1 CRA No.1423 of 2023 2025:CGHC:41973-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1423 of 2023 Rajju Patel S/o Late Mohan Patel Aged About 28 Years R/o Marheti Lakhnadoun, District Shivni (M.P.) ... Appellant(s) versus State Of Chhattisgarh Through - Station House Officer, Police Staion - Bodla, District - Kabirdham, Chhattisgarh ... Respondent(s) (Cause-title taken from Case Information System) For Appellant : Mr. Chandra Bhushan Kesharwani, Advocate. For State : Mr. Sangharsh Pandey, Govt. Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Judgment on Board Per Bibhu Datta Guru , J. 20-08-2025 1. The present criminal appeal has been filed under Section 374(2) of the Cr.P.C. against the impugned judgment of conviction and sentence dated 31.10.2022 passed by the learned Special Judge (NDPS Act) Kawardha, RAHUL JHA Digitally signed by RAHUL JHA Date: 2025.08.23 12:44:39 +0530 2 CRA No.1423 of 2023 District Kabirdham in Special Criminal Case under the NDPS Act No.401/2020 whereby the appellant has been convicted for the offence under section 20(b) (ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the NDPS act’) and sentenced with R.I. for 12 years with fine of Rs.1,50,000/-, in default of payment of fine, additional R.I. for 1 year. 2. (a) Brief facts of the case are that on 10.01.2020, Sub-Inspector Manoj Sahu, posted at Police Station Bodla, received credible information from an informant that the driver of a white Bolero bearing Registration No. O.D.-10 H-1406, along with his associate, was transporting contraband substances from Bodla towards Chilpi. Considering the information reliable, witnesses Sanju Sahu (PW2) and Dhannu Vishwakarma (PW3) were summoned, and a memorandum of the informant’s disclosure was prepared. The superior authorities were duly informed. As delay in obtaining a search warrant from the Sub-Divisional Officer could have enabled the accused to escape, reasons for immediate search were recorded, and a blockade was arranged on NH-30 near the police station. (b) After some time, the said Bolero vehicle was intercepted. On noticing the police, co-accused Antu Yadav absconded from the spot, while the driver was apprehended. Upon inquiry, he disclosed his identity as accused Raju Patel. In compliance with Section 50 of the NDPS Act, he was apprised of the information and his consent for search was obtained. Before conducting the search of the accused, the Investigating Officer arranged for his own search, along with that of staff, witnesses, and the vehicle, which yielded no 3 CRA No.1423 of 2023 objectionable articles. Thereafter, a formal search of the accused’s vehicle was carried out in presence of the witnesses. From the rear seat, two white plastic bags were recovered, containing twelve packets wrapped with khaki-colored tape. On physical inspection, smell, burning, and rubbing tests, the substance was found to be cannabis (ganja). On weighing with a certified scale, the total quantity was found to be 124.830 kilograms. The contraband and the vehicle were seized under proper seizure proceedings, and the accused was arrested on the spot. Necessary intimation of arrest was given to his relatives, and a Dehati Nalshi was registered. (c) The seized articles, along with the accused, were brought to the police station and deposited in the Malkhana. A numbered FIR was lodged. Subsequent investigation was carried out by Inspector Sant Ram Soni, who recorded statements of witnesses, prepared a site map, and sent samples of the seized contraband to the State Forensic Science Laboratory, Raipur, for chemical analysis. Efforts to apprehend absconding accused Antu Yadav were made but remained unsuccessful; hence, proceedings under Section 173(8) CrPC were initiated against him. Upon completion of investigation, a charge- sheet was filed before the Court on 01.04.2020 against the appellants. Charges under Section 20(b)(ii)(C) of the NDPS Act were framed against the accused, to which he pleaded not guilty. His statement under Section 313 CrPC was recorded, wherein he denied the allegations but did not adduce any defence evidence. (d) During trial, the prosecution examined twelve witnesses including 4 CRA No.1423 of 2023 seizure witnesses, police personnel, and officials, namely: Jitendra Bhandari (PW-1), Sanju Sahu (PW-2), Dhannu Vishwakarma (PW-3), Head Constable Satish Upadhyay (PW-4), Naib Tehsildar Aman Chaturvedi (PW-5), Constable Nanhe Singh Netam (PW-6), Constable Satkhojan Lahare (PW-7), Constable Purushottam Verma (PW-8), Sub-Inspector Manoj Sahu (PW-9), Head Constable Kunjiram Netam (PW-10), Inspector Manoj Sahu (PW-11), and Inspector Sant Ram Soni (PW-12). The seized contraband was confirmed by the FSL report to be cannabis (ganja). 3. After considering the evidence led by the prosecution the learned trial Court has convicted and sentenced the appellant as mentioned in the earlier part of this judgment. Hence, this appeal. 4. (A) Learned counsel for the appellant would submit that the prosecution has failed to establish its case beyond reasonable doubt. There are material omissions and contradictions in the testimony of the prosecution witnesses, which cannot form the basis for convicting the appellant for the alleged offence. The mandatory provisions contained under Sections 42, 50, 52, 52A, 55, and 57 of the NDPS Act have not been complied with. Furthermore, there is a complete non-compliance with Standing Order No. 1/89 issued by the Central Government regarding the procedure for drawing samples, and in the absence of adherence to such procedure by the Investigating Officer, the entire proceedings stand vitiated. (B) Learned counsel would submit that there exist discrepancies in the 5 CRA No.1423 of 2023 entries made in the Malkhana Register and in the samples said to have been forwarded for chemical examination, as there is no record in the Malkhana Register showing withdrawal of the samples for dispatch to the Forensic Science Laboratory. The independent witnesses have not supported the prosecution version, and the prosecution has also failed to prove that the appellant was in exclusive and conscious possession of the seized contraband. In such circumstances, there is no sufficient evidence to connect the appellant with the offence in question, and he is therefore entitled to acquittal. (C) Alternatively, learned counsel would submit that, having regard to the sentence imposed upon the appellant, the substantive sentence of 12 years’ rigorous imprisonment may be reduced to 10 years. 5. Learned counsel for the State would submit that the prosecution has proved its case beyond reasonable doubt. The seizure of 124.830 kilograms of ganja from the vehicle driven by the appellant was made in the presence of independent witnesses, after duly informing him of his rights under Section 50 NDPS Act and obtaining his consent. The contraband was seized under proper proceedings, samples were drawn, sent to FSL, and confirmed to be cannabis. Learned counsel would further submit that the alleged omissions or contradictions pointed out by the defence are minor in nature and do not affect the core of the prosecution case. It is highly improbable that the police would falsely implicate the appellant with such a huge commercial quantity of contraband. The chain of custody was duly maintained, and statutory provisions under Sections 42, 50, 52, 52A, 55, and 57 of the NDPS Act were 6 CRA No.1423 of 2023 substantially complied with. The evidence of official witnesses is consistent, reliable, and corroborated by documentary records as well as the FSL report. As such, the finding of the trial Court that the appellant was in conscious possession of the contraband stands well supported by evidence. Having regard to the commercial quantity involved, the sentence of 12 years’ rigorous imprisonment is just and does not call for any interference. 6. We have given our anxious consideration to the submissions advanced by learned counsel for the parties and have carefully scrutinized the record. 7. Independent witnesses Sanju Sahu (PW2) and Dhannu Vishwakarma (PW3) 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, they have stated that they did not give the said part to the police. They 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. Thus, the above two Panch witnesses have not supported the prosecution even for a moment. 7 CRA No.1423 of 2023 8. Manoj Sahu (PW9), Weigher, has stated that he does not know the accused and refused to identify him when shown via video conferencing. He runs a grocery shop at his residence and an egg cart in front of it in the evenings. Approximately two years ago, police visited his cart and asked him to sign several documents, stating that cannabis had been seized. He did not know from whom the cannabis was seized, and the police did not take his statement or conduct any formal interrogation. He signed documents including the notice (Exhibit P-27), physical verification of scales (Exhibit P-12), narcotic weighing memorandum (Exhibit P-13), and the narcotic “Samras” proceeding memorandum (Exhibit P-18). He denies that the police came at 10:00 a.m. on the date of the incident or informed him about a vehicle caught with cannabis in front of the police station, and he also denies being asked to weigh cannabis using his electronic scale. 9. 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 8 CRA No.1423 of 2023 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 which is supported by other evidence in the case. 10. The Investigating Officer, Manoj Sahu (PW11) has deposed that he was posted as Sub-Inspector at Bodela Police Station from 14th September 2019 to 14th February 2020. On 10th January 2020, he received an informer’s tip that a white Bolero vehicle, registration OD-10-H-1406, was transporting a large quantity of illegal cannabis toward Bodela. Acting on verbal orders from the Station House Officer, he recorded the information in Roznamcha entry No. 29 and issued notices to constable 802 and witnesses Sanju Sahu and Dhannu Vishwakarma to be present during the raid. The notices issued by him are Exhibits P-02 and P-20, bearing his signature. He further states that the dispatch and return of notices were recorded in Roznamcha entries 31 and 33. An informer’s statement was prepared before the witnesses as Exhibit P-03, recorded in Roznamcha entry 36. On the same date, he issued a letter through constable Nanhe Netam to the Sub-Divisional Officer, Bodela, under Section 42 of the NDPS, as per Exhibit P-22, recorded in Roznamcha entries 38 and 40. The originals and certified copies of Roznamcha entries 29, 31, 33, 36, 38, and 40 are collectively marked as Exhibit P-31. 9 CRA No.1423 of 2023 He prepared a memorandum (Exhibit P-04) noting the inability to obtain a search warrant in front of witnesses. He then proceeded with the witnesses and staff for verification and further action, recorded in Roznamcha entry 44. At the scene, a white Bolero OD-10-H-1406 was stopped on the informer’s directions. One person seated beside the driver fled, while the driver remained. He obtained the driver’s consent for action and prepared a consent memorandum (Exhibits P-05 and P-06), bearing his signature. The search of the accused and accompanying force was conducted, documented as Exhibit P- 07. On searching the accused, nothing was recovered from him; a memorandum of personal search was prepared as Exhibit P-08. The vehicle search revealed two blue-white tape-wrapped bundles of suspected cannabis behind the rear seat. This was recorded in the search memorandum, and a seizure memorandum was prepared as Exhibit P-10. He verified the substance by smell and taste, documented in identification memorandum Exhibit P-11. He also asked the accused to present valid documents for the transportation of the substance, documented as Exhibit P-32. A notice was issued for the presence of a Weighing person (Exhibit P-27), who brought an electronic scale to weigh the substance on site. The weight of the first bag was 62.500 kg, the second 62.330 kg, totaling 124.830 kg, recorded in the weighing memorandum (Exhibit P-13). He further states that the narcotic substance, the vehicle, and two mobile phones were seized in front of witnesses (Exhibit P-14). He packed the seized substance into bags, sealed them, and prepared a sealing memorandum. A site rough sketch was prepared as Exhibit P-17, and subsequent Roznamcha entries for return and dispatch were recorded in entries 10 CRA No.1423 of 2023 20 and 44 (Exhibit P-34 and certified copies). This witness deposed that upon return, he registered a case against the accused under Section 20(b) of the NDPS Act as FIR Exhibit P-35, recorded in Roznamcha entry 21 (Exhibit P-36 and certified copy). The accused was arrested, arrest memo prepared as Exhibit P-16, and family members informed. Notices for witness summoning were issued (Exhibit P-25). Constables were instructed to inform SDOP Bodela (Exhibit P-24) and bring the Weighing person (Exhibit P-26). The seized narcotic substance, vehicle, and mobiles were deposited in the police property store with receipt (Exhibit P-29). The entire case diary was subsequently submitted to the Station House Officer for further proceedings. He stated at the time of this case, the district had one SP and 7–8 DSPs posted, while Bodela Police Station had one Tehsildar, two Naib Tehsildars, one SDM (Revenue), and one SDOP (Police). He confirms that until the investigation was conducted, the owner of the vehicle could not be identified. He further states that all documents he signed were preprinted formats and denies that he went on the raid without taking any investigational material. He acknowledges that Roznamcha entry No. 44 (Exhibit P-34(1-C)) did not mention carrying seals, mats, bags, or candles as part of the investigational material. He denies that he did not personally record any Roznamcha entries. He confirms that at the time of the raid, the Station House Officer was Inspector Santram Soni. He asserts that he took approximately 10 minutes to prepare the informer’s memorandum in the presence of witnesses and denies 11 CRA No.1423 of 2023 that it was prepared without witnesses. He confirms that notices (Exhibits P-02, P-20, and P-27) were issued to witnesses Sanju Sahu, Dhannuram Vishwakarma, and Weighing person Manoj Sahu, whose names and addresses he already knew. He prepared these notices at the police station and on-site, taking roughly 10 minutes. The professions of the witnesses were not mentioned in the notices. He confirms that the witnesses are independent but cannot comment on whether they are prestigious. He denies that the witnesses are permanent witnesses of Bodela Police Station and confirms that the informer’s memorandum was received via mobile or letter. He did not prepare any separate document to inform the accused of the informer’s tip, and denies fabricating the informer’s memorandum or the “could not obtain search warrant” memorandum (Exhibit P-04). He asserts that he did attempt to obtain a search warrant, and the attempt was reported in Exhibit P-04. He confirms that no Section 50 NDPS Act notice was given to the accused. The consent memorandum (Exhibit P-05) reflects the accused’s agreement to be searched by him personally. He denies that the accused refused consent or that he misrepresented consent.. 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. 11. Section 43 of the NDPS Act provides the powers of seizure and arrest in public place which towards as under: 12 CRA No.1423 of 2023 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 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.] 12. The facts of the case as well as evidence available in the case makes it clear that the vehicle was stopped and it was found contained with cannabis 13 CRA No.1423 of 2023 (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. 13. In view of the provisions of explanation to Section 43, the Section 42 of the NDPS had no application. 14. The contraband were recovered and seized while in transit. As the contraband were recovered and seized during transit in the truck 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 Commission of offence before conducting search and seizure, is not required to be complied with under Section 43 of NDPS Act. 15. 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 14 CRA No.1423 of 2023 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." 16. 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 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 15 CRA No.1423 of 2023 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." 17. 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 16 CRA No.1423 of 2023 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 17 CRA No.1423 of 2023 observed the ownership of the vehicle is immaterial. Therefore, the argument as advanced by learned senior counsel is of no substance and meritless. 18. 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 appellants 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. 19. 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 18 CRA No.1423 of 2023 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 Court, the argument of non−compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled." 20. 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." 21. 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:- 19 CRA No.1423 of 2023 “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 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 20 CRA No.1423 of 2023 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 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 21 CRA No.1423 of 2023 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 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." 22. 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 22 CRA No.1423 of 2023 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. 23. PW12- Santram Soni (Inspector) has deposed in examination-in-chief that he was posted as Inspector at Bodla Police Station from November 2019 to September 2021. On 10.01.2020, he received the case diary of Crime No. 11/2019 for investigation. On the same date, he submitted an application (Exhibit P-36, pages A to A) to the Sub-Divisional Revenue Officer, Bodla, requesting the appointment of an Executive Magistrate to conduct the samras proceeding of the seized contraband, namely cannabis. The Executive Magistrate attended the Bodla police station premises on 11.01.2020 and conducted the samras proceeding in the presence of witnesses. On the same day, constable Purushottam Verma brought two sealed packets resulting from the samras proceeding and seized them under seizure memo P-37, pages A to A, which bears his signature. On the same date, he sent the complete report of the samras proceeding of the seized contraband to the Police Sub-Divisional Officer, Bodla (Exhibit P-38, pages A to A, signed by him). On 11.01.2020, he prepared an application (Exhibit P-39, pages A to A) to request the local patwari to prepare a site plan of the incident location. During the investigation, he recorded the statements of witnesses Sanju Sahu, Dhannuram Vishwakar. He deposed that the seized articles were sent to the Forensic Science Laboratory, Raipur through SP concerned and its acknowledgment is Ex.P/40. 23 CRA No.1423 of 2023 24. PW5- Aman Chaturvedi (Nayab Tehsildar) has deposed that he was posted as Naib Tehsildar in Tehsil Bodla from April 2018 to November 2021. On 10.01.2020, in compliance with the order of the Sub-Divisional Officer (Revenue), Bodla, he appeared at Police Station Bodla on 11.01.2020 in connection with Crime No. 11/2020 registered under Section 20(b) of the NDPS Act, for the purpose of homogenization of the seized contraband. He further stated that in the presence of witnesses, the 12 seized packets relating to Crime No. 11/2020 were opened, mixed together, and homogenized. Out of the total contraband, which weighed 123.720 kilograms, two sample packets of 100 grams each were separately prepared and sealed. He deposed that he got the seized property weighed, and the total weight of the contraband (ganja-like substance) was found to be 123.720 kilograms. After preparation of two sample packets of 100 grams each, the remaining contraband weighed 123.520 kilograms. The empty packing materials, including tape, polythene, and rope in which the contraband had been stored, were also weighed, and their total weight was found to be 1.080 kilograms. These were sealed in a sack weighing 170 grams. The remaining contraband weighing 123.520 kilograms was sealed in three plastic sacks. The total sealed weight was found to be 123.950 kilograms. The witness further stated that the entire process of homogenization was photographed. The memorandum of homogenization prepared by him is Ex.P-18, which bears his signature on each page. 25. Investigating Officer/ Manoj Sahu (PW11) has stated that when the letter Ex.P-22 was sent to the SDOP, the officer was not present in his office, and therefore, the information regarding illegal transportation of ganja was 24 CRA No.1423 of 2023 conveyed to him over mobile phone. He denied that the SDOP was present in his office and failed to visit the spot after receiving the letter Ex.P-22. The defence has based its case on the non-conduct of proceedings under Section 52A by the judicial magistrate. This case has been initiated by the investigating officer on 10.01.2020 and the amendment in the NDPS Act is effective from 23.12.2022, hence, non-conduct of proceedings under Section 52A by the judicial magistrate does not have any adverse effect on the case, hence the basis taken by the defence in this regard is also not acceptable. In the case, no contradiction of any kind has been found in the statements of the investigating officer/inspector. No such important fact has come to light in the cross- examination of the said witnesses due to which their statements can be disbelieved. The statements of the above witnesses are also confirmed by the Panchnama/Inventory, physical verification and photographs. Thus, on the above grounds, it is also shown that the provisions of Section 52A NDPS Act were followed in the case. 26. 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 samples is the defective procedure which vitiates the entire search proceedings. 25 CRA No.1423 of 2023 27. Though it reflect from the evidence available on record that when the police stopped the vehicle they found the cannabis (Ganja) kept in 2 sack, containing 06 packets in each bag, a total of 124.830 Kg. 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 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. 28. 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. 29. 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 26 CRA No.1423 of 2023 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. 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 27 CRA No.1423 of 2023 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 28 CRA No.1423 of 2023 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 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. 29 CRA No.1423 of 2023 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 30 CRA No.1423 of 2023 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 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 31 CRA No.1423 of 2023 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 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 32 CRA No.1423 of 2023 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 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 33 CRA No.1423 of 2023 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 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 / 34 CRA No.1423 of 2023 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 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 35 CRA No.1423 of 2023 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 36 CRA No.1423 of 2023 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 emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the 37 CRA No.1423 of 2023 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 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 38 CRA No.1423 of 2023 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, only the best evidence to establish such fact must be led and adduced which often happens to 39 CRA No.1423 of 2023 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 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 40 CRA No.1423 of 2023 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. 30. 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: - “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.” 41 CRA No.1423 of 2023 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.” 31. In the present case the entire search and seizure proceedings have found genuine and the correct procedure have been drawn by the 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. 32. 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 42 CRA No.1423 of 2023 present case the appellant was found in possession of 123.840 kg of cannabis (Ganja) in 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 123.840 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. 33. The FSL report Ex.-P/42 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. 34. 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. 43 CRA No.1423 of 2023 35. With regard to the prayer of the appellant for reduction of sentence from 12 years to 10 years is concerned, such practice has recently been deprecated by the Supreme Court in the matter of Narayan Das v State of Chhattisgarh in SLP (Crl.) No. of 2025 (diary No.30825/2025) decided on 17/7/2025. 36. In the result, both 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 them by the learned trial Court. 37. 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. 38. 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/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Rahul