Bhagirathi Gardeya Vs State of Chhattisgarh

For Appellant : Shri Tanuj Patwardhan, Adv. in Cr.A. No. 724 of 2023 For Appellant : Shri R.K. Jain, Adv. in Cr.A. No. 512 of 2023 For Resp./ State : Ms. Mukta Tripahti, Panel Lawyer.

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------------------------------------------------------------------------------------------------------ (Hon’ble Mr. Justice Naresh Kumar Chandravanshi)

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Judgment on Board

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13/01/2026

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1. As both the aforementioned appeals are arising out of the same judgment dated 10^th February, 2023 passed in Special Criminal Case (NDPS Act, 1985) No. 11 of 2019, they are being heard together and decided by this

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common judgment.

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2. These appeals are directed against the impugned judgment of conviction and order of sentence dated 10.02.2023 passed by learned Special Judge (NDPS) Act, Kondagaon in Special Criminal Case (NDPS Act, 1985) No. 11 / 2019 , whereby the learned Special Court, after holding the appellants guilty, convicted and sentenced each of them in the following manner:-

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Conviction Sentence Under Section 20(b) (ii)(C) of Rigorous imprisonment for 10 the N.D.P.S. Act, 1985 years with fine amount of Rs.10,000/-, in default thereof, to undergo RI for one year.

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3. Case of the prosecution in brief, is that on 03.06.2019, Assistant Sub Inspector Omkar Banjare (PW-9) of Police Station Kondagaon received secret information from an informant that some persons were travelling from Junagarh, Odisha to Raipur via Jagdalpur-Kondagaon, concealing the illegal contraband substance Ganja in a white Maruti Suzuki Sx4 Car bearing registration No. UP 32 CT-4935. The said secret information was reduced in writing by him in rojnamcha sanha (Ex.P-23C). The intimation about secret information was sent to Senior Officers. After calling two independent witnesses namely Vicky Nishad and Santosh Markam, Mukhbir Suchna Panchnama (Ex.P-30) was prepared. Thereafter, fearing the possibility of absconding the suspects or mishandling of contraband substance, he alongwtih his accompanying staff and witnesses proceeded towards the place of occurrence and cordoned off at NH-30 road, Kondagaon. After reaching there, aforesaid

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Maruti Suzuki was stopped and the persons, who were occupants of the said vehicle, have informed their names as Bhagirathi Gardeya (appellant no. 1), who is a person sitting in the driver's seat of the aforesaid vehicle, and the person sitting next to him gave his name as Jitendra Kumar Singh and the person sitting on the pillion seat gave his name as Om Prakash Mehra (appellant no. 2). Notice under Section 50 of NDPS Act was served to the appellants/accused. Necessary Panchnamas were prepared. After preparing necessary Panchnamas, they searched the aforesaid vehicle and found 24 packets wrapped in Brown sellotape kept in the dickey and dash board of the said vehicle, which was recovered vide Ex.P-50 . The said contraband substance was identified as Ganja by smelling and rubbing, to which identification Panchnama (Ex.P-51) was prepared. After weighing the 24 packets of recovered contraband substance Ganja, the total weight was found to be 32.333 kgs. Thereafter, search of appellants /accused and other occupant of car was started, in which, a mobile phone and Rs.150/- cash were found in possession of appellant – Bhagirathi Gardeya, driving licence, Aadhar card, original copy of RC and insurance of the suspect vehicle, vehicle sale deed in stamp of Rs.100/-, one Samsung mobile phone, SBI ATM card in the name of Rahul, Rs.1200/- cash and one jio mobile phone were found in possession of Jitendra Kumar Singh whereas, one jio company mobile phone and Rs.710/- cash were found in possession of appellant – Om Prakash Mehra, thereafter, a suspicions search panchnama was prepared and notice under Section 67 of NDPS Act was given to the appellants, but they failed to produce any valid document for its transportation. Necessary Panchnamas were prepared and at the place of occurrence, unnumbered

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Dahati Nalishi bearing Crime No. 0/19 was registered under Section 20 (b) of the NDPS Act. Based on which, FIR was registered against the appellants. Seized / recovered contraband substance and articles were deposited in Malkhana of the concerned police station and receipt thereof was obtained. Statement of the witnesses were recorded. Spot map were prepared by the Police and the Patwari. The recovered contraband was homogenized, inventory and sampling were prepared by Executive Magistrate, which was also photographed. Two samples marked as “X-1 & X-2” of seized contraband was sent to FSL, Raipur, to which vide its report Ex. P-19, the FSL reported that samples ‘X-1’ & ‘X-2’ is Ganja.

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4. After completion of usual investigation, a charge-sheet was filed before the learned Special Court, Kondagaon for the offence under Section 20 of the NDPS Act.

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5. Learned Special Judge framed charge against the appellants/accused under Section 20(b)(ii)(C) of the NDPS Act. They abjured their guilt and claimed trial.

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6. In order to establish the charge against the appellants, the prosecution has examined following witnesses and exhibited following documents :-

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WITNESSES

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PW 1	R. Rajendra Sahu	PW-6	DilipChakradhari
PW 2	Pannalal Dehari	P.W. 7	Jitendra Kumar Nande
PW 3	Maharana PratapBhuarya	PW-8	Umashankar Netam
PW 4	Surendra Kumar Baghel	PW-9	Onkar Banjare
PW 5	Uisiyani K. Mankar

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EXHIBITS

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1.	Ex. P-1	Dutycertificate	39	Ex. P-38C Copyof sanha

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2.	Ex. P-2	Detailed report of proceedings	40	Ex. P-39	Blockade Panchnana
3.	Ex. P-3	Informant’s Information Panchnama	41	Ex.P-40	Verification panchnama of vehicle recovery and informant’s information.
4.	Ex. P-4	Duty Certificate.	42	Ex.P-41	Notice regarding consent
5.	Ex. P-5	Panchnama	43.	Ex. P-42	Notice regarding consent
6.	Ex. P-6	Dehati Nalishi	44.	Ex. P-43	Notice regarding consent
7.	Ex. P-7	First Information Report.	45.	Ex. P-44	Panchnama of the reasons for the search
8.	Ex. P-8	Order with regard to appointment of Executive	46.	Ex. P-45	Consent panchnama
9.	Ex. P-9	Order sheet of Executive Magistrate	47.	Ex. P-46	Search panchnama of witnesses before search.
10.	Ex. P-10	Prepared Inventory	48.	Ex. P-47	Search panchnama of suspect/accused
11.	Ex. P-11	Certificate regarding weighing machine	49.	Ex. P-48	Panchnama of recovery from suspects
12.	Ex. P-12	Memorandum from the S.P., Kondagaon for conducting chemical test of the seized articles.	50.	Ex. P-49	Search panchnama of suspicious vehicle
13.	Ex. P-13	Receipt of received exhibits. c	51.	Ex. P-50	Recovery panchnama
14.	Ex. P-14	Crime Details Form	52.	Ex. P-51	Drug Identification panchnama
15	Ex. P-15	Spot Map	53.	Ex. P-52	Notice under Section 67 of NDPS ACT to Bhagirathi Gardeya
16.	Ex. P-16	Panchnama	54.	Ex. P-53	Notice under Section

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		6			67 of NDPS ACT to Jitendra Kumar Singh
17.	Ex. P-17	Patwari’s memorandum regarding the spot mapof the incident.	55.	Ex. P-54	Notice under Section 67 of NDPS ACT to Om Prakash Mehra.
18.	Ex. P-18	Application for appointment of Executive Magistrate.	56.	Ex. P-55	Exhibit marking panchnama
19.	Ex. P-19	FSL report.	57.	Ex. P-56	Notice to Weigher
20.	Ex. P-20	Receipt of received exhibits.	58.	Ex. P-57	Certificate
21.	Ex. P-21	Information regarding the vehicle owner	59.	Ex. P-58	Physical verification of Taraju.
22.	Ex. P-22	Information regarding the vehicle owner	60.	Ex.P-59	Weighing Panchnama of contraband substance
23.	Ex. P-23c	Copy of Sanha	61.	Ex.P-60	Sample panchnama of Samras
24.	Ex. P-24	Duty Certificate	62.	Ex.P-61	Exhibit marking panchnama
25.	Ex. P-25c	Copy of Sanha	63.	Ex.P-62	Seal Sample Panchnama
26.	Ex.P-26- c	Copy of Sanha	64.	Ex.P-63	Property seizure memo.
27.	Ex.P-27	Notice under Section 160 of Cr.P.C. to Santosh Markam	65.	Ex.P-64	Panchnama regarding information about the reason for arrest
28.	Ex.P-28	Notice under Section 160 of Cr.P.C. to Vicky Nishad	66.	Ex.P-65	Warrant of arrest.
29.	Ex.P-29	Copy of the Sanha	67.	Ex.P-66	Warrant of arrest.
30.	Ex.P-30	Mukhbir Suchna Panchnama	68.	Ex.P-67	Warrant of arrest.
31.	Ex.P- 31C	Copy of the Sanha	69.	Ex.P-68	Panchnama regarding absence of identitycard of the

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					arrested accused persons.
32.	Ex.P- 32C	Copy of the Sanha	70.	Ex.P-69	Post-arrest search panchanama of the accused.
33.	Ex.P- 33C	Copy of the Sanha	71.	Ex.P-70	Panchnama informingof arrest
34.	Ex.P- 34C	Copy of the Sanha	72.	Ex.P-71	Radio message
35.	Ex.P- 35C	Copy of the Sanha	73.	Ex.P-72	Radio message
36.	Ex.P-36	Panchnama regarding the failure to obtain search warran	74.	Ex.P-73	Radio message.
37.	Ex.P- 37C	Copy of the Sanha	75.	Ex.P-74-C	Copy of Rojnamcha Sanha
38.	Articles A-1 to A- 05	Photographs	76	Ex.P-75	Delivery receipt

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Statement of the appellants were also recorded under section

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313 of Cr.P.C., in which, they denied the circumstances appearing against them in prosecution evidence and stated that they are innocent and has falsely been implicated in the case. No defence witness has been examined by the appellants in their defence.

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7. Learned Special Judge after appreciating the evidence adduced by the prosecution, convicted the appellants under Section 20 (b)(ii)(C) and sentenced each of them, as has been mentioned in the opening paragraph of the judgment, which has been assailed by the appellants in the instant appeal.

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8. Learned counsel appearing for their respective appellants would jointly submit that in the instant case, Vicky Nishad and Santosh Markam

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are said to be independent witnesses of search & seizure whereas Bhupendra Dewangan is said to be weigher (rkSydrkZ) of alleged contraband substance, but the prosecution has not examined those independent witnesses in order to prove the charge levelled against the appellants. They further submit that total 24 packets of alleged contraband substance, total weight 32.333 kgs. was allegedly seized on 4.6.2019 vide seizure memo (Ex.P-63), but after seizure where it was kept prior to sending it to FSL has not been proved, as neither Malkhana register was filed nor proved the same by the prosecution by adducing evidence in this regard. Alleged samples were sent to FSL vide memo (Ex.P-12) dated 8.6.2019 of Superintendent of Police, Kondagaon, District Kondagaon, which was deposited by Constable - Dilip Chakradhari (PW-6) in FSL, but as per deposit receipt (Ex. P-13) issued by FSL, said two samples were deposited in FSL vide letter dated 10.6.2019 of Superintendent of Police, Kondagaon and the letter number is also different in both the documents i.e. Ex.P-12 & Ex.P-13. He further submits that at what time, alleged suspicious vehicle Maruti Suzuki SX4 has reached at the place of occurrence where blockade was made, is also contradictory from the deposition of Investigating Officer – Omkar Banjare (PW-9) and accompanying constable Rajendra Sahu (PW-1) and Maharana Pratap Bhuarya (PW-3). It is further contended that provisions of Section 52-A of the NDPS Act has also not been complied with, two samples collected by Onkar Banjare, Investigating Officer (PW-9) on 03.06.2019 after homogenization of alleged contraband substance vide Ex.P-60 & ExP-61 were marked as X-1 & X-2, whereas Executive Magistrate / Naib Tahsildar – Uisiyani K. Mankar (PW-5) has also also drawn samples,

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which were marked as ‘X-1’ & ‘X-20 on 12.06.2019 in compliance of provisions contained in Section 52-A of the NDPS Act, therefore, it becomes doubtful that which samples marked as X-1 & X-2 had been sent for chemical examination to Regional Forensic Science Laboratory, Raipur, hence, FSL report (Ex.P-19) cannot be relied upon. It is lastly contended that learned Special Judge without considering aforesaid facts has mechanically convicted the appellants for the said offences, which is perverse to the evidence and the law settled by the Hon’ble Apex Court, hence, he prays that the appeal be allowed and the appellants be acquitted of the alleged offence by setting aside the impugned judgment.

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9. Per contra, learned counsel for the State while supporting the impugned judgment would submit that learned Special Court has passed well reasoned judgment convicting & sentencing the appellants/accused for the alleged offence, which does not call for any interference in the instant appeal.

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10. I have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the record of the case including the record of the Special Court with utmost circumspection.

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11. In order to prove the charge levelled against the appellants, the prosecution has examined as many as 9 witnesses in the instant case. Vicky Nishad and Santosh Markam are said to be independent witnesses of search & seizure and Bhupendra Dewangan is said to be weiger of alleged contraband substance ( ganja ), but they have not been examined by the prosecution.

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12. Assistant Sub Inspector - Omkar Banjare (PW-9), who is Investigating Officer of the case, has stated in his deposition that on 3.6.2019 he received information from informer that alleged contraband substance Ganja was being transported on the way from Odisha via Jagdalpur to Raipur in a white colour Maruti Suzuki SX4 bearing registration No. UP 32-CT-4935. The said secret information was reduced in writing the said secret information in Rojnamcha Sanha (Ex.P-31) and informed Sub Divisional Officer (Police), Kondagaon about aforesaid information vide Rojnamcha Sahna (Ex.P-32c) and memo (Ex.P-2). This fact also get support from deposition of Constable -Maharana Pratap Bhuarya (PW-3), who served the post in the office of S.D.O. (Police), Kondagaon and also from deposition of Head Cpmstabe – Umashankar Netam (PW-8), who received aforesaid information in the office of SDO (P), Kondagaon. Thus, compliance of provisions contained in Section 42(1) & 42(2) of the NDPS Act has been proved by the prosecution.

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13. As per deposition of Onkar Banjare (PW-9), he had made blockade on 03.09.2019 at 3.30 PM at Mardapal Triangle, N.H. 30, Kondagaon. He has further deposed that aforesaid Maruti Suzuki Vehicle reached there at 4.30 PM, which was intercepted by him, thereafter, various panchnamas were prepared by him and vide seizure memo (Ex.P-63), he seized 32.333 kgs. contraband substance (ganja), which appellants had kept in dickey and dash board of the aforesaid maruti car. The aforesaid seizure memo was prepared on the night of 3-4/6/2019 at 00.55 hrs.. Thus, the proceeding of raid prolonged from 4.30 PM of 03.06.2019 tonight 12.55 AM. No explanation has been offered by the Investigating Officer (PW-9) as to why such long delay occurred in seizure of alleged contraband substance.

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14. As per deposition of Onkar Banjare, Investigating Officer (PW-9), after seizure of alleged contraband substance, he had handed over the same alongwith other articles to Tekram Dhurv, Head Constable / Malkhana Incharge vide receipt (Ex.P-75), but said Tekram Dhurv has not been examined. Malkhana register with regard to depositing alleged contraband substance and taking out the same and sending it to FSL has also not been proved.

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15. Constable Dilip Chakradhari (PW-6) had deposited the alleged contraband substance in the State Forensic Science Laboratory at Raipur vide letter dated 8.6.2019 (Ex.P-12) of the Superintendent of Police, District Kondagaon. Ex.P-13 is said to be receipt issued by FSL, Raipur, but in this receipt, reference of letter of Superintendent of Police dated 10.06.2019 has been mentioned, thus, under which letter of Superintendent of Police, said two samples were deposited in Malkhana is highly contradictor, even letter number in both the documents i.e. Ex.P-12 & Ex.P-13 is also different.

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16. As per deposition of Investigating Officer - Onkar Banjare (PW-9), after homogenization of alleged contraband substance, two samples were collected vide Samras & Sample Panchnama (Ex.P-60) and those samples were marked as ‘X-1’ & ‘X-2’ vide Ex.P-61. Proceedings provided under Section 52-A (2) of the NDPS Act was got conducted by Executive Magistrate / Naib Tahsildar – Uisiyani K. Mankar (PW-5) on 12.6.2019 vide Ex.P-9 and Ex.P-10. He had also collected two samples from alleged contraband substance ganja and those were also marked as ‘X-1’ & ‘X-2’. Alleged samples were sent to FSL, on which date, is contradictory, as has been mentioned above. Therefore, in aforesaid situation and also in absence of proving of depositing samples in malkhana of Police Station –

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Kondagaon, it also becomes doubtful that which two samples were sent for chemical examination of alleged contraband substance in F.S.L., Raipur.

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17. Constable Rajendra Sahu (PW-1) and Constable Maharana Pratap Bhuarya (PW-3) were accompanying police personnel to the Investigating Officer at the time of raid. They have supported the raid proceedings, but there are various latches and lacuna in the raid proceedings conducted by the Investigating Officer. Provisions of Section 52-A of the NDPS Act has also not been complied with from concerned Judicial Magistrate.

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18. In the case of Bharat Aambale vs. The State of Chhattisgarh1, 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 discrepancies in the physical evidence.

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19. In the case of Surepalli Srinivas Vs. State of Andhra Pradesh (Now State of Telangana) 2, 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 accused.

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20. As has been discussed in preceding paragraphs, there are material discrepancies and lacuna in the physical evidence of instant case, as none of

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1 (2025) 8 SCC 452

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2 2025 SCC OnLine 683

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the independent witnesses have been examined by the prosecution, alleged raid proceedings was prolonged from about 4.30 AM to about 00.55 till night. No explanation has been offered by Investigating Officer or other accompanying police personnel as to why such delay was occurred, after recovery of alleged contraband substance. It has not been proved by the prosecution that said Ganja was deposited in Malkhana of Police Station Kondagaon, under which letter of Superintendent of Police, Kondagaon, alleged two samples were deposited in FSL, Raipur is contradictory. Both the times, collecting two samples have been marked similar i.e. ‘X-1’ & ‘X-2’. Thus, there are material discrepancies in the physical evidence adduced by the prosecution, hence, non-compliance of provisions contained in Section 52-A of the NDPS Act as provided in aforesaid provisions also become vital and FSL reports (Ex.P-19) & (Ex.P-20) remains useless to the truthfulness of case of prosecution.

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21. It is settled principle of law that in the cases under NDPS Act, the prosecution is bound to prove the unbroken and unimpeachable chain of custody and the sanctity of the collection of sample of alleged contraband substance right from the time of recovery/seizure to its submission to the Forensic Science Laboratory (FSL) particularly when no independent witnesses supported the case of the prosecution and whole case rests upon the evidence of departmental witnesses / police personnel. But, in the instant case, as has been observed above, case of prosecution suffers from various discrepancies, latches / lacuna, therefore, merely on the basis of vague and baseless evidence of police personnel, appellants/accused cannot be convicted for the said charges.

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22. For the foregoing reasons, this Court is inclined to extend benefit of doubt to the appellants. Resultantly, the impugned judgment dated 10.02.2023 passed by Special Judge convicting and sentencing the appellants for the offence under Section 20 (b)(ii)(C) of the NDPS Act is quashed and set aside. The appellants are acquitted of the said charge levelled against them.

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23. Appellants are in custody. They be set at liberty forthwith if not warranted in any other case, subject to compliance of Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023 before concerned Special Court in its satisfaction.

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24. Record of the Concerned Special Court alongwith a copy of this judgment be sent back forthwith for compliance and necessary action.

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Sd/(Naresh Kumar Chandravanshi) Judge

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amit

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AMITKUMAR Digitally signedby AMIT KUMARDUBEYDate: 2026.01.19 DUBEY 11:06:34 +0530

Bhagirathi Gardeya v. State of Chhattisgarh

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Bhagirathi Gardeya v. State of Chhattisgarh

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