1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 424 of 2020 1 - Darasingh Chandra @ Ashok Chandra @ Bhancha S/o Kapilnath Chandra Aged About 33 Years R/o Village Galgaladih, Police Station Jaijaipur, District Janjgir Champa Chhattisgarh. At Present R/o Beside Shubhash Block, Kali Mandir, Manikpur Police Chowki, Police Station Kotwali Korba, District Korba Chhattisgarh. --- Appellant versus 1 - State of Chhattisgarh Through Police Station Saragaon, District Janjgir Champa Chhattisgarh. --- Respondent(s) CRA No. 317 of 2021 1 - Krishnadas Mahant S/o Shri Buchkudas Mahant Aged About 34 Years R/o Purana Power House, Kanshinagar Korba, Chowki Rampur, Police Station Kotwali, Korba, District Korba Chhattisgarh. ---Appellant Versus 1 - State of Chhattisgarh Through Police Station Saragaon, District Jangir Champa Chhattisgarh. --- Respondent(s) For Appellant : Shri Pushpendra Kumar Patel and Shri Pawan Shrivastava, Advocates. For State : Shri Swajeet Ubeja, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board 18.03.2025 Per, Ramesh Sinha, CJ. 1. These two criminal appeals arise out of same crime number, same Sessions Trial and by common judgment, therefore, they are being heard and decided together by this common judgment. Digitally signed by INDRAJEET SAHU Date: 2025.03.27 18:16:08 +0530 2 2. Both the appeals have been filed by the appellants against the impugned judgment of conviction and order of sentence dated 28.02.2020 passed by the Special Judge (NDPS Act) Janjgir Champa, in NDPS Case No.02/2019, whereby the appellants have been convicted and sentenced in the following manner: Conviction Sentence Under Section 20(b)(ii)(C) of the Narcotics Drugs and Psychotropic Substances Act, 1985. R.I. for 12 years and fine of Rs.1,00,000/-, in default of payment of fine amount, additional RI for one year. Under Section 473 of IPC R.I. for 5 years and fine of Rs.3000/-, in default of payment of fine, additional RI for three months. 3. In the case, the charge sheet was filed against the present appellants. Mohd. Saddam Ansari was initially cited as prosecution witness, however, during trial, the trial court considered him accused and vide order dated 10.01.2020 the case was fixed for framing of charge while exercising the powers under Section 319 CrPC and since summons and bailable warrant could not be served upon him, the trial against Mohd. Saddam Ansari was separated and permanent warrant of arrest was issued against him and trial of present appellants were proceeded. 4. Brief facts of the case are that, on 17.02.2019, Assistant Sub Inspector Chandan Singh, PW-12, received a secret information that one Innova Car being registration No.CG-08-K-0910 having symbol of a particular political party in the front number plate in which Mandal Mahamatri is shown and in the rear number plate the Car number reflected as OR- 02-AV-1832 is coming towards Mudpar side. The said Car was being driven by Krishnadas and his friend Dara Singh Chandra @ Ashok Chandra accompanied him. When the ASI Chandan Singh reached at 3 Mudpar Chowk, he stopped a Car coming from Afrid side. As and when they stopped the Car, the person sitting in car namely Dara Singh Chandra @ Bhancha fled away from the place. The driver Krishnadas was being informed about the secret information and his Car was being searched under the provisions of NDPS Act. On being searched, total 200 bundles which were wrapped in a cello tape having weight of 1 KG each were found in which Ganja was there. After its homogenization and weighment, it was found total 2 quintal Ganja. It was physically verified by rubbing, smell and and tasting and physical identification Panchnama Ex.P/11 was prepared. The homogenization Panchnama Ex.P/12, physical verification Panchnama of weighment apparatus Panchnama Ex.P/13 and weighment Panchnama Ex.P/14 were prepared. Out of seized packets of Ganja, 2 packets were separated as sample packets and sample packet weighment Panchnama Ex.P/15 was prepared. The Ganja and its sample packets were seized and seizure memo was also prepared. Dehati Nalisi Ex.P/36 was recorded on the spot. The seized vehicle, Ganja, its sample packets and accused persons were taken to police station where FIR Ex.P/37 was registered against the appellants for the offence under Sections 420, 34 IPC and Section 20(b) of NDPS Act. The seized Ganja and its sample packets were kept in safe custody of Malkhana at Police Station. The inventory was prepared by the Executive Magistrate. Sample packets of seized Ganja were sent to FSL Bilaspur for its chemical examination along with memo of Superintendent of Police. 4 5. The statement of witnesses were recorded and after completion of usual investigation charge sheet was filed against the appellants for the offence under Sections 420, 34, 471 and 468 IPC and Section 20(b) of the NDPS Act before the trial court. The trial court framed charge against the appellants for the offence under Section 20(b)(ii)(C) of the NDPS Act and Section 473 of IPC. The appellants denied the charge and claimed trial. 6. In order to prove offence against the appellants, the prosecution has examined as many as 12 witnesses. Statement of appellants under Section 313 CrPC has also been recorded in which they denied the circumstances appears against them, plead innocence and submitted that they have been falsely implicated in the offence. 7. After appreciation of oral as well as documentary evidence led by the prosecution, the Trial Court has convicted the appellants and sentenced them as mentioned earlier paragraph of this judgment. Hence these appeals. 8. Shri Pushpendra Kumar Patel, learned counsel for appellant-Dara Singh in CRA No.424 of 2020 would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. No seizure have been made from the present appellant and he has been implicated only on the basis of memorandum statement of co- accused Krishnadas Mahant. He was not present on the spot and there was no identification of the present appellant that he was also with the co-accused Krishnadas Mahant on the spot and having possession of alleged Ganja. It was not possible for him to flee from 5 the place in presence of police persons as alleged in the case. He is no where connected with the offence in question. He is neither owner nor occupant of the Car. Only on the statement of Krishnadas Mahant he has been prosecuted. Therefore there is no evidence against the present appellant Dara Singh and no seizure have been made from him. Thus, it is a case of no evidence against him and he is entitled for acquittal. 9. Shri Pawan Shrivastava, learned counsel for appellant Krishnadas Mahant in CRA No.317 of 2021 would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the alleged offence. There are non-compliance of the mandatory provisions of Section 42, 50, 52, 52A, 55 and 57 of the NDPS Act. There is absolutely non-compliance of the standing Order No.1/89 issued by the Central Govt. with respect to the procedure for drawing samples and in absence of any proper procedure drawn by the investigating officer, the entire proceeding vitiates. He would further submit that there is discrepancies in the entries made in the Malkhana Register and the samples sent for its chemical examination as there is no entry in Malkhana Register taking out the samples from there to send it to FSL. He would further submit that from the entries made in the Malkhana Register there is no mention of taking out the samples from Malkhana. The independent witnesses have not supported the prosecution’s case and the prosecution has failed to prove that the appellant Krishnadas was found in exclusive and conscious 6 possession of the seized Ganja and therefore, there is no sufficient evidence on record to connect the appellant Krishnadas with the offence in question and thus, he is entitled for acquittal. 10. On the other hand, the counsel for the State opposes the prayer made by the counsel for the respective appellants and would submit that all the mandatory provisions of NDPS Act have duly been complied with and proved by the witnesses, but for minor omissions or contradictions, their evidence are fully reliable. Minor discrepancies which are trivial in nature does not affect the credibility of witnesses. There was no reason for the prosecution to falsely implicate the appellants in such a huge quantity of Ganja. The appellant Krishnadas was the driver of vehicle in which Ganja was found which was kept in 200 packets of 1 KG each. It cannot be said that he was not having knowledge of the said Ganja carrying in his vehicle. Therefore, there was conscious and exclusive possession of Ganja with him. Although, the appellant Dara Singh @ Ashok Chandra was arrested later on, but he was the occupant of the said Car when it was stopped by the police and as soon as the vehicle was stopped, after seeing the police persons, he fled away from the place and his name was disclosed by the co-accused Krishnadas Mahant that it is he who was the occupant of the vehicle at the time of carrying Ganja. The appellant Dara Singh cannot take advantage that he was not occupant of vehicle and no Ganja was seized from him. Considering the nature of offence and the manner in which he fled away from the spot, it cannot be said that there is no evidence against appellant Dara Singh. Therefore, their conviction are absolutely justified which needs no interference. 7 11. We have heard the counsel for the parties and perused the materials available on record. 12. PW-12, Chandan Singh, Assistant Sub Inspector, posted at Police Station Saragaon at the relevant point of time, have stated that on 17.02.2019 he received a secret information that via Mudpar road a Silver Colour Innova Car having Mandal Mahamantri in front number plate and symbol of a particular political party and number of vehicle being CG-08-K-0910 and in the rear number plate the registration No.OR-02-AV-1832 was illegally transporting Ganja and the vehicle was being driven by its driver Krishnadas Mahant. He sent a notice Ex.P/1 to independent witnesses Praveen Kumar and Jaikant and asked them to remain present in the proceeding. The secret information Panchnama Ex.P/2 was prepared in presence of witnesses. Considering necessity of search without warrant, he prepared a Panchnama and sent information as well as necessity of search without warrant Panchnama to the SDO(P) Sakti which is Ex.P/3. When they reached at Mudpar chowk and intercepted the said vehicle, they found the vehicle being driven by Krishnadas. He informed his right to search from any Magistrate, Gazetted officer or from the police officer which is Ex.P/4. The appellant Krishnadas gave his consent Ex.P/5 that he is ready to be searched by the police officer. He himself gave his own search to the appellant in which except mobile phone and necessary papers, nothing objectionable articles were found and his self Talashi Panchanama was prepared vide Ex.P/6. The police party was also being searched by the appellant and no any incriminating articles were seized from them and Panchnama 8 Ex.P/7 was prepared. The independent witnesses were also searched by the appellant and Panch witness Talashi Panchnama Ex.P/8 was prepared. On search of vehicle of the appellant Krishnadas, his purse, mobile phone and 200 bundles of contraband Ganja were seized and Talshi Panchnama Ex.P/9 was prepared. The recovery Panchnama of Ganja packets Ex.P/10 was also prepared on the spot. All these Ganja packets were homogenized on the spot and homogenization Panchnama Ex.P/12 was prepared. He identified the said contraband by rubbing, smell and taste and found that it was Ganja and identification Panchnama Ex.P/11 was prepared. He called weighment witness Bharat Ram Kenwat along with electronic weighing machine and he physically verified the said weighing machine and Panchnama Ex.P/13 was prepared. On being weigh, total two quintals (200 KGs) of Ganja were found and weighment Panchnama Ex.P/14 was prepared. He got separated two sample packets of 1 KG each and sample packets weighment Panchnama Ex.P./15 was prepared. A notice under Section 91 CrPC Ex.P/16 was given to the appellant, but he failed to produce any valid document with respect to possession of said Ganja. The said Innova Car, 198 KGs of Ganja filled in 10 gunny bags, two sample packets of Ganja having 1 KG each were seized vide seizure memo Ex.P/17 in which he affixed the specimen seal. Spot map Ex.P/19 was prepared on the spot and Dehati Nalish Ex.P/36 was recorded. The appellant was arrested on spot vide arrest memo Ex.P/18. He came back to police station along with vehicle, seized Ganja and sample packets and kept the seized articles in safe custody 9 of Malkhana and handed over case diary to Station House Officer C. Tigga for further investigation. He obtained acknowledgment Ex.P/39 from Malkhana. On 22.02.2019, in presence of Executive Magistrate, he physically verified the packets of Ganja and Panchnama Ex.P/24 was prepared. In his presence, the Executive Magistrate has drawn the sample from seized Ganja and Panchnama Ex.P/27 was prepared. Photographs of physical verification Panchnama was taken which is Ex.P/29 and the details of inventory was sent to the higher officer through memo Ex.P/54. The arrest of appellant was also informed vide memo Ex.P/55. The SDO(P) Champa was also informed about the entire proceeding through memo Ex.P/56 and Superintendent of Police through wireless message Ex.P/57. In his cross examination, he remain firm in saying that on the date of incident when he received secret information, he went to the spot, stopped the vehicle of appellant and on being search, he seized Ganja from the vehicle in which the appellant Krishnadas Mahant was the driver. Though certain minor discrepancies have been stated by this witness in search and seizure proceeding, but those are trivial in nature and does not affect the credibility or authenticity of search and seizure proceeding drawn by this witness. 13. From the evidence of this witness, it reflects that he has done the search and seizure proceeding in accordance with the provisions of NDPS Act and nothing could be extracted from this witness in his cross examination so that his evidence can be disbelieved for the appellant Krishnadas Mahant. So far as the appellant Dara Singh @ 10 Ashok Chandra @ Bhancha is concerned, this witness has not stated that he was also present in the vehicle or after seeing the police party he fled away from the spot. He has not stated about presence of accused Dara Singh Chandra on the spot. He admitted in his cross examination that before search and seizure proceeding he was unaware of names of accused persons. 14. PW-7, C. Tigga, who carried out further investigation after receiving case diary from PW-12 Chandan Singh, have stated in his evidence that on 17.02.2019 when he received case diary from Chandan Singh, he registered the FIR Ex.P/37 and based on Ex.P/37 he registered the FIR under the NCRB which is Ex.P/38. On 18.02.2019 he issued memo Ex.P/23 to the Executive Magistrate for physical verification of the seized material and requested the District Transport Officer, Rajnandgaon, for details of the vehicle No.CG-08-K-0910 vide memo Ex.P/40. He arrested the appellant Dara Singh Chandra on 16.03.2019 and prepared his arrest memo Ex.P/41. He recorded statement of witnesses Praveen Kumar, Jaikant @ Vasu Pandey, Satish Pandey and Mohd. Saddam. In cross examination, he admits the facts that there was no acknowledgment with respect to keeping the vehicle in Malkhana in safe custody; in FIR there was no mention of physical description of the body of co-accused Dara Singh; the statement of appellant Krishnadas was not annexed with the charge sheet and further in the document Ex.P/39 it was not mentioned that Ganja was seized in how much bags. From the cross examination of this witness nothing specific came in favour of accused persons. However, there is no 11 specific allegation against the appellant Dara Singh Chandra @ Ashok Chandra except the fact that he was arrested on 16.03.2019. 15. PW-1, Praveen Singh and PW-2, Jaykant Pandey, were independent witnesses. They have not supported the prosecution’s case and declared hostile. However, they have admitted their signatures over various Panchnamas Ex.P/1 to Ex.P/20 which were prepared at the time of search and seizure. They admitted in their evidence that they voluntarily signed the documents. 16. PW-3, Kishan Mishra, Executive Magistrate, have stated in his evidence that on 22.02.2019 when he was posted as Executive Magistrate at Champa, he physically verified the seized Ganja on the memo sent by the SDM Champa vide Ex.P/23 and thereafter Panchnama Ex.P/24 was prepared. He also issued a certificate Ex.P/25 & P/26. He also separated 1 KG of Ganja and prepared a packet and relevant Panchnama Ex.P/27 was prepared. Certificate Ex.P/28 is with respect to resealing of the seized Ganja. Photography of proceeding is Ex.P/29. In cross examination he stated that after his reaching to police station, the seized Ganja was taken out from Malkhana. There is nothing in his cross examination that he has not physically verified the said Ganja which was seized from the appellant Krishnadas Mahant and kept in a safe custody of Malkhana. 17. PW-4, Neelkanth Patel, is the Patwari who prepared spot map Ex.P/20. 18. PW-5, Narsing Barman, is the Constable who has taken information intimation and further proceeding to the office of SDO(P) Champa and 12 its acknowledgment is Ex.P/30. His duty certificate is Ex.P/31. He also has taken the sample packets marked with “A”&”B” along with police memo Ex.P/32, copy of the FIR, seizure memo and specimen seal memo to the regional FSL and obtained its acknowledgment Ex.P/33. The report of FSL which was sent to police station Saragaon is Ex.P/35. In cross examination, he denied the suggestion that documents were prepared afterthought and he has not deposited the packets of seized Ganja to the FSL. 19. PW-6, Bharat, is the weighment witness. He stated in his evidence that on the request of police persons he went on the spot along with his electronic weighing machine and weigh the seized Ganja which were found two qunitals. From the total quantity of Ganja, two packets of small quantity were separated and documents have been prepared. Though, in cross examination he admitted that in his presence no proceeding of any weighment was done, but in view of his chief examination it cannot be said that he has not weigh the seized Ganja. 20. PW-8, Gajendra Kumar Soni, is the Head Constable and Malkhana Mohrir at Police Station Saragaon. He has stated that on 17.02.2019 Chandan Singh, ASI, have deposited two sealed packets to keep it in safe custody of Malkhana which was endorsed in Malkhana register Ex.P/42 on the same day. In the said Sanha there is an endorsement regarding secret information which is Ex.P/43 and its true copy is Ex.P/43-C. The Sanha No.444, Ex.P./44 is with respect to summons issued to the witnesses. Proceeding towards the place of incident by vehicle is also endorsed in the Rojnamcha Ex.P/45. The departure of Constable No.510 to the office of SDO(P) is Ex.P/47 and his return 13 endorsement is Ex.P/48. Another memo given to SDO(P) Champa is Ex.P/49. Return of police party to the police station was also endorsed in the said Rojnamcha vide Ex.P/41. The defence could not rebut the said Rojnamcha entries in cross examination of this witness. He stated in his cross examination that total 200 packets of Ganja were kept in 10 Gunny Bags and he counted the said packets. 21. PW-9, Satish Pandey, is the owner of said Innova Car bearing CG-08- A-0910. He stated that after two years of its purchase, he sold it to one Saddam Ansari, resident of Chirmiri and an agreement was executed between them in this regard. He also signed the requisite form which were required for transfer of ownership in the RTO. Agreement between him and Saddam Ansari is Ex.P/52. 22. PW-10, Radheshyam Rathore, is another Head Constable posted at SDO office Champa. He proved the acknowledgment Ex.P/30 & P/53 issued by him with respect to receiving intimation of secret information and the inventory proceeding. 23. PW-11, Ramkaran Ratre, Clerk posted at RTO, Rajnandgaon, has proved the ownership that Innova Car No.CG-08-A-0910 is registered in the name of Satish Kumar Pandey and he issued the information Ex.P/40. 24. From all these evidences, it is clear that on secret information being received by the police on 17.02.2019, the Innova vehicle No.CG-08-A- 0910 which was being driven by appellant Krishnadas Mahant was intercepted in Mudpar Chowk. In the rear number plate of said Innova Car its Number was shown as OR-02-AV-1832. On being search of the vehicle, 200 KGs of Ganja was found which were kept in 200 small 14 packets having 1 KG each wrapped with cello tape. After giving right to search to the appellant Krishnadas Mahant, Ganja was seized from his vehicle. The sample packets were drawn which were sent for its chemical examination to regional FSL from where report was received in which Ganja contents were found. Therefore, seizure of 200 KGs of Ganja from Innova Car which was driven by the appellant Krishnadas Mahant is found proved in the case. 25. In the matter of Bharat Aambale vs. The State of Chhattisgarh in CRA No. 250 of 2025, order dated 06.01.2025, the Hon'ble Supreme Court has held that irrespective of any failure to follow the procedure laid under Section 52-A of the NDPS Act if the other material on record adduced by the prosecution inspires confidence and satisfies the Court regarding both recovery and possession of the contraband and from the accused, then even in such cases the Courts can without hesitation proceed for conviction notwithstanding any procedural difficulty in terms of Section 52-A of the NDPS Act. 26. In the matter of Bharat Aambale (supra) the Hon'ble Supreme Court in Para 25 to 37 has held as under: 25. In Noor Aga (supra) the order of conviction had been set- aside not just on the ground of violation of Section 52A but due to several other discrepancies in the physical evidence as to the colour and weight, and due to the lack of any independent witnesses. In fact, this Court despite being conscious of the procedural deficiencies in the said case in terms of Section 52A observed that the matter may have been entirely different if there were no other discrepancies or if the other material on record were found to be convincing or supported by independent witnesses. The relevant observations read as under: - “107. The seal was not even deposited in the malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the recovery was ensured. Even the malkhana register was not produced. 15 xxx xxx xxx 108. There exist discrepancies also in regard to the time of recovery. The recovery memo, Exhibit PB, shows that the time of seizure was 11.20 p.m. PW 1 Kulwant Singh and PW 2 K.K. Gupta, however, stated that the time of seizure was 8.30 p.m. The appellant's defence was that some carton left by some passenger was passed upon him, being a crew member in this regard assumes importance (see Jitendra para 6). The panchnama was said to have been drawn at 10 p.m. as per PW 1 whereas PW 2 stated that panchnama was drawn at 8.30 p.m. Exhibit PA, containing the purported option to conduct personal search under Section 50 of the Act, only mentioned the time when the flight landed at the airport. xxx xxx xxx 111. In a case of this nature, where there are a large number of discrepancies, the appellant has been gravely prejudiced by their non-examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses had not been examined. The matter might have been different if the evidence of the investigating officer who recovered the material objects was found to be convincing. The statement of the investigating officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure of which we may now take note.” (Emphasis supplied) 26. Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done. What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non- compliance of the procedure envisaged under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution’s case. In such instances of procedural error or deficiency, the courts 16 ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place. 27. In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. 28. In Khet Singh v. Union of India reported in (2002) 4 SCC 380 this Court held that the Standing Order(s) issued by the NCB and the procedure envisaged therein is only intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It further observed that there may, however, be circumstances in which it would not be possible to follow these guidelines to the letter, particularly in cases of chance recovery or lack of proper facility being available at the spot. In such circumstances of procedural illegality, the evidence collected thereby will not become inadmissible and rather the courts would only be required to consider all the circumstances and find out whether any serious prejudice had been caused to the accused or not. Further it directed, that in such cases of procedural lapses or delays, the officer would be duty bound to indicate and explain the reason behind such delay or deficiency whilst preparing the memo. The relevant observations read as under: - “5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital 17 importance. xxx xxx xxx 10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in- charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. xxx xxx xxx 16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” (Emphasis supplied) 29. A similar view as above was reiterated in the decision of State of Punjab v. Makhan Chand reported in (2004) 3 SCC 453 wherein this Court after examining the purport of Section 52A of the NDPS Act and the Standing Order(s) issued 18 thereunder, held that the procedure prescribed under the said order is merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation and they were not inexorable rules. The relevant observations read as under: - “10. This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with “disposal of seized narcotic drugs and psychotropic substances”. Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 27 Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention.” (Emphasis supplied) 30. Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in- charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward 19 the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non- compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 28 narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of brining clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may 20 not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution’s case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc. 31. At the same time, one must be mindful of the fact that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. It in no manner prescribes how the seizure or recovery of narcotic substances is to be proved or what can be led as evidence to prove the same. Rather, it is the general principles of evidence, as enshrined in the Evidence Act that governs how seizure or recovery may be proved. 32. Thus, the prosecution sans the compliance of the procedure under Section 52A of the NDPS Act will not render itself helpless but can still prove the seizure or recovery of contraband by leading cogent evidence in this regard such as by examining the seizing officer, producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra). 33. Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 29 emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking. 34. At this stage we may clarify the scope and purport of Section 52A sub-section (4) with a view to obviate any 21 confusion. Sub-section (4) of Section 52A provides that every court trying an offence under the NDPS Act, shall treat the inventory, photographs and samples of the seized substance that have been certified by the magistrate as primary evidence. 35. What this provision entails is that, where the seized substance after being forwarded to the officer empowered is inventoried, photographed and thereafter samples are drawn therefrom as per the procedure prescribed under the said provision and the Rules / Standing Order(s), and the same is also duly certified by a magistrate, then such certified inventory, photographs and samples has to mandatorily be treated as primary evidence. The use of the word “shall” indicates that it would be mandatory for the court to treat the same as primary evidence if twin conditions are fulfilled being (i) that the inventory, photographs and samples drawn are certified by the magistrate AND (ii) that the court is satisfied that the entire process was done in consonance and substantial compliance with the procedure prescribed under the provision and its Rules / Standing Order(s). 36. Even where the bulk quantity of the seized material is not produced before the court or happens to be destroyed or disposed in contravention of Section 52A of the NDPS Act, the same would be immaterial and have no bearing on the evidentiary value of any inventory, photographs or samples of such substance that is duly certified by a magistrate and prepared in terms of the said provision. We say so, because sub-section (4) of Section 52A was inserted to mitigate the issue of degradation, pilferage or theft of seized substances affecting the very trial. It was often seen that, due to prolonged trials, the substance that was seized would deteriorate in quality or completely disappear even before the trial could proceed, by the time the trial would commence, the unavailability of such material would result in a crucial piece of evidence to establish possession becoming missing and the outcome of the trial becoming a foregone conclusion. The legislature being alive to this fact, thought fit to introduce an element of preservation of such evidence of possession of contraband in the form of inventory, photographs and samples and imbued certain procedural safeguards and supervision through the requirement of certification by a magistrate, which is now contained in sub-section (4) of Section 52A. In other words, any inventory, photographs or samples of seized substance that was prepared in substantial compliance of the procedure under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to mandatorily be treated as primary evidence, irrespective of the fact that the bulk quantity has not been produced and allegedly destroyed without any lawful order. 37. Section 52A sub-section (4) should not be conflated as a rule of evidence in the traditional sense, i.e., it should not be construed to have laid down that only the certified inventory, photographs and samples of seized substance will be primary evidence and nothing else. The rule of ‘Primary Evidence’ or ‘Best Evidence’ is now well settled. In order to prove a fact, 22 only the best evidence to establish such fact must be led and adduced which often happens to be the original evidence itself. The primary evidence for proving possession will always be the seized substance itself. However, in order to mitigate the challenges in preservation of such substance till the duration of trial, due to Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 30 pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub-section (4) in Section 52A to bring even the inventory, photographs or samples of such seized substance on the same pedestal as the original substance, and by a deeming fiction has provided that the same be treated as primary evidence, provided they have been certified by a magistrate in substantial compliance of the procedure prescribed. This, however, does not mean that where Section 52A has not been complied, the prosecution would be helpless, and cannot prove the factum of possession by adducing other primary evidence in this regard such as by either producing the bulk quantity itself, or examining the witnesses to the recovery etc. What Section 52A sub-section (4) of the NDPS Act does is it creates a new form of primary evidence by way of a deeming fiction which would be on par with the original seized substance as long as the same was done in substantial compliance of the procedure prescribed thereunder, however, the said provision by no means renders the other evidence in original to be excluded as primary evidence, it neither confines nor restricts the manner of proving possession to only one mode i.e., through such certified inventory, photographs or samples such that all other material are said to be excluded from the ambit of ‘evidence’, rather it can be said that the provision instead provides one additional limb of evidentiary rule in proving such possession. Thus, even in the absence of compliance of Section 52A of the NDPS Act, the courts cannot simply overlook the other cogent evidence in the form of the seized substance itself or the testimony of the witnesses examined, all that the courts would be required in the absence of any such compliance is to be more careful while appreciating the evidence. 27. Further in Para 41 and 42 of the said judgment of Bharat Aambale (supra) held that: 41. As per Clause 2.5 of the Standing Order No. 1 of 89 i.e., the relevant standing order in force at the time of seizure, where multiple packages or packets are seized, they first have to be subjected to an identification test by way of a colour test to ascertain which packets are of the same sized, weigh and contents. Thereafter, all packets which are identical to each other in all respects will be bunched in lots, in the case of ganja, they may be bunched in lots of 40 packets each. Thereafter from each lot, one sample and one in duplicate has to be drawn. The relevant clause reads as under: - 23 “2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.” 42. As per Clause 2.8 of the Standing Order No. 1 of 89, while drawing a sample from a particular lot, representative samples are to be drawn, in other words, equal quantity has to be taken from each packet in a particular lot, that then has to be mixed to make one composite sample. The relevant clause reads as under: - “2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.” 28. It is also submitted by the counsel for the appellants that the provisions of Section 42 of the NDPS Act have not been complied with. 29. As has been proved in the present case that the alleged Ganja was seized from Innova Car when it was stopped by the police persons near Mudpar Chowk, in the present case Section 42 of the NDPS Act would not be applicable as the alleged Ganja has been seized from public place and therefore Section 43 of the NDPS Act would be applicable which provides that: “43. Power of seizure and arrest in public place- Any officer of any of the departments mentioned in section 42 may:- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; 24 (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation- For the purposes of this section, the expression public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.” 30. As the contraband were recovered and seized from the public place which was kept in 200 packets, as contemplated in Section 43(a), i.e., “seized in any public or in transit”, this Court is of the considered opinion that Section 43 of the NDPS Act is applicable and as such, recording for reason for belief and for taking down of information received in writing with regard to the Commission of offence before conducting search and seizure, is not required to be complied with under Section 43 of NDPS Act. 31. The next submission of the learned counsel for the appellant that Section 50 of NDPS Act has also not been complied with as the right to the appellant about their search have not been informed by the police authority in accordance with law as provided under Section 50 of the NDPS Act. 32. The provisions of Section 50 is applicable to the present search of the accused, whereas in the present case the Ganja was recovered from the vehicle of appellant which cannot be said to be his personal search. The search of the vehicle of the appellant does not comes under the requirement of Section 50 of the NDPS Act and search of a person is distinguished from search of any vehicle etc. 33. In the matter of State of Punjab vs. Baldev Singh reported in 1999 (6) SCC 172 in Para 12 of its judgment the Hon'ble Supreme Court 25 has held: "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 34. So far as the appellant Dara Singh Chandra @ Ashok Chandra @ Bhancha is concerned, it is alleged that on the date of incident when the police intercepted the vehicle near Mudpar chowk, the appellant Dara Singh fled away from the place, but there is no evidence on record that he was seen on the spot and fled away from the place. Even there is no attempt by the police persons to catch him or there is lack of evidence that in the said Innova Car two persons were present i.e. Krishnadas Mahant and Dara Singh Chandra @ Ashok Chandra. Even no Test Identification Parade was conducted by the police so that the witnesses would have identified him that he was the person who was sitting in the Car at the time of recovery of Ganja. Only on the basis of statement made by the appellant Krishnadas Mahant, the appellant Dara Singh @ Ashok Chandra was arrested, however, the statement of appellant Krishnadas is neither annexed with the charge sheet nor proved. There is no other material recovered from the appellant Dara Singh Chandra. Infact, there is no evidence to presume that he was also there with the appellant Krishnadas Mahant in the said Innova Car at the time of search and seizure proceeding and he fled away from the place. The trial court has considered against the appellant Dara Singh @ Ashok Chandra that he has not taken any defence that he 26 was not there with the co-accused Krishnadas Mahant and therefore his presence was also there with him, but it is the burden of prosecution to first prove that appellant Dara Singh was also there with the co-accused Krishnadas in the said Car and occupant of the same. It is only when the prosecution would be in position to prove his presence on the spot, then he is required to take probable defence, but in the present case there is no evidence against him that he was also present in the said Innova Car. Therefore, there is no evidence against him to uphold the conviction of appellant Dara Singh Chandra @ Ashok Chandra @ Bhancha. 35. In the result, the appeal filed by the appellant Dara Singh Chandra @ Ashok Chandra @ Bhancha (CRA No.424 of 2020) is hereby allowed. He is acquitted from the alleged offence and the impugned judgment of conviction and sentence with respect to appellant Dara Singh Chandra @ Ashok Chandra is set aside. He is reported to be on bail. His bail bond shall remain in operation for a further period of six months as provided under Section 481 of BNSS, 2023. 36. So far as appellant Krishnadas Mahant is concerned, there is sufficient evidence against him that on the date of incident he was the occupant of Innova Car from which 200 KGs of Ganja was seized and therefore the conviction of appellant Krishnadas Mahant (in CRA No.317 of 2021) is justified and there is no reason to upset the findings recorded by the trial court with respect to appellant Krishnadas Mahant. 37. In the result, the appeal filed by the appellant Krishnadas Mahant (CRA No.317 of 2021) is dismissed. Appellant Krishnadas is reported 27 to be in jail since 18.02.2019. He shall serve the entire sentence as awarded by the trial court. 38. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 39. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice inder