Akhilesh Parasram Zaria vs State Of Mah. Thr. Pso Ps Butibori Nagpur
2026 Latest Caselaw 3416 Bom

Bombay High Court

Akhilesh Parasram Zaria vs State Of Mah. Thr. Pso Ps Butibori Nagpur on 6 April, 2026

2026:BHC-NAG:5361



                                              1                        CRI.APEAL 197-2023 & 23-2024.odt



                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                              NAGPUR BENCH AT NAGPUR

                             CRIMINAL APPEAL NO. 197 OF 2023
                                         WITH
                             CRIMINAL APPEAL NO. 23 OF 2024


                CRIMINAL APPEAL NO. 197 OF 2023

                1. Bhuralal Chitarlal Meena,
                Aged 43 years, Occ. Driver,
                R/o. Sanjay Gandhi Nagar,
                Ladpura Dist. Kota.

                2. Chothmal Satyanarayan Meena,
                Aged about 25 years, Occ. Driver,
                R/o. Bhora, Tah. Ataru, Dist. Baram,
                Rajasthan.                                                     ... Appellants
                         .. Versus ..

                State of Maharashtra,
                Through Police Station Officer,
                Police Station, Butibori, Nagpur.                            ...Respondent

                -------------------------------------------------------------------------------
                S/Shri Akshay Sudame and Akhilesh Potnis, Advocates for
                appellants.
                Ms. Sneha Dhote, APP for respondent/State.
                -------------------------------------------------------------------------------
                                                   WITH

                CRIMINAL APPEAL NO. 23 OF 2024

                Akhilesh Parasram Zaria,
                Aged about 26 years, Occ. Labour,
                R/o. Bagsawai, Tah. Patan,
                District Jabalpur. (M.P.)                                      ... Appellant
                         .. Versus ..
                                2                       CRI.APEAL 197-2023 & 23-2024.odt



State of Maharashtra,
Through Police Station Officer,
Police Station, Butibori, Nagpur.                            ...Respondent

-------------------------------------------------------------------------------
Shri Sunil Kulkarni, Advocate for appellant.
Ms. Sneha Dhote, APP for respondent/State.
-------------------------------------------------------------------------------
CORAM :               NEERAJ P. DHOTE, J.


DATE OF RESERVING THE JUDGMENT : 11/02/2026
DATE OF PRONOUNCING THE JUDGMENT: 06/04/2026


JUDGMENT

This is an Appeal under Section 374(2) of the Code

of Criminal Procedure, 1973 (for short, 'Cr.P.C.') against the

judgment and order dated 08/04/2022, passed by the learned

Special Judge (NDPS Act) and Additional Sessions Judge-2,

Nagpur in NDPS Special Case No. 50/2022, convicting and

sentencing the Appellants as follows:-

"1] Accused Nos. (1) Bhuralal Chitarlal Meena (2) Akhilesh Parasram Zaria and (3) Chothmal Satyanarayan Meena are convicted for the offence under Section 20 of Narcotic Drugs and Psychotropic Substance Act for possession and transportation of commercial quantity of Ganja and sentenced to suffer rigorous imprisonment for 10 years each and to pay fine of Rs. 1,00,000/-(Rs.

One lac) by each, in-default of payment of fine, the accused shall suffer simple imprisonment for six months each.

3 CRI.APEAL 197-2023 & 23-2024.odt

2] Accused Nos. (1) Bhuralal Chitarlal Meena (2) Akhilesh Parasram Zaria and (3) Chothmal Satyanarayan Meena are convicted for the offence under Section 29 of Narcotic Drugs and Psychotropic Substance Act for committing criminal conspiracy of offence under Section 20 of N.D.P.S. Act and sentenced to suffer rigorous imprisonment for 10 years each and to pay fine of Rs. 1,00,000/- (Rs. One lac) by each, in-default of payment of fine, the accused shall suffer simple imprisonment for six months each.

3] Both the sentences of each accused shall run concurrently.

4] The accused Nos. 1 to 3 are in custody from 25-07-2021; they shall get set off, of the custodial period as per Section 428, Criminal Procedure Code.

5] ....

6] ...

7] ...

8] ...

9] ... "

2. The prosecution's case as revealed from the police

report is as under:-

2.1 On 24/07/2021, the Local Crime Branch (LCB),

Nagpur Rural received the information that, the Narcotic Drugs

were to be transported in Truck bearing No. RJ-11/GB-4632 from

Higanghat to Nagpur via Butibori. The Assistant Police Inspector

(ASI) of the LCB went to the Butibori Police Station and caused

4 CRI.APEAL 197-2023 & 23-2024.odt

the station diary in that regard. The Senior Officers were

informed. The Panchas, Photographer and weighing machine

came to be arranged, and the squad reached the spot on the

National Highway near the Ruikhairi village. The Nakabandi

(roadblock) was done. The Truck bearing the above referred

number was seen coming from Hinganghat direction. The Truck

was intercepted. The Appellants were found sitting in the Truck.

The squad gave then the intimation in respect of search in

presence of Gazetted Officer. The Appellants and the Truck were

searched. In the Driver's cabin, four (4) plastic sacks were found.

They were removed. The said sacks gave unpleasant smell. The

sacks were opened and weighed. It weighed 78.360 Kg. The

empty sacks weighed 650 grams. The samples were removed

from all four (4) sacks of 100 grams each. The samples were

sealed. The Appellants and the Truck were brought to the Police

Station. The report was lodged and the Crime bearing No.

318/2021 came to be registered against the Appellants for the

offences punishable under Sections, 20, 22 and 29 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS

Act'). The samples and the Muddemal were kept in the

Muddemal room. The statements of the witnesses were recorded.

5 CRI.APEAL 197-2023 & 23-2024.odt

The necessary communication was made with the Senior Officer.

The letter was given to the concerned Court of Magistrate for

preparing the inventory. The inventory was prepared. The

samples were sent to the Chemical Laboratory. The Chemical

Analyzer's report (CA report) disclosed the samples as 'Ganja'.

On completion of investigation, the charge-sheet came to be

filed.

2.2 The learned Trial Court framed the Charge against

the Appellants vide Exh.02 for the offences punishable under

Sections 20 and 29 of the NDPS Act. The Appellants pleaded not

guilty and claimed to be tried. To prove the charge, the

prosecution examined in all ten (10) witnesses and brought on

record the relevant documents in the evidence of the witnesses.

After the prosecution filed the evidence closure pursis, the

learned Trial Court recorded the statement of the Appellants

under Section 313(1)(b) of the Cr.P.C. The Appellants stated that,

they were falsely implicated. After hearing both the sides and

appreciating the evidence available on record, the learned Trial

Court passed the impugned judgment and order.

6 CRI.APEAL 197-2023 & 23-2024.odt

3. Heard the learned Advocates for the Appellants and

the learned APP for the State. Scrutinized the evidence on record.

3.1 It is submitted by the learned Advocates for the

Appellants that, there is non-compliance of the mandatory

provisions under Sections 42, 43 and 50 of the NDPS Act. The

samples were not deposited with the Laboratory on the same day

and were kept by the carrier with him. At the time of search, the

Police had given third option i.e. to be search in the presence of

the officer who was not present in the raiding team. The

prosecution case was doubtful and it failed to establish the charge

against the Appellants. Though there were lapses in the

mandatory procedure, the Appellants came to be convicted and

the inquiry was directed against the Investigating Officer by the

learned Trial Court. Most of the documents were filed in the

Court after the charge-sheet and this shows that, the mandatory

compliance was not done. The Appeal be allowed. In support of

their contentions, they cited the following judgments:-

(i) Boota Singh and ors V/s. State of Haryana {2021 (19) SCC 606}

(ii) State of Rajasthan V/s. Parmanand {2014 (5) SCC 345} 7 CRI.APEAL 197-2023 & 23-2024.odt

(iii) Vijay Jain V/s. State of Madhya Pradesh {2013 (14) SCC 527}

(iv) Baldev Singh V/s. State of Haryana {2021 (18) SCC 523}

(v) State of Maharashtra V/s. Saubai Narhari Babar and ors {Judgment of this Court dated 18/12/2020 in Criminal Appeal No. 1154/2004}

(vi) Saraswati and anr. V/s. State rep. by Inspector of Police, NIBCID, Theni District {Judgment of Madras High Court dated 31/08/2021 in Cri. A. No. (MD) No. 227 of 2015}.

(vii) Lamin Bojang V/s. The State of Maharashtra {1996 SCC OnLine Bom 305}

(viii) Yusuf @ Asif V/s. State { Judgment of the Hon'ble Apex Court dated October 13, 2023 in Criminal Appeal No. 3191 of 2023 (arising out of SLP (Cri.) No. 3010 of 2023}

3.2 It is submitted by the learned APP for the State that,

there were no lapses on the part of the investigating machinery.

The required procedure was followed. It was the search of the

bags and not of the persons. The Gazetted Officer was present

during the raid. There was no discrepancy in respect of the

sampling. The samples were sent immediately. No error was

committed in sending the samples to the Laboratory. The report

from the Chemical Analyzer shows that, the contraband seized 8 CRI.APEAL 197-2023 & 23-2024.odt

from the possession of the Appellants was the 'Ganja'. The

Arrest Form was admitted by the Appellants, as the charges were

established beyond reasonable doubt. The presumption under

Section 35 of the NDPS Act comes into operation. There is no

merit in the Appeals and the same be dismissed. The learned APP

cited the judgment in Hamidbhai Azambhai Malik V/s. State of

Gujarat {2009 (3) SCC 403}.

4. In Boota Singh and ors. (supra), the contraband was

seized from the vehicle. In the said Case, the Hon'ble Apex Court

observed that, the explanation to Section 43 shows that, a private

vehicle would not come within the expression "public place" as

explained under Section 43 of the NDPS Act. In the said case,

there was total non-compliance of the requirements of Section 42

of the NDPS Act. The Appellants therein were acquitted.

5. In State of Rajasthan (supra), the provisions of

Section 50 of the NDPS was considered. In that case, the accused

therein was personally searched and also a bag which was being

carried out by the accused was searched. The Police Officer who

was a member of raiding party gave notice to the accused therein

that, they could be searched before the nearest Magistrate or 9 CRI.APEAL 197-2023 & 23-2024.odt

before the nearest Gazetted Officer or P.W.5 J.S. Negi, the

Superintendent, who was a part of the raiding party. The 3 rd

option could not have been given as the provisions of Section

50(1) of the NDPS Act does not provide for it and therefore, the

search was vitiated.

6. In Vijay Jain (supra), it was observed that, on a

reading of judgment in Jitendra V/s. State of M.P. (2004) 10

SCC 562, the view was taken that, in the trial for an offence

under the NDPS Act, it was necessary for the prosecution to

establish by cogent evidence that, the alleged quantities of the

contraband goods were seized from the possession of the accused

and the best evidence to prove this fact is to produce during the

trial, the seized materials .....

7. In Baldev Singh (supra), it was found that, though

there was the oral evidence to the effect that, the case property

was deposited in the malkhana and it was also produced in the

Court, there was no documentary evidence to that effect. There is

further observation that, in a serious of decisions of this Court, it

has been held that, unless there is actual production of the case 10 CRI.APEAL 197-2023 & 23-2024.odt

property in the Court, the prosecution case would not be

established.

8. In Saubai Narhari Babar and ors (supra), it is

observed that, for non-compliance of the mandatory provisions of

Section 42 of the NDPS Act, the trial was vitiated.

9. In Saraswati and anr. (supra), by considering the

previous judgment, it was held that, the procedure adopted by the

Police Officers in that case was violative of Section 50(1) of the

NDPS Act and the entire prosecution story was vitiated. It was

observed that, the prosecution failed to prove their case beyond

reasonable doubt.

10. In Lamin Bojang (supra), the trial was held to be

vitiated for non-compliance of the mandatory provisions of

Section 42(2) of the NDPS Act and the other aspects were not

examined.

11. In Yusuf @ Asif (supra), the samples were drawn by

the Police in the presence of Gazetted Officer and not in the

presence of the Magistrate and considering the judgment in

Union of India V/s. Mohanlal and anr. {2016 (3) SCC 379}, it 11 CRI.APEAL 197-2023 & 23-2024.odt

was observed that, there was a failure of the concerned

authorities to lead primary evidence and that vitiated the

conviction and the conviction was set aside.

12. In Hamidbhai Azambhai Malik (supra), the search

of the house of the accused therein was made and the contraband

was seized. It was the contention of the accused therein that,

there was non-compliance of the requirement of Section 42(2) of

the NDPS Act. It was held that, Section 42 was invocable only if

search was made by Police Officer or authority concerned, upon

prior information. When the information or intimation or

knowledge comes to the notice of Investigating Officer in course

of patrolling or investigation of some other offence, it is not

necessary to follow the conditions incorporated in Section 42.

13. Coming to the case at hand, P.W. 1 Jitendra N.

Vairagade was the API with the LCB, Nagpur on 24/07/2021,

P.W. 2 Javed Shaikh was the chicken shop owner and had taken

the weighing machine to the Butibori Police Station, P.W. 3

Satyashil C. Kothare was the Police Constable with LCB, Nagpur

and used to click photographs for the Police, P.W. 4 Sudhakar B.

Panghate was working as a Cleaner in the Borkhedi Gram 12 CRI.APEAL 197-2023 & 23-2024.odt

Pahchayat and was summoned to act as a Panch on 24/07/2021,

P.W. 5 Saurabh Shahakar was the photographer by profession and

was summoned to take photographs on 01/10/2021 for the

inventory in the Court. P.W. 6 Pradip A. Deshmukh was Police

Constable in the Butibori Police Station, Nagpur and carried the

sealed bags to the Chemical Laboratory, P.W. 7 Amrut S. Kinge

was the Police Naik with LCB who took and made the

communication with the Higher Officers and reached on the spot

where the Truck was intercepted and seizure was effected, P.W. 8

Babulal D. Wadame was the Head Moharir of the Butibori Police

Station, P.W.-9 Manik B. Choudhari was the Assistant Police

Inspector (API) at the Butibori Police Station and P.W.-10 Ashish

D. Morkhade was the officer who investigated the Crime.

14. The evidence of the witnesses examined by the

prosecution shows that, pursuant to the secret information, the

Police team reached the National Highway near village Ruikhairi

and intercepted the Truck bearing No. RJ-11/GB-4632 in which

the Appellants were found in the cabin. During the search, four

(4) plastic bags/sacks were found and since there was a smell

unpleasant, the samples were drawn, the Articles were seized and 13 CRI.APEAL 197-2023 & 23-2024.odt

the Appellants were taken in the custody.

15. As regards, the provisions of Section 42(2) of the

NDPS Act, the evidence of P.W.-1 Jitendra shows that, he made

necessary station diary entry in respect of the secret information

and thereafter, vide letters below Exh. 15 and 16, informed the

Superintendent of Police and Dy. Superintendent of Police,

respectively about the same. According to P.W. 1 Jitendra, the

said communications to the Higher Officers were sent through

Mr. Kinge (P.W.-7). He admitted that, he did not enquire as to

whether the said communications were received by the offices of

the said officers. The said Mr. Kinge is examined as P.W.-7. It

has come in his cross-examination that, there were no

endorsements on Exh. 15 and 16 from the offices of

Superintendent of Police and Dy. Superintendent of Police in

respect of receipt of said communications by the said offices. The

suggestions is given that, both the said communications were not

delivered to the addressees. The evidence of this P.W. 7 shows

that, he delivered the communication below Exh. 60, which was

under the signature of P.W.-1, to the office of Dy. Supdt. of

Police. The suggestion is given in the cross-examination that, the 14 CRI.APEAL 197-2023 & 23-2024.odt

said Exh. 60 was falsely prepared on 25/02/2022. The Exh. 16

and 60 were both addressed to the Dy. Supdt. of Police having

the same date 24/07/2021, having similar subject and contents.

Both the communications are similar. However, it shows the

stamp of Dy. Superintendent of Police only on Exh. 60 and not

on Exh. 16.

16. P.W.-9 Manik B. Choudhari, the first Investigating

Officer in his cross-examination admitted that, there is no

outward and inward number on Exh. 60. The suggestion is given

in the cross-examination that, Exh. 56, 60, 63 & 65 were false

and prepared subsequently after the evidence of P.W.-1 Jitendra

Vairagade and filed in the Court on 22/02/2022. The learned Trial

Court in para 74 of the judgment has observed that, the charge-

sheet was filed by withholding the material documents and filed

subsequently before commencement of evidence. The learned

Trial Court has directed the action against P.W.-10 Mr.

Morkhade, the subsequent Investigating Officer. The above

referred evidence clearly goes to show that, there was non-

compliance of the provisions of Section 42(2) of the NDPS Act.

15 CRI.APEAL 197-2023 & 23-2024.odt

17. It is deposed by P.W. 1 Jitendra Vairagade that, after

inspection of Truck and seizure of four (4) plastic bags/sacks

having unpleasant smell, the samples were drawn and report was

lodged by him below Exh. 33 and the FIR below Exh. 34 came to

be registered. The evidence of P.W. 8 Babulal D. Wadame shows

that, he was the Head Moharir at Butibori Police Station on

25/07/2021 and P.W.1 Jitendra Vairagade handed over the four

(4) sealed bags and two (2) sealed packets and four (4) mobile

phones to him for keeping in the muddemal room. According to

P.W.-9, Manik Choudhari, the first Investigating Officer, on

27/07/2021, he sent P.W. 6 Police Constable Pradip Deshmukh to

deposit the samples with the Chemical Laboratory and since, the

Laboratory did not accept the Muddemal, it was again sent to the

Laboratory on 28/07/2021. The cross-examination of P.W.-8

Babulal Wadame, the Head Mohrir shows that, he had not taken

the signature of Police Constable Pradip Deshmukh (P.W.-6) on

the register on 27/07/2021. He admitted in the

cross-examination that, there is no entry in the register in respect

of returning of the muddemal packets to the muddemal room on

27/07/2021. The suggestion is given that, the packets were not

handed over to P.W.-6 on the date and from 27/07/2021, the 16 CRI.APEAL 197-2023 & 23-2024.odt

packets were in the possession of P.W.-6 Deshmukh for about 48

hours. The suggestion of tampering with the muddemal samples

is given. He admitted that, the copy below Exh. 63, which was in

respect of the entry in the muddemal register was not taken by

the Investigating Officer till the charge-sheet was filed.

18. According to P.W. 6 Pradip Deshmukh, on

28/07/2021 while he was on duty, the Investigating Officer Mr.

Manik B. Choudhari (P.W.9) directed him to take in his

possession the muddemal from the Head Mohrir Babulal

Wadame (P.W.8) and deposit the same with the Chemical

Laboratory and Pass was issued to him accordingly. He further

deposed that, accordingly, he took the sealed muddemal from

P.W.8 Mohrir and deposited the same with the Chemical

Laboratory. In the cross-examination, it has come that, he had

gone to the Laboratory on 27/07/2021 with two copies of the

letter and one CA Form, however, there was no signature of the

Police Inspector/Investigating Officer on the letter and therefore,

he came back. It has come in his cross-examination that, duty

pass dated 27 was not on record. In the evidence of second

Investigating Officer P.W.10 Ashish Morkhade, it has come that, 17 CRI.APEAL 197-2023 & 23-2024.odt

the Investigating Officer P.W.-9 Manik Choudhari did not file the

copy of case diary showing that, the muddemal was deposited in

the muddemal room.

19. The above discussed evidence on record clearly

shows a broken chain in handling of the samples drawn from the

seized muddemal and thus the possibility of tampering cannot be

ruled out. The complete chain of handling of the

samples/muddemal is absent in the case at hand. To rule out the

possibility of tampering with the samples/muddemal, it is

necessary for the prosecution to prove the complete chain of

handling of the samples drawn from the muddemal. Considering

the above referred evidence on record, the CA report showing the

substance as the 'Ganja' cannot be accepted or relied in support

of the charge.

20. According to the P.W.1, Jitendra Vairagade, he

issued a letter to the Investigating Officer to get the inventory of

the muddemal done. According to P.W.-8 Babulal Wadame,

Head Mohrir, the entry was made in the register when the

muddemal was sent for inventory to the Court and after the

inventory, the muddemal was brought again to the muddemal 18 CRI.APEAL 197-2023 & 23-2024.odt

room and on 27/10/2021, the muddemal was sent to the Police

Headquarter and he made the entry in that regard. In the cross-

examination, he admitted that, there was no entry in the register

in respect of muddemal inventory. The suggestion is given that,

the muddemal was not deposited with the Police Station after the

inventory. The cross-examination of P.W.-10 Ashish Morkhade,

Second Investigating Officer shows that, on going through Exh.

63, which was the extract of muddemal reigster, there was no

entry of 01/10/2021 that, the muddemal was sent to the Court.

Though he volunteered that, he made the entry in respect of

sending and receiving the muddemal to and from the Court in the

station diary, it has come in the cross-examination that, the copy

of station diary was not filed with the charge-sheet. It has further

come in his cross-examination that, the copy of the logbook

showing the transportation of muddemal to the Court was not

submitted with the charge-sheet. In the cross-examination of this

P.W.-10 Ashish Morkhade, the second Investigating Officer, the

Court questions were put to him that, the investigation was

completed on 13/10/2021 and the muddemal register and other

documents were submitted after submission of the charge-sheet

and the said documents were kept by him in 'B' file and he was 19 CRI.APEAL 197-2023 & 23-2024.odt

asked to respond. This witness responded that, it happened

inadvertently.

21. The above discussed evidence show non-compliance

of mandatory provisions under the NDPS Act. The evidence of

P.W.-1 Jitendra Vairagade who was the member of the team,

seized four (4) plastic bags from the possession of the Appellants

and lodged the report, admitted in his cross-examination that, he

had not submitted the compliance report as per Section 57 of the

NDPS Act. The said provision of Section 57 pertains to the

report or information of arrest and seizure, which is required to

be made within 48 hours of such arrest or seizure to the

immediate official superior.

22. In absence of evidence to establish complete chain

of handling of the samples and the non-compliance of the

mandatory provisions of the NDPS Act, there is no question of

drawing a presumption under Section 35 of the NDPS Act. With

the above discussed evidence on record, it is not possible to

maintain the conviction and sentence recorded by the learned

Trial Court. In light of the settled legal position, as is clear from

the above referred judgments cited by both the sides, the 20 CRI.APEAL 197-2023 & 23-2024.odt

Appellants are entitled for acquittal. Hence, the following order:-

ORDER

I) The Criminal Appeals are allowed.

II) The conviction and sentence recorded by the learned

Special Judge (NDPS Act) and Additional Sessions Judge-2,

Nagpur against the Appellants in NDPS Special Case No.

50/2022, by the impugned judgment and order dated 08/04/2022,

is hereby quashed and set aside.

III) The Appellants are acquitted for the offences punishable

under Sections 20 and 29 of the NDPS Act.

IV) The Appellants are behind bars. They be set at liberty, if

not required in any other offence.

V) The fine amount, if paid by the Appellants, be refunded to

them.

VI) Record and Proceedings be sent back to the learned Trial

Court.

(VII) The Criminal Appeals stand disposed of accordingly.

[NEERAJ P. DHOTE, J.]

B.T.K.

Signed by: Mr. B.T. Khapekar Designation: PA To Honourable Judge Date: 06/04/2026 19:12:07