Chattisgarh High Court
Anjorilal vs State Of Chhattisgarh on 30 March, 2026
1
2026:CGHC:14746
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 418 of 2017
1 - Mohammad Mustaq S/o Mohammad Muse Khan, Aged About 48
Years R/o Village Sanki, Near Kissan Rice Mill, Police Station
Chakarbhata, District Bilaspur, Chhattisgarh., Chhattisgarh
... Appellant(s)
versus
1 - State Of Chhattisgarh Through Station House Officer, Civil Lines,
District Bilaspur, Chhattisgarh., Chhattisgarh
... Respondent(s)
For Appellant (s) : Ms.Sarina Khan, Advocate
For Respondent/State : Shri Vivek Mishra, PL
(Hon'ble Shri Justice Arvind Kumar Verma)
Judgment on Board
30/03/2026
When the matter was called out today, none appeared on behalf of the appellant. In the circumstances, this Court deems it appropriate to proceed with the hearing of the appeal by appointing a counsel 2 through the High Court Legal Services Committee.
2. Accordingly, Ms. Sarina Khan, Advocate, empanelled Legal Aid Counsel, is appointed to represent the appellant and to argue the appeal on her behalf. The Secretary, High Court Legal Services Committee, is directed to issue the requisite authorization letter in her favour.
3. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 02.03.2017 passed by the learned Special Judge, NDPS Act, Bilaspur in Special Case No. 18/2013, whereby the appellant has been convicted under Section 21(A) of the NDPS Act, 1985 and sentenced to undergo six months rigorous imprisonment along with fine of Rs. 5,000/-, with default stipulation.
4. The prosecution case, as unfolded from the record, is that on 23.05.2013, the police authorities of Police Station Civil Lines, Bilaspur received a credible secret information from an informant that two persons were proceeding from Sakri towards Uslapur on a TVS Scooty bearing registration No. CG-05-B-7798, and that they were carrying contraband psychotropic substances in the form of injections and tablets for the purpose of illegal sale. Upon receipt of the said information, the concerned police officer reduced the information into writing and, after complying with the procedural requirements under the provisions of the NDPS Act, constituted a raiding party. Necessary intimation was also forwarded to superior officers as required under law. 3 Independent witnesses were called to the spot to ensure transparency in the search and seizure proceedings.
5. Thereafter, the police party proceeded towards the indicated location and laid a nakabandi (interception point). After some time, the said vehicle matching the description was spotted approaching from Sakri side. The vehicle was stopped and the persons riding it were apprehended. On inquiry, the driver disclosed his name as Sanjay Saraf, while the pillion rider disclosed his identity as the present appellant Mohammad Mustaq. Thereafter both the accused persons were informed under the NDPS Act to be searched in the presence of a Gazetted Officer or Magistrate. Upon their consent, the search was conducted in accordance with law in the presence of witnesses.
6. During the course of search, a bag in possession of the accused persons was examined, which led to the recovery of Lupigesic injections, packed in multiple polythene packets; Several strips of Nitrazepam (Netacom) tablets, amounting to thousands in number; Additional psychotropic tablets contained in cartons, each consisting of strips and individual tablets from the possession of the accused persons. The seized articles were counted and catalogued. The recovered substances were suspected to be psychotropic substances covered under the NDPS Act, and accordingly, they were seized vide a duly prepared seizure memo (panchnama) in the presence of independent witnesses. Samples were drawn from the seized contraband in accordance with prescribed procedure, sealed on the spot, and the remaining bulk was also sealed separately. The seal used 4 was duly noted in the seizure memo to maintain the sanctity of the chain of custody. The seized articles were thereafter taken into possession and brought to the police station, where a formal First Information Report (FIR) was registered against the accused persons for offences punishable under the provisions of the NDPS Act. Subsequently the samples were sent to the Forensic Science Laboratory (FSL), Raipur for chemical examination. Statements of witnesses were recorded under Section 161 Cr.P.C.. Spot map and seizure memos were prepared. The FSL report confirmed that the seized substances were psychotropic substances, thereby attracting the provisions of the NDPS Act. Upon completion of investigation, charge-sheet (challan) was filed before the Special Court constituted under the NDPS Act at Bilaspur. The learned trial Court framed charges under the relevant provisions of the NDPS Act.
7. During trial, the prosecution examined 7 witnesses including the investigating officer, Members of the raiding party, Seizure witnesses, and Formal witnesses including the chemical examiner.
8. After appreciating the oral and documentary evidence on record, the learned Special Judge came to the conclusion that the prosecution had proved its case beyond reasonable doubt against the present appellant and accordingly convicted and sentenced him as stated hereinabove.
9. Learned counsel appearing for the appellant, has advanced elaborate submissions assailing the impugned judgment, both on 5 conviction as well as on the question of sentence. It is submitted that the judgment of the learned trial Court is contrary to law, facts and evidence on record, and the same suffers from serious infirmities and legal inconsistencies. It is contended that the prosecution has failed to establish its case beyond reasonable doubt, as required in criminal jurisprudence. The entire case rests upon the testimony of official witnesses, and no independent witness has supported the prosecution case, despite the alleged recovery having taken place at a public place. This casts a serious doubt on the veracity of the prosecution story.
10. Secondly, learned counsel for the appellant submits that there has been non-compliance of mandatory provisions of the NDPS Act, particularly with regard to proper recording and communication of secret information, Compliance of Section 50 of the NDPS Act, and adherence to procedural safeguards relating to search and seizure. It is argued that such non-compliance vitiates the entire prosecution case.
11. Thirdly, it is argued that there are material contradictions and inconsistencies in the statements of prosecution witnesses, especially regarding the manner of seizure, quantity of contraband, and preparation of documents. These discrepancies go to the root of the case and render the prosecution story unreliable. it is submitted that the prosecution has failed to establish conscious possession of the alleged contraband on the part of the present appellant. Mere presence at the spot or association with co-accused is not sufficient to attract culpability under the NDPS Act.
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12. It is specifically submitted that the appellant has already undergone custodial sentence of about two months and six days; the incident is of the year 2013, and the appellant has faced prolonged mental agony of trial and appeal; he is a first-time offender with no criminal antecedents; the quantity involved does not fall in the category of commercial quantity warranting stringent punishment. On these grounds, it is prayed that this Court may take a lenient view and reduce the sentence to the period already undergone, while maintaining the fine amount.
13. Per contra, learned counsel appearing for the State has supported the impugned judgment and submits that the same is well- reasoned and based on proper appreciation of evidence. It is contended that the prosecution has successfully proved its case by leading cogent and reliable evidence, and the learned trial Court has rightly appreciated the same. He submits that the recovery of contraband has been duly established and the chain of custody has remained intact. The samples were properly sealed and sent for chemical examination, and the FSL report confirms that the seized substances are psychotropic in nature. It is further submitted that mere non-examination of independent witnesses is not fatal to the prosecution case. In this regard, reliance is placed upon State (Govt. of NCT of Delhi) v. Sunil,(2001) 1 SCC 652, wherein the Supreme Court has held that the testimony of official witnesses cannot be discarded merely on the ground that they are police personnel, if their evidence is otherwise trustworthy.
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14. Learned counsel for the State further submits that the procedural requirements under the NDPS Act have been substantially complied with, and no prejudice has been caused to the appellant. It is also argued that once recovery is proved, the presumption under Sections 35 and 54 of the NDPS Act operates against the accused, and the burden shifts upon him to explain possession, which the appellant has failed to discharge.
15. With regard to the contention relating to investigation by the same officer, learned State counsel submits that the applicability of Mohan Lal v. State of Punjab (2018) 17 SCC 627, would depend upon the facts of each case, and unless prejudice is demonstrated, the conviction need not be set aside.
16. On the question of sentence, learned State counsel submits that the sentence awarded by the trial Court is already lenient. However, it is fairly submitted that this Court may exercise its discretion appropriately, considering the period already undergone by the appellant.
17. Heard learned counsel for the parties at length and has perused the entire record of the case with due care and circumspection.
18. At the outset, it is pertinent to note that in an appeal against conviction, the appellate Court is duty-bound to re-appreciate the evidence on record. However, unless the findings recorded by the trial Court are shown to be perverse, illegal or based on mis-appreciation of evidence, interference is not warranted. The NDPS Act being a stringent statute, the procedural safeguards assume great significance. 8 The Supreme Court in Noor Aga v. State of Punjab (2008) 16 SCC 4`7, has held that strict compliance of statutory safeguards is imperative, and the burden upon the prosecution is higher than in ordinary criminal cases. In the present case, the record indicates that the secret information was received and acted upon; A raiding party was constituted; the accused persons were intercepted and search was conducted; seizure memo was prepared; Samples were drawn and sent for chemical examination. Although certain minor discrepancies have been pointed out by the defence, this Court finds that such inconsistencies are not of such magnitude as to vitiate the entire prosecution case.
19. The appellant has raised the issue of non-compliance of Section 50 of the NDPS Act. In this regard, reliance has been placed on State of Punjab v. Baldev Singh, (1999) 6 SCC 172, wherein it has been held that compliance of Section 50 is mandatory in case of personal search. Upon careful scrutiny of the record, it emerges that the recovery in the present case was effected primarily from a bag carried by the accused, and not from the personal search of the body of the appellant. It is well-settled that Section 50 applies strictly to personal search and not to search of bags or vehicles. Thus, the contention regarding violation of Section 50 does not merit acceptance in the facts of the present case.
20. The appellant has contended that the investigation is vitiated as the same officer acted as informant and investigating officer. Reliance has been placed upon Mohan Lal v. State of Punjab (supra). 9
It is true that the Supreme Court has expressed concern regarding such practice. However, subsequent judicial pronouncements have clarified that the effect of such irregularity has to be examined in the facts of each case, and unless serious prejudice is demonstrated, the trial is not vitiated ipso facto.
21. In the present case, counsel the appellant has failed to demonstrate any actual prejudice caused to him on account of such alleged irregularity. The evidence on record does not indicate any mala fide or bias in investigation.
22. It is the contention of the appellant that no independent witnesses have supported the prosecution case. In this context, the law is well settled in State (Govt. of NCT of Delhi) v. Sunil, wherein it has been held that evidence of official witnesses cannot be discarded merely on the ground of their official status, if their testimony is otherwise credible and trustworthy. In the present case, the testimonies of the prosecution witnesses are consistent and corroborative; the seizure proceedings have been duly proved;the FSL report confirms the nature of contraband. The prosecution has established that the contraband was recovered from the possession of the accused persons who were travelling together on the vehicle. Once possession is established, the statutory presumption under Sections 35 and 54 of the NDPS Act comes into play. The appellant has not offered any plausible explanation to rebut the said presumption.
23. Accordingly, this Court is satisfied that the prosecution has been 10 able to establish conscious possession of the contraband by the appellant.
24. In view of the aforesaid analysis, this Court finds that the prosecution has proved its case beyond reasonable doubt. The learned trial Court has rightly appreciated the evidence. The conviction of the appellant under Section 21(A) of the NDPS Act does not suffer from any illegality or perversity. Accordingly, the conviction of the appellant is affirmed.
25. The next question that arises for consideration is with regard to the quantum of sentence.
It is not in dispute that the appellant has already undergone about two months and six days of incarceration; the incident is of the year 2013, and the appellant has faced prolonged trial and appeal; the quantity involved is not commercial;there is no material on record to indicate previous criminal antecedents.
26. The Supreme Court in Rafiq Qureshi v. Narcotic Control Bureau has held that in appropriate cases, considering the facts and circumstances, the sentence can be reduced to the period already undergone. The principle of proportionality in sentencing requires that punishment must be commensurate with the gravity of the offence as well as the mitigating circumstances.
27. Considering the totality of facts and circumstances of the case, this Court is of the considered opinion that the ends of justice would be adequately met if the substantive sentence of imprisonment awarded to 11 the appellant is reduced to the period already undergone, while maintaining the fine amount.
28. Accordingly, the appeal is allowed. The conviction of the appella t is affirmed. The sentence is modified and reduced to the period already undergone. However, the fine amount remains intact.
Sd/-
(Arvind Kumar Verma) Judge Digitally signed by SUGUNA DUBEY SUGUNA Date:
DUBEY 2026.04.01
12:52:33
+0530