to
	undergo additional R.I. for 01
	year each.

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The case of the prosecution in brief is that on 12.08.2017 at about 5:30 pm in- charge officer of Police Station- Farasgaon, Sub-Inspector- Ajay Jha along with staff and witnesses was discharging his official duty and he received the secret information from an informer that two persons were transporting narcotic substance ganja in Bolero Pickup bearing Registration No. MP 18- JA-0152, which is coming from Malkanagiri to Jagdalpur via Farasgaon and going towards Raipur for selling the same. The aforementioned information was recorded in the Rojnamcha Sanha and on receiving the information, the witnesses namely Manoj Netam and Mankuram were made about the secret information and a panchanama to this effect was prepared and a copy of it was sent to Sub-Divisional Officer Police, Farasgaon through Constable Salim Tigga. Since the persons transporting the narcotic substance ganja were in a Bolero pickup vehicle, if they had waited for a search warrant or for the arrival of a gazetted officer, they could have fled and hidden the drugs. Therefore, a Panchnama was prepared under Section 42(2) of the NDPS Act for not being able to obtain a search warrant. Investigating officer- Ajay Jha along with staff Assistant Sub-Inspector B.P. Yadav, PR Purushottam Sonwani, Asman Markam, Panchuram

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Markam, R Vikas Dugga, Sunil and witnesses, along with the investigation kit, cordoned off the NH- 30 road in front of police StationFarasgaon. After some time, at around 8 a.m, vehicle Bearing Registration No. MP 18 JA-0152 was seen coming from Kondagaon towards Farasgaon, which was cordoned off and caught. On questioning the occupants of the vehicle, the person sitting in the driver's seat disclosed his name as Parmesh Nayak and the person sitting next to him disclosed his name as Mahesh Nag. The Investigating Officer issued a notice to the accused under Section 50 of the NDPS Act, informing them of their legal rights and asking them to have their vehicle searched by themselves or by a gazetted officer. The accused then gave written consent to have their search conducted by the investigating officer. The investigating officer then had the accused search himself, his accompanying staff, and witnesses. No narcotics were found from their possession. A panchnama (inspection report) was prepared for the investigation. A search of the accused and the Bolero pickup vehicle in their possession was conducted. 40 packets of contraband substance like ganja, both large and small, wrapped in white plastic paper and sealed with cellophane tape, were recovered in the presence of witnesses and a panchnama was prepared. A single bud of contraband article ganja was removed from each packet, made to smell and burned, and the odor of ganja was strong. Based on their experience, the witnesses confirmed the substance to be contraband article ganja. After this the complainant, gave a notice to constable Sunil Jain and through him called Ramesh Sahu for weighing proceedings. Ramesh Sahu reached the spot with an electronic weighing machine, whose weighing machine was physically verified in

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front of witnesses and a panchnama was prepared. When the recovered ganja was weighed by the weigher Ramesh Sahu, a total of 02 quintals 65 kg 700 grams of ganja was found, whose narcotic substance weighing panchnama was prepared. The ganja seized from the accused was confiscated in the presence of witnesses, and a seizure panchnama was prepared. Subsequently, a notice under Section 91 of the CrPC was issued to accused Parmesh, who was asked to produce vehicle documents. The accused produced a duplicate RC book, which was seized and a seizure memo was prepared. A mobile phone was seized from accused Mahesh Nag, and ₹1,000 and 200 were seized from the accused. The accused were₹ arrested. The investigating officer had filed a dehati nalishi on the spot. Subsequently, the ganja seized from the accused, along with accompanying staff, returned to the police station and submitted the dehati nalishi, based on which Inspector- Krishna Patle lodged an FIR for offence under Section 20(b) of the NDPS Act, Crime No. 76/17. The witness statements were recorded and a spot map was prepared. A spot map was prepared by Patwari was also obtained. An inventory of the seized ganja was conducted by the Executive Magistrate, Farasgaon, and it was also photographed. Following the inventory, two 50-gram sample packets were sent to the FSL for chemical testing and a report was obtained. The chemical test confirmed the samples to be ganja . After completion of due and necessary investigation, chargesheet was led before the concerned jurisdictional Magistrate who, in turn, committed the case for trial. On the basis of the material contained in the charge-sheet, learned trial Court framed charges against the appellants for alleged commission of offence under Section

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20 (b) (ii) (C) of NDPS Act. The appellants having abjured guilt were subjected to trial.

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In order to substantiate its case, the prosecution has examined as many as 15 witnesses. Statement of accused/ appellants were also recorded under Section 313 of Cr.P.C. in which they denied the incriminating circumstances appearing against them and pleaded their innocence and false implication in the case.

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The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment dated 15.01.2020 convicted and sentenced them as mentioned in inaugural paragraph of this judgment. Hence, this appeal.

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Learned counsel for the respective appellants submits that the submits that the impugned judgment is per se illegal and contrary to the material available on record. Learned trial Court ought to have seen that the mandatory provisions of the NDPS Act have not been complied with by the Investigating Officer while conducting search and seizure proceedings. The learned Special judge failed to consider the facts that the investigation officer not fulfills the mandatory provisions of the N.D.P.S., like Sections 42, 55 and 57 of the Act. The testimony of the Investigating Officer (P.W.-9, Ajay Jha) does not demonstrate compliance with Section 55 of the NDPS Act and is not corroborated by the independent panch witnesses, P.W.-1 Manoj Kumar Netam and P.W.-2 Samluram Karanga. It further suffers from material contradictions and omissions; hence, it is unsafe to place reliance upon his testimony. The testimony of the Investigating Officer (P.W.-9, Ajay Jha) reflects clear non-compliance with Section 42 of the NDPS Act.

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The informant entry in the Rojnamcha Sanha was made on 11.08.2017 at about 5:30 p.m. (Ex. P-27C), whereas, according to the prosecution, the information was received only on 12.08.2017. Further, the Mukhbir Suchana Panchnama (Ex. P-1) does not contain any date, time, or number of preparation, and relevant portions are left blank, which creates a serious doubt regarding the actual receipt of information. These inconsistencies indicate that the information was, in fact, received on 11.08.2017 itself, contrary to the prosecution version. The explanation offered by the Investigating Officer is not satisfactory and does not inspire confidence. Accordingly, it is held that there has been complete non-compliance with the mandatory requirements of Section 42 of the NDPS Act, vitiating the prosecution case. Thus, the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellants by adducing cogent and reliable evidence, even then the learned trial Court has held the appellants guilty of the above offence. Therefore, the impugned judgment is liable to be set aside.

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In support of his contention, learned counsel placed reliance upon the decisions of the Hon’ble Apex Court in the matter of I n Surepally Srinivas And 2 Others vs The State Of A.P, reported in 2025 SCC OnLine 683 and in this Court’s judgment dated 18.11.2025 in the matter of Vijay Kumar Vishwakarma vs. State of C.G.

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Ex adverso, 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 the prosecution has proved its case beyond reasonable doubt. Learned State counsel also submits that huge quantity i.e., 265.700 kgs was

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seized from the appellants, which has been proved by the prosecution witnesses and only non-compliance of provisions contianed in Section 52(A) of the NDPS Act will not be sufficient to acquit the accused unless there is some other lacuna in physical evidence. He further submits that learned Special Court has passed well reasoned judgment convicting and sentencing the accused/appellant for the alleged offence, which does not call for any interference. In support of his contention, learned State counsel placed reliance on the decision of the Hon’ble Apex Court in the matter of Bharat Aambale Vs. State of

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1 2 Chhattisgarh & Madan Lal & Others vs. State of H.P. .

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I have heard learned counsel for the parties, considered their rival submissions made hereinabove, and also went through the records with utmost circumspection.

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It is evident from record of learned Trial Court that it framed charges against the appellants for offence under Section 20 (b) (ii) (C) of NDPS Act on this ground that on 12.08.2017 both the appellants transported the 265.700 Kgs contraband article ganja in a Bolero Pickup bearing Registration No. M.P. 18-JA-0152. Learned trial Court after appreciating the oral and documentary evidence convicted the accused persons for the aforesaid offences.

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PW-9 Investigating Officer- Ajay Jha has stated that he lodged the Rojnamchasanha on 11.08.2017 of Police Station- Farasgaon about the secret information of transporting of contraband article substance like ganja and he lodged this secret information in Rojnamchasanha No. 3 at 5:30 pm which is Ex. P/27 and the copy of the same is Ex. P/27-C. He then sent Constable No. 389- Salim Tigga for calling two

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1 2025 SCC OnLine SC 110

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2 2003 (7) SCC 465

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independent witnesses and he gave duty certificate in this regard and thereby lodged Rojnamchasanha at 5:45, which is Ex. P/28. ConstableSalim Tigga brought two independent witnesses namely Manoj Sahu and Samluram and he entered their names in Rojnamchasanha No. 6 at 6:05 hours which is Ex. P/29. He prepared Mukhbir Suchana Panchnama vide Ex. P/1 on 12.08.2017 at 6:25 am and he also made entry in Rojnamchasanha vide Ex. P/30 and thereafter, he sent information to S.D.O.P. Farasgaon vide Ex. P/31 on 12.08.2017 and entry was made by him on Rojnamchasanha on 11.08.2017 at 6:40 vide Ex. P/32. Constable- Salim Tigga then returned from S.D.O.P. Office Farasgaon on 12.08.2017 at 7:10 hours and he made entry of acknowledgment given by Constable-Salim Tigga in Rojnamchasanha No. 11 vide Ex. P/33-C. He also prepared memo under Section 42 of the NDPS Act at 8:00 am which is Ex. P/2 and regarding the above proceedings, it was recorded in Rojnamchasanha No. 12, which is Ex. P/34. He also supported for conducting raid along with his staff at 7:25, Rojnamchasanha entry is Ex.P/35. After reaching the spot, he put up a blockade and was waiting for the pickup vehicle number MP 18- JA 0152 as per the information received from the informer. After some time, the said vehicle reached the spot, which was stopped by a blockade. Two persons were sitting in the said vehicle. The driver of the Bolero pickup vehicle disclosed his name as Parmesh Nayak and the other person identified himself as Mahesh Nag. Notices were served upon the appellants for their personal search; however, no contraband substance was recovered from their possession. Upon searching the vehicle along with the staff, contraband substance like ganja was recovered from the said vehicle.

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Both independent witnesses i.e., PW-1 Manoj Netam and PW-2 Samluram have admitted their signatures on all documents from Ex. P/1 to Ex.P/21 on A to A parts and B to B parts respectively; however, they failed to identify the appellants and denied that any proceedings were conducted in their presence. Although, they were declared hostile and subjected to cross-examination by the prosecution, they did not support the prosecution case and denied all suggestions put to them.

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Learned counsel for the appellants strongly objected on this ground that as per Rojnamchasanha, the information was received on 11.08.2017 and all proceedings were done by the Investigating Officer on 12.08.2017.

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It is evident from record and all entries in Rojnamchasanha that information was received on 11.08.2017 at around 5:30 am and Mukhbir Suchana Panchnama ( Ex. P/1) was prepared on 12.08.2017 at around 6:25 am.

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It is further evident from the statement of PW-9, the Investigating Officer- Ajay Jha has self admitted in para 1 that he received a secret information on 11.08.2017 and he made entry in Rojnamchasanha vide Ex. P/27 at about 5:30 am and in para 4, he stated that he prepared Mukhbir Suchana Panchnama ( Ex. P/1) on 12.08.2017 at around 6:25 am. He stated in paras 31 and 32, which are reproduced herein as under:-

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"३१-यह कहना सही है किक रोजनामचा सान्हा के्ቅ मांक-३ में ११/०८/२०१७के५.३०बजेमैंनेमुखबीरसूचनापंचनामालि"खाहै।यह .

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कहनासहीहैकिकरोजनामचासान्हा्ቚ पी२७मेंजोसमयएवंतारीखअंकिकत ातः

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हैवहसहीहै।सां्ቌीस्वतःकहताहैकिकहमारेथानेकारोजनामचा्ቚ

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७.००बजेसेदुसरेकिदनांकके्ቚ ातः७००बजेतक्ቚ भावशी" रहताहै, जिजसमेंराकि1 २४.००बजेकेबादतितथिथबद"तीहैतथानयेसान्हेकालि"खना ारंभहोताहै।

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३२- यहकहनासहीहैकिक्ቚ .पी२७सीकेउपरअपराध्ቅ मांक७६/१७ अंकिकतहै।यहकहनासहीहैकिककिदनांक११/०८/२०१७केसुबह५.३०बजे मैंनेइस्ቚ करणकाकोईएफ.आई.आर. दज= नहींकिकयाथा।यहकहनासहीहै किक्ቚ . पी२८में५.४५बजेआर. ३८९स"ीमतितग्गाकोदोगवाहोंको"ानेके लि"येडयुटीसटEकिफकेटदेकरफरसगांवरवानाकिकयाथा "

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He further stated in Para 35, which reads as under:-

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" ३५- यहकहनासहीहैकिककिदनांक११/०८/२०१७काऐसाकोईदस्तावेज करणमेंसं"्ሿनहींहै। "

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He also admitted that he sent information to S.D.O.P, Farasgaon on 12.08.2017, he also admitted in para 38, which reads as under:-

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“38. यहकहनासहीहैकिककिदनांक११/०८/२०१७कोशु्ቅवारथा, किदनांक

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१२/०८/२०१७कोकिदनशकिनवारथा"ेकरसान्हा्ቚ .पी३२एवं्ቚ .पी३३मेंयकिद किदनशु्ቅवारउ्ቤेलिखतहैतोमैंइसकाजबावनहींदेसकता।किकन्तुथानेके रोजनामचामेंस्प्ቖ किदनवकिदनांककेसंबंधमेंउ्ቤेखकिकयागयाहै।"

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In para 43, he admitted this suggestion of defence that in Ex. P/3 overwritting was done in the date and time of the notice.

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In para 44, he admitted that…….. यहकहनासहीहैकिक्ቚ . पी३एवं्ቚ . पी४में आपकेपासगांजारखनेकासूचना्ቚ ा्቎ हुईऐसामैंनेउ्ቤेखकिकयाहै।"

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As per the Investigating Officer- Ajay Jha (PW-9), the contraband article ganja was seized from the vehicle in 40 packets and he marked all those packets as A-1 to A-40. In para 53, he stated as under:-

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" ५३- यहकहनासहीहैकिक्ቚ .पी१६केअनुसारमैंनेकिदनांक १२/०८/२०१७केसमय१२.००बजेउ्ሹ ४०पैकेटोंकोसी" जिस्ሪा . "गाकरज्቎ीप1कतैयारकिकयाथा।यहकहनासहीहैकिक्ቚ पी१६में किकसतरहकासी" "गायाथाइसकाउ्ቤेखनहींहै।यहकहनासहीहैकिक . उ्ሹ ४०पैकेटोंकोकिकतनेबोरिरयोंमेंभराथा्ቚ पी१६मेंइसकाउ्ቤेख . नहींहै।यहकहनासहीहैकिक्ቚ पी१६मेंजैसाउ्ቤेखसी" "गानेकाहै, वैसाउ्ቤेखकिकयाहै।इसबीचमैंनेकोईसमरसकीकाय=वाहीनहींकिकया था। "

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PW-10 Krishna Patle has stated that he lodged an F.I.R. vide Ex. P/46 and he deposited contraband article ganja in 14 jute bags weighing 265.700 Kgs, one White colour Bolero Pickup bearing Registration No. MP-18-JA-0152, one Samsung Mobile, one keypad mobile of Nokia company, cash of Rs. 1200/- , one keypad mobile was given to Head Constable No. 341 Sumant Kumar Bhagat, Malkhana Mohrir on 12.08.2017 at 13:50 pm and also entry was made in the Rojnamchasanha. The acknowledgment of the Malkhana is Ex. P/49.

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In para 03, he stated that ” किदनांक१६/०८/२०१७के१९००बजे थानाफरसगांवकेअपराध्ቅ माक७६/१७मेंज्቎ किकयेगयेसंपतितयोंको .

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मा"खानामेंरखागयाथाजिजसेमेरे्ቛ ारामा"खानामोहरीर्ቚ धानआर्ቌक्ቅ ३४१सुमन्तकुमारभगतसेमा"खानता"ाखु"वाकरगवाहोंकेसम्ቌ रखेगये गांजाबोरीनं. ए- १सेए-१४तकमाक= किकयाहुआथाकिनका"ा, उ्ሹ सम्पलिQयोंपर थानेकानमुनासी" "गाहुआथाजोसी"बदहा"तमेंथातथासहीथा, जिजसे .

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समरसएवंसैኌ᭢म्"गकाय=वाहीहेतुकिनका"करपंचनामा्ቚ पी२१तैयारकिकयाथा, जिजसकेससेसभागपरमेराहस्ता्ቌरहैI “

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In para 4, he stated that " उ्ሹ् संपतितयोंकोमा"खानामोहरीरसे्ቚ ा्቎ करनेके प्ቐातमैनेंकाय=पालि"कदण्डातिधकारीफरसगांवकेसम्ቌ तहसी" काया="यमेंकिदनांक

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१६/०८/१७के१९.००बजेपेशकिकयामैनेंकाय=पालि"कदण्डातिधकारीफरसगांवके सम्ቌ उत्क्संपतितयोंकोखो"करसमरसकरसैंपिሴ"गअ"गकरपुनःतौ"करसी"बंद किकयागयातत्प्ቐातमेरे्ቛ ाराकाय=पालि"कदण्डातिधकारीकीउपቝኌस्थतितमेंसाति्ቌयोंके सम्ቌ तौ"कता= रमेशसाहूके्ቛ ाराए१सेए४०तककेपैकेटोंकोपृथकपृथकतौ" किकयाजिजसकेसंबंधमेंपंचनामा्ቚ .पी. ५०तैयारकिकयाजिजसकेअसेअभागपरमेरा हस्ता्ቌरहै।"

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PW-11 Dhananjay Kumar Netam, S.D.O. has stated that on 16.08.2017, he went to Police Station- Farasgaon and he stated in paras 4 and 5, which are reproduced herein for ready reference as under:-

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“4. अ"गअ"ग उ्ሹ गांजाकेपैकेटोंकोमेरेसम्ቌ पेशकरनेपरमैंनेअपनेसम्ቌ

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तौ" करवायाथा।उसकेप्ቐातउ्ሹ सभीपैकेटोंकोखु"वाकरसभीगांजाको एकसाथकिम"वाकरउसमेंसे 100-100 ामकेदोपैकेटतैयारकरवाकरउन पैकेटोंकोए-1 तथाए-2 सेतिचन्हािሗकतकरसी"बंदकिकयागयाथातथाशेषगांजा कोसमन्सकरनेकेउपरांत 14 जूटकीबोरिरयोंसंयु्ሹ रूपसेभरवायाथा।मैंने उ्ሹ जूटकीबारिरयोंकोबी-1 सेबी-14 तकतिचन्हांकिकतकरसी"बंदकिकयाथा। मैंनेउ्ሹ्ቚ कि्ቅयाकीफोटो्ቇाफीभीकरवायीथी।

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मैंनेबोरीमेंभरनेसेपह"ेगांजाकावजनकरवायाथा, जिजनकावजनकरीब 2 ኌ᭢_वट" 65 किक"ो 700 ामबोरीसकिहतहुआथा।मैंने 100-100 ामकेदो सैम्प" पैकेटकोरासायकिनकपरी्ቌणहेतुभेजनेकाकिनद`शथाना्ቚ भारीकोकिदया था।नेरे्ቛ ाराएन. डी. पी. एस. ए_टकीधारा 52 (ख) केतहतइन्वेट्रीकी काय=शहीका्ቚ तितवेदनतैयारकिकयागयाथाजो्ቚ दश= पी. 53 है, जिजसकेअसेअ भागपरमेरेहस्ता्ቌरहै। "

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In paragraph 8, he admitted that he himself conducted the inventory proceedings and further conceded that in Ex. P/53 does not bear any date.

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Thus, from the testimonies of PW-10 Krishna Patle and PW-11 Dhananjay Kumar Netam, it is evident that the place of proceedings are different as there is a material inconsistency regarding the same. According to PW-10, all proceedings were conducted at the Tahsil Office, Farasgaon, whereas, PW-11 stated that he went to Police Station Farasgaon and prepared the inventory and sample packets there.

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As per PW-11, he prepared two sample packets of 100 grams each for chemical examination, whereas PW-10 prepared sample packets of 50 grams each as A-1 and A-2.

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PW-13 Sumant Kumar Bhagat has stated that he deposited all seized property in Malkhana and sample packets A-1 and A-2 of 50 grams each contraband and in para 10, he admitted that “ यहकहनासहीहैइस दस्तावेजकेअनुसारमाक= किकयेहुये A1 से A14 तककेबोरोकोमैनेमा"खानेमेंजमा किकयाऔरदोसेम्प" 50-50 ामकेएफएसए" केलि"येभेजनेकेलि"येमैनेअ"गसेरखा था।यहकहनासहीहैकिकउ्ሹ दोनोंपैकेटमैंनेमा"खानेजमानहींकिकयाथाबቝኌcकथानेमें अ"गसेरखागयाथा।उ्ሹ दोनोसेम्प" कोएफएसए" केलि"येकबभेजागयायहतितथिथ मुझेयादनहींहै।"

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In para 11, he stated as under:-

¶84

थानाफरसगांवकेअपराध्ቅ मांक 76/17 धारा-20 (ख) NDPS Act मेंइन्वेन्ट्री केदौरानतैयारपैकेट A1 कोरासायकिनकपरी्ቌणप्ቐातराज्यन्याया"तियककिव्ሺान योगशा"ारायपुरसेमकिह"ाआर्ቌक्ቅ मांक 164 बीनाकोमरानेवापस"ाकरथाना फरसगांबकेमा"खानामेंजमाकिकयागयाथाजिजसेमैंनेथानाफरसगांवकेमा"खानामें जमाकरजिजसकी्ቚ किव्ቖीरोजनामचा्ቅ मांक 23 किदनांक 05.09.2017 मेंकीथीं।उ्ሹ पैकेटकोआजमैंन्याया"यमें"ेकरउपቝኌस्थतहुआहूंऔरपेशकररहाहूं।उ्ሹ सेम्प" पैकेटकोआ቏ኌटक" A माक= किकयागया।उ्ሹ पैकेटसी"बंदहैजिजसमेंचपड़ा"गकर एफएसए" कीसी" "गीहुईहै।तिचन्हांकनउपरांतउ्ሹ पैकेटसा्ቌीकोवापसकिकयागया

¶85

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¶86

As per PW-13, he deposited sample packets on 05.09.2017, whereas PW-14 Beena Mandavi has stated that she deposited sample packets at F.S.L. on 04.09.2017 vide Ex. P/47. In para 13 of his crossexamination, PW-13 has stated that PW-14 after conducting chemical examination again deposited sample packets on 05.09.2017.

¶87

As per F.S.L. report Ex. P/48, it was prepared on 08.09.2017 and it is clear that sample packets were deposited on 04.09.2017 and as per Rojnamchasanha entry Ex. P/47, the sample was returned after examination on 05.09.2017.

¶88

In the case of Bharat Aambale (supra) Hon’ble Supreme Court has held that, non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution, but such lacking will not, by itself, be fatal to the case of the prosecution, unless there are other discrepancies in the physical evidence.

¶89

In the case of Surepalli Srinivas (supra) , the prosecution failed to prove that, seized contraband was properly sealed, it was produced before the trial Court belatedly and seized contraband was kept in separate room of P.W. 3 for 15 days, having considered aforesaid facts, Hon’ble Supreme Court allowed the appeal and extended benefit of doubt to the appellants by setting aside judgment of conviction of appellant.

¶90

In the case of Mohammad Khalid and Anr. vs. State of Telangana, reported in 2024 (5) SCC 393 , Hon’ble Supreme Court held that, these glaring loop holes in the prosecution case give rise to an inescapable inference that the prosecution has miserably failed to prove the

¶91

15

¶92

required link evidence to satisfy the Court regarding the safe custody of the sample packets from the time of seizure till the same reached the FSL.

¶93

In the light of above cited judgments and other guidelines of the Hon’ble Apex Court and in the present case also the Malkhana Mohrir (PW-13) himself stated that he did not deposit the sample packets in Malkhana and he kept both the sample packets separately marked as A-1 and A- 2. PW-14 Beena Mandavi deposited the sample packets on 04.09.2017 and as per acknowledgment receipt (Ex. P/47), these sample packets were returned to Malkhana on 05.09.2017 and F.S.L. report was prepared on 08.09.2017. Investigating Officer (PW-9) had prepared all information on 11.08.2017 and proceeding was done on 12.08.2017 and in this regard no satisfactory explanation was offered by him, but the learned trial Court did not appreciate all these discrepancies. Thus, it is clear that prosecution has utterly failed to comply with all mandatory provisions. I am of the opinion that the prosecution has not been able to prove guilt of the appellants beyond all reasonable doubt from the very beginning to chemical analysis, even S.D.M PW-11 Dhananjay Kumar Netam’s statement is contradictory to PW-10 Krishna Patle’s statement. Being so, the learned trial Court was not justified in recording conviction of the appellants under Section 20 (b) (ii) (C) of the NDPS Act, 1985.

¶94

For the foregoing reasons, this appeal is allowed and the impugned judgment of conviction and order of sentence dated 15.01.2020 is set aside. The appellants are acquitted of the charge under Section 20 (b) (ii)(C) of the NDPS Act, 1985.

¶95

The appellant No. 01 is reported to be in jail, whereas appellant No. 02

¶96

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is on jail. They are set at liberty forthwith if no longer required in any other case. However, keeping in view the provisions of Section 481 of BNSS 2023, the appellants are directed to furnish a personal bond for a sum of Rs. 25,000/- each before the Court concerned forthwith, which shall be effective for a period fo six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

¶98

Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.

¶99

Sd/- Rajani Dubey)

¶100

JUDGE

¶101

U.K. Raju

Parmesh Nayak v. State of Chhattisgarh

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Parmesh Nayak v. State of Chhattisgarh

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