CAV Judgment

1. Since all the above criminal appeals arise out of the common judgment of conviction and order of sentence dated 15.01.2026 passed by the learned Special Judge (NDPS Act), Raipur, District Raipur (C.G.) in Special Criminal Case No.14/2025, they are being heard together and disposed of by this common judgment.

2. The appellants have called in question the legality and correctness of the judgment dated 15.01.2026, whereby the learned Special Judge convicted and sentenced them as under:-





3. Case of the prosecution, in brief, is that on 07.12.2024 at about 9:30 p.m., Assistant Sub-Inspector- Son Prasad Rajetri (PW-16), posted at Police Station Kotwali, Raipur, allegedly received secret information that three persons carrying bags containing ganja were standing near Kalibadi Chowk, Raipur and were searching for customers for its sale. The information was reduced into writing in the Rojnamcha Sanha and, according to the prosecution, after completing the formalities required under the NDPS Act, two independent witnesses were called and the police party proceeded to the spot. It is the further case of the prosecution that on reaching Kalibadi Chowk, three persons namely Ganesh Bagarti, Vikram Sa and Anil @ Ali Jhalpekar attempted to flee on seeing the police party but were apprehended. After informing them of their legal rights and conducting the search proceedings, the police allegedly recovered 4 kilograms of ganja from Ganesh Bagarti, 4 kilograms from Vikram Sa and 2 kilograms from Anil @ Ali Jhalpekar. The contraband was weighed, sealed and seized and the accused persons were arrested.

4. During the course of the investigation, memorandum statements of the arrested accused persons were recorded, pursuant thereto, on 10.12.2024, appellant, Priyawant Kumhar, was arrested and 6.880 kilograms of ganja is stated to have been recovered from his possession. Thereafter, proceedings under Section 52-A of the NDPS Act were undertaken and samples were forwarded to FSL for chemical examination. The prosecution further alleged that during investigation the involvement of accused- Ravi Sahu and Sanjay @ Lendi Jhalpekar came to light. Accused- Ravi Sahu was arrested after surrendering before the Court and on the basis of his memorandum statement, 1.020 kilograms of ganja was allegedly recovered from his house. It was further alleged that accused- Sanjay @ Lendi Jhalpekar had assisted accused- Ravi Sahu in transportation and sale of the contraband. Accordingly, Section 29 of the NDPS Act was also invoked. Upon completion of investigation, statements of the witnesses were recorded and charge-sheet was filed against all the accused persons before the Special Court.

5. Appellants abjured their guilt and claimed to be tried. After closure of the prosecution evidence, their statements were recorded, wherein they denied all the incriminating circumstances appearing against them, pleaded false implication and claimed innocence.

6. To prove its case, the prosecution examined 16 witnesses and produced 117 documents, along with Material Articles A-1 to A-21. The defence did not examine any witness and produced only one document, Ex. D-1.

7. Upon appreciation of the oral and documentary evidence available on record, the learned Special Judge, by the impugned judgment dated 15.01.2026 passed in Special Criminal Case No.14/2025, convicted and sentenced the appellants as indicated hereinabove. Aggrieved thereby, the present appeals have been preferred.

8. Learned counsel appearing for the appellants submits that the learned trial Court has erred in convicting and sentencing the appellants as the prosecution has failed to prove the alleged recovery of contraband from their conscious and exclusive possession beyond reasonable doubt. It is submitted that the independent seizure witnesses have turned hostile and the entire case is based upon the testimony of police officials, which suffers from material contradictions and omissions. It is further submitted that mandatory provisions of Sections 42, 42(2) and 57 of the NDPS Act have not been complied with by the prosecution, the alleged seizure proceedings are doubtful, and the prosecution has failed to establish proper link evidence regarding safe custody and identification of the seized articles. It is also argued that the conviction under Section 29 of the NDPS Act is based only on the alleged statement of co-accused persons, which is not admissible in view of the law laid down by the Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu, (2013) 16 SCC 31 and Ajay Kumar Gupta Vs. Union of India, (2024) 9 SCC 455. Therefore, it is prayed that the impugned judgment of conviction and order of sentence be set aside and the appellant be acquitted of the charges leveled against them.

9. Learned State counsel, supporting the impugned judgment, submits that the learned trial Court has rightly convicted and sentenced the appellants after due and proper appreciation of the evidence available on record. It is contended that the prosecution has successfully established the recovery of the alleged ganja from the possession of the appellants through the testimony of the Investigating Officer and other police witnesses. It is further submitted that the mandatory provisions of the NDPS Act have been duly complied with by the prosecution. Therefore, the conviction recorded by the learned trial Court is well-founded and does not call for any interference by this Court.

10. I have heard learned counsel for the parties and perused the material available on record.

11. As regards the involvement of the appellants in the crime in question, the evidence of the Investigating Officer, Son Prasad Rajetri (PW-16), is very significant. He has stated that after receiving secret information from the informant, he recorded the same in the Rojnamcha Sanha, called two independent witnesses, completed the necessary formalities and proceeded to Kalibadi Chowk, where the appellants were apprehended. According to him, the appellants were informed of their rights under Section 50 of the NDPS Act and, after obtaining their consent, search was conducted, resulting in recovery of ganja from their possession. He has further stated that the seized contraband was weighed, sealed and seized in accordance with law. However, his evidence does not inspire confidence in view of the material admissions made by him during cross-examination. He admitted that separate notices under Section 50 of the NDPS Act were not issued to each accused individually. He further admitted that separate consent panchnamas, separate search panchnamas and separate seizure panchnamas were not prepared in respect of each accused. He also admitted that no separate identification marks, numbers or alphabets were affixed upon the bags or packets allegedly recovered from different accused persons. He further admitted that although the quantity of ganja recovered from accused- Ganesh Bagarti and Vikram Sa was allegedly weighed at 4.100 kg each, but the seizure memos (Exs.P-24 and P-25) record the seized quantity as only 4 kg each. These admissions and omissions assume significance because the prosecution alleges separate recovery from each accused and was, therefore, required to establish such recovery by clear, cogent, and reliable evidence. He also admitted that although two samples of 50 grams each were allegedly drawn from every seized packet, but the seizure memos (Exs. P-24 to P-27) do not mention the drawing of such samples. Likewise, the seal sample panchnama (Ex.P-23) does not mention the quantity of the alleged contraband and the relevant column has been left blank. Further, the notice under Section 50 of the NDPS Act (Ex.P-6) also contains apparent overwriting and variation in ink at certain places. Thus, these circumstances create a serious doubt regarding the fairness, authenticity and genuineness of the alleged search and seizure proceedings.

12. This apart, the testimony of the Investigating Officer (PW-16) also does not receive corroboration from the independent witnesses. PW-1 Shrawan Soni and PW-2 Inder Baghel, who were cited as independent witnesses for alleged search and seizure proceedings, have not supported the prosecution. PW-1 Shrawan Soni has stated that he was called by the police and his signatures were obtained on certain documents without disclosing their contents. PW-2 Inder Baghel has categorically admitted that he had signed blank papers at the police station and had never accompanied the police party to Kalibadi Chowk. Their evidence, therefore, does not establish that they were present during the alleged search and seizure proceedings, making the whole prosecution story doubtful.

13. Similarly, PW-3 Abdul Farukh, who was examined to prove the weighing proceedings, has also not supported the prosecution. He has stated that he had no concern with any weighing business and signed the documents because of apprehension of police harassment. PW-4 Akbar Khan, PW-5 Manoj Kumar Chutel and PW-14 Narendra Bagre have also not supported the prosecution and were declared hostile.

14. Thus, all the independent witnesses have not supported the prosecution case regarding the search, seizure and weighing proceedings. Though the testimony of police officials cannot be rejected merely because the independent witnesses have turned hostile, but such evidence requires careful scrutiny. However, in the present case, the material admissions made by the Investigating Officer during cross- examination create serious doubt regarding the prosecution case.

15. Learned counsel for the appellants has also contended that the mandatory provisions contained in Sections 42 and 42(2) of the NDPS Act have not been complied with by the prosecution. Since the prosecution case is based upon secret information allegedly received by the Investigating Officer, the prosecution was required to establish that such information was reduced into writing under Section 42(1) and that a copy thereof was forthwith forwarded to the immediate Superior Officer in terms of Section 42(2) of the NDPS Act.

16. In the present case, although PW-16 Investigating Officer has stated that the secret information was reduced into writing and forwarded to the Office of the City Superintendent of Police through Constable Kasaan Raza (PW-8), but in his cross-examination, he admitted that the forwarding report does not mention the proceedings relating to search without warrant. He further admitted that no acknowledgment or document has been produced to establish that the information was actually received by the Superior Officer. PW-8 Kasaan Raza also admitted that he did not carry the document relating to search without warrant to the office of the CSP after 6:30 p.m. on the relevant date. PW-16 Investigating Officer further admitted that in respect of the subsequent proceedings relating to accused- Priyawant Kumhar, no information under Section 42(2) of the NDPS Act was forwarded to the Superior Officer.

17. The above admissions create serious doubt regarding compliance with Sections 42 and 42(2) of the NDPS Act. Though the prosecution claims that the statutory requirements were complied with by the prosecution, but the evidence on record does not satisfactorily establish the same. This, coupled with the doubtful search and seizure proceedings, materially weakens the prosecution case.

18. Learned counsel for the appellants has also contended that the prosecution has failed to prove due compliance with Section 57 of the NDPS Act. This contention also appears to have substance. PW-6 Mukesh Kumar Sahu, Constable, admitted that the report under Section 57 of the NDPS Act was received beyond the prescribed period and that no such report was received in respect of accused- Ravi Sahu. He and PW-16 Investigating Officer also admitted that the report under Section 57 of the NDPS Act was not submitted within time. These admissions clearly indicate that the prosecution has failed to establish due compliance with Section 57 of the NDPS Act.

19. Another important aspect relates to the safe custody and identity of the seized contraband. To prove this, the prosecution examined PW-10 Chandrakala Sahu, Head Constable and Malkhana In-charge, who proved Exs. P-64, P-65 and P-67 and the relevant Malkhana Register entries (Exs.P-66C and P-68C). In her cross-examination, she admitted that if the seized articles had been deposited in a sealed condition, she would have recorded the same in the Malkhana records. She further admitted that Exs. P-64, P-65 and P-67 do not contain any identification marks of the seized articles and that no such particulars or specimen seal were recorded in the Malkhana Register. She also admitted that after completion of the sampling proceedings, no identification marks of the articles were recorded while receiving them back in the Malkhana. It has also come in her evidence that Exs. P-64, P-65 and P-67 do not bear the date of deposit. Further, PW-16 Investigating Officer admitted that although samples were allegedly drawn from the seized contraband, the seizure memos (Exs. P-24 to P-27) do not mention such sampling. He also admitted that the seal sample panchnama (Ex. P-23) does not mention the quantity of the seized contraband and the relevant space has been left blank. These admissions and omissions create serious doubt regarding the prosecution case.

20. From the evidence of PW-10 Chandrakala Sahu and PW-16 Investigating Officer, the prosecution has failed to establish that the same seized contraband remained in safe custody from the date of seizure till it was sent to the FSL. Thus, the prosecution has failed to establish an unbroken chain of custody of the seized contraband.

21. In a case under the NDPS Act, the prosecution is required to prove not only the recovery of the contraband, but also its proper identification and safe custody. In the present case, the omissions in the Malkhana records, the absence of identification marks and the deficiencies in the documents create a reasonable doubt regarding the identity and safe custody of the seized contraband. This also weakens the prosecution case.

22. Learned counsel for the appellants has also argued that the conviction of appellants- Ravi Sahu and Sanjay @ Lendi Jhalpekar under Section 29 read with Section 20(b)(ii)(B) of the NDPS Act is not sustainable. It is submitted that except the memorandum statements recorded under Section 67 of the NDPS Act, there is no independent evidence to prove any conspiracy or their involvement in the alleged offence.

23. In Tofan Singh (supra), the Constitution Bench of the Hon'ble Supreme Court has held that an officer empowered under Section 53 of the NDPS Act is a police officer and that a confessional statement recorded under Section 67 of the NDPS Act is not admissible in evidence as a confession. Para 24.1 of this judgment is relevant and is reproduced hereunder:-

          "24.1. The conviction is based solely on the purported confessional statement recorded under Section 67 of the NDPS Act which has no evidentiary value inasmuch as:

          (a) The statement was given to and recorded by an officer who is to be treated as "police officer" and is thus, hit by Section 25 of the Evidence Act.

          (b) No such confessional statement could be recorded under Section 67 of the NDPS Act. This provision empowers to call for information and not to record such confessional statements. Thus, the statement recorded under this provision is akin to the statement under Section 161 CrPC.

          (c) In any case, the said statement having been retracted, it could not have been the basis of conviction and could be used only to corroborate other evidence."

24. Likewise, the Hon'ble Supreme Court in Ajay Kumar Gupta (supra) relying the above decision in Tofan Singh (supra), has further held that a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. Paras 13 & 14 are relevant and reproduced hereunder:-

          "13. We may note that the Trial Court and High Court have relied upon the appellant's statement under Section 67 of the NDPS Act. In paragraph 158 of the decision of this Court in the case of Tofan Singh (supra), this Court held thus:

          "158. We answer the reference by stating: 158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. 158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

          (emphasis added)

          14. Therefore, the appellant's statement recorded under Section 67 of the NDPS Act is not admissible in evidence and cannot be read in evidence."

25. In the present case, except the memorandum statements recorded under Section 67 of the NDPS Act, there is no independent evidence to establish the charge under Section 29 read with Section 20(b)(ii)(B) of the NDPS Act against appellants- Ravi Sahu and Sanjay @ Lendi Jhalpekar. The prosecution has failed to prove that they had entered into any criminal conspiracy or had knowingly participated in the transportation or sale of the alleged contraband. Their implication is mainly based on the statements recorded during investigation. In view of the law laid down by the Hon'ble Supreme Court in Tofan Singh (supra) and Ajay Kumar Gupta (supra), such statements cannot by themselves form the basis of conviction. Therefore, the conviction of appellants- Ravi Sahu and Sanjay @ Lendi Jhalpekar under Section 29 read with Section 20(b)(ii)(B) of the NDPS Act cannot be sustained.

26. Upon overall appreciation of the evidence on record, this Court finds that the prosecution has failed to prove the search and seizure proceedings beyond reasonable doubt. The testimony of the Investigating Officer (PW-16) suffers from material admissions, omissions and contradictions and is not supported by any of the independent witnesses. Therefore, his evidence does not appear to be reliable and trustworthy and does not inspire confidence. The prosecution has also failed to comply with the mandatory provisions of the NDPS Act. Further, the evidence of PW-10 Chandrakala Sahu and the Malkhana documents creates serious doubt regarding the identity, safe custody and chain of custody of the seized contraband. These infirmities, taken together, create a reasonable doubt regarding the prosecution case. Accordingly, the appellants are entitled to the benefit of doubt.

27. Consequently, this Court is of the considered opinion that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt. Therefore, the impugned judgment of conviction and order of sentence dated 15.01.2026 passed by the learned Special Judge (NDPS Act), Raipur, C.G. in Special Criminal Case No.14/2025, cannot be sustained and are liable to be set aside.

28. Accordingly, all the appeals are allowed. The appellants are acquitted of all the charges levelled against them by giving them the benefit of the doubt.

29. Appellants are reported to be in jail. They be released forthwith, if not required in connection with any other case.

30. Let a copy of this judgment along with the trial Court record be sent to the concerned trial Court as well as the concerned Jail Superintendent for information and necessary compliance.