1 2025:CGHC:8113-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1186 of 2024 Sanjay Samal S/o Sukhdev Samal, aged about 28 years R/o Sangana Post, Jaichandrapur, P.S. Marsagai, Dist. Kondrapara (Odisha). ... Appellant versus State of Chhattisgarh Through- Police Station Komakhan, Dist- Mahasamund ( C.G.). ... Respondent For Appellant(s) : Mr. Adhiraj Surana, Advocate. For Respondent(s) : Mr. Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Judgment on Board Per Ramesh Sinha, Chief Justice 17.02. 202 5 1. The present appeal has been filed by the appellant under Section 374(2) of the Code of Criminal Procedure 1973, (for short the, Cr.P.C.) against the impugned judgment of conviction and sentence dated 09.01.2024, passed by learned Special Judge (NDPS Act) District- Mahasamund (C.G.) in Special Sessions Trial (NDPS Act) No. H- 06/2022, whereby the learned Special Judge has convicted the appellant for the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced him for 20 years rigorous imprisonment with fine of Rs.2,00,000/- in default of payment of fine, additional R.I. for one year. ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.02.18 18:02:38 +0530 2 2. The prosecution case in brief is that on 19.07.2021, Inspector Siddheshwar Pratap Singh of Police Station Komakhan along with his staff had gone to Forest Naka Temri for checking of vehicles, when at that time a Bolero vehicle number MH 18 BG 5458 came, whose driver, when asked what was in the vehicle, started giving evasive answers, on interrogation he told that there was ganja along with cabbage and potato sacks. On asking the name and address of the driver in front of passersby, he told his name to be Sanjay Samal and on checking the rear compartment of the vehicle MH 18 BG 5458 in front of witnesses from his possession along with cabbage and potato bags, 15 bags of narcotic substance ganja were found, 16 packets in each bag, a total of 240 packets and 110 packets of narcotic substance like ganja were found in the iron chamber in the rear compartment. 3. The notice under Section 160 of the Cr.P.C. was given to the witnesses Lukesh Kumar (PW-2) and Sanjay Chauhan (PW-3) and request memo was also sent to Executive Magistrate for physical verification of the seized article. The Executive Magistrate Shri Prabahat Kumar Sharma (PW-6) reached on the spot. After giving notice vide Ex.P-1, the electronic weighing machine was brought to the spot by the weigher Kishan Sahu (PW-1) and when it was checked and found to be correct, a physical verification panchnama of the weighing machine was prepared vide Ex.P-29 and physical verification of scales was prepared vide Ex.P-2. On weighing the illegal narcotic substance ganja recovered from the possession of the accused at the spot itself, it was found to be total 700 kg and weighing panchnama was prepared vide Ex.P-3. In the presence of witnesses, the illegal narcotic substance like ganja recovered from the vehicle in the possession of the accused 3 was mixed together and some quantity of it was rubbed and smelled, and it was found to contain ganja. After which two samples of 100 grams each were taken out of the recovered ganja. At the spot itself, a total of 700 kg of ganja in the possession of the accused and two sample packets of 100 grams each prepared from it, vehicle Bolero pickup number MH 18 BG 5458 and two mobile phones, cash Rs 8000 were seized from the possession of the accused and a seizure memo was prepared. Statements of independent witnesses and weigher were recorded. Panchanama of entire proceeding was recorded vide Ex.P-28. 4. Crime details form was prepared vide Ex.P-21 and a visual map of the site of incident was prepared by concerned Patwari Top Singh Dhruv (PW-10) vide Ex.P-22. On finding evidence of crime against the accused, he was arrested in front of witnesses and an arrest sheet was prepared vide Ex.P-20 and was informed about his arrest vide Ex.P-37. After returning to police station Komakhan, a crime was registered against the accused under section 20 (b) NDPS Act under crime number 115/2021 and a first information report was written vide Ex.P- 41. A report of the entire proceedings was prepared and sent to the SDOP office Bagbahara. During the investigation, the statements of the witnesses were recorded as per their statements. The sample of the seized ganja was sent to the Forensic Science Laboratory Raipur for testing vide Ex.P-45 and receipt of the same was obtained vide Ex.P- 46. In the test report received from the Forensic Science Laboratory Raipur (Ex.P-47), it was found to be ganja. Panchnama and inventory of the proceedings were prepared through the concerned Executive Magistrate. After complete investigation, upon being found evidence of 4 crime against the accused, the charge sheet has been presented before the Court of Special Judge, Mahasamund on 14.01.2022. 5. When the charge-sheet was prepared and read out to the accused, he denied the crime and claimed trial. When the accused was examined under Section 313 of the Cr.P.C., he expressed his innocence and falsely implicated and expressed his desire to give evidence in his defence. Later, he expressed his innocence and said that he would not give any defence evidence and did not present any defence evidence. 6. After appreciation of oral as well as documentary evidence led by the prosecution the learned trial Court has convicted the appellant and sentenced him as mentioned in the earlier part of this judgment. Hence this appeal. 7. Learned counsel for the appellant 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, 52-A, 55 and 57 of the NDPS Act. There is absolutely non-compliance of the Standing Order of 1/89 issued by the Central Government with respect to the procedure for drawing of the samples and in absence of any proper procedure for drawing the samples, the entire procedure vitiates. Therefore, the appellant cannot be convicted for the alleged offence. The independent witness have not supported the prosecution case. There are material irregularity in the search and seizure proceedings and there are major discrepancy in the evidence of the I.O. about the number of packets seized from the vehicle. The present appellant was only a driver and was working 5 under the instruction of his owner. Therefore, he may be acquitted from the alleged offence. 8. On the other hand, learned counsel for the State opposes and have submitted that the entire procedure as prescribed under the NDPS Act has been followed in its letter and spirit and after considering the evidence available on record, the learned trial Court has rightly convicted and sentenced the appellant for the alleged offence. The appellant was found in possession of the vehicle and he was driving the same in which the huge quantity of Ganja i.e. 700 kg of cannabis (Ganja) was being transported by the appellant and there has been no explanation offered by the appellant as to how he came into the possession of such a huge quantity of cannabis (Ganja) in his vehicle. All the mandatory provisions have been duly complied with, therefore, there is no irregularity or infirmity in the impugned judgment passed by learned trial Court and the appeal of the appellant is liable to be dismissed. 9. We have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 10. Independent witnesses Lukesh Kumar (PW-02) and Sanjay Chauhan (PW-03) have stated that they do not know the accused and the police had made them sign some documents. Both the independent witnesses have been declared hostile by the prosecution and have been asked leading questions but the prosecution has failed to collect any substantial evidence in support of its case. Despite the prosecution confronting both these witnesses with the entire contents of their police statements namely Ex.P.-23 and Ex.P.-24, they have stated that they did not give the said part to the police. Lukesh Kumar (PW-02) and 6 Sanjay Chauhan (PW-03) have admitted in cross-examination that they have signed all the documents together on the instructions of the policeman and the policeman did not read out the above documents to them nor did they read them and the above witnesses have admitted in cross-examination that when they signed, no other person was present except the policeman and neither was there any material there and no narcotic substance was seized from the accused in their presence. Thus, the above two Panch witnesses have not supported the prosecution even for a moment. 11. Weigher Kishan Kumar Sahu (PW-01) has stated that he does not know the accused and has never seen him before. He lives in village Temri and does agricultural work and sells vegetables. The incident took place about one and a half years ago when the police of Komakhan police station came to his house and said that the police have seized ganja and its weighing machine has to be taken for which the police asked for his electronic weighing scale and took it away. He did not go with the police. The police came to his house in the evening to return his electronic weighing scale and took him to the police station where they made him sign two-three papers. The police did not tell him what the above documents were about. He signed on the instructions of the police. The notice given to the weigher is Ex.P-1. Physical verification of the weighing scale is Ex.P-2. The intoxicant weighing panchnama is Ex.P-3, on parts A to A of which his signature is there. The said witness has also been declared hostile by the prosecution and despite being asked suggestive questions, the said witness has not made any material statement and in cross-examination the said witness has admitted that he did not go to the incident spot 7 Temri Naka and no proceedings were conducted in front of him at the incident spot. The said witness has further admitted in cross- examination that he had signed Ex.P.-01 to Ex.P.-03 at Police Station Komakhan and before signing the documents Ex.P.-01 to Ex.P.-03 the police did not read them out to him and he also did not read them and the police did not take any statement from him after questioning him and the police has made him a witness in three-four other cases. 12. In this way, the prosecution story regarding the action taken at the spot by the panch witnesses and the weigher in the case has not been supported. Now, it is worth considering in the case that if the fact of seizure of drug Ganja has not been proved by the independent witnesses, then whether the evidence of the police witnesses presented by the prosecution can be believed. In this regard, it has been held by the Hon’ble Supreme Court in many judicial precedents that if the evidence of police witnesses is worthy of belief then the accused can be convicted on the basis of their reliable evidence also. Similarly, the judicial precedent Nathusingh Vs. State of Madhya Pradesh reported in AIR 1973 SC 2783, the Hon’ble Supreme Court has opined that there is no law that the statement of a police office or excise officer cannot be accepted in the absence of support. If the police officer’s single evidence is of such a quality that it cannot disbelieved, then on the basis of his sole evidence, a conclusion can be drawn about the recovery of something (narcotic substance). In the context of the opinion expressed in the above honorable judicial precedents, it is now to be considered whether as per the evidence in the case, the Investigating Officer has conducted the investigation by following the mandatory and directive provisions of the NDPS Act 8 which is supported by other evidence in the case. 13. The Investigation Officer, Siddheshwar Pratap Singh (PW-9) was posted as Inspector at Police Station, Komakan at the relevant point of time. He stated in his evidence that on 19.07.2021 he along with his staff Sub Inspector Ransay Miri, constables 589, 286, 737, 724, 311, 272, 415, 962, 621, 679 left for Forest Naka Temri in private Car No. CG 11 AT 5060 and motor cycles numbers CG 04 A.Q. 8180, CG 04 M.X. I. 6860, CG 06 G.B. 4990 and CG 04 H.P. 6691. During checking at Forest Naka Temri, one Bolero vehicle number MH 18 BG 5458 came, when asked to driver of the said vehicle what was in the vehicle, he started giving vague answers and on strict questioning he told that there was ganja along with cabbage and potato sacks, then for legal action, he stopped passersby Lokesh Kumar Sahu and Sanjay Chauhan and informed them about the action and gave notice under Section 160 CrPC (Ex.P-5) to both the witnesses. A document of search without warrant Panchnama (Ex.P-6) was prepared and an information report is prepared vide Ex.P-35. Constable C 724 Santosh Sanwara was sent to S.D.O.P. office Bagbahara by giving him the work certificate. After the proceedings, in the presence of witnesses at the spot, the accused was given a notice under Section 50 of the NDPS Act, Ex. P-7 through which, he was made aware of his statutory rights that he can get it done by any gazetted officer or from the Magistrate, then after receiving the notice the accused gave his consent in writing to get the search done by police personnel present, a consent form was prepared which is Ex.P-8. After the proceedings the search of police personnel present was given to the accused, in which no objectionable material was found with anyone, so a search panchnama 9 of the police personnel was prepared vide Ex.P-9. The search of the witnesses present was given to the accused and as no objectionable material was found with the witnesses, a search panchnama of witnesses was prepared vide Ex.P-10. After the proceedings, on searching the vehicle Bolero Pickup MH 18 BG 5458 in the possession of the accused, along with cabbage and potato, 15 plastic sacks were found in the rear compartment of the vehicle, with 16 packets in each bag, total 240 packets and a narcotic substance like ganja wrapped in khaki colour plastic tape in 110 packets were found in the iron chamber of the vehicle. On finding the substance, a Panchnama Ex.P-11 was prepared for the search of the suspect and the vehicle. After the proceedings, the narcotic substance found in the vehicle was recovered in front of witnesses and recovery panchnama Ex.P-12 was prepared. After tearing the packets of the narcotic substance and taking out small quantity from it, rubbing, smelling and smelling it, it was found to be like ganja, after which drug identification panchnama Ex.P-13 was prepared. 14. PW-9, Siddheshwar Pratap Singh has further stated that notice was given to the accused under section 91 CrPC (Ex.P-14) and on demanding to show the valid documents related to transportation, the accused wrote that he do not have any documents. Constable C 415 Tuleshwar Sahu, who was present on the spot, was sent with a work certificate with instructions to bring the electronic weighing scale and weights and the weigher to the spot. Then the constable went to village Temri and brought the weigher Kishan Sahu to the spot with that electronic weighing scale and 100 gram weights. The notice given to the weigher is Ex.P-1. Physical verification was done by placing a 10 weight of 100 grams in the electronic scale brought by the weigher and on being found fully charged and correct, physical verification panchnama Ex.P-2 was prepared. After the proceedings, all the packets of the recovered drugs were mixed on a plastic tarpaulin and were mixed six times and after mixing they were filled in 24 bags and Samaras Panchnama Ex.P-15 was prepared. The mixed drugs which were filled in 24 bags after weighing them separately, 23 bags were found to contain 30.100 kg of drugs and 10.100 kg of drugs in each bag, totaling 700 kg (7 quintals) and drug weighing panchnama was prepared vide Ex.P-3. 15. He also deposed that after the proceedings, two sample packets of ganja of 100 grams each were prepared from the drug weighed by him in two plastic boxes and were sealed after marking them with articles A-01 and A-02, the remaining drug of 699.800 kg was again filled in 24 plastic bags and was sealed after marking them with marks 01 to 24 in front of witnesses. The document of which was prepared as sample panchnama Ex.P-16. After the proceedings three round seals with P.S. Komakhan written on them were affixed and a sample seal panchnama (Ex.P-19) was prepared which was prepared. He searched the clothes of the accused in presence of witnesses and prepared the search panchnama Ex.P-17. After seizing the above vehicle and the drugs recovered from it and three mobile phones, cash amount and notice from the possession of the accused, he prepared property seizure form vide Ex.P-18. Thereafter the accused was arrested on the spot under section 20B NDPS Act and arrest panchanama Ex.P.-20 was prepared and information given to the accused before arrest is Ex.P-37. Later, on the spot itself, he had prepared a map regarding crime details of the 11 incident which is Ex. P-21. Later, on the spot itself, he had registered a crime against accused under Section 20 NDPS Act, case no. 0/21 of rural crime which is Ex. P-40. After the proceedings, the accused arrested on the spot was brought to the police station from the spot along with the staff, the vehicle, drugs and other material seized from the accused and lodged a First Information Report (Ex.P-41) under Crime No. 115/2021 under section 20 NDPS Act on the basis of Dehati Nalishi. 16. After the proceedings, the narcotics, vehicle and other materials seized from the accused were handed over to the present goods clerk Jageshwar Prasad Thakur Ratre for safekeeping in the storeroom. Jageshwar Thakur received it and provided a seizure delivery receipt, which is Ex. P-31. After the action on 20.07.2021, a postal report of the entire action taken in the above mentioned crime number 115/21, section 20 and NDPS Act of the police station was prepared and sent by giving work certificate to constable Santosh Sanwara. Then the constable went to the SDOP office Bagbahara on the same date and deposited the postal report of the entire action before the reader, got the receipt and came back to the police station and submitted it. The report of the entire action is Ex.P-36. After proceedings, on 20.07.2021, the statements of witnesses Sanjay Chauhan, Lukesh Kumar, Kishan Sahu, Ransay Miri Sub Inspector, Constable C 589 Saifuddin Ansari, Salik Ram Dhruv, Uttam Thakur, Bhagirathi Sinha, Shashi Diwan Ganeshwar Thakur were recorded as per their statement and on 02.10.2021 the statement of witness Vitthal Shardul was taken. Later on 24.07.2021, a report was written to the Sub-Divisional Officer, Bagbahara, for taking action on the seized narcotic substance 52A, 12 which is Ex.P-42. On 16.08.2021, the Executive Magistrate Bagbahara, conducted the proceedings under 52A in front of witnesses by attending the store room in police station Komakhan and he was present during the proceedings under 52A and prepared a panchnama regarding the proceedings conducted by the Executive Magistrate vide Ex.P-28. The inventory is Ex.P-30 and the photographs of the proceedings under 52A, Articles A-01 to A-05 are attached in the case. 17. On 01.10.2021, when the registered owner of the vehicle Rupesh Marathe produced the notarized stamp document regarding the vehicle purchase, it was seized and seizure memo Ex.P-43 was made by Sub Inspector Ransayi Miri. On 07.12.2021, a memo (Ex.P-44) was given to the Tehsildar for preparing the map from the concerned Patwari of the incident site. Thereafter two sample packets of 100 grams each seized from the accused, which were marked as Article A-01 and sealed in a sealed condition, were sent to the Forensic Science Laboratory for FSL test by giving a work certificate to constable Yogesh Dhruv along with a memorandum to the Superintendent of Police Mahasamund. Then the constable returned to the police station and reported his arrival after depositing the post for FSL dated 22.07.2021 and receiving the receipt. The memorandum sheet prepared by the Superintendent of Police is Ex.P-45. The receipt of the exhibit is Ex.P- 46, which is attached to the case and was prepared by the Forensic Science Laboratory Raipur for FSL test and sent to the police station through the Superintendent of Police Mahasamund, which is Ex.P.-47 and the test result shows that Article A-01 and A-02 were found to contain ganja. 13 18. In cross-examination, he denied the suggestion that he left for vehicle checking after receiving information about suspicious activity and drug transportation. He admitted that he do not go for vehicle checking every day, he leave for vehicle checking after receiving information. He admitted that he left for vehicle checking at 10:00 am. He had not written nor presented in the case what action was taken by him after the arrival of the accused. He admitted that during vehicle checking, it is not mentioned anywhere nor can he tell how many vehicles were checked by them. He denied the suggestion that to avoid action under Section 42 he was saying that after receiving informer's information action was taken during vehicle checking. He also admitted that on the same date, after checking the said suspicious vehicle, another vehicle came in which too narcotics were recovered, whose crime number is 116/2021. He admitted that he had not made the owner of the seized vehicle an accused in this case. He also admitted that he had not gone to the village of accused Sanjay Samal and investigated. He admitted that accused Sanjay Samal works as a driver. He also admitted that he had not taken any statement from the accused by questioning him regarding the owner of the huge quantity of drugs recovered nor had he tried to find out its owner. 19. This witness admitted that all the proceedings have been done by him in the format which has the signatures of the accused and the witnesses. It is wrong to say that fake proceedings have been done against the accused by merely taking the signatures of the witnesses while sitting in the police station. It is wrong to say that a notice has been given to the weigher named Kishan Sahu. The witness himself says that when the weigher was brought by the constable, his name 14 was asked and notice was given to him. It is correct to say that there is no mention of the electronic scales and weights being verified by the weights and measures department. It is correct to say that there is no mention about the capacity of the electronic scales and weights and neither has there been any mention about the capacity of the battery. It is wrong to say that all the proceedings have been done while sitting in the police station, hence it has not been mentioned. 20. He also admitted that he had not weighed the packets seized from the said vehicle. It is correct to say that he cannot tell the weight of each packet. The witness himself says that all the recovered drugs were mixed and mixed and after that the weighing process was done. It is correct to say that it has not been mentioned in the sample panchnama Ex.P-16 that from which bag two samples were taken to prepare the sample. It is correct to say that the signature of the weighing witness is not there in the sample panchnama. It is correct to say that the sample was not sent by him after taking the signatures of the accused and the witnesses. It is wrong to say that the seizure of sample was was prepared police station, therefore the signatures of the accused and witnesses were not taken. It is wrong to say that no narcotics were seized and recovered from the accused. 21. In his cross-examination, this witness has denied the suggestion that the sample sent by him is of a different drug seized from the accused. He admitted that he got the proceedings under Section 52A done by the Executive Magistrate and not by the Commercial Magistrate. He also admitted that the entire investigation of the case has been done by him. It denied that he had not taken any action to seize any drug from the accused in front of witnesses Rupesh, Lokesh, Sanjay 15 Chauhan and Kishan. He also denied that the entire proceedings were conducted in the police station in front of the above-mentioned witnesses, where the accused was not present. He further denied that to save the vehicle owner, his labourer Sanjay Samal has been forcibly made an accused in the case. He denied that the FSL report received in the case is not of the drug seized from the accused. He also denied that no drug has been recovered from the accused. He further denied that to save the vehicle owner, the entire proceedings have been done by he himself and the accused has been falsely implicated. 22. Section 43 of the NDPS Act provides the powers of seizure and arrest in public place which towards as under: [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; (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 16 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.] 23. The facts of the case as well as evidence available in the case makes it clear that the vehicle was being stopped near Forest Barrier, Temri. While checking the vehicle, it was found contained with cannabis (Ganja). Admittedly it was being checked on the public place i.e. on the main road that too without any prior information and the said cannabis (Ganja) was seized /recovered in transit which was being carrying by the accused person, who was driver of the vehicle. Therefore, the issue of non-compliance of Section 42 is not applicable in the present case and the police authority have acted under Section 43 of the NDPS Act. Section 43 of the NDPS Act, when the place of occurrence was a public road and accessibility to the public and fell within the ambit of the public place. 24. In view of the provisions of explanation to Section 43, the Section 42 of the NDPS had no application. 25. The contraband were recovered and seized while in transit. As the contraband were recovered and seized during transit in the Bolero vehicle, as contemplated in Section 43(a) i.e. "Seize in any public place 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 17 Commission of offence before conducting search and seizure, is not required to be complied with under Section 43 of NDPS Act. 26. In the matter of Firdoskhan Khurshidkhan vs. State of Gujarat and Another dated 30.04.2024 reported in 2024 SCC OnLine SC 680 has held in para 18 as under: "18. Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected." 27. In the matter of State of Haryana vs. Jarnail Singh and Others reported in 2004 (5) SCC 188 in Para 9 and 10 of its judgment the Hon'ble Supreme Court has held that: "9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise. 10. In the instant case there is no dispute that the tanker was moving on the public highway when it was stopped 18 and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police was also a member of the searching party. It has been held by this Court in M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence : (2003) 8 SCC 449 that where a search is conducted by a gazetted officer himself acting under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42. For this reason also, in the facts of this case, it was not necessary to comply with the requirement of the proviso to Section 42 of the NDPS Act." 28. In the matter of Kallu Khan vs. State of Rajasthan reported in 2021 (19) SCC 197 in Para 12, 13 and 16 of its judgment the Hon'ble Supreme Court has held that: 12. After hearing and on perusal of record and the evidence brought, it is apparent that on apprehending the accused, while making search of the motor cycle, 900 gm of smack was seized to which seizure and sample memos were prepared, as proved by the departmental witnesses. In the facts of the case at hand, where the search and seizure was made from the vehicle used, by way of chance recovery from public road, the provisions of Section 43 of the NDPS Act would apply. In this regard, the guidance may be taken from the judgments of this Court in S. K. Raju (supra) and S.K. Sakkar (supra). However, the recovery made by Pranveer Singh (PW6) cannot be doubted in the facts of this case. 13. Now reverting to the contention that the motor cycle seized in commission of offence does not belong to accused, however seizure of the contraband from the motor cycle cannot be connected to prove the guilt of 19 accused. The Trial Court on appraisal of the testimony of witnesses, Constable Preetam Singh (PW1), Constable Sardar Singh (PW2), S.I. Pranveer Singh (PW6) and ConstableRajendra Prasad (PW8), who were members of the patrolling team and the witnesses of the seizure, proved beyond reasonable doubt, when they were on patrolling, the appellant came driving the seized vehicle from opposite side. On seeing the police vehicle, he had taken back the motor cycle which he was riding. However, the police team apprehended and intercepted the accused and made the search of vehicle, in which the seized contraband smack was found beneath the seat of the vehicle. However, while making search at public place, the contraband was seized from the motor cycle driven by the accused. Thus, recovery of the contraband from the motor cycle of the appellant was a chance recovery on a public road. As per Section 43 of NDPS Act, any officer of any of the departments, specified in Section 42, is having power of seizure and arrest of the accused from a public place, or in transit of any narcotic drug or psychotropic substance or controlled substance. The said officer may detain in search any person whom he has reason to believe that he has committed an offence punishable under the provisions of the NDPS Act, in case the possession of the narcotic drug or psychotropic substance appears to be unlawful. Learned senior counsel representing the appellant is unable to show any deficiency in following the procedure or perversity to the findings recorded by the Trial Court, affirmed by the High Court. The seizure of the motor cycle from him is proved beyond reasonable doubt, therefore, the question of ownership of vehicle is not relevant. In the similar set of facts, in the case of Rizwan Khan (supra), this Court observed the ownership of the vehicle is immaterial. Therefore, the argument as advanced by learned senior counsel is of no substance 20 and meritless. 29. 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 as provided under Section 50 of the NDPS Act. The provisions of Section 50 is applicable to the present search of the accused person whereas in the present case the cannabis (Ganja) was recovered from the vehicle driven by accused person which cannot said to be his personal search. The search of a vehicle 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. In the matter of Kallu Khan (supra) the Hon'ble Supreme Court has also considered the applicability of Section 50 of NDPS Act in search of the vehicle. In Para 16, the Hon'ble Supreme Court has held that: "16. Simultaneously, the arguments advanced by the appellant regarding non−compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this 21 Court, the argument of non−compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled." 30. 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 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." 31. In the matter of Kulwinder Singh and Another vs. State of Punjab reported in 2015 (6) SCC 674 in Para 18 and 21 of its judgment the Hon'ble Supreme Court has held that: 18. In Dharampal Singh v. State of Punjab, it has been ruled that the expression “possession” is not capable of precise and complete logical definition of universal application in the context of all the statutes. Recently, in Mohan Lal v. State of Rajasthan11, after referring to certain authorities, this Court has held as follows:- “21. From the aforesaid exposition of law it is quite vivid that the term “possession” for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to 22 show and establish possession. Further, personal knowledge as to the existence of the “chattel” i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others. 22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion." 21. In State of H.P. v. Pawan Kumar, it has been held that: “10. We are not concerned here with the wide definition of the word “person”, which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a 23 living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word “person” appears to be — “the body of a human being as presented to public view usually with its appropriate coverings and clothing”. In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one’s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the work 'person' would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any 24 number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act." 32. The next submission made by learned counsel for the appellant is that Section 52 of the NDPS Act as well as Circular of 1/89 issued by Central Government have not been complied with in the case for drawing of the samples from the seized articles. Therefore, there is substantial non-compliance of the mandatory provisions of the NDPS Act and the appellant is entitled for acquittal. 33. Investigating Officer/Inspector Siddheshwar Pratap Singh (PW-09) has stated that on 24.07.2021, he had written a report to the Sub-Divisional Officer, Bagbahara for taking action under Section 52A of the NDPS Act on the seized drug, which is Ex.P-42. Thereafter, on 16.08.2021, the Executive Magistrate, Bagbahara, came to the store house in Police Station Komakhan for the proceedings under 52A in crime number 115/21 under section 20B of the NDPS Act in front of witnesses. He was present during the proceedings under 52A and had prepared a panchnama regarding the proceedings taken by the Executive Magistrate. The panchnama is Ex.P-28. The inventory is 25 Ex.P-30. The photographs of the proceedings under 52A, articles A-01 to A-05 are enclosed in the case. 34. Naib Tehsildar, Gagan Sharma (PW-06) also supported the statements of Investigation Officer/Inspector Siddheshwar Pratap Singh (PW-09) and stated that he was posted as Naib Tehsildar in Tehsil Office, Bagbahara since August 2016 and is currently posted as SDM in SDM Office, Raigarh. On the directions of Sub-Divisional Magistrate, Bagbahara, he went to Police Station Komakhan on 16.08.2021 for action under Section 52 of NDPS Act and in fron of him, the seized Ganja kept in sealed condition in 24 sacks, the total weight of which was mentioned to be 700 kg, from which two samples of 100 grams each were taken out and the remaining Ganja of 699.800 kg was found to be separately sealed and kept in the Malkhana Komakhan, which was taken out of the Malkhana in front of two witnesses. After physical verification of the electronic scale, on weighing, the total weight of all the narcotics including the sacks was found to be 686.680 kg, from which a Ganja sample of 100 grams was taken out from sack number 24, kept separately in a plastic box, marked with Article A-03 and sealed and kept back, and the remaining narcotics were kept separately in a sack and returned to the Malkhana after affixing a signature slip, he found the list to be correct, photography of the proceedings was also done. A Panchnama was prepared by the present police station in-charge Siddheshwar Pratap Singh in relation to the action taken by him. The document prepared after the action is Panchnama Ex.P-28 and the physical verification of the weighing scale is Panchnama Ex.P-29. 35. Investigating Officer/Inspector Siddheshwar Pratap Singh (PW-9) has 26 admitted in paragraph 33 of his cross-examination that the proceedings were conducted by the Executive Magistrate and not by the Judicial Magistrate. Gagan Sharma (PW-6) has also stated in paragraph 06 of his cross-examination that he drew samples from package No. 24 and that the weighing process mentioned in Ex.P-28 was done before sampling. In paragraph 7 of cross-examination, this witness has admitted that he had not called the witnesses by giving them notice and further giving clarification, he has stated that the witnesses were present in the police station premises. In paragraph 09 of cross- examination, the said witness has denied the fact that he has signed the documents without taking any action on the instructions of the Investigating Officer who went to the police station's malkhana. No other notable important fact has come to light in the cross-examination of the said two witnesses due to which their statements can be disbelieved. 36. Jageshwar Prasad Thakur (PW-07) has also admitted in paragraph 09 of cross-examination that while taking out the goods for the proceedings under section 52 from the seizure register, he did not get the signature of the Executive Magistrate and while giving further clarification, he himself stated that the signature of the Executive Magistrate is not taken in the seizure register. The defence has based its argument on the Judicial Magistrate not taking proceedings under section 52A. This case has been initiated by the investigating officer on 19.07.2021 and the amendment in the NDPS Act is effective from 23.11.2022. Therefore, there is no adverse effect in the case due to the Judicial Magistrate not taking proceedings under section 52A. Therefore, the basis taken by the defence in this regard is also not 27 acceptable. In the case, no contradiction was found in the statements of the Investigating Officer/inspector Siddheshwar Pratap Singh (PW- 09) and Gagan Sharma (PW-06). No such contradiction was found in the cross-examination of the above two witnesses. Notable important facts have not come to light due to which their statements can be disbelieved. The statements of the above two witnesses are also confirmed by Panchnama Ex.P-28, physical verification Panchnama Ex.P-29 and Inventory document Ex.P-30 and photographs added to Article A-1. Thus, on the above grounds, it is also shown that the provisions of Section 52A NDPS Act were followed in the case. 37. The another submission made by learned counsel for the appellant is the procedure prescribed in the Circular 1/89 issued by the Central Government has not been followed and the samples have been drawn in a defective manner. The public authorities should have drawn sample from each of the packets before homogenization or they should have drawn the sample from the packets seized from the vehicle randomly but the procedure drawn by the police that first they have homogenized the entire quantity of cannabis (Ganja), therefore, drawing of 2 samples of 100gm each is the defective procedure which vitiates the entire search proceedings. Though it reflect from the evidence available on record that when the police stopped the vehicle they found the cannabis (Ganja) kept in 15 bags, containing 16 packets in each bag, a total of 240 packets and other 110 packets were found in the iron chamber in the rear compartment of the alleged vehicle. On the spot it was homogenized and then 2 samples of 100 gm each were drawn. Though the procedure is laid down in the Standing order 1/89 for drawing of the sample but merely non-compliance of the procedure 28 for drawing of the sample does not vitiates the entire search and seizure proceedings when other evidences have duly supported the prosecution case that the cannabis (Ganja) was seized from the possession of the appellant. The Standing Order 1/89 is guideline for drawing of the sample. 38. Recently 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. 39. 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 29 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. 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 30 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 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 31 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: - 32 “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 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 33 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) 34 3 SCC 453 wherein this Court after examining the purport of Section 52A of the NDPS Act and the Standing Order(s) issued 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 35 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 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 36 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 37 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 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 38 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. 39 34. At this stage we may clarify the scope and purport of Section 52A sub-section (4) with a view to obviate any 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 40 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, 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 41 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. 40. 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 42 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: - “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.” 41. In the present case the entire search and seizure proceedings have found genuine and the correct procedure have been drawn by the 43 police persons. Though the independent witnesses and weighing witness have not supported the case of prosecution, but the seizure of cannabis (Ganja) and its weight and sampling were proved by Investigating Officer and the Naib Tahsildar/Executive Magistrate and nothing adverse could be found to disbelieve their evidences which further proves that the appellant was found in possession of such a huge quantity of cannabis (Ganja) in his vehicle. The appellant did not able to impute any palpable to make good his case that there has been non-compliance of any mandatory provisions of the NDPS Act. 42. There is no material available on record so as to arrive at finding that the accused person has been falsely implicated in this case. Section 20 of the NDPS Act provides that whichever in contravention of any provisions of this Act or any rule made therein possess cannabis (Ganja) shall be punished in accordance with the said provisions. Section 20 (b) uses the "possess". In the present case the appellant was found in possession of 700 kg of cannabis (Ganja) in Bolero vehicle which he was driven by him at the relevant time. The judgment passed by learned trial Court is quite detailed judgment which has dealt with every aspect of the matter and the analysis made therein clearly proves the appellant has committed the offence in question and was transporting cannabis (Ganja) weighing 700 kg. He could not given any suggestion as to how that huge quantity of cannabis (Ganja) came to be found in the vehicle in which he was travelling. 43. The FSL report Ex.-P/47 further proves that the sample packets of cannabis (Ganja) which were drawn from the total quantity of cannabis (Ganja) were found to be contained with cannabis (Ganja) contents and further corroborates the allegation against the appellant. 44 44. In view of the above discussion, this Court is of the considered opinion that the judgment passed by learned trial Court is based on proper appreciation of evidence which is neither perverse nor contrary to the record as well as law laid down by the Hon'ble Supreme Court and the same needs no interference as such the judgment of conviction and order of sentence awarded to the appellant is hereby affirmed. 45. In the result, the appeal filed by the appellant is hereby dismissed. The appellant is reported to be in jail. He shall serve the remaining period of jail sentence as has been awarded to him by the learned trial Court. 46. 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. 47. 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 Chandra