ISRAIEL @ GOTU vs STATE OF CHHATTISGARH

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CGHC010005352008 2026:CGHC:46990
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No.889 of 2008
Reserved on 06.10.2026
Pronounced on 05.11.2026
Israiel @ Gotu, S/o Late Shri Rajjak Mohammad, aged about 35
years, R/o Musalmanpara, Khamhariya, PS Khamhariya, Tahsil-
Saja, District Durg (CG) ... Appellant
versus
State Of Chhattisgarh through District Magisgrate, Durg, District
Durg (CG) ... Respondent
For Appellant : Shri Praveen Kumar Sharma, Advocate
through Legal Aid.
For Respondent/State : Shri Saumya Rai and Smt Anusha
Naik, Dy. G.A.
Hon'ble Shri Sudhir Kumar , Judge
CAV Judgment
1. This Appeal is directed against the judgment of conviction
SISTLA
and order of sentence dated 30.09.2008 passed by the
NEELIMA
VISHNU
PRIYA
Digitally signed
by SISTLA
NEELIMA
VISHNU PRIYA

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Special Judge (N.D.P.S. Act), Durg (C.G.) in N.D.P.S.
Special Case No.06/2008, whereby the Appellant has been
convicted under Section 20(b)(ii)(C) of the NDPS Act and
sentenced to undergo R.I. for 10 years and to pay a fine of
Rs.1,00,000/-. In default of payment of fine, the Appellant
was further sentenced to undergo two years of additional
RI.
2. The brief facts of the case are that on 10.02.2008, the
Crime Branch Officer i.e. Inspector Dhruv Kumar
Markandey, while proceeding along with the police staff for
detection of offences within the jurisdiction of Police
Station Khamhariya, received secret information through
an informer that the present Appellant had kept illegal
ganja in four gunny bags on the roof of his under-
construction house situated at Muslimpara, Khamhariya,
for the purpose of sale. The said information was reduced
into writing and forwarded to the SDOP, Bemetara.
Thereafter, the police party along with the witnesses
reached the house of the Appellant and after informing him
of the information received and his right to have the search
conducted before a Magistrate or a Gazetted Officer, his
consent for search was obtained. Upon search, four gunny
bags containing ganja wrapped in plastic sheets were

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allegedly recovered from the roof of the house. The
recovered ganja was weighed and its total weight was
found to be 40 kilograms, i.e., 10 kilograms in each bag.
From each bag, a sample of 100-100 grams was drawn
and the remaining ganja was marked as A, B, C and D,
while the sample packets were marked as A-1, B-1, C-1
and D-1. The samples and the remaining ganja were
separately sealed and seized vide seizure memo
(Ex.P-10). Notice under Section 50 of the NDPS Act
(Ex.P-12) was served upon the Appellant, who endorsed
thereon that he had no licence. The spot map (Ex.P-14)
was prepared in the presence of the witnesses and the
Appellant was arrested vide arrest memo (Ex.P-16). Dehati
Nalishi (Ex.P-23) was prepared and as the place of
occurrence fell within the jurisdiction of Police Station
Khamhariya, the seized articles, Appellant and documents
were sent to the said Police Station. On the basis of the
Dehati Nalishi, the First Information Report (Ex.P-22) was
registered by the Station House Officer, Police Station
Khamhariya. The seized articles and sample packets were
deposited in sealed condition in the malkhana. A copy of
the malkhana register (Ex.P-21C) was obtained. The
statements of the witnesses were recorded. The sample

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packets were thereafter sent to FSL, Raipur on 26.02.2008
for chemical examination through Constable Trannidhi.
The FSL report (Ex.P-24) confirmed that the samples sent
for examination were ganja.
3. After completion of investigation, charge-sheet was filed
against the present Appellant. During trial, the Appellant
abjured the guilt and claimed to be tried. In order to prove
its case, the prosecution examined as many as 10
witnesses and exhibited 26 documents. Statement of the
Appellant was also recorded under Section 313 of the
Cr.P.C., in which he denied the allegations levelled against
him and pleaded innocence and false implication.
4. After evaluating the evidence available on record, the
learned trial Court, vide its impugned judgment, convicted
the Appellant under Section 20(b)(ii)(C) of the NDPS Act
and sentenced him as mentioned above.
5. Learned Counsel for the Appellant submits that the
prosecution case is not corroborated by any independent
witness. It is contended that the mandatory provisions of
Section 52A of the NDPS Act have not been complied with.
He further submits that the samples were not properly
drawn and were not kept in safe custody. It is further
contended that the alleged ganja was seized from an

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under-construction building, but the prosecution has failed
to establish that the said House (under-construction
building) was exclusively in the possession and control of
the Appellant. On the basis of the aforesaid submissions,
a prayer has been made for acquittal of the Appellant.
6. Contrarily, learned State Counsel submit that the
Investigating Officer has duly followed the prescribed
procedure and the trial Court has rightly convicted and
sentenced the Appellant and therefore, the Appeal is liable
to be dismissed.
7. I have heard the rival submissions and perused the record
as also the impugned judgment with utmost
circumspection.
8. It is true that the prosecution case, in the present matter, is
not supported by any independent witnesses. However,
the legal position is well settled that in a prosecution under
the NDPS Act, the mere absence of corroboration by
independent witnesses does not, by itself, render the
prosecution case doubtful. In such circumstances, the
testimony of police witnesses assumes significance and
where the procedure prescribed under the law has been
duly followed and their testimony is found to be reliable

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and trustworthy, a conviction can be sustained on the basis
of their testimony alone.
9. In the present case, it is evident that the provisions of
Section 52A of the NDPS Act have not been complied with.
In this regard, learned Counsel for the Appellant has
placed reliance upon the judgment of the Hon'ble Supreme
Court in the matter of Yusuf @ Asif v. State reported in
(2024) 14 SCC 217. He further relied upon the matter of
Abdul Rajik v. State of Madhya Pradesh reported in 2026
INSC 100.
10. However, in the matter of Bharat Aambale v. State of
Chhattisgarh reported in (2025) 8 SCC 452, the Hon’ble
Supreme Court has held that mere non-compliance of the
provisions of Section 52A of the NDPS Act cannot, by itself,
constitute a ground for acquittal of the accused and while
setting aside the order of conviction, the Court is required to
look for something more than just a mere compliance of the
procedure under Section 52A that renders the case of the
prosecution doubtful. The following has been observed at
paras 25, 26 and 27:-
“ 25. From the above exposition of law, it is clear that
the underlying object behind Section 52-A of the
NDPS Act and the Standing Order(s)/Rules
thereunder is only to provide for a mechanism and
procedure for the safe and early disposal of
narcotics substances and seized contraband to
prevent such substances from endangering lives
due to prolonged storage, ceasing to be of any

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evidentiary value due to degradation or spoilage, or
from falling into wrong hands or being recirculated
into the market due to theft, etc.
26. Although it is true that Chapter V of the NDPS Act
more particularly, Section(s) 42 to 57 form a unique
scheme of provisions that prescribe several
procedural safeguards and conditions that have to
be mandatorily adhered to, right from the process of
conducting search till the seizure and recovery of
the contraband, its safe-keep and handling, yet it
does not mean that a mere delay or non-compliance
of the same, would result in the trial being vitiated,
or the entire case of the prosecution crumbling.
27. What is discernible from the various decisions
referred to by us, is that mere non-compliance of the
procedure under Section 52-A or the Standing
Order(s)/Rules thereunder will not by itself render
the trial vitiated or into an automatic acquittal. In all
instances where this Court set aside the order of
conviction, it did so not solely for the reason that
there was a violation of Section 52-A but because of
and on the strength of the other discrepancies or
shortcomings in the prosecution's case that
rendered it doubtful. In Jarooparam [Union of India v.
Jarooparam, (2018) 4 SCC 334 : (2018) 2 SCC (Cri)
465] the order of acquittal had been upheld as the
independent witnesses had also turned hostile and
not supported the case of the prosecution. Similarly,
in Mangilal [Mangilal v. State of M.P., (2023) 19 SCC
364] aside from the non-compliance of Section 52-A,
the order of conviction was held unsustainable as
some of the witnesses to the seizure either turned
hostile or were not examined at all and due to
discrepancies in the very case of the prosecution. In
Mohd. Khalid [Mohd. Khalid v. State of Telangana,
(2024) 5 SCC 393 : (2024) 2 SCC (Cri) 650] also, the
conviction was set aside as the FSL report was
found to be very doubtful and in complete
contradiction of the seizure that had taken place.
Thus, this Court whilst setting aside the order of
conviction has consistently looked for something
more than just a mere non-compliance of the
procedure under Section 52-A that renders the case
of the prosecution doubtful.”
11. Now, the question arises for consideration before this
Court is that whether in the present case, sampling has
been done properly and that the samples were properly
sent for chemical examination or not.

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12. In this regard, Dhruv Kumar Markande (PW-9), the
investigating officer has stated that the samples were
drawn from the seized contraband and they were
separately sealed. Ishwar Lal (PW-7) has stated that on
10.02.2008, in respect of Crime No.13/08 registered at PS
Khamariya, the samples drawn from seized contraband
were handed over to him by the concerned in-charge
Police Station for being deposited in the malkhana. This
witness has further stated that the said packets of sample
were sent for chemical examination to the FSL, Raipur on
26.02.2008 through the constable Trannidhi. However, the
prosecution has not recorded any statement of Constable
Trannidhi in respect of the samples sent to the FSL, Raipur
for examination. According to the FSL report (Ex.P-24),
constable Trannidhi has produced the said samples for
chemical examination to the State Forensic Science
Laboratory on 15.02.2008. Thus, there is contradiction as
to on which date, the said samples were taken out from
malkhana and when they were sent for chemical
examination to FSL, Raipur. Neither any explanation in
this regard has been offered by the investigating officer nor
any statement of the Constable who took the sample to the
FSL, was recorded. There is a material contradiction in the

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evidence regarding the date on which the sample was
taken out of the malkhana and the date on which it was
deposited with the FSL . It was contended that the accused
was in possession of the contraband ganja, which has not
been proved by the prosecution. As per the case of the
prosecution, contraband ganja was seized from the roof of
under-construction house of the accused. However, no
documentary evidence has been led by the prosecution to
show that the house under construction belonged to the
accused. Dhruv Kumar Markande (PW-9), the
investigating officer has stated that during search of the
under-construction house of the accused, he recovered
plastic bag from the roof of the said house. This witness
further stated that there was one shop in the ground floor
of the house of the accused and on the upper portion,
some construction work was going on. He has further
stated that he is not aware of the fact that in the house of
the accused, whether his father, brother and uncle were
residing together or not. In cross-examination, he has
admitted that on the roof of the house, some construction
material and garbage were lying. CL Paraste (PW-6),
Revenue Inspector has admitted in cross-examination that
in the house shown in the map, Rajjak Mohammad was

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residing with his family i.e. wife and children, but Rajjak
Mohammad is the father of the accused. In view of the
above evidence, it has not been proved whether the said
house was exclusively in possession and control of the
accused.
13. There is material contradiction on the issue of sending
the samples from malkhana to the concerned FSL for
examination. As per the FSL report (Ex.P-24), on
15.02.2008, the samples were received whereas, Ishwarlal
(PW-7) has stated that on 26.02.2008, he has handed over
the samples to Constable Trannidhi. However, the said
constable (Trannidhi) has not been examined by the
prosecution. It has also not been proved by the
prosecution as to whether the material lying on the roof of
under-construction house was exclusively in possession of
the accused.
14. In the case at hand, no independent witness has
supported the case of the prosecution and compliance of
provisions of Section 52A of the NDPS Act has also not
been made. True it is that, these grounds cannot be made
basis for acquittal, however, considering the fact that the
issue of taking the samples from malkhana and sending
the same to the FSL is under cloud and for the fact that the

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subject house from which the alleged contraband has been
seized is not proved to be in exclusive possession of the
accused/Appellant, this Court is of the considered opinion
that the prosecution has failed to establish the guilt of the
Appellant beyond reasonable doubt and therefore, the
findings recorded by the trial Court convicting the Appellant
under Section 20(b)(ii)(C) of the NDPS Act deserves to be
set aside.
15. Accordingly, the Appeal is allowed . Conviction and
sentence imposed upon the Appellant under Section 20(b)
(ii)(C) of the NDPS Act are set aside and he is acquitted of
the said charge by extending to him the benefit of doubt.
The Appellant is reported to be in jail. He be released
forthwith unless required to be detained in any other case.
16. A copy of this judgment, along with the trial Court record,
be sent to the concerned trial Court as well as the
Superintendent of the concerned Jail for information and
necessary compliance.
17. Pending applications, if any, shall stand disposed of.
Sd/-
(Sudhir Kumar)
Judge
Priya