[Cites 10, Cited by 0]
Chattisgarh High Court
Vijendra Lodhi vs State Of Chhattisgarh on 23 March, 2026
1
2026:CGHC:13729
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1208 of 2018
1 - Vijendra Lodhi S/o Suryakant Lodhi Aged About 67 Years R/o-
Chitrakut Dham, Tahsil And Police Station Karvi (U.P.), Uttar Pradesh
2 - Kanshi Prasad Lodhi S/o Nathu Prasad Aged About 70 Years R/o-
Sinjora, Tahsil Kulpahar, P.S. Karvi (U.P.), Uttar Pradesh
... Appellants(s)
versus
1 - State Of Chhattisgarh Through- The Station House Officer
Charama, District- Kanker, Chhattisgarh., District : Kanker, Chhattisgarh
... Respondent(s)
For Appellants : Shri Sandeep Shrivastava, Advocate
For Respondent/State : Ms.Avelyn Juneja Gambhir, PL
(Hon'ble Shri Justice Arvind Kumar Verma)
Judgment on Board
23/03/2026
This criminal appeal under Section 374(2) of the Code of
Criminal Procedure has been preferred by the appellants assailing the
judgment of conviction and order of sentence dated 28.07.2018 passed
by the learned Special Judge (NDPS Act), North Bastar, Kanker in
Special Case No. 43/2017, whereby the appellants have been
convicted under Section 20(b)(ii)(B) of the NDPS Act, 1985 and
sentenced to undergo rigorous imprisonment for five years with fine of
₹10,000/- each, with default stipulation.
2. The prosecution story, as unfolded during trial, is that on
28.07.2017, Sub-Inspector Baleshwar Lahre, posted at Police Station
Charama, District Kanker, received credible secret information from an
informant to the effect that two persons, disguised as sadhus, were
present near the Charama Bus Stand and were carrying illicit
contraband ganja in bags and containers for the purpose of sale and
were actively searching for prospective customers. Upon receipt of
such information, the said officer reduced the information into writing in
compliance with the provisions of Section 42 of the NDPS Act and
made an entry in the Rojnamcha Sanha. Thereafter, he constituted a
raiding party consisting of police personnel and proceeded to secure
the presence of independent witnesses from the locality, namely panch
witnesses. As the information disclosed the possibility of imminent
movement of the suspects, the police party, along with the panch
witnesses, proceeded without delay towards the indicated spot, i.e., the
bus stand premises of Charama. Upon receipt of such information, a
memorandum under Section 42 of the NDPS Act was prepared and
recorded. Efforts were made to secure independent witnesses.
Thereafter, the police party proceeded to the spot. At the bus stand
premises, the appellants were found carrying bags and steel containers
and on questioning, they disclosed their identities. After compliance of
Section 50 of the NDPS Act, search was conducted in presence of
witnesses. Upon reaching the spot, two persons matching the
description given by the informant were found present, carrying bags
and a steel container.
3. The said persons were intercepted and, upon inquiry, disclosed
their identities as Vijendra Lodhi and Kanshi Prasad Lodhi, the present
appellants. The prosecution asserts that prior to conducting search, the
appellants were apprised of their legal right under Section 50 of the
NDPS Act to be searched before a Gazetted Officer or a Magistrate. It
is alleged that the appellants consented to be searched by the police
officer present at the spot. Thereafter, search proceedings were
undertaken in presence of the panch witnesses. From the possession
of appellant Vijendra Lodhi, the suspected contraband recovered was
from a steel container: 3 kg 230 grams; from a plastic sack: 2 kg 950
grams and from another sack: 3 kg 420 grams.
4. Similarly, from appellant Kanshi Prasad Lodhi, from a steel
container: 3 kg 210 grams; from a sack: 5 kg 350 grams total: 8 kg 560
grams. The recovered substance was identified as ganja based on its
appearance and smell. Thereafter, the contraband was weighed on an
electronic weighing machine, and samples of 50 grams each were
drawn from each packet. The samples were separately packed, sealed,
and marked, and the remaining bulk contraband was also sealed in
accordance with the procedure. A seizure memo (panchnama) was
prepared on the spot, detailing the entire process of recovery, sampling,
and sealing, in presence of the witnesses. The appellants were then
formally arrested.
5. Subsequently, the seized articles along with the sample packets
were deposited in the police station. The samples were thereafter sent
to the Forensic Science Laboratory (FSL) for chemical examination. As
per the FSL report, the samples tested positive for ganja (cannabis).
After completion of investigation, including recording of statements of
witnesses under Section 161 Cr.P.C., the police filed a charge-sheet
against the appellants for the offence punishable under Section 20(b)(ii)
(B) of the NDPS Act, 1985. After completion of investigation, charge-
sheet was filed. Charges were framed under Section 20(b)(ii)(B) of the
NDPS Act. The appellants denied the charges and claimed trial.
6. The learned trial Court framed charges accordingly. In order to
bring home the guilt of the accused persons, the prosecution examined
12 witnesses, including the investigating officer, seizure witnesses, and
other formal witnesses. Documentary evidence such as seizure memo,
FSL report, and relevant case diary entries were also exhibited. The
appellants, in their statements recorded under Section 313 Cr.P.C.,
denied all incriminating circumstances appearing against them and
pleaded that they have been falsely implicated in the case. However,
they did not lead any defence evidence.
7. Upon appreciation of the oral and documentary evidence, the
learned Special Judge found the prosecution case proved and
accordingly convicted and sentenced the appellants as mentioned
earlier.
8. The learned trial Court, upon appreciation of evidence, convicted
and sentenced the appellants as stated above.
9. Learned counsel for the appellants submits that the impugned
judgment is contrary to law and evidence on record. It is contended that
there is non-compliance of mandatory provisions of Sections 42 and 50
of the NDPS Act, which vitiates the entire prosecution case. It is further
submitted that the independent panch witnesses have not supported
the prosecution case and have been declared hostile. He submits that
the search was not conducted in presence of a Gazetted Officer or
Magistrate, thereby violating statutory safeguards. It is also contended
that there is violation of Section 55 of the NDPS Act as the seized
contraband was not kept in safe custody. Further, it is argued that the
weighing of contraband was conducted at the police station, creating
serious doubt regarding authenticity of seizure proceedings.
10. Per contra, learned State counsel supports the impugned
judgment. It is submitted that the prosecution has proved its case
beyond reasonable doubt through reliable testimony of police
witnesses. It is further contended that merely because independent
witnesses turned hostile, the prosecution case cannot be discarded.
The FSL report conclusively proves that the seized substance was
ganja. It is therefore submitted that minor irregularities do not vitiate the
prosecution case.
11. Heard counsel for the parties and their rival submissions and
perused the records.
The following points arise for determination:
(i) Whether the prosecution has proved beyond reasonable doubt that
the appellants were in conscious possession of contraband ganja?
(ii) Whether there has been compliance of mandatory provisions of the
NDPS Act?
(iii) Whether the conviction and sentence recorded by the trial Court call
for interference?
12. The trial court, upon meticulous appreciation of the oral and
documentary evidence available on record, has recorded a categorical
finding that the prosecution has successfully established that on
28.07.2017, the appellants were found in conscious possession of
contraband ganja. The trial Court has placed reliance primarily on the
testimonies of the prosecution witnesses, particularly the Investigating
Officer and members of the raiding party, who have consistently
deposed regarding receipt of secret information, constitution of raiding
team, interception of the appellants, and recovery of contraband from
their possession. The recovery of ganja to the extent of 9 kg 600
grams from appellant No.1 and 8 kg 560 grams from appellant No.2
stands duly proved through cogent and reliable evidence. The FSL
report has been relied upon by the trial Court to conclude that the
seized substance was indeed ganja, thereby lending scientific
corroboration to the prosecution case.
13. The trial Court has further held that there is no material
contradiction or inconsistency in the testimony of official witnesses so
as to discredit the prosecution case. With regard to compliance of
statutory provisions, the trial Court has recorded a finding that the
procedural requirements under the NDPS Act were substantially
complied with and no prejudice has been caused to the accused
persons.
14. Upon cumulative consideration, the learned trial Court has
concluded that the prosecution has proved its case beyond reasonable
doubt and accordingly convicted the appellants under Section 20(b)(ii)
(B) of the NDPS Act.
15. This Court has carefully re-evaluated the entire evidence on
record, including the testimonies of prosecution witnesses,
documentary exhibits, and the reasoning assigned by the trial Court.At
the outset, it is to be noted that the recovery of contraband from the
possession of the appellants stands supported by consistent and
cogent evidence of the police officials forming part of the raiding party.
The testimony of the Investigating Officer inspires confidence and is
duly corroborated by other prosecution witnesses with regard to the
manner of search, seizure, and preparation of documents. It is well
settled that the evidence of official witnesses cannot be discarded
merely on the ground of their official status, unless any material is
brought on record to show animosity or motive for false implication.
16. In the present case, no such material has been elicited in the
cross-examination of the prosecution witnesses to discredit their
testimony. So far as the non-support of independent witnesses is
concerned, it is equally well settled that their hostility does not ipso
facto demolish the prosecution case, particularly when the official
witnesses are found reliable. The seizure memo and other
contemporaneous documents lend sufficient corroboration to the oral
testimony of prosecution witnesses. The FSL report conclusively
establishes that the seized substance was ganja. The chain of custody,
though questioned, does not appear to have been so seriously
compromised as to render the entire prosecution case doubtful.
17. With regard to compliance of Sections 42 and 50 of the NDPS
Act, though certain minor discrepancies have been pointed out by the
defence, the same do not go to the root of the matter so as to vitiate the
trial. The Supreme Court has consistently held that substantial
compliance of procedural safeguards, in absence of prejudice, would
not invalidate the conviction.
18. In the present case, this Court does not find any material to hold
that the appellants were prejudiced due to alleged procedural lapses. In
the present case, the evidence on record does not inspire full
confidence regarding strict compliance of Sections 42 and 50 of the
NDPS Act. The NDPS Act is a stringent statute and requires strict
compliance with procedural safeguards. The Supreme Court in State
of Punjab vs. Baldev Singh, (1999) 6 SCC 172, has held that
compliance of Section 50 is mandatory. Similarly, in Karnail Singh vs.
State of Haryana, (2009) 8 SCC 539, it has been held that Section 42
compliance is mandatory though with some flexibility.
19. In light of the aforesaid analysis, this Court finds that the findings
recorded by the learned trial Court are based on proper appreciation of
evidence and do not suffer from perversity or illegality. The prosecution
has succeeded in proving beyond reasonable doubt that the appellants
were in conscious possession of contraband ganja. Accordingly, the
conviction of the appellants under Section 20(b)(ii)(B) of the NDPS Act
is well-founded and calls for no interference. The conviction, therefore,
is affirmed and remains unaltered.
20. It is not disputed that the appellants have remained in jail for
about 1 year and one month. Upon cumulative consideration, this Court
is of the view that though recovery of contraband is established, the
prosecution case suffers from procedural infirmities. However, in the
facts and circumstances, interference is warranted only with respect to
sentence.
21. Having affirmed the conviction of the appellants, this Court now
proceeds to consider the question of sentence. It is not in dispute that
the quantity of contraband involved in the present case falls within the
category of intermediate quantity. It is also borne out from the record
that the appellants are not shown to be habitual offenders and there is
no material to indicate their involvement in any other similar offence.
Further, it is submitted and not controverted by the State, that the
appellants have already undergone a substantial period of incarceration
during the course of trial and pendency of the present appeal. The
incident pertains to the year 2017 and the appellants have faced the
agony of criminal proceedings for a considerable length of time. Taking
into consideration the totality of circumstances, including the nature of
offence, quantity involved, antecedents of the appellants, and the
period of incarceration already undergone, this Court is of the
considered view that ends of justice would be adequately met by
reducing the substantive sentence to the period already undergone.
22. Consequently, the appeal is partly allowed. The conviction of the
appellants under Section 20(b)(ii)(B) of the NDPS Act, 1985, as
recorded by the learned trial Court, is hereby affirmed. However, the
sentence of rigorous imprisonment awarded to the appellants is
modified and reduced to the period already undergone by them. The
fine amount imposed by the trial Court shall remain unaltered. In default
of payment of fine, the appellants shall undergo the default sentence as
directed by the trial Court. The appellants are reported to be on bail.
They need not surrender, in view of modification of sentence to the
period already undergone, subject to payment of fine, if not already
deposited.
Sd/-
(Arvind Kumar Verma)
Judge
SUGUNA DUBEY
DUBEY Date:
2026.03.25
11:33:58 +0530
