1 apeal573.2024.odt

I N THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

CRIMINAL APPEAL NO.573/2024

Aas Mohd. S/o Mohd. Shakur,

aged about 29 Yrs., Occ. Auto Driver,

R/o Ward No.28, Midhanpur,

Tah. & Distt. Baghpat (U.P.) ...Appellant

- Versus -

State of Maharashtra,

through the Police Inspector,

P.S. Butibori, Nagpur. ... Respondent

-----------------

Mr. A.R. Rawlani, Advocate for the Appellant.

Mr. U.R. Phasate, A.P.P. for the Respondent/State.

----------------

CORAM: NEERAJ P. DHOTE, J.

DATE OF RESERVING THE JUDGMENT: 12.01.2026.

DATE OF PRONOUNCING THE JUDGMENT: 25.02.2026.

JUDGMENT

This is an Appeal under Section 415 of the Bharatiya

Nagarik Suraksha Sanhita, 2023 (for short “BNSS”) against the

judgment and order dated 05.09.2024 passed by the Special

Court NDPS Act, Nagpur in Special (NDPS) Case No.549/2021

convicting the Appellant for the offence punishable under

Section 20(C) read with Section 8(c) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short “the said Act”) and 2026:BHC-NAG:3244

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sentencing him to suffer rigorous imprisonment for 12 (Twelve)

years and fine of Rs.1,00,000/-, in default to pay fine, to undergo

rigorous imprisonment for 1 (One) year.

2.The prosecution’s case, as revealed from the police report, is

that, the Informant Policeman attached to the Butibori Police

Station, received secret information that, on 03.07.2021 one

Toyota Altis Car DL-7-CG-4341 was carrying the contraband

(Ganja) from Chandrapur to Butibori, Nagpur for selling. After

making necessary station diary entry and informing the superiors

and arranging the Panchas, the Informant, his superior and the

Panchas reached the spot and put the barricades. The aforesaid

car came from Chandrapur side and same was stopped. The

Appellant was driving the said car. After completing the necessary

formalities, the vehicle was checked and below the rear seat 35

packets wrapped in plastic were found. There was pungent smell

from the said packets and the same was found to be substance like

Ganja. All the bundles were opened and put in four (4) plastic

bags marked as “ABCD”. The substance was weighed and it was

found 68 Kilograms 110 Grams. The samples were drawn from

the four (4) bags. The samples and the substance came to be

sealed. The Appellant was taken in the custody. The report was

lodged and Crime No.289/2021 came to be registered against the

Appellant. The Appellant came to be produced before the learned

Magistrate. Inventory of the substance was conducted and the

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samples were drawn. The samples were sent to the Forensic

Science Laboratory (FSL). The substance was found to be

‘Ganja’. On completion of the investigation, the Appellant came

to be chargesheeted.

a.The learned trial Court framed the Charge below Exh.3 for

the offence punishable under Section 20(C) for contravention of

the provisions of Section 8(c) of the said Act. The Appellant

pleaded not guilty and claimed to be tried. To prove the Charge,

the prosecution examined in all following ten (10) witnesses.

i)The Panch witness Mr. Bhagwan Chirkuji Nanhe who was

present on the spot when the vehicle was intercepted and

checked, as P.W.1,

ii)The Informant and Member of Raiding Party Ashish

Devidas Morkhede, as P.W.2,

iii)The Photographer Mahendra Sukhchand Pardhi, as P.W.3,

iv)The Policeman Pradeep Arvind Deshmukh, as P.W.4,

v)The Policeman Manish Vasantrao Karnake, as P.W.5,

vi)The Photographer Sushil Pruthav Meshram, as P.W.6,

vii)The Investigating Officer Omprakash Gangadhar Kokate,

as P.W.7,

viii)The Muddemal Moharir of the Police Station Sastish

Dnyaneshwar Sontakke, as P.W.8.

ix)The witness Ranpal Tajpal Baisoya, as P.W.9 and

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x)The Muddemal Moharir of the Police Station Bhimaji

Hindurao Patil, as P.W.10.

b.The relevant documents such as Report, Station Diary

Entries, Panchanamas, the Inventory Memo, the Report of

Chemical Analyzer (C.A. Report) etc. were brought on record in

the evidence of the above referred witnesses. After prosecution

closed its evidence, the statement of the Appellant came to be

recorded under Section 351 of the BNSS. The Appellant denied

the prosecution’s case and claimed false implication. Considering

the evidence available on record, the learned trial Court passed

the impugned judgment and order convicting and sentencing the

Appellant as above.

3.Heard the learned Advocate for the Appellant and the

learned A.P.P. for the State. Scrutinized the evidence available on

record.

4.It is submitted by the learned Advocate for the Appellant

that, there was non-compliance of the provisions of Section 42 of

the said Act. The information was not given by the Informant to

the superior in writing. The documents of information were

prepared subsequently. It is submitted by the learned A.P.P. that,

the evidence on record shows that, there was compliance of the

provisions of Section 42 of the said Act. The testimony of the

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Informant and the Policeman is corroborated by the

contemporary documents.

5.Section 42 of the said Act is in respect of “power of entry,

search, seizure and arrest without warrant or authorization”.

Sub-section (1) of Section 42 requires that, any officer

empowered by the Government in that regard, if has reason to

believe from personal knowledge or information given by any

person and taken down in writing that any narcotic drug or

psychotropic substance, or controlled substance in respect of

which an offence punishable under the said Act has been

committed, he may take the necessary action as provided in the

said section. Sub-Section (2) of the said Section provides that, the

said information which the officer takes down in writing under

Sub-Section(1) or records grounds for his belief under the proviso

thereto, he shall within seventy-two hours send a copy thereof to

his immediate official superior.

6.The testimony P.W.2 Ashish D. Morkhede shows that, in

the year 2021 he was attached to the Butibori Police Station as the

Police Sub-Inspector. On 03.07.2021 when he was on Detection

Duty, he received information that, the blue coloured Toyota

Alits DL 7 CG 4341 was carrying the contraband from

Chandrapur to Butibori via Nagpur. He made the station diary

in that regard. He informed about the same to P.W.7 Omprakash

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G. Kokate, the Police Inspector of the said Police Station. He

informed the Superintendent of Police and the Sub-Divisional

Police Officer (SDPO) about the said information (Exh.26) and

also made the station diary entry in that regard (Exh.25). He sent

the information to the SDPO in that regard in writing (Exh.27).

His evidence shows that, Exh.25, the copy of station diary entry

about the secret information of contraband in the said vehicle,

was having the signature of P.W.7 Omprakash G. Kokate. The

copies of station diary entries corroborate his testimony. His

cross-examination shows that, the said evidence of this witness in

respect of above referred aspects remained unshaken. Nothing

material has come in the cross-examination so as to create any

dent in his above discussed testimony.

7.Further, the evidence of P.W. 7 Omprakash G. Kokate

shows that, on 03.07.2021 while he was on duty, P.W.2 Ashish D.

Morkhede informed him of the secret information in respect of

contraband being transported in the above referred vehicle from

Chandrapur. His evidence shows that, he asked him to take the

permission from the senior and P.W.2 Ashish D. Morkhede

accordingly took the permission. Even the cross-examination of

this witness remained unshaken. This evidence of the two

prosecution witnesses (P.W.2 and P.W.7) clearly shows that, there

was compliance of the provisions of Section 42 of the said Act as

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the information was taken down in writing and the same was

having signature of P.W.7 Omprakash G. Kokate showing that,

the copy of the information was supplied to him. Further the

written information was given to the superior officers and the

superior officers gave permission in writing.

8.The evidence of P.W.2 Ashish D. Morkhede, the Policeman

who received the secret information, shows that, he arranged the

Panch witnesses, the Photographer and the person having

weighing machine. Exhibits 32 and 33 copies of the station

diary entry in that regard are brought on record in his evidence.

He deposed that two Panchas came to the Police Station and he

gave information to the Panchas, issued intimation

communication as per Section 160 of the Code of Criminal

Procedure. Before leaving for spot, the Panchas took personal

search of the police party and did not find any contraband in their

possession. Pre-trap Panchanama below Exh.12 was prepared

and they left for the spot of incident with P.W.7 Omprakash G.

Kokate. His evidence shows that, the car which was being driven

by the Appellant was intercepted. The Appellant was issued the

intimation letter below Exh.13 pursuant to the provisions of

Section 50(1) of the NDPS Act. His evidence shows that, 35

square packets were found in the backside of the rear seat and

same was smelling like Ganja. The contents of the said packets

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were removed in four (4) white sacks. The substance weighed 68

Kg. 110 Grams. Thereafter 25 grams of substance was removed

from each sack. Samples were sealed and lebelled. Post-trap

Panchanama was prepared. The Form for sending the samples to

the Chemical Analyzer was filled therein which was at Exh.35.

His evidence shows that, there was scratching on the date in

Exh.14, Seizure Panchanama, however, he explained that due to

typographical mistake the date ‘07/03’ came to be typed and so

he corrected it as ‘03/07’. He further explained that, the date

‘07/03/21’ below his signature was also typing mistake and since

it was not noticed by him, the same remained incorrect. Though

he was cross-examined by the defence, nothing material has come

on record so as to discard his testimony. His cross-examination

shows that, the Tollplaza is 50 to 60 meters away from the spot of

incident and, therefore, the car was not captured in the CCTV

Footage of the said Tollplaza.

9.The evidence of P.W.1 Bhagwan C. Nanhe shows that, he

was one of the Panch in the said process deposed by P.W.2. His

evidence corroborates the testimony of P.W.2. His evidence

shows that, the packets of samples taken out of the four sacks

were sealed. Nothing has come in his cross-examination so as to

discard his testimony in respect of seizure of the substance from

the vehicle which was being driven by the Appellant. In the

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cross-examination it is clarified that the date ‘07/03/2021’ was

incorrect. The evidence of Panch witness gets corroborated by

the documents which were prepared at the relevant point of time.

10. The evidence of P.W.6 Sushil P. Meshram shows that,

he reached on the spot and clicked photographs on the spot where

the vehicle driven by the Appellant was stopped and the

contraband was seized. As regards to his evidence in the

cross-examination that, he reached after the vehicle was stopped,

it is clear from his further cross-examination that, as the

Photographer Pardhi was not available, therefore, he was called.

The learned A.P.P. has rightly submitted that, this aspect is clear

from the Post-trap Panchanama below Exh.12.

11.The evidence of P.W.7 Omprakash G. Kokate shows that,

he accompanied the Raiding Party in the capacity of Gazetted

Officer. His testimony corroborates the testimony of P.W.2 Mr.

Ashish D. Morkhede. Though in his cross-examination it has

come on record that, he has not given permission in writing to

P.W.2, it will not be sufficient to create any dent in the

prosecution’s case as it is already discussed that, the SDPO had

granted permission to P.W.2 for doing the needful after receipt of

the secret information. Not signing the Pre-trap Panchanama and

Post-trap Panchanama below Exh.12 by this witness is not at all

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fatal for the prosecution as he had gone with the Raiding Team as

a Gazetted Officer.

12.From the above discussed evidence on record, the

prosecution has established that, on receipt of secret information,

P.W.2 along with Panch witnesses, Photographer and P.W.7

Omprakash G. Kokate, reached the spot, intercepted the vehicle

which was being driven by the Appellant and substance in 35

bags came to be seized from the vehicle.

13.It is submitted by the learned Advocate for the Appellant

that, the evidence on record shows that, no separate samples were

drawn from each packets, which the prosecution witnesses

claimed to have been seized from the car which was being driven

by the Appellant. He submitted that, the contents of all the 35

packets were mixed and thereafter the samples were drawn, which

was not permissible in view of the Narcotic Drugs and

Psychotropic Substances (Seizure, Storage, Sampling and

Disposal) Rules, 2022. On this point, he relied on the judgment

in Union of India V/s. Bal Mukund and others, (2009) 12 SCC

161 and in Shiv Sa Jaat V/s. State of Chhattisgarh through Police

Station Bemetara, 2023 SCC OnLine Chh 4300. It is submitted

by the learned A.P.P. that, no illegality was committed by mixing

the contents of all the packets of the substance and drawing

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samples from the said substance. It is submitted that, the

extracting of the samples will not vitiate the seizure. He relied on

the decision in Bharat Aambale V/s. State of Chhattisgarh, (2025)

8 SCC 452.

14.In Union of India (supra) P.W.7 therein had taken samples

of 25 gram each from all the bags and then mixed them and sent

to the Laboratory. It was observed that, there was nothing to

show that, an adequate quantity from each bag had been taken

and it was requirement in law. The said decision was primarily on

the aspect of confessions made by the accused therein. In Shiv Sa

Jaat (supra) the contraband weighing 285.600 Kgms. was seized

which was kept in 12 bags and mixed entirely and two samples

packets each containing 50 grams were prepared. It was observed

that, while preparing the sample packets, the Standing Orders

dated 15.03.1988 and 13.06.1989 were not complied with and

the samples packets were prepared contrary to those Standing

Orders. There were also several lacunae in the said case as can be

seen from para 17 of the said judgment. There is a reference of

judgment in Basant Rai V/s. State, (2012) 130 DRJ 471 wherein

it is observed that, if 8 packets were allegedly recovered and

only 2 packets were having contraband substance and rest six

packets did not have any contraband, though all may be of the

same colour, when we mix substances of all 8 packets into one or

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two, then definitely, the result would be of the total quantity and

not of the two pieces. It was observed that, therefore, process

adopted by the prosecution created suspicion. In Bharat Aambale

(supra) the issue was that, whether the conviction stood vitiated

due to non-compliance of Section 52-A of the NDPS Act. The

final conclusion is summarized in para 56 of the said judgment.

15. Coming to the case at hand the evidence of P.W.1 Bhagwan

C. Nanhe, evidence of P.W.2 Ashish D. Morkhede and P.W.7

Omprakash G. Kokate shows that, the substance in 35 packets

were mixed and distributed in four (4) separate sacks and samples

from each sack were drawn. According to the evidence of P.W.10

Bhimaji H. Patil, who was the Police Inspector of the Butobori

Police Station, he certified the extract from the Muddemal

Register under his signature which was at Exh.100. According to

him, the seized Muddemal was deposited in the Muddemal Room

on 03.07.2021 as per the entry in the said extract. His evidence

shows that, the Muddemal In-Charge A.S.I. Wadme retired.

Further, according to P.W.8 Satish D. Sontakke investigation of

the crime came to him on 04.07.2021 and the samples were sent

to the Chemical Laboratory through Police Constable pursuant to

Duty Pass below Exh.69. The evidence of P.W.4 Pradeep A.

Deshmukh, Police Constable, shows that, when he was on duty

on 06.07.2021, P.W.8 Satish D. Sontakke directed him to deposit

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the samples to the Chemical Laboratory and he took the samples

from the Muddemal Room and deposited the same with the

Laboratory on the same day. The evidence of P.W.2 Ashish D.

Morkhede, the Informant and the Officer who was the Member

of the Raiding Party shows that, the C.A. Form below Exh.35

bears the date 05.07.2021. He volunteered that, the said Exh. 35

was made outward on 5

th

. Exhibit 100, which is the extract of the

Muddemal Register, has the entry of the said Exh.35, however, it

nowhere shows that, the samples were handed over to P.W.4

Pradeep A. Deshmukh, Bakkal No.84 on 06.07.2021 as claimed

by him. On the contrary, the entry in respect of the said Exh.35

dated 05.07.2021 shows that, the packets were handed over to

N.P.C. Mandhare, Bakkal No.682. This is the material

discrepancy in the prosecution’s evidence. Undisputedly,

Policeman having Bakkal No.682 whose name is mentioned in

the Exh.100 Muddemal Register as the one to whom the samples

were handed over is not examined by the prosecution. The

suggestion is given in the cross-examination of P.W.8 Satish D.

Sontakke that, no samples were sent to the Laboratory at the

hands of P.W.4 Pradeep A. Deshmukh. So the evidence to show

that, the samples drawn on 03.07.2021 were sent to the Chemical

Analyser is missing.

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16.The evidence of P.W.8 Satish D. Sontakke, the Investigating

Officer, shows that, he wrote the letter dated 09.07.2021 to the

learned Magistrate for Inventory, of the seized substance and

17.07.2021 was the date given by the Magistrate for Inventory of

the seized substance and the Inventory was done on 17.07.2021.

The evidence of P.W.10 Bhimaji H. Patil further shows that, if the

Muddemal is removed out of Muddemal Room, the entry in the

register is to be made and there was no entry in the Muddemal

Register that, the Muddemal was sent on 17.07.2021 to the

Court. The Inventory Certificate is brought on record at Exh.89

in the evidence of P.W.8 Satish D. Sontakke. In the cross-

examination he admitted that, in the said Inventory Certificate

number of Muddemal is mentioned as ‘22/2021’, which was

wrong. His evidence shows that, Muddemal number of the

substance in this case was ‘30/2021’. He admitted that, in para 9

of the Inventory Certificate the Muddemal Number ‘30/2021’

was not mentioned. He further admitted that, in Exh.86 which

was the letter addressed to the Magistrate for Inventory, there was

no mention of the Muddemal Number. Suggestion is given that,

the Muddemal produced before the Court for Inventory and the

photographs were of different case. Suggestion is given that

incorrect documents were sent and the C.A. Reports were false.

Further, the learned Advocate for the Appellant has rightly stated

that, the Inventory Certificate below Exh.89 shows that, the

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samples were taken only from the 4

th

sack marked ‘D’ and not

from the sacks marked as ‘ABC’. With this evidence on record

the evidence of P.W.5 Manish V. Karnake that, on 03.08.2021 he

deposited two sealed packets to the Chemical Laboratory is of no

help to the prosecution. True it is that the Exh.100 shows the

entry of 03.08.2021 regarding samples for the Inventory, it

becomes inconsequential in view of the above evidence which do

not establish that, the substance was taken for Inventory.

17. P.W.3 Mahendra S. Pardhi deposed that, he was the

Photographer having Nikon D 7000 Camera and the Butibori

police called him to click the photos of the Inventory on

17.07.2021 and he went to the Butibori Police Station and from

there went to the Court of Magistrate where the Inventory was

prepared and he clicked the photographs. However, Inventory

Certificate below Exh.89 shows that, Photographer by name

Mahendra Sukhchand Sontakke was present. Para 7 of the

Inventory Certificate shows that, all the necessary photographs

were taken by photographer Mayur Sureshrao Gawande. There is

no explanation from the prosecution as to why different names of

the Photographers in the Inventory Certificate are shown, though

first page of Exh.89 shows the name of P.W.3 Mahendra S.

Pardhi as the Photographer.

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18.The above discussed evidence shows that, the prosecution

utterly failed to establish that, the samples submitted to the

Chemical Laboratory which issued the C.A. Reports at Exhs.90,

91 and 92 showing the substance as ‘Ganja’ were from the

substance seized from the Appellant. There is no evidence to

establish that, the samples of the substance seized from the

Appellant were sent to the Laboratory for examination. This

being so, the said C.A. Reports will not be incriminating in

nature. Unless it is established that, the seized substance was the

contraband covered by the NDPS Act, the conviction cannot be

sustained. Considering the above referred serious infirmities in

the prosecution’s case, the benefit goes to the Appellant. The

lacunae or the discrepancies as discussed above leads to the only

conclusion that, the Appellant is entitled for acquittal. Hence, the

following order:-

ORDER

i)The Appeal is allowed.

ii)The conviction and sentence imposed by the learned trial

Court convicting the Appellant for the offence punishable under

Section 20(C) read with Section 8(c) of the NDPS Act, 1985

sentencing him to suffer rigorous imprisonment for 12 (Twelve)

years and fine of Rs.1,00,000/-, in default to pay fine, to undergo

rigorous imprisonment for 1 (One) year vide judgment and order

dated 05.09.2024 passed by the Special Court NDPS Act,

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Nagpur in Special (NDPS) Case No.549/2021 is quashed and set

aside.

iii)The Appellant is acquitted of the offence punishable under

Section 20(C) read with Section 8(c) of the said Act.

iv)The fine amount, if any, paid by the Appellant be refunded

to him.

v)Rest of the operative part in relation to seized Articles

remains intact.

vi)Record and proceedings be sent back to the learned trial

Court.

(NEERAJ P. DHOTE, J.)

Tambaskar.