Chattisgarh High Court
Sajan Yadav vs Direcotrate Of Revenue Intellegence on 24 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:13912
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1495 of 2024
Judgment Reserved on : 11/03/2026
Judgment Delivered on : 24/03/2026
1 - Vikash Kumar Ray S/o Lalu Ray Aged About 29 Years R/o Dumari
Bindgama Samstipur (Bihar)
2 - Amrit Kumar Sahu S/o Suresh Sahu Aged About 18 Years R/o Street No.
02, Shanti Nagar, Ward No. 04 Rajnandgaon (C.G.)
--- Appellants
versus
Directorate Of Revenue Intelligence (Dri) Through The Director/deputy
Director Regional Unit 30 Panchsheel Nagar, Civil Line, Raipur Distt. Raipur
(C.G.)
--- Respondent
For Appellants : Mr. Pragalbha Sharma, Advocate and
Mr. Raza Ali, Advocate
For Respondent/DRI : Mr. Anumeh Shrivastava, Advocate
ACQA No. 247 of 2025
VED
PRAKASH Directorate Of Revenue Intelligence (D.R.I.) Raipur Regional Unit, Through
DEWANGAN
Deputy Director, Directorate Of Revenue Intelligence, Raipur Regional Unit,
Digitally signed
by VED
PRAKASH
30, Panchsheel Nagar, Civil Lines, Raipur, District – Raipur (C.G.) 492001
DEWANGAN
Date: 2026.03.24 —Appellant
18:02:24 +0530
Versus
2
Shri Pawan Yadav S/o Shri Ramanand Yadav Aged About 35 Years R/o
Village – Pendri, Ward No.-20, Rajnandgaon (C.G.)
— Respondent
For Appellant/DRI : Mr. Anumeh Shrivastava, Advocate
For Respondent : Mr. Shalvik Tiwari, Advocate
CRA No. 2595 of 2025
Sajan Yadav S/o Shri Ramanand Yadav, Aged About 32 Years R/o Village-
Pendri, Ward No. 20, Rajnandgaon (C.G.)
—Appellant
Versus
Directorate Of Revenue Intelligence, The Director/Deputy Director, Regional
Unit 30, Panchsheel Nagar, Civil Lines, Raipur, District – Raipur (C.G.)
… Respondent
For Appellant : Mr. Rajendra Patel, Advocate
For Respondent/DRI : Mr. Anumeh Shrivastava, Advocate
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
C.A.V. Judgment
Per Ramesh Sinha, Chief Justice
1. All these appeals are arising out of same offence and same sessions
case, therefore, they are being heard and decided together.
2. The CRA No. 1495 of 2024 has been filed by the two accused
persons- Vikash Kumar Ray and Amrit Kumar Sahu against the
impugned judgment of conviction and sentence dated 15.07.2024,
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passed by learned Special Judge (NDPS Act), Raipur in Special
(NDPS Act) Case No. 56 of 2021, whereby the appellants have been
convicted for the offence under Sections 20(b)(ii)(C) and 29 of The
Narcotic Drugs and Psychotropic Substances Act, 1985 (in short
‘NDPS Act‘) and sentenced for R.I. for 10 years with fine of Rs. 1 lakh,
in default of payment of fine further R.I. for 2 years for each offences.
3. The CRA No. 2595 of 2025 has been filed by the accused- Sajan
Yadav against the impugned judgment of conviction and sentence
dated 02.09.2025, passed by learned Special Judge (NDPS Act),
Raipur in Special (NDPS Act) Case No. 56 of 2021, whereby the
appellant has been convicted for the offence under Sections 25 and 29
of the NDPS Act and sentenced for R.I. for 10 years with fine of Rs. 1
lakh, in default of payment of fine further R.I. for 2 years for each
offences.
4. The ACQA No. 247 of 2025 has been filed by the Directorate of
Revenue Intelligence, Raipur Regional Unit against the impugned
judgment of acquittal dated 15.07.2024, passed by learned Special
Judge (NDPS Act), Raipur in Special (NDPS Act) Case No. 56 of
2021, whereby the respondents/accused- Pawan Yadav has been
acquitted from the charge of Sections 20(b)(ii)(C), 25 and 29 of the
NDPS Act.
5. In the present case, there were five accused persons. During the trial
of the case, the accused- Pankaj Kumar Ray has died and the case
against him is abated. Earlier, Sajan Yadav was absconding, who was
subsequently arrested on 10.01.2025 and he was tried separately.
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Trial of three accused persons- Vikash Kumar Ray, Amrit Kumar Sahu
and Pawan Yadav were concluded and judgment was passed on
15.07.2024 by the learned trial Court and the two accused persons-
Vikash Kumar Ray and Amrit Kumar Sahu were convicted for the
offence under Sections 20(b)(ii)(C) and 29 of the NDPS Act, whereas
the co-accused Pawan Yadav was acquitted. Against their conviction
and sentence, accused Vikash Kumar Ray and Amrit Kumar Sahu
have filed their CRA No. 1495 of 2024 and against the acquittal of
accused Pawan Yadav, the ACQA No. 247 of 2025 has been filed by
the Directorate of Revenue Intelligence (in short ‘DRI’). When the co-
accused Sajan Yadav was arrested on 10.01.2025, his separate trial
was concluded and he was also convicted by the learned trial Court for
the offence under Sections 25 and 29 of the NDPS Act vide judgment
of conviction and sentence dated 02.09.2025 and he has challenged
the same in CRA No. 2595 of 2025.
6. The prosecution’s case, in brief, is that, on 11.11.2020, at about 13:20
Hrs, the Intelligence Officer Sanjeet Kumar Singh (PW-2), received a
secret information that, about 800 kgs of Ganja is being illegally
transporting by a container truck bearing No. CG 08 L 3166, which is
going towards Allahabad from Borigumma (Odisha) and it might be
passing through the Abhanpur-Raipur Highway near about 4:00 PM to
4:30 PM. The secret information was reduced in writing and it was
forwarded to Roshan Kumar Gupta, Senior Intelligence Officer (PW-3)
and Nitin Agrawal, Deputy Director (PW-4). Based on the secret
information, a search party was constituted by Nitin Agrawal (PW-4)
and authorized Sanjeet Kumar Singh for search and seizure
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proceeding. The said search and seizure party consists with Nitin
Agrawal himself, Roshan Kumar Gupta (PW-3), Sandeep Kumar (PW-
7) and Sanjeet Kumar Singh (PW-2). They called two independent
panch witnesses and they were informed about the secret information.
Along with the search party and independent witnesses, they
proceeded towards Atal Chowk, Abhanpur and waited for the
suspected truck. At about 4:10 PM, the suspected container truck
bearing No. CG 08 L 3166 came there and the search party stopped
the said container truck, in which three persons were sitting. The driver
disclosed his name as Pankaj Kumar Ray and two other persons have
disclosed their names as Vikash Kumar Ray and Amrit Kumar Sahu.
Initially, they evaded by transportation of Ganja in the truck, however
on interrogation the accused Pankaj Kumar Ray disclosed that they
Ganja is being transporting in the vehicle, which is kept in secret
chamber prepared inside the cabin. When the investigating officer
Sanjeet Kumar Singh opened the secret chamber by removing the
plywood, they found N-number of packets kept in secret chamber and
one of the packets was torn. The contents of torn packet were
physically identified by seeing, rubbing and smelling and it was found
to be of Ganja. Since, it was the busy road and in order to maintain the
public tranquility, they have taken the said container truck and the
accused persons to the office of the Directorate of Revenue
Intelligence, Panchsheel Nagar Raipur with the consent of the
accused persons and panch witnesses. After removing the plywood,
one packet was taken out from the secret chamber, which was marked
as P-1 and its contents were physically identified by rubbing and
smelling and it was found to be of Ganja. All other packets were also
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taken out, which were 155 packets in number and all the packets were
marked as P-1 to P-155. Out of total 155 packets, on random checking
of 7 packets by Narcotics Kit, the Ganja contents were found positive.
The packets were weighed on the spot and the total weight of 155
packets were comes to 657.255 kgs, however due to calculation
mistake, it was written in the panchnama as 680.492 kgs. From the
said container truck, one SBI Debit Card issued in the name of Rohit
Yadav, the documents relating to truck bearing No. CG 08 L 3166 and
CG 08 AH 1783 were recovered. From the documents, the truck No.
CG 08 L 3166 was found to be registered in the name of accused-
Sajan Yadav and the truck No. CG 08 AH 1783 was found to be
registered in the name of Shankar Rai, resident of Atal Awas, Sundara,
Rajnandgaon. Two number plates bearing No. CG 08 AH 1783 have
also been recovered from the cabin of the said container truck along
with various toll and petrol pump receipts. Further, the said container
truck has not fixed its rear number plate. On being interrogation, the
accused persons have disclosed that they were planned to change the
number plate of the truck after crossing the Raipur city by replacing
the number plate of truck number CG 08 AH 1783 and for that reason,
they kept two number plates bearing the said truck numbers. From
each packets, 2-2 packets of 30 grams each were taken out and
sampling were drawn in presence of the witnesses and the accused
persons. It was separately sealed and numbered as P-1/S-1 and
P-1/S-2 to P-155/S-1 and P-155/S-2. All the 310 sample packets were
sealed by the seal of DRI. The total 155 packets were refilled in 37
bags, which were marked as B-1 to B-37 and it was also sealed with
the seal of DRI. Thereafter, the 37 bags, all the sample packets,
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container truck bearing No. CG 08 L 3166, the documents and number
plates of the trucks bearing No. CG 08 L 3166 and CG 08 AH 1783,
toll and petrol slips and ply sheet and debit card were seized. On
being interrogation it was disclosed by the accused persons that, the
owner of the truck Sajan Yadav and his brother Pawan Yadav are
engaged in illegal transportation of Ganja and they are running Patna-
Bihar Dhaba at village Pendri, Rajnandgaon, however the owner of the
vehicle was not found in the Dhaba. The 37 bags of Ganja, 310
samples, seized truck bearing No. CG 08 L 3166, two number plates
of CG 08 AH 1783, the mobile phones were kept in safe custody of
Malkhana of DRI, Raipur. The statements of the accused persons
under Section 67 of the NDPS Act were recorded, in which they
disclosed the involvement of illegal transportation of Ganja and then,
they were arrested. The accused persons were medically examined.
After completion of search and seizure proceeding and process of
investigation, criminal complaint was filed by DRI before the learned
trial Court for the offence under Sections 8(c), 20(b)(ii)(C), 25, 27(A)
and 29 of the NDPS Act.
7. The learned trial Court has framed charge against three accused
persons Pankaj Kumar Ray, Vikash Kumar Ray and Amrit Kumar Sahu
for the offence under Sections 20(b)(ii)(C) and 29 of the NDPS Act,
whereas the charge against the accused Pawan Yadav has been
framed under Sections 20(b)(ii)(C), 25 and 29 of the NDPS Act. The
accused persons denied the charge and claimed trial. Accused Sajan
Yadav was absconding at that time.
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8. In order to prove the charge against the accused persons, the
prosecution has examined as many as 09 witnesses. Two court
witnesses Pankaj Khandagale (CW-1) and Kapil Gaur (CW-2) with
respect to absconding of the accused Sajan Yadav have been
recorded. Statement of the accused persons under Section 313 of
CRPC have also been recorded, in which they denied the
circumstances that appears against them, pleaded innocence and
have submitted that, they have been falsely implicated in the offence.
The accused Vikash Kumar Ray has further submitted that he was
brought from his village to Rajnandgaon for employment as a driver
and he was unaware about the articles loaded in the vehicle.
9. During the trial, the accused Pankaj Kumar Ray has died on
11.08.2023 and the case against him was abated vide order dated
21.08.2023 passed by learned trial Court.
10. During pendency of the trial against other accused persons, the co-
accused Sajan Yadav was arrested on 10.01.2025, charge against him
was also framed on 10.07.2025 for the offence under Sections 25 and
29 of the NDPS Act. He too has denied the charge and claimed trial. In
his separate trial, vide order dated 16.07.2025, the learned trial Court
gave option to the prosecution as well as the accused Sajan Yadav, as
to whether they want to examine, cross-examine, re-examine or re-
cross-examine the witnesses, who have already been examined
earlier with respect to the other accused persons, then the
prosecution/DRI submitted before the learned trial Court that, they do
not want to examine any other witnesses apart from the witnesses,
9
who have already been examined earlier. Learned counsel appearing
for the accused Sajan Yadav also submitted before the learned trial
Court on 16.07.2025 that they do not want to cross-examine any
prosecution witnesses, who have been cross-examined earlier. Their
submissions regarding not to examine and cross-examine the
witnesses were obtained in writing in the counter part of the order
dated 16.07.2025 with the signature of respective counsel of the
parties and accused Sajan Yadav. His statement under Section 313 of
CRPC has also been recorded, in which he denied the circumstances
that appears against him, pleaded innocence and has submitted that
he is innocent and has been falsely implicated in the case.
11. After appreciation of oral as well as documentary evidence led by the
prosecution in separate trial against accused Sajan Yadav, he has also
been convicted and sentenced by the learned trial Court vide its
judgment of conviction and sentence dated 02.09.2025. Hence these
appeals.
12. It is necessary to mention here that during the course of hearing of the
appeal on 11.02.2026, learned counsel appearing for the appellant
Vikash Kumar Ray submitted that the opportunity to cross-examine the
investigating officer Sanjeet Kumar Singh (PW-2) was not provided to
him, as the right to cross-examine the witness was forfeited on
21.02.2024 for the reason that his counsel could not appear for cross-
examination of the witness. Learned counsel for the appellant Vikash
Kumar Ray was also submitted that as per the provisions of Section
304 of CRPC, the trial Court was under obligation to provide legal aid,
if the counsel engaged by the accused could not appear in the case
10
and permit him to cross-examine the witness. Absence of cross-
examination of the witness would affect his legal right of fair and
impartial trial. Considering the submissions of learned counsel
appearing for the appellant Vikash Kumar Ray, this Court, vide its
order dated 11.02.2026, directed the trial Court to recall the
Investigating Officer Sanjeet Kumar Singh (PW-2) on 25.02.2026 for
his cross-examination by the accused Vikash Kumar Ray. Pursuant
thereof the Investigating Officer Sanjeet Kumar Singh (PW-2) was
cross-examined by the learned counsel appearing for the accused
Vikash Kumar Ray on 25.02.2026 and the record of the case is
transmitted to this Court, thereafter, all these appeals are being heard
together on 11.03.2026.
13. Mr. Raza Ali, learned counsel appearing for the accused- Vikash
Kumar Ray would also submit that, there are material inconsistencies
in the evident of prosecution witnesses with respect to search and
seizure of the alleged Ganja from the truck. The appellant Vikash
Kumar Ray was a driver and during the course of his employment, he
has taken the truck towards Allahabad on the instructions of its owner.
He was brought to Rajnandgaon for employment as a driver. He was
not aware about the secret chamber prepared in the cabin of the truck
and Ganja was loaded in it. It was a concealed chamber and was not
visible. The prosecution could not establish that the secret chamber
and Ganja loaded in it was within the knowledge of the driver/appellant
Vikash Kumar Ray. He would further submit that the respondent/DRI
recorded the statements of the accused persons under Section 67 of
the NDPS Act, which is the confessional statement of the accused
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persons before the police authorities and is not admissible in
evidence. The conscious possession of the alleged Ganja has not
been proved by the prosecution against the accused Vikash Kumar
Ray. There are various instances of lapses in investigation. The
mandatory provisions of Sections 42, 52-A, 55 and 57 of the NDPS Act
have not been complied with in its requirement. In such inconsistent
evidence and lack of procedural compliance in search and seizure
proceeding makes the entire case of the prosecution doubtful and the
appellant is entitled for acquittal.
14. Mr. Pragalbha Sharma, learned counsel appearing for the accused-
Amrit Kumar Sahu would submit that the prosecution has failed to
prove its case beyond reasonable doubt. There are material omissions
and contradictions in the evidence of the prosecution witnesses. The
independent witness Amit Kumar Agnihotri (PW-1) has not been duly
supported the prosecution case and there are material inconsistencies
in his evidence with that of the evidence of other witnesses. The
learned trial Court failed to consider that the prosecution witnesses are
mainly the police witnesses. The mandatory provisions of NDPS Act
have not been complied with. The procedure for search and seizure
and also for sampling have not been drawn in accordance with law.
There are substantial flaw in the inventory proceedings conducted by
the Judicial Magistrate. The procedure for sending the samples to the
FSL have also not been followed, which costs a serious doubts on the
authenticity of the seized samples and the chain of custody. There is
no reliable or cogent material on record to connect the appellant with
the offence in question. The prosecution has failed to prove the
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conscious possession of the contraband Ganja beyond reasonable
doubt, which is a sine qua non for conviction under the NPDS Act. In
absence of strict compliance with the statutory and mandatory
provisions of the NDPS Act and in view of defective investigation and
doubtful recovery, the conviction and sentence of the appellant cannot
be sustained.
15. Mr. Rajendra Patel, learned counsel appearing for the accused- Sajan
Yadav would submit that, there is no incriminating evidence against
the appellant to convict him for the alleged offence in question. The
appellant Sajan Yadav has not been convicted for the offence under
Section 20(b)(ii)(C) of NDPS Act and he has been convicted only
under Sections 25 and 29 of NDPS Act. He was not found on the spot
and he has been made accused only on the ground that the seized
truck is owned by him. He has been implicated in the offence on the
basis of ownership of the truck and the statements made by the
accused persons under Section 67 of the NDPS Act, which are
inadmissible in evidence. Although, the appellant Sajan Yadav is the
registered owner of the container truck, but the prosecution failed to
establish the knowledge or any conspiracy with the other accused
persons for illegal transporting of Ganja by his truck. He never
permitted his vehicle for any illegal purposes. The knowledge that his
vehicle was being used for illegal transporting of Ganja is the
mandatory requirement for conviction under Section 25 of the NDPS
Act, which is missing in the case. The telephonic conversations or call
details record are not sufficient to hold that the appellant Sajan Yadav
was having knowledge of illegal transportation of Ganja by his truck. In
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his normal course of business, he took the location of the truck from its
driver, which cannot impute his knowledge. There are various
components missing in the case with respect to the search and
seizure proceedings and the appellant Sajan Yadav cannot be held
responsible for transportation of illegal Ganja and he is also entitled for
acquittal.
16. Per contra, Mr. Anumeh Shrivastava, learned counsel appearing for
the respondent/DRI would submit that, the prosecution has proved its
case beyond reasonable doubt. But for minor omissions or
contradictions, the evidence of prosecution witnesses are reliable and
sufficient to hold guilty of the accused persons. All the mandatory
provisions for search and seizure proceedings, sampling, sending the
sample to FSL examination have duly been complied with by the
prosecution/DRI. The alleged Ganja was kept in a secret chamber
prepared in the cabin of the container truck and one cannot say that
the driver of the truck was not in knowledge of the secret chamber, so
prepared in the cabin. It was not a small cabin, but a big chamber, in
which about 680.492 kgs Ganja were kept. He would also submit that
the driver is the master of the vehicle and he would expected to know
every details of the vehicle and in the present case, he was well within
the knowledge about secret chamber prepared in the cabin and Ganja
was loaded in it. A small quantity of Ganja is smelling with strong
incense, but in the present case, the huge quantity of Ganja would
definitely make uncomfortable atmosphere in the cabin due to its
incense. The seizure of number plates and registration papers of
another truck bearing No. CG 08 AH 1783 itself shows their culpable
14
mental state and to change the identity of the vehicle at different points
of time. There was no reason to keep the two number plates of other
vehicle and its registration paper with the container truck bearing No.
CG 08 L 3166 and there is no explanation from the accused persons
for the same. The accused persons were found in occupation of the
said vehicle, in which such a huge quantity of Ganja was loaded in a
secret chamber and seized by the respondent/DRI. The accused
persons were found in the said vehicle and they were having
conscious possession of the alleged Ganja and having their
knowledge, they are engaged in illegal transporting of the same. He
would further submit that running of the vehicle from Jagdalpur side
towards Allahabad by its empty career itself creates doubt on the
defence taken by the accused persons. The way to enter in the secret
chamber is from the inside of the cabin and it was covered by a ply-
sheet fixed by the screws (nuts and bolts). The accused Sajan Yadav
was having regular contact with the accused persons throughout their
journey from Odisha till the seizure of the Ganja, which proved through
the call details and tower locations of the mobile phones of the
accused persons. The seizure of Ganja was made in the procedure
prescribed for the same and sampling were also drawn in accordance
with law. The inventory was prepared by the Executive Magistrate and
two samples of 30 grams each were separated from each of the
packets seized from the secret chamber of said container truck. There
are sufficient evidence about sealing and keeping the seized articles in
the safe custody of Malkhana.
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17. He would further submit that the accused Pawan Yadav has wrongly
been acquitted by the learned trial Court. There are sufficient evidence
against him also that he was running a Dhaba along with his brother
Sajan Yadav and just beside the Dhaba, the secret chamber was
prepared in the cabin of the seized truck. The preparation of the secret
chamber in body building workshop in the premises of the Dhaba
impute the culpable mental state of the accused Pawan Yadav to use
it for illegal purpose, in which Ganja was being transported. He in
connivance of other accused persons committee the offence. There
are sufficient evidence on record that he too was connected with the
other accused persons through the mobile phone at the relevant point
of time, yet he has been acquitted by the learned trial Court holding
that there is no sufficient evidence against him, however there are
sufficient and overwhelming evidence available on record against the
accused Pawan Yadav and he is also liable for his conviction.
18. Mr. Shalvik Tiwari, learned counsel appearing for the respondent/
accused Pawan Yadav (in ACQA No. 247 of 2025) would supported
his acquittal from the offences and would submit that there is
absolutely no evidence on record to show that he conspired with other
accused persons and abated the other accused persons for the
alleged offence of illegal transporting of Ganja by permitting them to
use of his Dhaba. He is the brother of co-accused Sajan Yadav and
both of them running Dhaba jointly. In their premises, the body building
workshop was running there, where the secret chamber in the seized
container truck was prepared. The call details record and mobile
location analysis directly connects him with the other accused
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persons, who are found in possession of such a huge quantity of
Ganja in the container truck No. CG 08 L 3166. The learned trial Court
has properly appreciated the evidence against him and has acquitted
by holding that the evidence against him is not sufficient to hold guilty
for the alleged offence. He would further submit that the law is well
settled in the appeal against acquittal. Learned trial Court extended
the benefit of doubt in favour of the accused Pawan Yadav and
acquitted him and in absence of any cogent and clinching evidence,
he cannot be convicted by altering the findings of acquittal recorded in
his favour. In support of his submission, he would rely upon the
judgment of State of Rajasthan v. Kistoora Ram, 2022 SCC Online
SC 984.
19. We have heard learned counsel for the parties and perused the record
of the trial Court with utmost circumspection for considering all these
aforesaid appeals.
20. PW-2, Sanjeet Kumar Singh is the Investigating Officer. He stated in
his evidence that on 11.11.2020 he received a secret information that,
about 800 kgs Ganja is being transporting in a container truck from
Borigumma, Odisha to Allahabad (U.P.) via Abhanpur-Raipur and the
truck number is CG 08 L 3166. In the truck, three persons were there
and they kept Ganja in a specially created secret chamber. The time of
arrival near Abhanpur is also disclosed i.e. about 4:00 to 4:30 PM. He
prepared a secret information note (exhibit P-2). The said secret
information note was forwarded to his Senior Intelligence Officer
Roshan Gupta (PW-3) and Deputy Director, Nitin Agrawal (PW-4),
Directorate of Revenue Intelligence. They authorized him to be the
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search officer for the search and seizure proceeding. He called two
panch witnesses Omprakash and Amit Kumar Agnihotri (PW-1). He
informed the panch witnesses about secret information and requested
to assist in search and seizure proceeding and after their oral consent,
they proceeded towards the place disclosed in the secret information.
They reached near Atal Chowk, Abhanpur at about 3:30 PM. At about
4:10 PM, the said container truck bearing No. CG 08 L 3166 came
there and on being stopped the vehicle, they found three persons
sitting in the truck. On being asked, the driver of the truck informed his
name as Pankaj Rai and shown his driving license. The two other
persons have disclosed their names as Vikash Kumar Ray and Amrit
Sahu. Initially, Pankaj Rai tried to evade answering the query, however
he was being interrogated repeatedly, he disclosed that they kept
Ganja in the vehicle in a secret chamber. He also disclosed that the
way to approach secret chamber is from inside of the cabin. When
they checked the cabin of the truck, they found that there was a secret
chamber prepared behind the seat of the helper, which was concealed
by a plywood and tied with screw. They got opened the screws and
removed the plywood and found that N-number of packets wrapped
with brown-coloured tape kept in the secret chamber. One packet was
found torn. The contents of the torn packet was found to be of Ganja
after its rubbing and smelling.
******* Since the place was a public place and busy road and to avoid
any risk to any person, they took the container truck and accused
persons to Directorate of Revenue Intelligence, Panchsheel Nagar,
Raipur. One packet from the secret chamber from the said truck was
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taken out marked as P-1 and its contents was also taken out after
opening the packet. It was found that the flowering and seeding part of
the plant including dried leaves was kept in compressed condition and
on being rubbing and smelling it was identified as Ganja, thereafter the
contents were also examined through the narcotic kit, which also give
the positive report of Ganja. All the packets were taken out from the
secret chamber specially created in the cabin of the truck and marked
as P-2 to P-155. The contents of packet No. P-2, P-21, P-34, P-47, P-
72, P-91, P-97, P-119, P-127 and P-142 were also examined through
narcotic kit and their report also comes positive to be of Ganja.
Thereafter, all the packets were separately weighed and packet-wise
details were prepared. The total weight of the 155 packets comes to
697.255 kgs, however by mistake the panchnama bears with 680.492
kgs. On being carefully checked the cabin of the container truck No.
CG 08 L 3166, they recovered one SBI Debit Card, which was in the
name of Rohit Yadav, two files of the documents of truck No. CG 08 L
3166 and CG 08 AH 1783. From the documents of the truck, it was
found that the registered owner of the truck No. CG 08 L 3166 is Sajan
Yadav and the registered owner of the truck No. CG 08 AH 1783 is
Shankar Rai. Two number plates of the truck No. CG 08 AH 1783 was
also recovered from the cabin of the container truck No. CG 08 L
3166. The seized container truck does not have any number plate on
its rear side. In the cabin of the container truck, toll and petrol receipts
have also been recovered.
******* When the accused persons were interrogated, they disclosed
that after crossing the Raipur city, they planned to change the number
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plate of the truck by the number plate of CG 08 AH 1783. They also
disclosed that, they are transporting the Ganja on the instance of
Sajan Yadav and Pawan Yadav. He also issued notices (exhibit P-3
and P-4) to Sajan Yadav and Pawan Yadav. On being service of
notice, Pawan Yadav appeared at DRI Office, Raipur. From the total
155 packets, two packets of 30 grams each were separated for
sample, which were kept in zip lock packet and kept in yellow
envelopes and marked as P-1/S-1 and P-1/S-2 to P-155/S-1 and P-
155/S-2. All the total 310 sample packets were sealed by seal No. 23
of the DRI, in which the signature of the panch witnesses, accused
persons Pankaj Kumar Rai, Vikash Kumar Ray and Amrit Sahu and his
own signature. After taking out the samples, the remaining Ganja was
also seized along with the container truck No. CG 08 L 3166, the
documents of the truck No. CG 08 L 3166 and CG 08 AH 1783, toll
and petrol receipts, two number plates of CG 08 AH 1783, Debit Card
and ply-sheet, which was fixed for hiding the secret chamber. The
remaining packets of Ganja was refilled in 37 bags and it was marked
as B-1 to B-37 and the same were also sealed by seal No. 23 of DRI.
The entire search proceeding was continued up to 4:00 AM on
12.11.2020 and signature of panch witnesses, officers of the DRI and
all the three accused persons Pankaj Kumar, Vikas Ray and Amrit
Sahu were taken in the every page of the documents. He also
prepared a panchnama (exhibit P-1). The seized articles were kept in
safe custody of Malkhana at DRI Raipur and he recorded the
statements of the accused persons Vikash Kumar Ray (exhibit P-5)
and Amrit Sahu (exhibit P-6) under Section 67 of the NDPS Act. The
accused persons were arrested and their arrest memo are exhibit P-7,
20
P-8, P-9 and P-10. They have been medically examined by the doctor
and their reports (exhibit P-11 to P-15) were obtained. The mobile
phones from accused Vikash Kumar Ray and Amrit Sahu were also
seized vide seizure memo (exhibit P-16 and P-17). On 13.11.2020, at
about 11:30 AM, he forwarded the details of the proceeding under
Section 57 of the NDPS Act to Senior DRI Roshan Kumar Gupta,
which is exhibit P-18. The 37 bags, which were kept in the Malkhana
of DRI, Raipur were taken out and kept in safe custody of Malkhana of
CGST Raipur and its memo is exhibit P-19. He also deputed Gaurav
Pandey (PW-5) for conducting the procedure under Section 52-A of
the NDPS Act and his memo is exhibit P-20. Along with the
authorization letter (exhibit P-21), he deposited the sample packets to
Central FSL, Bhopal for its chemical examination and obtained
acknowledgment (exhibit P-23). He also conducted the search of
residential house of accused Sajan Yadav on 22.01.2021 along with
Gaurav Pandey and panchnama (exhibit P-24) was prepared.
******* In his cross-examination, he reaffirmed the proceedings, which
he conducted during search after receiving the secret information.
Though in cross-examination, he admitted that the truck was stopped
at Abhanpur and they conducted the proceeding at Panchsheel Nagar
in their office premises, however, on the earlier part of his evidence he
explained that Abhanpur road was a busy road and to avoid any
inconvenience to the local people and in view of the risk in the
proceeding, they took the vehicle to the office premises at Panchsheel
Nagar, Raipur and conducted the proceeding, the change of place of
the proceeding does not affect the process of the search proceeding.
21
The photograph of the truck annexed with the document (exhibit P-1)
is the photograph of the cabin. He denied that the accused Amrit Sahu
was implicated in the offence on the basis of the mobile call details.
******* When the matter was remitted back to the learned trial Court for
further cross-examination by the accused Vikash Kumar Ray vide
order dated 11.02.2026 passed by this Court in the appeal, he was
further cross-examined on 25.02.2026 by the counsel of accused
Vikash Kumar Ray. He explained in para 26 of his cross-examination,
the conditions under which the said truck was being taken to the office
of DRI, Panchsheel Nagar, Raipur. He reiterated receiving of the
secret information and all the search and seizure procedure conducted
by him. In para 34, he admitted that after seizure of the Ganja, its
sample packets were kept in Malkhana of DRI and after some days
they kept the same to the Malkhana of GST Office, Raipur. Nothing
could be extracted from his cross-examination, which makes his
evidence doubtful.
21. PW-1, Amit Kumar Agnihotri is an independent panch witness. He
stated in his evidence that on 11.11.2020, he was being called by the
officers of DRI and informed about secret information. He gave his
consent to be a witness of the search proceeding. They proceeded
along with the officers of DRI to Atal Chowk, Abhanpur. The said
container truck bearing No. CG 08 L 3166 came there, in which three
persons were sitting including the driver. They disclosed about the
secret chamber prepared in the cabin. When the authorities opened
the secret chamber N-number of brown-coloured packets were found,
out of which one packet was already torn. The officer Sanjeet Kumar
22
identified the contents of the torn packet to be of Ganja. A crowed was
gathered there and then to maintain the safety and security, they
decided and took the truck to the office of DRI, Raipur. Total 155
packets were recovered from the secret chamber of the container
truck, they were of different weights. All the packets were wrapped
with brown-coloured tape. From about 10 packets small quantity of its
contents were taken out and the contents were checked by the
machine kept by the authorities, in which also it was found to be of
Ganja. Two sample packets of 30 grams each from all the 155 packets
were taken out, which were marked as P-1/S-1 and P-1/S-2. He along
with other panch witnesses have signed the documents and the
officers of DRI refilled the remaining packets and sealed the same.
From the container truck, other number plate, SBI Debit card have
also been seized. The accused Vikash, Pankaj and Amrit disclosed
that they have planned to change the number plate of the container
truck after crossing the Raipur city. The documents of other vehicle
and receipt of diesel were also seized. The search proceeding was
continued throughout the night up to about 10-11 AM in the next
morning and he signed all the documents. In his cross-examination, he
also satisfactorily answered all the questions put by the defense and
stuck in affirming the search and seizure proceedings in his presence.
But for minor omissions or contradictions, his evidence is consistent in
search and seizure proceeding and recovery of the Ganja from the
container truck found in possession of the accused persons Vikash,
Amrit and Pankaj. He being the independent witness duly supported
the prosecution’s case.
23
22. PW-3, Roshan Kumar Gupta is the Senior Intelligence Officer has
stated in his evidence that, he received the information of secret
information from Intelligence Officer Sanjeet Kumar Singh on
11.11.2020, who informed about illegal transportation of Ganja from
Borigumma, Odisha to Allahabad (U.P.) via Raipur in the truck No. CG
08 L 3166. He forwarded the said information to Deputy Director, DRI,
Nitin Agrawal, which is exhibit P-2. He was a member of search party
and he too has proceeded along with the investigating officer and
remain present throughout the proceeding and prepared the
panchnama (exhibit P-1). He recorded the statement of Pankaj Kumar
Ray which is exhibit P-25. The investigating officer sent the report
under Section 57 of NDPS Act on 13.11.2020 and thereafter, after the
consultation with the higher authorities, Gaurav Pandey, Intelligence
Officer was deputed as the investigating officer for further investigation
on 10.12.2020. The report is exhibit P-18. From the accused Pankaj
Kumar Ray, one mobile phone has been seized vide seizure memo
exhibit P-26. In cross-examination, he denied the suggestion given by
the defence that no proceeding was conducted in his presence about
search and seizure of Ganja. Though he admitted that the report
(exhibit P-2) is not addressed to him and timing was also not
mentioned, but in view of the other evidences available on record, this
Court is of the opinion that it would not have substantial bearing in
considering the credibility of the prosecution’s case.
23. PW-4, Nitin Agrawal is the Deputy Director of DRI, who also stated
that, he received the information about secret information of illegal
transportation of Ganja from Borigumma, Odisha to Allahabad (U.P.)
24
by the said truck No. CG 08 L 3166 through the Senior Intelligence
Officer- Roshan Gupta. The copy of information is exhibit P-2. He
constituted the search party consists with himself, Roshan Gupta,
Sandeep Kumar and Sanjeet Kumar (Investigating Officer). The
Investigating Officer Sanjeet Kumar Singh prepared the panchnama
(exhibit P-1). He wrote a letter to the District Magistrate for
authorization to any Executive Magistrate for inventory under Section
52-A of NDPS Act, which is exhibit P-27. He also wrote a letter on
19.11.2020 for sending the samples to the CFSL Bhopal for its
examination which is exhibit P-22 and authorized Sanjeet Kumar to
send the sample to the CFSL, Bhopal and his authorization letter is
exhibit P-21. He also sent a memo to CFSL, Bhopal, which is exhibit
P-29 with respect to examination of samples taken out under Section
52-A of the NDPS Act and authorized Gaurav Tiwari for deposition of
the samples to CFSL, and his authorization letter is exhibit P-30 along
with the test memo (exhibit P-31). In cross-examination, he remain
stuck in the proceeding, which he conducted and stated in his
examination in chief.
24. PW-5, Gaurav Pandey was the Malkhana Incharge at DRI, Raipur. He
received the seized Ganja and 310 sample packets to keep it in safe
custody of Malkhana on 12.11.2020 at 4:15 Hrs. On 18.11.2020, he
handed over the said articles to the investigating officer to keep it in
GST Malkhana. On 19.11.2020, at about 4:00 PM, he handed over the
155 samples of S-1 marked to investigating officer Sanjeet Kumar,
which has been endorsed in Malkhana register. On 20.11.2020, the
samples drawn under Section 52-A by the Executive Magistrate, which
25
were marked as 155 numbers S-1 and 155 numbers S-2 were kept in
the Malkhana and endorsed in the Malkhana register. On 25.02.2021,
he also received 155 S-1 marked samples from Intelligence Officer
Sandeep Kumar along with FSL report, which he kept in Malkhana. On
17.12.2020, the 155 S-1 samples were sent to CFSL through the
Intelligence Officer Gaurav Tiwari and the relevant document is exhibit
P-32 and P-32C. The examination report was received on 20.06.2021,
which was also kept in safe custody of Malkhana and the relevant
documents are exhibit P-33 and P-33C. He also brought with him the
original register, sample packets drawn and sample packets received
after FSL examination, which were drawn under Section 52-A of NDPS
Act. The samples taken out by the investigating officer, which was kept
in yellow-coloured envelop is articles H-1 to H-155. He also explained
the details of the articles mentioned in the envelop. He further stated
that after examination from CFSL, he received the sample packets P-
1/S-1 to P-155/S-1 in sealed condition with the seal of CFSL, which
were marked by the Court as N-1 to N-155. The CFSL report is exhibit
P-34. His authorization letter is exhibit P-20. The letter dated
20.11.2020 issued for the proceeding of Section 52-A of NDPS Act is
exhibit P-35. On 20.11.2020, the inventory was conducted by the
Executive Magistrate Srijan Sonkar, which is exhibit P-36, who taken
out the sample P-1/S-1 to P-155/S-1 and P-1/S-2 to P-155/S-2 (total
310 samples). He brought the sample packets with him which were
separately kept in separate envelopes, which were marked as Article
M-1 to M-155. The photographs of the inventory is article A-1 to A-7.
He wrote a letter to Malkhana Incharge of CGST (exhibit P-37) and
kept 310 sample packets in safe custody of Malkhana of DRI, Raipur.
26
Vide letter dated 10.12.2020 (exhibit P-18), he was authorized for
further investigation. He further stated that after examination of sample
packets P-1/S-1 to P-155/S-1 from CFSL, he received back, which
were marked as article L-1 to L-155 and the CFSL report is exhibit P-
37. The seized Ganja is destroyed on 23.12.2021 and the relevant
document is exhibit P-38.
******* On 22.01.2021, he conducted search of the house of Sajan
Yadav and Pawan Yadav at Rajnandgaon, where he found bank
passbook, which were in the name of Rohit Yadav, Udesh Yadav,
Ranjeet Yadav, Ranju Devi and Rahul Yadav and panchnama (exhibit
P-24) was prepared. He wrote a letter to Punjab National Bank for
details of bank account of Pawan Yadav and Sajan Yadav, which is
exhibit P-39 and letter to State Bank of India (exhibit P-40). He
received information from Central Bank, which is exhibit P-42. He
recorded the statement of the mechanic, who prepared the secret
chamber in the subject vehicle, which is exhibit P-43. He recorded the
statement of Rohit Yadav, which is exhibit P-44 and he also wrote a
letter exhibit P-45 to service provider company of the mobile phone for
CDR of accused persons Pankaj Kumar Ray, Sajan Yadav and Amrit
Sahu. The acknowledgment of deposition of sample packets to CFSL
is exhibit P-43.
******* In cross-examination, he also denied the suggestion given by
the defence that, he has not kept the seized article in Malkhana in safe
custody. In his further cross-examination, he explained that on
18.11.2020, total 37 bags, 155 packets 671.192 kgs were deposited at
GST Malkhana as per document (exhibit P-19). He voluntarily stated
27
that, the actual weight of contraband was 687.955 kgs. But by mistake
it was endorsed as 671.192 kgs in the document (exhibit P-19). In his
further cross-examination, he satisfactorily answered the questions put
by the defence and remain firmed in the proceedings, which he
conducted.
25. PW-6, Sumit Dwivedi is the Inspector at CGST Office, Raipur. He
received 37 bags (671.192 kgs Ganja) to keep it in CGST Malkhana
and he issued acknowledgment exhibit P-47. On 20.11.2020, he taken
out the article for the inventory under Section 52-A and after its
sampling it was again given to him on the same day and the relevant
memos are P-35 and P-37. On 23.12.2021, the contraband was
destroyed and the memo is exhibit P-38 and the seizure register is
exhibit P-48. In his cross-examination, he also remained firm that he
kept the seized contraband in the same custody of GST Malkhana.
26. PW-7, Sandeep Kumar is the Intelligence Officer and assisted Sanjeet
Kumar in the search and seizure procedure and prepared panchnama
(exhibit P-1). He recorded the statement of Pawan Yadav on
11.12.2020, which is exhibit P-49 and also seized mobile phone from
Pawan Yadav vide seizure memo (exhibit P-50). He obtained the FSL
report and sample packets from the concerned CFSL and deposited in
the DRI Raipur. In cross-examination the defence could not be able to
extract any discrepancy in his evidence, which makes his evidence
doubtful.
27. PW-8, Gaurav Tiwari has taken the sample packets to CFSL, Bhopal
and his authorization letter is exhibit P-30. PW-9, Mahesh Kumar is
28
the Head Constable posted at DRI, Regional Unit, Bhopal, who has
taken the article to Zonal Unit, Indore for keeping it in safe custody at
Malkhana. No questions were put by the defence in the cross-
examination of these two witnesses.
28. With respect to the accused Sajan Yadav, who has subsequently been
arrested and has been convicted for the offence under Sections 25
and 29 of NDPS Act, the allegation against him is made that he being
the owner of the container truck No. CG 08 L 3166 has permitted the
other accused persons to illegally transport the contraband and
engaged in abetment and criminal conspiracy with the other accused
persons. From the said container truck, the registration document of
the truck No. CG 08 L 3166 was also recovered and the said container
truck was registered in the name of appellant Sajan Yadav. He also
has not denied that he is not the owner of the said container truck. In
the said container truck, the secret chamber was prepared in the
cabin, in which alleged Ganja was kept. In the cabin of the truck, two
number plates of the truck No. CG 08 AH 1783 and its registration
papers, owned by one Shankar Rai was also recovered. When the
appellant Sajan Yadav was found to be registered owner of the subject
vehicle and secret chamber was found prepared in the cabin, in which
Ganja was being transported by the other accused persons, the
mental culpable state of the appellant can be imputed that he was
having knowledge of the same. The appellant Sajan Yadav was being
charged for the offence under Sections 25 and 29 of the NDPS Act.
29. From the evidence of Investigating Officer (PW-2) Sanjeet Kumar
Singh and other witnesses, the search and seizure proceeding as well
29
as seizure of 697.255 kgs Ganja from the secret chamber of the said
container truck was found proved, his involvement and knowledge of
transportation of Ganja by his vehicle was also found proved by the
learned trial Court. Learned trial Court has further considered the
criminal antecedent of the appellant Sajan Yadav with respect to his
involvement in the offence of conspiracy and abetment as the
appellant Sajan Yadav was an accused in the offence of Crime No.
240 of 2017, registered at Police Station Lalbag, District Rajnandgaon,
Crime No. 94 of 2018, registered at Police Station Lalbag, District
Rajnandgaon, Crime No. 178 of 2020, registered at Police Station
Lalbag, District Rajnandgaon and Crime No. 183 of 2024, registered at
Police Station Rajnandgaon for the offences under the NDPS Act and
Chhattisgarh Excise Act, 1915, which gives cause to presume his
culpable mental state and possession of illicit articles with him.
30. Section 43 of the NDPS Act provides the powers of seizure and arrest
in public place which reads as under:
“43. Power of seizure and arrest in public
place- Any officer of any of the departments
mentioned in section 42 may:-
(a) seize in any public place or in transit, any
narcotic drug or psychotropic substance or
controlled substance in respect of which he has
reason to believe an offence punishable under
this Act has been committed, and, along with
such drug or substance, any animal or
30conveyance or article liable to confiscation under
this Act, any document or other article which he
has reason to believe may furnish evidence of the
commission of an offence punishable under this
Act or any document or other article which may
furnish evidence of holding any illegally acquired
property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has
reason to believe to have committed an offence
punishable under this Act, and if such person has
any narcotic drug or psychotropic substance or
controlled substance in his possession and such
possession appears to him to be unlawful, arrest
him and any other person in his company.
Explanation- For the purposes of this section, the
expression public place” includes any public
conveyance, hotel, shop, or other place intended
for use by, or accessible to, the public.”
31. The facts of the case as well as evidence available in the present case
makes it clear that the vehicle was being stopped near Weight Bridge
at Pratapgarh Sadakpara NH-43. While checking the vehicle, it was
found contained with Ganja kept in its secret chamber. Admittedly the
vehicle was being checked on the public place i.e. on the main road
and the said Ganja was seized/recovered in transit, which was being
31
carried by the appellants on their vehicle. Therefore, the issue of non-
compliance of Section 42 is not applicable in the present case and the
police authority have acted under Section 43 of the NDPS Act when
the place of occurrence was a public road and accessibility to the
public and therefore it fell within the ambit of the public place. In view
of the provisions of explanation to Section 43, Section 42 of the NDPS
had no application. Despite that the copy of secret information
Panchnama were forwarded to the senior officer on the same day
which have been proved by the witnesses. The Ganja was recovered
and seized while in transit as the contraband were recovered and
seized during transit in the container truck, as contemplated in Section
43(a) i.e. “Seize in any public place or in transit”, this Court is of the
considered opinion that Section 43 of the NDPS Act is applicable and
as such, recording for reason for belief and for taking down of
information received in writing with regard to the Commission of
offence before conducting search and seizure, is not required to be
complied with under Section 43 of NDPS Act.
32. In the matter of Firdoskhan Khurshidkhan vs. State of Gujarat and
Another dated 30.04.2024 reported in 2024 SCC OnLine SC 680 has
held in para 18 as under:
“18. Section 42 of the NDPS Act deals with
search and seizure from a building, conveyance
or enclosed place. When the search and seizure
is effected from a public place, the provisions of
Section 43 of the NDPS Act would apply and
hence, there is no merit in the contention of
32learned counsel for the appellants that non-
compliance of the requirement of Section 42(2)
vitiates the search and seizure. Hence, the said
contention is noted to be rejected.”
33. In the matter of State of Haryana vs. Jarnail Singh and Others
reported in 2004 (5) SCC 188 in Para 9 and 10 of its judgment the
Hon’ble Supreme Court has held that:
“9. Sections 42 and 43, therefore, contemplate
two different situations. Section 42 contemplates
entry into and search of any building, conveyance
or enclosed place, while Section 43 contemplates
a seizure made in any public place or in transit. If
seizure is made under Section 42 between
sunset and sunrise, the requirement of the
proviso thereto has to be complied with. There is
no such proviso in Section 43 of the Act and,
therefore, it is obvious that if a public conveyance
is searched in a public place, the officer making
the search is not required to record his
satisfaction as contemplated by the proviso to
Section 42 of the NDPS Act for searching the
vehicle between sunset and the sunrise.
10. In the instant case there is no dispute that the
tanker was moving on the public highway when it
was stopped and searched. Section 43 therefore
33clearly applied to the facts of this case. Such
being the factual position there was no
requirement of the officer conducting the search
to record the grounds of his belief as
contemplated by the proviso to Section 42.
Moreover it cannot be lost sight of that the
Superintendent of Police was also a member of
the searching party. It has been held by this Court
in M. Prabhulal vs. Assistant Director, Directorate
of Revenue Intelligence : (2003) 8 SCC 449 that
where a search is conducted by a gazetted officer
himself acting under Section 41 of the NDPS Act,
it was not necessary to comply with the
requirement of Section 42. For this reason also,
in the facts of this case, it was not necessary to
comply with the requirement of the proviso to
Section 42 of the NDPS Act.”
34. Recently in the matter of Bharat Aambale vs. The State of
Chhattisgarh in CRA No. 250 of 2025, order dated 06.01.2025, the
Hon’ble Supreme Court has held that irrespective of any failure to
follow the procedure laid under Section 52-A of the NDPS Act if the
other material on record adduced by the prosecution inspires
confidence and satisfies the Court regarding both recovery and
possession of the contraband from the accused, then even in such
cases the Courts can without hesitation proceed for conviction
notwithstanding any procedural difficulty in terms of Section 52-A of
34
the NDPS Act.
35. In the matter of Bharat Aambale (supra) the Hon’ble Supreme Court
in Para 25 to 37 has held as under:
“25. In Noor Aga v. State of Punjab & Anr.
(2008) 16 SCC 417, the order of conviction had
been set-aside not just on the ground of violation
of Section 52A but due to several other
discrepancies in the physical evidence as to the
colour and weight, and due to the lack of any
independent witnesses. In fact, this Court despite
being conscious of the procedural deficiencies in
the said case in terms of Section 52A observed
that the matter may have been entirely different if
there were no other discrepancies or if the other
material on record were found to be convincing or
supported by independent witnesses. The
relevant observations read as under: –
“107. The seal was not even deposited in
the malkhana. As no explanation
whatsoever has been offered in this behalf,
it is difficult to hold that sanctity of the
recovery was ensured. Even the malkhana
register was not produced.
xxx xxx xxx
35
108. There exist discrepancies also in
regard to the time of recovery. The
recovery memo, Exhibit PB, shows that the
time of seizure was 11.20 p.m. PW 1
Kulwant Singh and PW 2 K.K. Gupta,
however, stated that the time of seizure
was 8.30 p.m. The appellant’s defence was
that some carton left by some passenger
was passed upon him, being a crew
member in this regard assumes importance
(see Jitendra para 6). The panchnama
was said to have been drawn at 10 p.m. as
per PW 1 whereas PW 2 stated that
panchnama was drawn at 8.30 p.m. Exhibit
PA, containing the purported option to
conduct personal search under Section 50
of the Act, only mentioned the time when
the flight landed at the airport.
xxx xxx xxx
111. In a case of this nature, where there
are a large number of discrepancies, the
appellant has been gravely prejudiced by
their non-examination. It is true that what
matters is the quality of the evidence and
not the quantity thereof but in a case of this
nature where procedural safeguards were
36required to be strictly complied with, it is for
the prosecution to explain why the material
witnesses had not been examined. The
matter might have been different if the
evidence of the investigating officer who
recovered the material objects was found
to be convincing. The statement of the
investigating officer is wholly
unsubstantiated. There is nothing on
record to show that the said witnesses had
turned hostile. Examination of the
independent witnesses was all the more
necessary inasmuch as there exist a large
number of discrepancies in the statement
of official witnesses in regard to search and
seizure of which we may now take note.”
(Emphasis supplied)
26. 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.
However, no hard and fast rule can be laid down
as to when such inference may be drawn, and it
would all depend on the peculiar facts and
circumstances of each case. Such delay or
37
deviation from Section 52A of the NDPS Act or
the Standing Order(s)/Rules thereunder will not,
by itself, be fatal to the case of the prosecution,
unless there are discrepancies in the physical
evidence which may not have been there had
such compliance been done. What is required is
that the courts take a holistic and cumulative view
of the discrepancies that exist in the physical
evidence adduced by the prosecution and
correlate or link the same with any procedural
lapses or deviations. Thus, whenever, there is
any deviation or non-compliance of the procedure
envisaged under Section 52A, the courts are
required to appreciate the same keeping in mind
the discrepancies that exist in the prosecution’s
case. In such instances of procedural error or
deficiency, the courts ought to be extra-careful
and must not overlook or brush aside the
discrepancies lightly and rather should scrutinize
the material on record even more stringently to
satisfy itself of the aspects of possession, seizure
or recovery of such material in the first place.
27. In such circumstances, particularly where
there has been lapse on the part of the police in
either following the procedure laid down in
Section 52A of the NDPS Act or the prosecution
38
in adequately proving compliance of the same, it
would not be appropriate for the courts to resort
to the statutory presumption of commission of an
offence from the possession of illicit material
under Section 54 of the NDPS Act, unless the
court is otherwise satisfied as regards the seizure
or recovery of such material from the accused
persons from the other material on record.
Similarly, irrespective of any failure to follow the
procedure laid under Section 52A of the NDPS
Act, if the other material on record adduced by
the prosecution inspires confidence and satisfies
the court regarding both the recovery and
possession of the contraband from the accused,
then even in such cases, the courts can without
hesitation proceed for conviction notwithstanding
any procedural defect in terms of Section 52A of
the NDPS Act.
28. In Khet Singh v. Union of India reported in
(2002) 4 SCC 380 this Court held that the
Standing Order(s) issued by the NCB and the
procedure envisaged therein is only intended to
guide the officers and to see that a fair procedure
is adopted by the officer-in-charge of the
investigation. It further observed that there may,
however, be circumstances in which it would not
39
be possible to follow these guidelines to the letter,
particularly in cases of chance recovery or lack of
proper facility being available at the spot. In such
circumstances of procedural illegality, the
evidence collected thereby will not become
inadmissible and rather the courts would only be
required to consider all the circumstances and
find out whether any serious prejudice had been
caused to the accused or not. Further it directed,
that in such cases of procedural lapses or delays,
the officer would be duty bound to indicate and
explain the reason behind such delay or
deficiency whilst preparing the memo. The
relevant observations read as under: –
“5. It is true that the search and seizure of
contraband article is a serious aspect in the
matter of investigation related to offences
under the NDPS Act. The NDPS Act and
the Rules framed thereunder have laid
down a detailed procedure and guidelines
as to the manner in which search and
seizure are to be effected. If there is any
violation of these guidelines, the courts
would take a serious view and the benefit
would be extended to the accused. The
offences under the NDPS Act are grave in
40nature and minimum punishment
prescribed under the statute is
incarceration for a long period. As the
possession of any narcotic drug or
psychotropic substance by itself is made
punishable under the Act, the seizure of the
article from the appellant is of vital
importance.
xxx xxx xxx
10. The instructions issued by the
Narcotics Control Bureau, New Delhi are to
be followed by the officer-in-charge of the
investigation of the crimes coming within
the purview of the NDPS Act, even though
these instructions do not have the force of
law. They are intended to guide the officers
and to see that a fair procedure is adopted
by the officer-in-charge of the investigation.
It is true that when a contraband article is
seized during investigation or search, a
seizure mahazar should be prepared at the
spot in accordance with law. There may,
however, be circumstances in which it
would not have been possible for the
officer to prepare the mahazar at the spot,
as it may be a chance recovery and the
41officer may not have the facility to prepare
a seizure mahazar at the spot itself. If the
seizure is effected at the place where there
are no witnesses and there is no facility for
weighing the contraband article or other
requisite facilities are lacking, the officer
can prepare the seizure mahazar at a later
stage as and when the facilities are
available, provided there are justifiable and
reasonable grounds to do so. In that event,
where the seizure mahazar is prepared at
a later stage, the officer should indicate his
reasons as to why he had not prepared the
mahazar at the spot of recovery. If there is
any inordinate delay in preparing the
seizure mahazar, that may give an
opportunity to tamper with the contraband
article allegedly seized from the accused.
There may also be allegations that the
article seized was by itself substituted and
some other items were planted to falsely
implicate the accused. To avoid these
suspicious circumstances and to have a
fair procedure in respect of search and
seizure, it is always desirable to prepare
the seizure mahazar at the spot itself from
where the contraband articles were taken
42into custody.
xxx xxx xxx
16. Law on the point is very clear that even
if there is any sort of procedural illegality in
conducting the search and seizure, the
evidence collected thereby will not become
inadmissible and the court would consider
all the circumstances and find out whether
any serious prejudice had been caused to
the accused. If the search and seizure was
in complete defiance of the law and
procedure and there was any possibility of
the evidence collected likely to have been
tampered with or interpolated during the
course of such search or seizure, then, it
could be said that the evidence is not liable
to be admissible in evidence.” (Emphasis
supplied)
29. A similar view as above was reiterated in the
decision of State of Punjab v. Makhan Chand
reported in (2004) 3 SCC 453 wherein this Court
after examining the purport of Section 52A of the
NDPS Act and the Standing Order(s) issued
thereunder, held that the procedure prescribed
under the said order is merely intended to guide
43
the officers to see that a fair procedure is adopted
by the officer in charge of the investigation and
they were not inexorable rules. The relevant
observations read as under: –
“10. This contention too has no substance
for two reasons. Firstly, Section 52-A, as
the marginal note indicates, deals with
“disposal of seized narcotic drugs and
psychotropic substances”. Under sub-
section (1), the Central Government, by a
notification in the Official Gazette, is
empowered to specify certain narcotic
drugs or psychotropic substances, having
regard to the hazardous nature,
vulnerability to theft, substitution,
constraints of proper storage space and
such other relevant considerations, so that
even if they are material objects seized in a
criminal case, they could be disposed of
after following the procedure prescribed in
sub-sections (2) and (3). If the procedure
prescribed in sub-sections (2) and (3) of
Section 52-A is complied with and upon an
application, the Magistrate issues the
certificate contemplated by sub-section (2),
then sub-section (4) provides that,
44notwithstanding anything to the contrary
contained in the Indian Evidence Act, 1872
or the Code of Criminal Procedure, 1973,
such inventory, photographs of narcotic
drugs or substances and any list of
samples drawn under sub-section (2) of
Section 52-A as certified by the Magistrate,
would be treated as primary evidence in
respect of the offence. Therefore, Section
52-A(1) does not empower the Central
Government to lay down the procedure for
search of an accused, but only deals with
the disposal of seized narcotic drugs and
psychotropic substances.
11. Secondly, when the very same
Standing Orders came up for consideration
in Khet Singh v. Union of India this Court
took the view that they are merely intended
to guide the officers to see that a fair
procedure is adopted by the officer in
charge of the investigation. It was also held
that they were not inexorable rules as there
could be circumstances in which it may not
be possible for the seizing officer to
prepare the mahazar at the spot, if it is a
chance recovery, where the officer may not
45have the facility to prepare the seizure
mahazar at the spot itself. Hence, we do
not find any substance in this contention.”
(Emphasis supplied)
30. Thus, from above it is clear that the
procedure prescribed by the Standing Order(s) /
Rules in terms of Section 52A of the NDPS Act is
only intended to guide the officers and to ensure
that a fair procedure is adopted by the officer- in-
charge of the investigation, and as such what is
required is substantial compliance of the
procedure laid therein. We say so because, due
to varying circumstances, there may be situations
wherein it may not always be possible to forward
the seized contraband immediately for the
purpose of sampling. This could be due to
various factors, such as the sheer volume of the
contraband, the peculiar nature of the place of
seizure, or owing to the volatility of the substance
so seized that may warrant slow and safe
handling. There could be situations where such
contraband after being sampled cannot be
preserved due to its hazardous nature and must
be destroyed forthwith or vice-verse where the
nature of the case demands that they are
preserved and remain untouched. Due to such
46
multitude of possibilities or situations, neither can
the police be realistically expected to rigidly
adhere to the procedure laid down in Section 52A
or its allied Rules / Orders, nor can a strait-jacket
formula be applied for insisting compliance of
each procedure in a specified timeline to the
letter, due to varying situations or requirements of
each case. Thus, what is actually required is only
a substantial compliance of the procedure laid
down under Section 52A of the NDPS Act and the
Standing Order(s)/ Rules framed thereunder, and
any discrepancy or deviation in the same may
lead the court to draw an adverse inference
against the police as per the facts of each and
every case. When it comes to the outcome of
trial, it is only after taking a cumulative view of the
entire material on record including such
discrepancies, that the court should proceed
either to convict or acquit the accused. Non-
compliance of the procedure envisaged under
Section 52A may be fatal only in cases where
such non-compliance goes to the heart or root of
the matter. In other words, the discrepancy
should be such that it renders the entire case of
the prosecution doubtful, such as instances
where there are significant discrepancies in the
colour or description of the substance seized
47
from that indicated in the FSL report as was the
case in Noor Aga (supra), or where the
contraband was mixed in and stored with some
other commodity like vegetables and there is no
credible indication of whether the narcotic
substance was separated and then weighed as
required under the Standing Order(s) or Rules,
thereby raising doubts over the actual quantity
seized as was the case in Mohammed Khalid
(supra), or where the recovery itself is suspicious
and uncorroborated by any witnesses such as in
Mangilal (supra), or where the bulk material
seized in contravention of Section 52A was not
produced before the court despite being directed
to be preserved etc. These illustrations are only
for the purposes of bringing clarity on what may
constitute as a significant discrepancy in a given
case, and by no means is either exhaustive in
nature or supposed to be applied mechanically in
any proceeding under the NDPS Act. It is for the
courts to see what constitutes as a significant
discrepancy, keeping in mind the peculiar facts,
the materials on record and the evidence
adduced. At the same time, we may caution the
courts, not to be hyper-technical whilst looking
into the discrepancies that may exist, like slight
differences in the weight, colour or numbering of
48
the sample etc. The Court may not discard the
entire prosecution case looking into such
discrepancies as more often than not an
ordinarily an officer in a public place would not be
carrying a good scale with him, as held in Noor
Aga (supra). It is only those discrepancies which
particularly have the propensity to create a doubt
or false impression of illegal possession or
recovery, or to overstate or inflate the potency,
quality or weight of the substance seized that
may be pertinent and not mere clerical mistakes,
provided they are explained properly. Whether, a
particular discrepancy is critical to the
prosecution’s case would depend on the facts of
each case, the nature of substance seized, the
quality of evidence on record etc.
31. At the same time, one must be mindful of the
fact that Section 52A of the NDPS Act is only a
procedural provision dealing with seizure,
inventory, and disposal of narcotic drugs and
psychotropic substances and does not
exhaustively lay down the evidentiary rules for
proving seizure or recovery, nor does it dictate
the manner in which evidence is to be led during
trial. It in no manner prescribes how the seizure
or recovery of narcotic substances is to be
49
proved or what can be led as evidence to prove
the same. Rather, it is the general principles of
evidence, as enshrined in the Evidence Act that
governs how seizure or recovery may be proved.
32. Thus, the prosecution sans the compliance of
the procedure under Section 52A of the NDPS
Act will not render itself helpless but can still
prove the seizure or recovery of contraband by
leading cogent evidence in this regard such as by
examining the seizing officer, producing
independent witnesses to the recovery, or
presenting the original quantity of seized
substances before the court. The evidentiary
value of these materials is ultimately to be
assessed and looked into by the court. The court
should consider whether the evidence inspires
confidence. The court should look into the totality
of circumstances and the credibility of the
witnesses, being mindful to be more cautious in
their scrutiny where such procedure has been
flouted. The cumulative effect of all evidence
must be considered to determine whether the
prosecution has successfully established the
case beyond reasonable doubt as held in Noor
Aga (supra).
33. Even in cases where there is non-compliance
50
with the procedural requirements of Section 52A,
it does not necessarily vitiate the trial or warrant
an automatic acquittal. Courts have consistently
held that procedural lapses must be viewed in the
context of the overall evidence. If the prosecution
can otherwise establish the chain of custody,
corroborate the seizure with credible testimony,
and prove its case beyond reasonable doubt, the
mere non-compliance with Section 52A may not
be fatal. The emphasis must be on substantive
justice rather than procedural technicalities, and
keeping in mind that the salutary objective of the
NDPS Act is to curb the menace of drug
trafficking.
34. At this stage we may clarify the scope and
purport of Section 52A sub-section (4) with a view
to obviate any confusion. Sub-section (4) of
Section 52A provides that every court trying an
offence under the NDPS Act, shall treat the
inventory, photographs and samples of the seized
substance that have been certified by the
magistrate as primary evidence.
35. What this provision entails is that, where the
seized substance after being forwarded to the
officer empowered is inventoried, photographed
and thereafter samples are drawn therefrom as
51
per the procedure prescribed under the said
provision and the Rules/Standing Order(s), and
the same is also duly certified by a magistrate,
then such certified inventory, photographs and
samples has to mandatorily be treated as primary
evidence. The use of the word “shall” indicates
that it would be mandatory for the court to treat
the same as primary evidence if twin conditions
are fulfilled being (i) that the inventory,
photographs and samples drawn are certified by
the magistrate AND (ii) that the court is satisfied
that the entire process was done in consonance
and substantial compliance with the procedure
prescribed under the provision and its
Rules/Standing Order(s).
36. Even where the bulk quantity of the seized
material is not produced before the court or
happens to be destroyed or disposed in
contravention of Section 52A of the NDPS Act,
the same would be immaterial and have no
bearing on the evidentiary value of any inventory,
photographs or samples of such substance that is
duly certified by a magistrate and prepared in
terms of the said provision. We say so, because
sub-section (4) of Section 52A was inserted to
mitigate the issue of degradation, pilferage or
52
theft of seized substances affecting the very trial.
It was often seen that, due to prolonged trials, the
substance that was seized would deteriorate in
quality or completely disappear even before the
trial could proceed, by the time the trial would
commence, the unavailability of such material
would result in a crucial piece of evidence to
establish possession becoming missing and the
outcome of the trial becoming a foregone
conclusion. The legislature being alive to this fact,
thought fit to introduce an element of preservation
of such evidence of possession of contraband in
the form of inventory, photographs and samples
and imbued certain procedural safeguards and
supervision through the requirement of
certification by a magistrate, which is now
contained in sub-section (4) of Section 52A. In
other words, any inventory, photographs or
samples of seized substance that was prepared
in substantial compliance of the procedure under
Section 52A of the NDPS Act and the
Rules/Standing Order(s) thereunder would have
to mandatorily be treated as primary evidence,
irrespective of the fact that the bulk quantity has
not been produced and allegedly destroyed
without any lawful order.
53
37. Section 52A sub-section (4) should not be
conflated as a rule of evidence in the traditional
sense, i.e., it should not be construed to have laid
down that only the certified inventory,
photographs and samples of seized substance
will be primary evidence and nothing else. The
rule of ‘Primary Evidence’ or ‘Best Evidence’ is
now well settled. In order to prove a fact, only the
best evidence to establish such fact must be led
and adduced which often happens to be the
original evidence itself. The primary evidence for
proving possession will always be the seized
substance itself. However, in order to mitigate the
challenges in preservation of such substance till
the duration of trial, due to pilferage, theft,
degradation or any other related circumstances,
the legislature consciously incorporated sub-
section (4) in Section 52A to bring even the
inventory, photographs or samples of such seized
substance on the same pedestal as the original
substance, and by a deeming fiction has provided
that the same be treated as primary evidence,
provided they have been certified by a magistrate
in substantial compliance of the procedure
prescribed. This, however, does not mean that
where Section 52A has not been complied, the
prosecution would be helpless, and cannot prove
54
the factum of possession by adducing other
primary evidence in this regard such as by either
producing the bulk quantity itself, or examining
the witnesses to the recovery etc. What Section
52A sub-section (4) of the NDPS Act does is it
creates a new form of primary evidence by way of
a deeming fiction which would be on par with the
original seized substance as long as the same
was done in substantial compliance of the
procedure prescribed thereunder, however, the
said provision by no means renders the other
evidence in original to be excluded as primary
evidence, it neither confines nor restricts the
manner of proving possession to only one mode
i.e., through such certified inventory, photographs
or samples such that all other material are said to
be excluded from the ambit of ‘evidence’, rather it
can be said that the provision instead provides
one additional limb of evidentiary rule in proving
such possession. Thus, even in the absence of
compliance of Section 52A of the NDPS Act, the
courts cannot simply overlook the other cogent
evidence in the form of the seized substance
itself or the testimony of the witnesses examined,
all that the courts would be required in the
absence of any such compliance is to be more
careful while appreciating the evidence.”
55
36. Further, in Surepally Srinivas Vs. State of Andhra Pradesh, 2025
SCC Online SC 683, the Supreme Court has held in papa 13 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 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).”
The judgment passed by Hon’ble Supreme court also affirms
that if there has been substantial compliance with the mandate of
Section 52-A, minor discrepancies in conducting search and seizure
proceeding does not affect its credibility.
37. Upon careful appreciation of the entire evidence available on record,
this Court finds that the recovery of a very large quantity of contraband
Ganja from the container truck bearing No. CG 08 L 3166 stands duly
established. The contraband was not kept in an open or ordinary
manner, but was concealed in a specially designed secret chamber
56
constructed inside the cabin of the vehicle. The existence of such a
chamber, its access from within the cabin, and the concealment by
plywood fixed with screws clearly indicate a deliberate and well-
planned mechanism for transportation of illicit substance.
38. An important incriminating circumstance is the recovery of two number
plates and registration documents of another vehicle bearing No. CG
08 AH 1783 from the cabin of the said truck. The presence of these
number plates, along with the absence of a rear number plate on the
seized vehicle, lends strong support to the prosecution case that the
accused persons intended to change the identity of the vehicle during
transit to avoid detection. This circumstance cannot be said to be
incidental or innocuous; rather, it reflects a conscious and
premeditated effort to facilitate illegal transportation of contraband.
39. So far as the defence taken by the appellant/driver Vikash Kumar Ray
is concerned, it has been contended that he was brought from his
native place merely for employment as a driver and had no knowledge
of the contraband concealed in the vehicle. However, this defence
does not inspire confidence. The appellant has failed to furnish any
explanation as to when, where, and under what circumstances he
accompanied other accused persons in the same vehicle. He has also
not disclosed any details regarding his employment, the person who
engaged him. Such absence of explanation on material aspects
creates a serious dent in the defence version.
40. It is also pertinent to note that the owner of the vehicle, namely Sajan
Yadav, is a resident of Rajnandgaon and the vehicle is registered at
57
Rajnandgaon, whereas the alleged transportation route was from
Borigumma (Odisha) to Allahabad (Uttar Pradesh). The subject vehicle
does not carry any goods in its career and in such condition, one
cannot ply the vehicle from Odisha to Allahabad without any
consignment, and the circumstances in which the accused persons’
control of the vehicle assumes significance and strengthens the
prosecution case.
41. Further, the contention that the driver had no knowledge of the secret
chamber cannot be accepted. A driver is in control of the vehicle and is
expected to be aware of its structural features and condition. The
secret chamber in the present case was not a minor or hidden cavity,
but a substantial compartment capable of storing above 700 kgs of
contraband. It is difficult to accept that such a large modification in the
cabin would go unnoticed by the driver who was operating the vehicle
over a long distance. Thus, the plea of lack of knowledge appears to
be an afterthought and is liable to be rejected.
42. It is evident that the Call Detail Records (CDR) obtained from the
mobile numbers of the accused persons present a consistent and
reliable chain with respect to their movement, halt, and alleged
activities. Their continuous presence from Rajnandgaon to Jagdalpur,
thereafter to Borigumma and Koraput, and their eventual return to
Raipur, is found to be in consonance with the sequence of events as
narrated by them in their statements. Thus, the CDR analysis not only
corroborates the statements of the accused persons but also prima
facie establishes their active involvement in the illegal transportation of
58
contraband (ganja) and confirms the participation of the co-accused as
disclosed by them.
43. In this context, the statutory presumptions under Sections 35 and 54 of
the NDPS Act become relevant. Section 35 raises a presumption of
culpable mental state, and Section 54 permits the Court to presume
that a person found in possession of illicit articles had knowledge of
such possession, unless the contrary is proved. In the present case,
once the possession of a huge quantity of contraband from the vehicle
occupied by the accused is established, the burden shifts upon the
accused to rebut the presumption by leading cogent and convincing
evidence.
44. The appellants have failed to discharge this burden. No satisfactory
explanation has been offered to rebut the presumption of conscious
possession and knowledge. The surrounding circumstances, including
the concealment in a secret chamber, recovery of alternate number
plates, the manner of transportation, and the absence of any plausible
explanation from the accused persons, cumulatively lead to the
irresistible conclusion that the accused persons were having
conscious possession of the contraband and were actively involved in
its illegal transportation.
45. Therefore, in light of the statutory presumptions under Sections 35 and
54 of the NDPS Act, coupled with the cogent evidence adduced by the
prosecution, this Court is of the considered opinion that the
prosecution has successfully established the culpable mental state
59
and conscious possession of the contraband on the part of the
accused persons beyond reasonable doubt.
46. As a fall out of aforesaid consideration, we are of the considered
opinion that there is no force in the appeals filed by the appellants-
Vikash Kumar Ray, Amrit Kumar Sahu and Sajan Yadav, as the
offence against them have been proved by the prosecution/DRI
beyond reasonable doubt. Accordingly, their appeals (CRA No. 1495
of 2024 and CRA No. 2595 of 2025) are hereby dismissed.
47. The appellants are reported to be in jail. They shall serve the entire
sentence awarded by the learned trial Court. The appellants are
entitled for set off of their undergone period during the trial as well as
during the pendency of the present appeals.
48. Registry is directed to send a copy of this judgment to the concerned
Superintendent of Jail, where the appellants are undergoing their jail
sentence to serve the same on the appellants informing them that they
are at liberty to assail the present judgment passed by this Court by
preferring their appeal before the Hon’ble Supreme Court with the
assistance of High Court Legal Services Committee or the Supreme
Court Legal Services Committee.
49. Let a copy of this judgment and the original records be transmitted to
the trial Court concerned forthwith for necessary information and
compliance.
60
Consideration of ACQA No. 247 of 2025
50. With respect to the consideration of the case against acquittal of the
accused Pawan Yadav, we also examined the evidence available on
record on the point of view of the scope of consideration in the appeal
against acquittal.
51. PW-2, Sanjeet Kumar Singh admitted in para 18 of his cross-
examination that, from accused Pawan Yadav, Ganja has not been
seized. Admittedly, Pawan Yadav was not on the spot and he made
accused on the basis of the statement allegedly given by the accused
Vikash Kumar Ray and Amrit Sahu. He also admitted that he has not
seized any document with respect to ownership of Patna Bihar Dhaba,
Rewa Gahan Rajnandgaon. He voluntarily stated that Pawan Yadav
admitted in his statement that he was working at Patna Bihar Dhaba.
He also admitted that no Ganja has been seized from Patna Bihar
Dhaba and there is no document with respect to his mobile phone
have been seized. There is no document on record regarding
ownership of the said Patna Bihar Dhaba. At the time of Panchnama,
the wife of accused Pawan Yadav namely Rajkumari Yadav was
present there. Her signature is there in Panchnama.
52. PW-5, Gaurav Pandey, who was also one of the investigating officer,
stated in his cross-examination that, no any contraband was seized
from the accused Pawan Yadav and he has not obtained any
document with respect to ownership of Patna-Bihar Dhaba, Rewa
Gahan. He did not know about his ownership. He voluntarily stated
61
that Rohit Yadav disclosed in his statement that after death of Mohan
Yadav, Sajan Yadav and Pawan Yadav are running the Dhaba.
53. While dealing with the appeal against acquittal preferred by the
prosecution/DRI, this Court is conscious of the well-settled principles
governing such appeals. Unless the findings recorded by the learned
trial Court are perverse, manifestly illegal, or wholly unsupported by
evidence, the order of acquittal should not be interfered with. If two
views are possible on the basis of evidence available on record, the
view favourable to the accused is to be adopted.
54. In the present case, the evidence against the accused Pawan Yadav
has been carefully re-appreciated in light of the aforesaid principles. It
is an admitted position that no contraband was recovered from his
possession. As per the statement of PW-2 Sanjeet Kumar Singh, no
Ganja was seized either from the person of Pawan Yadav or from any
premises allegedly connected with him, including the Patna Bihar
Dhaba. It is also not in dispute that he was not present at the spot at
the time of interception and seizure of the contraband from the vehicle.
55. The implication of Pawan Yadav is primarily based on the statements
allegedly made by co-accused persons under Section 67 of the NDPS
Act. However, such statements, in absence of independent
corroboration, cannot be made the sole basis for conviction. The
prosecution has failed to adduce any substantive evidence to establish
his involvement in the alleged offence of conspiracy or abetment.
62
56. Further, the prosecution has not been able to produce any
documentary evidence to establish the ownership or exclusive control
of the Patna Bihar Dhaba allegedly run by Pawan Yadav. Both PW-2
and PW-5 have admitted in their cross-examination that no documents
regarding ownership of the Dhaba were seized or placed on record.
Even the alleged connection of the accused with the Dhaba is based
on oral statements of witnesses, which remain uncorroborated by any
reliable documentary evidence.
57. It is also significant that no contraband was recovered from the said
Dhaba, nor any material indicating preparation, storage, or facilitation
of transportation of Ganja was found there. The mere assertion that a
secret chamber in the vehicle was prepared near the Dhaba premises,
without any cogent and reliable evidence directly linking Pawan Yadav
to such activity, is insufficient to establish his culpability.
58. The evidence relating to mobile phone usage, call detail records, or
any form of communication connecting Pawan Yadav with the
transportation of contraband is also not substantiated by seizure of
relevant devices or supporting documentary proof. In absence of such
material evidence, the alleged telephonic connection remains
inconclusive. The presence of his wife’s signature on the panchnama
also does not advance the case of the prosecution, as it does not
establish any incriminating circumstance against the accused. It
merely indicates her presence at the time of certain proceedings and
cannot be construed as evidence of involvement of Pawan Yadav in
the offence.
63
59. In view of the aforesaid deficiencies, this Court finds that the
prosecution has failed to establish beyond reasonable doubt that
Pawan Yadav had knowledge of, or was in any manner involved in, the
illegal transportation of contraband. The chain of circumstances
sought to be established against him is incomplete and does not
unerringly point towards his guilt.
60. The learned trial Court, after appreciating the evidence on record, has
extended the benefit of doubt in favour of the accused Pawan Yadav
and acquitted him. This Court does not find any perversity or illegality
in the said finding warranting interference. The view taken by the trial
Court is a plausible view based on the evidence available on record.
The Hon’ble Supreme Court in the case of Kistoora Ram (supra) has
held that:-
“8. The scope of interference in an appeal against
acquittal is very limited. Unless it is found that the
view taken by the Court is impossible or perverse,
it is not permissible to interfere with the finding of
acquittal. Equally if two views are possible, it is not
permissible to set aside an order of acquittal,
merely because the Appellate Court finds the way
of conviction to be more probable. The interference
would be warranted only if the view taken is not
possible at all.”
64
61. Accordingly, we do not find any merit in the acquittal appeal filed by
the prosecution/DRI and accordingly, the ACQA No. 247 of 2025 is
also dismissed.
62. The respondent/accused- Pawan Kumar is on bail. His bail bond shall
continue for a further period of six months as provided under Section
481 of Bhartiya Nagarik Suraksha Sanhita, 2023.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved
65
HEAD NOTE
******* Non-compliance with Section 52-A of the NDPS Act is not
per se fatal to the prosecution case, and conviction can be
sustained if the overall evidence on record credibly establishes
recovery and possession of contraband, with courts required to
assess such procedural lapses in light of the totality of evidence
rather than on technical grounds alone.