In NDPS cases, the prosecution must prove an unbroken, unimpeachable chain of custody of the seized contraband from recovery to the forensic lab; failure to produce the Malkhana register or examine the custodian creates a fatal gap in evidence, necessitating an acquittal.

{Cause title, as taken from Case Information System}

CAV Judgment

1. The present appeal has been preferred by the appellants under Section 374 (2) of the Criminal Procedure Code, 1973 against the impugned judgment of conviction and order of sentence dated 06.07.2023 passed by learned Special Judge, NDPS Act, Kondagaon, District Kondagaon in Special Criminal Case (NDPS Act) No. 04/2018 whereby appellants have been convicted under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth, 'NDPS Act') and sentenced each of them to undergo rigorous imprisonment for 10 years with fine of Rs.1,00,000/-, in default of payment of fine, to undergo additional rigorous imprisonment for one year.

2. Case of the prosecution in brief, is that on 03.12.2017, at about 9.10 AM, Inspector Sharad Dubey (PW-7) of Police Station Keshkal received secret information from informant that a White Tavera vehicle bearing registration No. MP 04 BC-0156 is transporting contraband substance Ganja from Jagdalpur to Raipur unauthorizedly, for sale. The said secret information was recorded in rojnamcha sanha. Two independent witnesses were called. Necessary Rojnamcha Sanhas and Mukbir suchna panchnama were prepared. Above information was sent to Sub Divisional Officer (P), Keshkal. Subsequently, police party proceeded towards the place of occurrence and cordoned off at Vishrampuri Triangle, Main Road N.H. 30 Keshkal, District Kondagaon. After reaching there, aforesaid Tavera vehicle was stopped and the persons, who were occupants of the Tavera, have informed their names as Hemant Gaur (appellant No. 1 herein), who was driving the aforesaid vehicle and Vishal shivhare (appellant No.2), who was sitting in the middle seat. Notice under Section 50 of NDPS Act was served to the respondents/accused. Necessary Panchnamas were prepared. After preparing necessary Panchnamas, they searched the aforesaid vehicle and found 14 packets wrapped in Brown sellotape kept under the rear seat of the said vehicle, which was recovered vide Ex.P-6. The said contraband substance was identified as Ganja by smelling, to which identification Panchnama (Ex.P-7) was prepared. After weighing the 14 packets of recovered contraband substance Ganja, the total weight was found to be 75.650 kg. Thereafter, search of accused/appellant was started, in which, a Jivani company mobile, Aadhar card, two ATM cards were found, thereafter, a suspicions search panchnama was prepared and notice under Section 67 of NDPS Act was given to the appellant, but he failed to produce any valid document for its transportation. Necessary Panchnamas were prepared and at the place of occurrence, unnumbered Dahati Nalishi (Ex.P-34) was registered under Section 20 (b) of the NDPS Act. Based on which, FIR was registered against the appellants. Seized / recovered contraband substance and articles were deposited in Malkhana of the concerned police station and receipt thereof was obtained. Statement of the witnesses were recorded. Spot map were prepared by the Police and the Patwari. The recovered contraband was homogenized, inventory and sampling were prepared by Executive Magistrate, which was also photographed. One sample marked as “S-1” of seized contraband was sent to FSL, Raipur, to which vide its report Ex. 43-A, the FSL reported that sample S-1 is Ganja.

3. After comp