1 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

2026:CGHC:937-DB

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07.10.2025 07.01.2026-- 07.01.2026

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 8 of 2018

1.Dharmendra Sahu, S/o Kedar Sahu, Aged About 23 Years, R/o Village

Bartola, P. S. Bhalumada, District Anuppur, Madhya Pradesh

2.Ramesh Kenwat, S/o Bhandari Kenwat, Aged About 32 Years, R/o

Village Danganiya Chot, P. S. Bijri, District : Anuppur, Madhya Pradesh

… Appellants

versus

•State of Chhattisgarh Through the P. S. Mainpur, District- Gariyaband,

Chhattisgarh

... Respondent/State

____________________________________________________________

For Appellant No. 1 : Mr. Goutam Khetrapal, Advocate

For Appellant No. 2 : Mr. Vikash Pradhan, Advocate.

For Respondent/State : Mr. Ashish Shukla, Addl. A.G.

Hon'ble Smt Justice Rajani Dubey J. &

Hon’ble Shri Justice Amitendra Kishore Prasad, J.

C A V Judgement

Per, Rajani Dubey , Judge

2 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

1.This criminal appeal under Section 374(2) of the CrPC is directed

against the impugned judgment and order of sentence dated

12.12.2017 passed by the learned Special Judge of N.D.P.S. Act, 1985,

Raipur, District- Raipur (C.G.) in Special N.D.P.S. Case No. 43/2017

whereby and whereunder, the appellants have been held guilty of

commission of offence and sentenced as described below:-

Conviction Sentence

Under Section 20 (II) (C) of

NDPS Act, 1985

R.I. for 15 years each, to pay a

fine of Rs. 1,00,000/- each and in

default of payment of fine, to

undergo additional R.I. for 01

year each.

Under Section 468 of IPCR.I. for 03 years each, to pay a

fine of Rs.1000/- each and in

default of payment of fine, to

undergo additional R.I. for 02

months each.

(Both sentences are directed to run concurrently)

2.The case of the prosecution in brief is that on 04.12.2016 at about 9:00

am in- charge officer of Police Outpost- Bindra Navagarh of Police

Station- Mainpur, Assistant Sub-Inspector Ravikant Verma (PW-08)

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 TATA Safari car bearing

Registration No. MP 65-T-3999, which is coming from Deobhog- Raipur

in which two persons viz., appellants Dharmendra Sahu & Ramesh

Kewat were sitting and going towards Gariyaband. The aforementioned

information was recorded in the Rojnamcha Sanha and on receiving

the information, the witnesses namely Sukhchand Netam (PW-2) and

Keshiram (PW-3) were made about the secret information and a

3 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

panchanama to this effect was prepared on the spot vide Ex. P/6 and a

copy of it was sent to Sub-Divisional Officer Police, Mainpur by giving a

duty certificate to Constable Pankaj Dugga (PW-4) for conducting

proceedings under the N.D.P.S. Act. Constable Khamlesh Markam was

sent with a duty certificate to summon two independent witnesses. Both

the witnesses were made aware about the secret information and

gave them summon under Section 160 of the Cr.P.C. and were asked

to co-operate in the proceedings. Thereafter, a panchanama was

prepared in front of witnesses regarding non-receipt of search warrant.

Investigating Officer- Ravikant Verma, Assistant Sub-Inspector (PW-8),

in-charge of Police Outpost- Bindra Navagarh of Police Station-

Mainpur along with staff and witnesses, then went to main road in front

of police station and barricaded the road. After some time, a vehicle

Safari Car bearing registration No. CG-04-CW- 5100 came at high

speed, broke through the barrier and moved ahead. Following the

pursuit, the vehicle was cordoned off and stopped on Bhainstara road

near the drain beyond Satdhar. There were two persons sitting in the

said car. On questioning, the persons sitting on the driver’s seat told his

name as Dharmendra Sahu and Ramesh Kewat. The accused/

appellants were informed about the secret information and were told

that he wanted to search them and their car. It was also told to the

accused persons that they can also get themselves searched by any

gazetted officer or the nearest Magistrate. In this regard, notice was

given to the accused persons and they agreed to search themselves by

Investigating Officer-Ravikant Verma (PW-8), Assistant Sub Inspector

and the police party was searched in front of witnesses in which no

objectionable item was found from the police party and a search

4 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

panchanama was prepared accordingly. After obtaining consent of the

accused/appellants in presence of witnesses for search of their person

and the vehicle, when search was made by Ravikant Verma (A.S.I.) he

found total 24 packets containing Ganja like substance which were

kept. After seeing, smelling, tasting, burning and rubbing, it was found

to be Ganja. Thereafter, through notice Hemant Kumar Sinha was

called for weighment with electronic weighing machine and after

physical verification, the said machine was found to be working

properly. On weighment being done, it was found to be 117 kg 400 gm,

out of which one sample of 100 gm was drawn, which was marked as

Article A-1 and sealed. Thereafter, ASI Ravikant Verma (PW-8) issued

a notice to the accused persons under Section 91 of Cr.P.C. to produce

valid documents regarding possession, sale or transportation of the

recovered ganja and documents related to the ownership of the vehicle

Safari car, on which the suspects admitted that they did not have any

documents regarding the narcotic substance ganja. Safari Car and two

number plates in which MP-65-T-3999 was written, vehicle RC’s book,

a stamped agreement, a sale certificate, a copy of the permit and

mobile were seized from the accused Ramesh Kewat and ganja,

sample and mobile were seized from the accused Dharmendra Sahu.

Information regarding arrest of the appellants was sent to them

through written information. Upon being found the involvement of the

accused persons in the crime, they were arrested in presence of the

witnesses. Thereafter, the spot map of the incident, dehati nalishi and

statements of witnesses were recorded on the spot itself. Thereafter,

the seized property and the accused were taken to concerned police

station and a numbered crime was registered. The seized ganja was

5 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

duly deposited in the maalkhana and the sample packet was sent to

the Forensic Science Laboratory, Raipur for its chemical examination

through Superintendent of Police, Gariyaband from where a report was

obtained which reveals the seized items to be ganja. An unnumbered

crime was registered on the spot, on the basis of which, a First

Information Report (FIR) was registered against the accused persons

at Police Station Mainpur under Sections 467, 468, 34 of IPC and

Section 20 (b) of the NDPS Act. After completion of due and necessary

investigation, charge-sheet 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 20 (ii) (C) of NDPS Act and Section 468 of IPC. The appellants

having abjured guilt were subjected to trial.

3.In order to substantiate its case, the prosecution has examined as

many as 12 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. However, no witness was

examined by them in their defence.

4.The trial Court after hearing counsel for the respective parties and

considering the material available on record, by the impugned

judgment dated 12.12.2017 convicted and sentenced them as

mentioned in inaugural paragraph of this judgment. Hence, this appeal.

5.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

6 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

that the mandatory provisions of the NDPS Act have not been complied

with by the Investigating Officer while conducting search and seizure

proceedings. Learned counsel further submits that the two independent

seizure witnesses namely Sukhchand Sahu and Keshiram Netam have

given up the case of the prosecution in respect of any of the

proceedings including search, seizure etc., which clearly shows that

the entire case of the prosecution is a concocted and is a case of false

implication of the appellants. Further, major contradictions and

omissions in the statement of the Investigating Officer (PW-8) have

been overlooked. As per Ex. P/5 notice to search vehicle was

prepared at 9:30 and in notice of secret information (Ex P/24) was

prepared at 8:40, in Rojnamcha Sanha (Ex. P/54), time mentioned of

the secret information as 9:00. Without search warrant (Ex. P/7) was

prepared after 2 hours when they reached at the place of incident at

9:30, that too without search warrant. All two witnesses were jointly

served with the notice under Section 50 of the Act and also no separate

notices were given to the accused prior to the search. All the

documents i.e., sample panchnama (Ex. P/4), consent letter (Ex. P/8)

staff search panchanama (Ex.P/9), ganja search panchnama (Ex.

P/10), search panchnama (Ex. P/11), identification panchnama (Ex.

P/13), samrash panchnama (Ex. P/14), seal namuna panchnama (Ex.

P/15), all have been made together in a conjoint manner. Further

submit that it has been admitted by the I.O PW-8 Ravikant Verma that

in Exs. P/2, P/3, P/4, P/11, P/12, P/13, P/15, more than one pen was

used endorsed along with different writing in these exhibits. In search

panchanama (Ex. P/11) and seizure panchanama (Ex. P/12), details of

the Mobile and RC Book of the seized vehicle were not mentioned and

7 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

it is clear that overwriting was done in Ex.P/12 in F to F part. In the

notice (Ex.P/1) timing of the secret information is mentioned as 9:00

am. There are non-compliance of the mandatory provisions of Section

42 (2), 50, 52, 52-A, 55 and 57 of the NDPS Act. There is overwriting

in Summons (Ex.P/35) from D to D part and no signatures of the

witnesses clearing the picture of false implication in the case. In the

consent panchanama of the accused, it is nowhere mentioned whether

they were apprised of their legal right of being searched by the

Magistrate. It is clear that all documents were prepared by Investigating

Officer Ravikant Verma (PW-8) on different times and only to falsely

implicate the appellants. 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.

In support of their contentions, learned counsel placed reliance

upon the decisions of the Hon’ble Apex Court in the matters of

Nadeem Ahamed vs. State of West Bengal

1

, Surepally Srinivas vs.

State of Andhra Pradesh

2

, Prakash Chand vs. State of C.G.

3

,

Mohammed Khalid and anr. vs. State of Telangana

4

Mangilal vs.

State of M.P.

5

, Sanjeet Kumar vs. State of C.G.

6

, Simranjit Singh

vs. State of Punjab

7

, State of Chhattisgarh vs. Devendra Singh

8

,

12025 SCC OnLine SC 1779

22025 SCC OnLine SC 683

32024 SCC OnLine Chh 10025

4AIR 2024 SC 134

52023 SCC Online SC 862

62022 SCC Online SC 1117

72023 SCC Online SC 906

8AIR Online 2022 SHH 1113

8 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

Boota Singh and ors. vs. State of Haryana

9

, Union of India vs.

Leen Martin and another

10

, Union of India vs. Jarooparam

11

State

of Rajasthan vs. Jagraj Singh @ Hansa

12

, Union of India vs.

Mohanlal

13

, State of Rajasthan vs. Tara Singh

14

, State of Rajasthan

vs. Bher Singh

15

, Union of India vs. Balmukund and ors.

16

, State of

Rajasthan vs. Gurmail Singh

17

and in the matters of Hemant Singh

and another vs. State of C.G.

18

& Rinku Kumar and another vs.

State of C.G.

19

passed by this Court.

6.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 it is well settled principle of law that

when prosecution duly complied with mandatory provisions of NDPS

Act, mere not supporting independent witnesses would not be fatal to

the prosecution case, if the other material on record adduced by the

prosecution inspires confidence and satisfy the Court as regards

recovery as well as cautious possession of the contraband from the

accused persons. The Court can proceed further to hold the accused

guilty.

92021 (19) SCC 606

102018 (4) SCC 490

11AIR 2018 SC 1927

122016 (11) SCC 687

132016 (3) SCC 379

142011 AIR SCW 6651

152009 16 SCC 293

162009 (12) SCC 161

17AIR 2005 SC 1578

18CRA No. 1697 of 2018

19CRA No. 1899 of 2017

9 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

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 Chhattisgarh

20

& Madan Lal & Others

vs. State of H.P.

21

.

7.We have heard learned counsel for the parties, considered their rival

submissions made hereinabove, and also went through the records

with utmost circumspection.

8.It is evident from record of learned Trial Court that it framed charges

against the appellants for offence under Section 20 (ii) (C) of NDPS Act

and Section 468 of IPC. Learned trial Court after appreciating the oral

and documentary evidence convicted the accused persons for the

aforesaid offences.

9.PW-1 Hemant Kumar Sinha is said to have weighed the contraband,

but he did not support the prosecution case. Though, he admitted his

signature on the notice (Ex.P/1), physical verification memo of

weighment (Ex.P/2), weight panchnama (Ex.P/3) and in sample

panchanama (Ex. P/4). This witness has been declared hostile. In

cross-examination by the defence, he denied this suggestion that he

weighed the contraband from his weightment.

10.PW-2 Sukhchand Netam and PW-3 Keshiram Netam are the

independent witnesses of search and seizure, though they have only

admitted their signatures on Ex. P/5 to Ex.P/20 from A to A part and B

to B part respectively, but did not support the prosecution case. They

have been declared hostile by the prosecution and cross-examined

them, but they denied all the suggestions of the prosecution and they

denied any search and seizure before them and stated that they signed

202025 SCC OnLine SC 110

212003 (7) SCC 465

10 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

these documents at the instance of police in the police station and they

know nothing about the incident or the seizure.

11.PW-8 Investigating Officer- Ravikant Verma, Assistant Sub- Inspector

has stated that he received information on 04.12.2016 at 09:00 from an

informant that a Safari Vehicle Bearing Registration No. MP-65-T-3999

was illegally transporting the narcotic substance like ganja. Based on

this information, issued notice to the witnesses vide Ex. P/5 and secret

information memo was prepared vide Ex. P/6 at 9:35 am and he was

sent to the S.D.O.P Office, Mainpur vide Ex.P/24 and he departured for

the spot along with accompanying staff and witnesses and they stopped

the said vehicle on Bhainstara road near the drain beyond Satdhar. He

prepared search memo without warrant vide Ex. P/7, he gave notice to

both the appellants and then prepared consent memo vide Ex. P/8.

Search memo was prepared vide Ex. P/10 and the accused persons

got the police party and the witnesses searched vide Ex.P/9. During

search, from TATA Safari Vehicle bearing Registration No. CG-04-CW-

5100 total 24 packets of contraband substance like ganja were

recovered and prepared search memo vide Ex. P/11 and also recovery

memo vide Ex. P/12. After seeing, smelling, tasting, rubbing and

burning, the contraband article was found to be Ganja and prepared

identification memo vide Ex. P/13. He issued notice to the appellants

for legal documents vide Ex. P/35 and seized 24 packets of Ganja, in

which, 117.400 kg Ganja was found and he also seized TATA Safari

Vehicle Bearing Registration No. CG-04-CW-5100, in which two

number plates were found, one is belonged to MP-65-T-3999. He

lodged dehati nalishi vide Ex.P/34 at 16:00 on the spot and arrested

both the appellants vide Ex. P/36 and Ex. P/37 respectively. He

11 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

deposited all the contraband article ganja in the police station’s store

room/maalkhana and acknowledged receipt is Ex. P/38 and he sent full

report to S.D.O.P. Office, Mainpur on 07.12.2016 vide Ex. P/40. He also

sent an application to Tahsildar, Gariaband for preparing of spot map

vide Ex. P/41 to Ex. P/44. FSL report of sample is Ex.P/45, memo is Ex.

P/46 and return receipt is Ex. P/47. He also wrote a letter to R.T.O.,

Raipur for particulars of the seized vehicle’s owner vide Ex. P/48 and

thereafter he received details of the seized vehicle from the R.T.O. vide

Ex. P/49. He again sent notice to Shyam Lal Shrivastava vide Ex. P/50

and Shyam Lal has filed a sale deed vide Article-A/2. He also lodged a

Rojnamcha Sanha vide Ex. P/53.

In his cross-examination, he admitted that in notice (Ex. P/5), he

written that he received secret information at 09:30 and in report of

secret information (Ex. P/24), he written time as 8:40.

12.Ex. P/5, Notice under Section 160 of Cr.P.C was issued to the

witnesses namely PW-2 Sukhchand Netam and PW-3 Kesiram Netam.

Relevant part of Ex. P/5 reads as under:-

" आपको/

आप लोगो को इस नोटिस के जरिये सूचितकिया जाता है कीदिनाक

04.12.16

के

9:30 ……”

बजे जरिये मुखबिरसे सुचना प्राप्त हुआ है की

13.Full report (Ex. P/24) is sent to S.D.O.P. Office, Gariaband by

Investigating Officer- Ravikant Verma (PW-8), in which he written

the time as under:-

“….

उपनिरीक्षकरविकांतवर्माको आजदि

o 04.12.16

को

8:40ज

रिये

……

सुचना मुखबिरमिली की

..”

14.Ex. P/7 is panchnama of without search warrant, PW-8 stated that

he reached the spot at 9:30 and he prepared this memo at 11:30.

12 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

15.Ex. P/8 is consent memo under Section 50 of NDPS Act. It is

evident that both the accused persons gave their consent jointly. Ex.

P/11 is search memo of both the accused persons.

16.In para 12 of statement of PW-8 Investigating Officer- Ravikant

Verma, he admitted as under:-

"

यह कहना सही हैंकिप्रदर्शपी

-4,

प्रदर्शपी

-8

वप्रदर्शपी

-9

प्रदर्शपी

-10,

प्रदर्शपी

-

11,

प्रदर्शपी

-13,

प्रदर्शपी

-14,

प्रदर्शपी

-15

के पंचनामादोनों आरोपीगण के संबंध में

संयुक्त रूप से बनाया हूँ

, पृथक-

पृथक नहीं बनाया हूँ। यह कहना सही हैंकिमैंने प्रदर्शपी

-

11.

औरप्रदर्शपी

-13

में ए से ए भाग में तथा प्रदर्शपी

-2,

प्रदर्शपी

-3,

प्रदर्शपी

-12

में इ

से इ भाग में तथा प्रदर्शपी

-4,

प्रदर्शपी

-15

के जी से जी भाग में इनदस्तावेज को तैयार

करते समय अलग पेन सेलिखा हूँ। यह कहना गलत हैंकिमैंने सबदस्तावेज तैयारकरने

के बादअपनेहिसाब से समयलिखलिया हूँ। यह कहना सही हैंकिउक्त समय अलग

राईटिंग से लेख है। स्वतः कहाकिमेरीराईटिंग में समयलिखा हूँ

,

किन्तु जल्दबाजी में

अलगराईटिंग हो गयी है।

"

In para 15, he admitted as under:-

यह कहना सही हैंकिप्रदर्शपी

-3

में गांजा

समरस करतौल करना नहींलिखा हूँ। यह कहना सही हैंकिप्रदर्शपी

-4

का सेम्पल

पंचनामा तैयारकरते समय मैंने

100

ग्राम का सेम्पलनिकाललिया था। यह कहना सही

हैकिप्रदर्शपी

-35

का नोटिसदोनों आरोपीगण को संयुक्त रूप सेदिया हूँ औरइसमें

समयवस्थान का उल्लेख नहींकिया हूँ। यह कहना सही हैंकिप्रदर्शपी

-35

में डी से डी

भाग में गांजा केवजन में ओव्हरराईटिंग है

,

जिसमें संक्षिप्त हस्ताक्षरनहींकिया हूँ। स्वतः

कहाकिमैंने पहले

20

लिखदिया था

,

जिसे उसी समय में ओव्हरराईटिंग कर

117

लिखा हूँ औरफिरउसके बादआरोपीगण का हस्ताक्षरकराया हूँ।

In para 16, he admitted this fact that no contraband article substance

like ganja was seized from the accused Ramesh Kewat.

17.PW-10 Guruwar Singh, Head Constable, he stated that the entry was

made by him in original Rojnamcha Sanha vide Ex. P/54 at 9:00 am

and he issued notice to the witnesses at 9:05 am, Rojanamcha Sanha

13 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

is Ex. P/55. On the same day, at 9:20 am, the two witnesses were

brought by Constable Khamlesh Markam (PW-5) namely Sukhchand

Netam (PW-2) and Keshiram Netam (PW-3) as per Ex. P/56 and at

9:30 am, secret information memo was prepared before the witnesses

vide Ex. P/57. PW-8- Investigating Officer- Ravikant Verma informed

the said information to S.D.O.P. Office, Mainpur through mobile phone

at 9:35 am and the entry was made in the Rojnamcha Sanha vide Ex.

P/58 and at 9:40 am secret information report was sent to S.D.O.P.

Office, Mainpur, Rojanmacha Sanha is Ex. P/59. All the police party

went for barricading near in front of Police Outpost main road and the

entry of Rojnamcha is Ex. P/60. He deposited 117.400 kg ganja, TATA

Safari Vehicle Bearing Registration No. MP 65-T-3999 and two number

plates and he entered Rojnamcha vide Ex. P/61. He also filed

malkhana register vide Ex. P/62 and acknowledgment of malkhana is

Ex. P/38.

18.As per this witness, he deposited contraband in malkhana on

04.12.2016 and sample packets were sent to F.S.L. on 07.12.2016.

In para 11, he stated as under:-

दिनांक

7.12.2016

को

100

ग्राम गांजा का

सेंपल परीक्षण हेतु एफएसएल केलिये भेजा गया था। इसीदिन संपत्तिके साथ भेजे गये

ड्राफ्टमें खामी होने के कारण सेंपलवापस मालखाने में जमा हुआ था।दिनांक

8.12.2016

को आरक्षक कमांक

561

से गांजा का सैंपल ड्राफ्टके साथ एफएसएल भेजा गया था।

दिनांक

9.12.2016

को आरक्षक कमांक

561

ने पावती प्रदर्शपी

-31

लाकरदिया था।

दिनांक

1.1.2017

को एफएसएलरिपोर्टप्रदर्शपी

-45

ज्ञापन प्रदर्शपी

-46

सहित प्राप्त हुई

थी।दिनांक

5.2.2017

को गांजा का सेंपल नमूना सीलबंदवापसीरसीदप्रदर्शपी

-47 स

हित

एफएसएल कार्यालय से प्राप्त हुआ था।

In paras 13 & 14 of his cross-examination, he stated as under:-

14 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

13."

यह कहना सही हैकिमैंने जप्ती पत्रदेखकरमालखानारजिस्टरप्रदर्शपी

-

62

में इंद्राजकिया हूं। यह कहना सही हैकिघटनादिनांक

4.12.2016

की है और

सेंपल पाचदिन बादजांचकेलिये एफएसएल में जमा हुआ था। साक्षी स्वतः कहाकि

पूर्वमें सेंपल भेजा गया थाकिंतु ड्राफ्टमें खामी होने सेवापस आया था। यह कहना

सही हैकिमैंने गांजा की बोरियों कोदेखकररजिस्टरमें इद्राज नहींकिया था। यह

कहना सही हैकिसभी बोरियों में लगी स्लीपों में

24

पैकेटों का उल्लेख है। यह कहना

गलत हैकिसभी बोरियों में कुल

120

पैकेटहै। साक्षी स्वत कहाकिसभी बोरियों में

कुल

24

पैकेटमें गांजा है। यह कहना सही हैकिसभी बोरी की स्लीप में सेंपल पैकेट

ए-1

लिखा है। यह कहना गलत हैकिपांचसेंपल पैकेटथे। साक्षी स्वतः कहाकि

सिर्फएक सेंपल बनाये थे

"

14. "

यह कहना सही हैकिमैंने उपनिरीक्षकरविकांतवर्माके बताये अनुसार

रोजनामचा सान्हालिखा हूं। यह कहना सही हैकिरोजनामचा सान्हा मेंवाहन का

नंबरएम पी

65

टी

3999

लिखवाया गया था।

"

19.PW-11 Thanu Ram Sahu, Retired Head Constable, who was Reader of

S.D.O.P. Office, Mainpur, stated that he received report of secret

information (Ex. P/24) on 04.12.2016 at 10:20 am and full report was

received on 07.12.2016 vide Ex. P/40.

20. It has been held by the Hon’ble Apex Court in the matter of Surepally

Srinivas (supra) in paras 13, 14 and 15 as under:-

13. In Bharat Aambale (supra), this Court held that the

purport of Section 52- A, NDPS Act read with Standing

Order No. 1/89 extends beyond mere disposal and

destruction of seized contraband and serves a broader

purpose of strengthening the evidentiary framework

under the NDPS Act. This decision stresses upon the fact

that what is to be seen is whether there has been

substantial compliance with the mandate of Section 52-A

15 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

and if not, the prosecution must satisfy the court that

such non-compliance does not affect its case against the

accused. This is also what has been held in Kashif

(supra).

14.In the present case, from the evidence on record, it

can be seen and it is clear that the seized contraband was

not properly sealed. Coupled with this is the fact of the

seized contraband not being produced before the trial

court prior to 3rd July, 2010. It is difficult to accept the

prosecution case that though there may not have been

strict compliance of Standing Order No.1/89, the seized

contraband was not tampered at all. Keeping of the

seized contraband by PW-3 in a separate room in his

office for fifteen days could give rise to an allegation that

the seized contraband was by itself substituted and some

other items planted to falsely implicate the accused. To

avoid suspicious circumstances and to ensure fair

procedure in respect of search and seizure, it is always

desirable to follow the standing order which provides

suitable guidance for the officers investigating crimes

under the NDPS Act. Should there be any departure, the

same must be based on justifiable and reasonable

grounds. We are, satisfied, on appreciation of the

evidence on record, that the possibility of tampering

during this fifteen-day period cannot be totally ruled out

and that not only has there been no substantial

compliance of the standing order, the departure has also

16 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

not been justified.

15.We have also found from the materials on record that

there has been clear non-compliance with the provisions

contained in Section 52-A of the NDPS Act. Either

possibly due to lack of experience of the investigating

officer or his lack of knowledge of the relevant provisions

of the NDPS Act, there were lapses which were duly

noted by the Sessions Judge. Thus, we are unable to

hold that there was primary and reliable evidence before

the trial court in respect of the offence committed. The

onus of proving that compliance 7 of 7 with Section 52-A

did not affect the case of the prosecution has not been

duly discharged by the prosecution.

21. It has been held by the Hon’ble Apex Court in the matter of Boota

Singh (supra) in paras 12, 13 & 14 as under:-

12.In Karnail Singh , the Constitution Bench of this Court concluded:-

“35. In conclusion, what is to be noticed is that Abdul

Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did

not require literal compliance with the requirements

of Sections 42(1) and 42(2) nor did Sajan Abraham

[(2001) 6 SCC 692 :

2001 SCC (Cri) 1217] hold that the requirements of

Sections 42(1) and 42(2) need not be fulfilled at all.

The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the

nature referred to in sub-section (1) of Section 42]

from any person had to record it in writing in the

register concerned and forthwith send a copy to his

immediate official superior, before proceeding to

take action in terms of clauses (a) to

17 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

(d) of Section 42(1).

(b) But if the information was received when the

officer was not in the police station, but while he was

on the move either on patrol duty or otherwise, either

by mobile phone, or other means, and the

information calls for immediate action and any delay

would have resulted in the goods or evidence being

removed or destroyed, it would not be feasible or

practical to take down in writing the information

given to him, in such a situation, he could take

action as per clauses (a) to (d) of Section 42(1) and

thereafter, as soon as it is practical, record the

information in writing and forthwith inform the same

to the official superior.

(c) In other words, the compliance with the

requirements of Sections 42(1) and 42(2) in regard to

writing down the information received and sending a

copy thereof to the superior officer, should normally

precede the entry, search and seizure by the officer.

But in special circumstances involving emergent

situations, the recording of the information in writing

and sending a copy thereof to the official superior

may get postponed by a reasonable period, that is,

after the search, entry and seizure. The question is

one of urgency and expediency.

(d)While total non-compliance with requirements of

sub- sections (1) and (2) of Section 42 is

impermissible, delayed compliance with satisfactory

explanation about the delay will be acceptable

compliance with Section 42. To illustrate, if any delay

may result in the accused escaping or the goods or

evidence being destroyed or removed, not recording

in writing the information received, before initiating

action, or non-sending of a copy of such information

18 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

to the official superior forthwith, may not be treated

as violation of Section 42. But if the information was

received when the police officer was in the police

station with sufficient time to take action, and if the

police officer fails to record in writing the

information received, or fails to send a copy thereof,

to the official superior, then it will be a suspicious

circumstance being a clear violation of Section 42 of

the Act. Similarly, where the police officer does not

record the information at all, and does not inform the

official superior at all, then also it will be a clear

violation of Section 42 of the Act. Whether there is

adequate or substantial compliance with Section 42

or not is a question of fact to be decided in each

case. The above position got strengthened with the

amendment to Section 42 by Act 9 of 2001.”

(Emphasis added)

13.In Jagraj Singh alias Hansa , the facts were more or less

identical. In that case, the vehicle (as observed in para 5.3 of

the decision) was not a public transport vehicle. After

considering the relevant provisions and some of the

decisions of this Court including the decision in Karnail

Singh , it was observed:-

“14. What Section 42(2) requires is that where an

officer takes down an information in writing under

sub-section (1) he shall send a copy thereof to his

immediate officer senior. The communication Ext.

P-15 which was sent to the Circle Officer, Nohar

was not as per the information recorded in Ext. P-

14 and Ext. P-21. Thus, no error was committed by

the High Court in coming to the conclusion that

there was breach of Section 42(2).

19 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

16. In this context, it is relevant to note that before

the Special Judge also the breach of Sections 42(1)

and 42(2) was contended on behalf of the defence.

In para 12 of the judgment the Special Judge noted

the above arguments of defence. However, the

arguments based on non-compliance with Section

42(2) were brushed aside by observing that

discrepancy in Ext. P-14 and Ext. P-15 is totally due

to clerical mistake and there was compliance with

Section 42(2). The Special Judge coming to

compliance with the proviso to Section 42(1) held

that the vehicle searched was being used to

transport passengers as has been clearly stated by

its owner Vira Ram, hence, as per the Explanation

to Section 43 of the Act, the vehicle was a public

transport vehicle and there was no need of any

warrant or authority to search such a vehicle. The

High Court has reversed the above findings of the

Special Judge. We thus, proceed to examine as to

whether Section 43 was attracted in the present

case which obviated the requirement of Section

42(1) proviso.

29. After referring to the earlier judgments, the

Constitution Bench came to the conclusion that

non-compliance with requirement of Sections 42

and 50 is impermissible whereas delayed

compliance with satisfactory explanation will be

acceptable compliance with Section 42. The

Constitution Bench noted the effect of the aforesaid

two decisions in para 5. The present is not a case

where insofar as compliance with Section 42(1)

proviso even an argument based on substantial

compliance is raised there is total non-compliance

with Section 42(1) proviso. As observed above,

Section 43 being not attracted, search was to be

conducted after complying with the provisions of

20 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

Section 42. We thus, conclude that the High Court

has rightly held that non-compliance with Section

42(1) and Section 42(2) were proved on the record

and the High Court has not committed any error in

setting aside the conviction order.” (Emphasis

added)

14.The evidence in the present case clearly shows

that the vehicle was not a public conveyance but

was a vehicle belonging to accused Gurdeep Singh.

The Registration Certificate of the vehicle, which

has been placed on record also does not indicate it

to be a Public Transport Vehicle. The explanation to

Section 43 shows that a private vehicle would not

come within the expression “public place” as

explained in Section 43 of the NDPS Act. On the

strength of the decision of this Court in Jagraj

Singh alias Hansa , the relevant provision would

not be Section 43 of the NDPS Act but the case

would come under Section 42 of the NDPS Act.

22. PW-10 Guruwar Singh, Head Constable/Maalkhana Mohrrir has

admitted that 100 gm ganja sample was taken out on 07.12.2016 and

sent to F.S.L. after five days. He himself stated that the sample had

been sent earlier, but the same was returned due to a defect in the

draft.

23.the sample was sent, but the same was returned to the malkhana on the

same day itself due to a defect in the draft sent with the property.

24. Section 57 of The Narcotic Drugs And Psychotropic Substances Act,

1985 provides as under:-

57. Report of arrest and seizure.—

“ Whenever any person makes any arrest or seizure, under

this Act, he shall, within forty-eight hours next after such arrest

or seizure, make a full report of all the particulars of such

21 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

arrest or seizure to his immediate official superior.”

25. In this case, it is evident that PW-8 Ravikant Verma, Investigating

Officer admitted that all the proceedings were done on 04.12.2016 and

as per Ex. P/40, report was sent to S.D.O.P. Office, Mainpur on

07.12.2016, thus it is clear that full report was sent to superior officer

after 48 hours. So, non-compliance of Section 57 of NDPS Act is clearly

established and in this regard, no satisfactory explanation offered by

the investigating officer (PW-8). It is also quite evident that mandatory

provision of Sections 42, 50 and 43 of NDPS Act were not complied by

the prosecution agency.

26. PW-8, Investigating Officer- Ravikant Verma has admitted that in all

documents, he used different pens and different inks.

27. It has been held by the Hon’ble Apex Court in the matter Mangilal

(supra) in para 11 as under:-

“ 11. The memorandum of informer’s information dated

20.05.2010 exhibited under P-3 indicates signature of two

witnesses, P.W.2 and P.W.6, both of them turned hostile.

Though they admitted their signature it was clearly

deposed that they were not present at the scene of

occurrence. In our considered view the Court below have

wrongly construed the evidence, in fact these two

witnesses were party to most of the exhibits running

upto 13. Search warrant under Exhibit P-4 acknowledge

the fact that procedure contemplated under the NDPS

Act has not been followed. As noted, one of the

witnesses to the seizure memo has not been examined

while the other turned hostile. Both the witnesses to the

22 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

arrest memo have not been examined. On the issue of

non-production of narcotic substance and panch

witnesses turning hostile we wish to reiterate the

decision of this Court in Jitendra v. State of M.P., (2004)

10 SCC 562:

“5. The evidence to prove that charas and

ganja were recovered from the possession of

the accused consisted of the evidence of the

police officers and the panch witnesses. The

panch witnesses turned hostile. Thus, we find

that apart from the testimony of Rajendra

Pathak (PW 7), Angad Singh (PW 8) and Sub-

Inspector D.J. Rai (PW 6), there is no

independent witness as to the recovery of the

drugs from the possession of the accused.

The charas and ganja alleged to have been

seized from the possession of the accused

were not even produced before the trial court,

so as to connect them with the samples sent

to the Forensic Science Laboratory. There is

no material produced in the trial, apart from

the interested testimony of the police officers,

to show that the charas and ganja were

seized from the possession of the accused or

that the samples sent to the Forensic Science

Laboratory were taken from the drugs seized

from the possession of the accused.

23 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

Although the High Court noticed the fact that

the charas and ganja alleged to have been

seized from the custody of the accused had

neither been produced in the court, nor

marked as articles, which ought to have been

done, the High Court brushed aside the

contention by observing that it would not

vitiate the conviction as it had been proved

that the samples were sent to the Chemical

Examiner in a properly sealed condition and

those were found to be charas and ganja. The

High Court observed, “non-production of

these commodities before the court is not

fatal to the prosecution. The defence also did

not insist during the trial that these

commodities should be produced”. The High

Court relied on Section 465 CrPC to hold that

non-production of the material object was a

mere procedural irregularity and did not

cause prejudice to the accused….”

6.In our view, the view taken by the High

Court is unsustainable. In the trial it was

necessary for the prosecution to establish by

cogent evidence that the alleged quantities of

charas and ganja were seized from the

possession of the accused. The best

evidence would have been the seized

24 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

materials which ought to have been produced

during the trial and marked as material

objects. There is no explanation for this

failure to produce them. Mere oral evidence

as to their features and production of

panchnama does not discharge the heavy

burden which lies on the prosecution,

particularly where the offence is punishable

with a stringent sentence as under the NDPS

Act. In this case, we notice that panchas have

turned hostile so the panchnama is nothing

but a document written by the police officer

concerned. The suggestion made by the

defence in the cross-examination is worthy of

notice. It was suggested to the prosecution

witnesses that the landlady of the house in

collusion with the police had lodged a false

case only for evicting the accused from the

house in which they were living. Finally, we

notice that the investigating officer was also

not examined. Against this background, to

say that, despite the panch witnesses having

turned hostile, the non-examination of the

investigating officer and non-production of

the seized drugs,the conviction under the

NDPS Act can still be sustained, is far-

fetched.”

25 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

(emphasis supplied)

28. In the light of above judgments and other guidelines of the Hon’ble Apex

Court and statement of prosecution witnesses, it is quite evident that

independent witnesses have not supported the prosecution case. PW-

8, Investigating Officer- Ravikant Verma and PW-10 Guruwar Singh,

Malkhana Mohrir have admitted that there are too many material

irregularities, which creates a serious doubt on all the proceedings of

the prosecution and also mandatory provisions were not complied by

the Investigating Officer. It is also evident that in notice under Section

160 of Cr.P.C. (Ex. P/5), memo of without search warrant (Ex.P/7) and

in Rojnamcha Sanha (Ex. P/54), the time of entry were different, which

also creates serious doubt and full report (Ex.P/40) was sent by

Investigating Officer (PW-8) to S.D.O.P. Office, Mainpur after 48 hours

of the incident i.e., does not fall under the ambit of Section 57 of NDPS

Act and regarding this no satisfactory explanation has been offered by

the prosecution. Thus, it is clear that prosecution has utterly failed to

comply with all mandatory provisions. We are of the opinion that the

prosecution has not been able to prove guilt of the appellants beyond

all reasonable doubt. Being so, the learned trial Court was not justified

in recording conviction of the appellants under Section 20 (ii) (C) of the

NDPS Act and Section 468 of IPC.

29. For the foregoing reasons, this appeal is allowed and the impugned

judgment of conviction and order of sentence is set aside. The

appellants are acquitted of the charge under Section 20 (ii)(C) of the

NDPS Act & Section 468 of IPC. The appellants are in jail. They be set

at liberty forthwith if no longer required in any other case.

30. However, observation/condition made by the learned trial Court in para

26 CRA No. 8 of 2018

Dharmendra Sahu and another vs. State of C.G.

37 of its impugned judgment is hereby affirmed.

31. 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.

32. Let a copy of this judgment and the original record be transmitted to the

trial Court concerned forthwith for necessary information and

compliance.

Sd/- Sd/-

(Rajani Dubey) (Amitendra Kishore Prasad)

JUDGE JUDGE

AMIT PATEL