1 2025:CGHC:18963 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 799 of 2021 1 - Sanjay Dwivedi & Others S/o Shiv Shankar Dwivedi Aged About 39 Years R/o Village-Akodi, P.S. Aata, District-Jaloun, Uttar Pradesh, District : Jalaun, Uttar Pradesh 2 - Sanjay Kumar Tripathi S/o Birendra Kumar Tripathi Aged About 38 Years Residence Of Utai, P.S. Urai, District- Jaloum, Uttar Pradesh, District : Jalaun, Uttar Pradesh 3 - Iqbal Khan S/o Juman Khan Aged About 22 Years Resident Of Urai, P.S. Urai, District- Jaloun, Uttar Pradesh, District : Jalaun, Uttar Pradesh ... Appellant(s) versus 1 - State of Chhattisgarh Through Police Station- Keshkal, District- Kondagaon, Chhattisgarh, District : Kondagaon, Chhattisgarh ... Respondent(s) For Appellant(s) : Ms. Sangeeta Mishra, on behalf of Mr. Vineet Kumar Pandey, Advocate. For Respondent/State : Ms. Sunita Manikpuri, Dy. Govt. Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 25/04/2025 1. The present appeal has been filed by the appellants under Section 374(2) of the Code of Criminal Procedure 1973, (for short the, Cr.P.C.) against the 2 impugned judgment of conviction and sentence dated 14.07.2021, passed by learned Special Judge (NDPS Act) Kondagaon, District- Kondagaon, (C.G.) in Special Criminal Case (NDPS Act, 1985) No. 08/2018, whereby the appellants are convicted 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 them for R.I. for 10 years with fine of Rs.1,00,000/- (each of the appellants) in default of payment of fine additional R.I. for 01 year. 2. Brief facts of the case are that on 17.09.2017, the Police Inspector Sharad Dubey (PW-10) received secret information that the illegal Ganja is being transporting in an Alto Car bearing No. UP91F3592, which was coming from Jagdalpur to Raipur. The secret information was recorded in Rojnamcha Sanha No. 14 on 17-09-2017. The independent witnesses, Saradu Netam (PW-2) and Santosh Nag (PW-1), were called by Constable Than Singh Chandravanshi (PW12). When they appeared in the Police Station, they were informed about the secret information, and a secret information panchnama (Ex. P-2) was prepared. The copy of the secret information panchnama and the necessity to search without panchnama was forwarded to the SDOP, Kondagaon, and the police party proceeded towards the place of incident, and their departure has also been recorded in the Rojnamcha Sanha (Ex. P-38). When the police party reached near Keshkal Police Station, they found the suspected car coming from the Jagdalpur side. They stopped the said car in which three persons were found sitting. The driver of the car disclosed his name as Iqbal Khan, and two other persons sitting in the car disclosed their names as Sanjay Dwivedi and Sanjay Tripathi. They were apprised about the secret information, and they disclosed that they are transporting Ganja from Koraput, Orissa, to Jalaun, Uttar Pradesh, for its sale. Notice under Section 50 of the NDPS Act (Ex. P-39, P-40 and P-41) was also given to them, and they were informed about their right to search. 3 Their consent was obtained that they are ready to be searched by the police officer. Before their search, the police party had also given their own search and the Govt. vehicle was also searched by the accused persons. On being search of the police party, no incriminating articles were found. When the car of the accused persons/appellants were searched, 25 packets wrapped with brown colour tape were recovered from the back dicky of the car. Three other bags containing clothes and articles of daily use were found. From the appellant Sanjay Dwivedi, his driving license was recovered from the appellant Iqbal one mobile phone have been recovered. The 25 packets recovered from the car were numbered. The material of the packets was physically identified by rubbing, smelling and burning, and the witnesses have identified it to be of Ganja. The weighment witness, Devendra Nag, was called through the constable Arvind Maatlam (PW-7), and after physical verification of the weighment apparatus and weighing of the recovered Ganja, it was found to be 50.490kg. Notice under Section 91 of the Cr.P.C. (Ex. P/45, P/46 and P/47) was also given to the appellants, but they failed to submit any document with respect to the said Ganja. The Ganja, car and other articles were seized on the spot. The seized packets of Ganja were refilled in three plastic bags. Various panchnamas of all the proceedings have been prepared on the spot and Dehati Nalisi (Ex. P/48) was recorded. The appellants, car, the Ganja and other articles seized from them were taken to police station and based on the Dehati Nalisi, the FIR Ex.P/57 was registered against the appellants for the offence under Section 20(b) of the NDPS Act. The seized article, including Ganja, was kept in the safe custody of Malkhana through Malkhana Moharir. The spot map (Ex. P-49) has been prepared. Inventory, homogenization and sampling procedures were also done during the investigation. Photography of inventory proceedings was also done, and the sample packets of Ganja were sent for its chemical examination to FSL, Raipur, from where the report (Ex. P-53) has been 4 obtained, in which the contents of Ganja were found. Statement of the witnesses has been recorded, and after completion of the usual investigation charge-sheet has been filed against the appellants for the offence under Section 20(b) of the NDPS Act. 3. The trial Court has framed the charge against the appellants for the offence under Section 20(b)(ii)(C) of the NDPS Act. The appellants denied the charge and claimed for trial. 4. In order to prove the charge against the appellants, the prosecution has examined as many as 12 witnesses. Statement of the appellants under Section 313 of the Cr.P.C. have also been recorded in which they denied the circumstances appearing against them, pleaded innocence and submitted that they have been falsely implicated in the offence. 5. After considering the evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellants as mentioned in the earlier part of this judgment. Hence, this appeal. 6. Learned counsel for the appellants 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 the basis to convict the appellants for the alleged offence. There is non-compliance of the mandatory provisions of Sections 42, 50, 52, 52A, 55 and 57 of the NDPS Act. There is absolutely no compliance of the standing Order No.1/89 issued by the Central Govt. with respect to the procedure for drawing samples, and in the absence of any proper procedure drawn by the investigating officer, the entire proceeding vitiates. She would further submit that there are discrepancies in the entries made in the Malkhana Register and the samples sent for its chemical examination, as there is no entry in the Malkhana Register taking out the samples from there to send them to FSL. The independent witnesses have not supported the prosecution’s case, and the prosecution has failed to prove that the 5 appellants were found in exclusive and conscious possession of the seized Ganja, and therefore, there is no sufficient evidence on record to connect the appellants with the offence in question, and thus, they are entitled for acquittal. 7. On the other hand, learned counsel for the State opposes and has submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions, their evidence is fully reliable. The minor discrepancies, which are trivial in nature, do not affect the credibility of the prosecution's case. There is no reason for the prosecution to falsely implicate the appellants in a huge quantity of Ganja, or in the case of having possession of said huge quantity of Ganja. She would further submit that the mandatory provisions of the NDPS Act have been duly proved as per its requirements. There is no explanation from the appellants as to how they came into possession of such a huge quantity of Ganja. After considering the entire evidence available on record, the learned trial Court has rightly come to the conclusion that the appellants are guilty of the alleged offence and has convicted and sentenced the appellants, which needs no interference. 8. I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 9. PW-10, Sharad Dubey, who is the Inspector of Police, has stated in his evidence that on 17-09-2017, he received secret information that Ganja is transporting in an Alto Car bearing registration No. UP91-F 3592 from Jagdalpur side. The secret information was recorded in the Rojnamcha Sanha Ex.P/31. The memo of secret information was forwarded to the SDOP of Keshkal through the constable Arvind Maatlam (PW-7), which was recorded in Rojnamcha Sanha No. 15, which is Ex.P/32. The memo of secret information is Ex.P/27. He called two independent witnesses through Constable Than Singh Chandravnashi, which was also recorded in Rojnamcha Sanha Ex.P/33. Two independent witnesses, Saradu Netam 6 (PW-2) and Santosh Nag (PW-1) came to the police station at 13:30 hours, which was also recorded in Rojnamcha Ex.P/35. Their consent has been obtained in the memo Ex.P/1 and Ex.P/15. The secret information panchnama Ex.P/2 was prepared in their presence, and the memo for calling of the witnesses Ex.P/36 was issued. On 17.09.2017 at about 13:40 hours, he prepared the necessity to search without a warrant panchnama Ex.P/37. The police party proceeded to the place of the incident, and their departure was also recorded in Rojnamcha Sanha Ex.P/38. The place of the incident is the National Highway, in front of Keshkal Police Station. After some time, they found the suspected car coming from the Jagdalpur side. They stopped the car, and then the driver disclosed his name as Iqbal Khan and two other persons disclosed their names as Sanjay Dwivedi and Sanjay Tripathi. Notice under Section 50 of the NDPS Act was given to them, which are Ex.P/39, Ex.P/40 and Ex.P/41. They were informed about their right to search by him or by a Gazetted Officer or any Magistrate, and then they gave their consent to be searched by him. At about 14:15 hours, the appellants had taken the search of the police party and a panchnama Ex.P/3 was prepared. At about 14:30 hours, the appellants have also taken the search of the independent witnesses and panchnama Ex.P/42 was prepared. At about 14:45 hours, they searched the vehicle and the appellants and then one driving license from appellant Sanjay Dwivedi, one mobile phone from the appellant Iqbal, 25 packets wrapped by brown plastic tape from the back dicky of the car and three other bags contained with clothes and daily use articles were recovered and panchnama Ex.P/4 was prepared. The recovered articles were seized vide seizure memo Ex.P/5. The material of the packets was physically identified, and it was identified as Ganja, and identification panchnama Ex.P/6 was prepared. The weighment witness, Devendra Nag, was called through the constable Arvind Maatlam (PW-7) and the witness came along with the weightment apparatus. It was physically verified and physical 7 verification panchnama Ex.P/7 was prepared. 10. All the 25 packets were separately weighed, and the following weights of the packets were found:- Packet No. Weight Packet No. Weight 1. 2.000kg 13. 2.030kg 2. 2.000Kg 14. 2.030kg 3. 2.040kg 15. 2.010kg 4. 2.010kg 16. 2.040kg 5. 2.000kg 17. 2.030kg 6. 2.000kg 18. 2.030kg 7. 2.010kg 19. 2.020kg 8. 2.030kg 20. 2.000kg 9. 2.000kg 21 2.030kg 10. 2.020kg 22. 2.040kg 11. 2.000kg 23. 2.010kg 12. 2.040kg 24. 2.030kg 25. 2.040kg 11. The total weight of 25 packets of Ganja was 50.490kg, and the weightment panchnama Ex.P/8 was prepared; thereafter, all 25 packets, the Alto car No. UP91 F-3592 have been seized from their joint possession, the driving license seized from the appellant Sanjay Dwivedi, mobile phone seized from Iqbal Khan and the seizure memo Ex.P/9 was prepared. The 25 packets of Ganja were re-filled in 3 plastic bags, and it was sealed and seal panchnama Ex.P/10 was prepared. The appellants were arrested on the spot. The duty certificate Ex.P/43 was issued to the constable Arvind Maatlam, who called the weighment witness, and the notice issued to the witness is Ex.P/44. The notice under Section 91 of the Cr.P.C. was given to the appellants, which are Ex.P/45, Ex.P/46 and Ex.P/47. The appellants could not produce any document with respect to the transportation of the said Ganja. Dehati Nalisi Ex.P/48 was recorded on the spot and spot map Ex.P/49 was prepared. After the entire search and seizure proceedings, the police party, along with seized 8 articles, Ganja, car and the accused persons, came to the police station, and their arrival was recorded in Rojnamcha Sanha No. 21, which is Ex.P/50. 12. The seized articles, ganja and car, were handed over to Malkhana Moharir Harish Chandra Netam (PW-9) for keeping them in safe custody and obtained acknowledgement Ex.P/29 and handed over the record to Sub Inspector Rajesh Jagat (PW-11). On 18.09.2017, he wrote a letter Ex.P/24 to the Sub Divisional Magistrate, Keshkal, for appointing any Executive Magistrate to conduct the inventory, homogenization and sampling proceeding. On 20.09.2017, he received the sealed bags of Ganja for its inventory proceeding from the Malkhana Moharir and panchnama Ex.P/51 was prepared, and on the same day, i.e. on 20.09.2017, he produced the same before the Executive Magistrate, Kshama Yadu (PW-6) at Tahsil Office, Keshkal. During the inventory proceeding, the weighment witness Devendra Nag weighed the three bags, thereafter opened the bags, and all the 25 packets were weighed. The weight of each packet was mentioned in the report, Ex.P/25. During the inventory proceedings, along with him, the constable Ishwar Netam, Lileshwar Dhruw, Arvind Maatlam (PW-7) and photographer Haresh Dhruw and weighment witness Devendra Nag were present. After the weighment of the packets, all the packets were opened, their contents were taken out and homogenized and thereafter, two samples of 50gm each were separated and separately sealed and marked as S-1 and S-2 and sealed with the seal of Police Station, Keshkal. The remaining Ganja were refilled in three bags, which were marked as A, B and C, and it was again weighed, which came to a total of 50.490kg, including the weight of the bags. It was also sealed with the seal of the Police Station, Keshkal. The inventory report has been prepared Executive Magistrate/Nayab Tahsildar, and photography was done by photographer Haresh Dhruw, which is article A-1 to A-7. After the inventory proceeding, he has taken the sample packets, remaining Ganja, inventory report to the police station and the sample 9 packets and Ganja were handed over to Malkhana Moharir Harish Chandra Netam, and the inventory report was tagged with the case diary. 13. Out of two sample packets, one sample packets of S-1 were sent for its chemical examination to FSL, Raipur, along with the draft Ex.P/23 through the constable Kachruram Netam (PW-5) on 21.09.2017. The FSL report Ex.P/53 was received, in which Ganja contents were found in sample packets S-1. From the letter Ex.P/54, the ownership of the seized vehicle UP91 F-3592 were inquired from the Superintendent of Police, Kondagaon and another letter Ex.P/55 was sent to RTO, Ameerpur, Uttar Pradesh for disclosure of ownership of the said vehicle. In reply to that, the RTO, Ameerpur, had disclosed that the said car UP91 F-3592 is registered in the name of Hemant Kumar, son of Shri Ram Vishal, resident of Kalki Chauraha, Ameerpur. He recorded the statement of the witnesses, and after completion of the usual investigation charge-sheet Ex.P/56 was filed by him. In cross- examination, he stuck to the entire search and seizure proceeding, which he conducted on the spot. But for minor omissions or contradictions, which are trivial in nature, nothing could be extracted from his cross-examination so that the evidence of this witness can be disbelieved. From the evidence of this witness, it reflects that he has complied with all the mandatory provisions of the NDPS Act during the search and seizure proceedings, and panchnamas have been prepared. 14. PW-1, Santosh Kumar Nag and PW-2, Sarduram Netam, were the independent witnesses. Though they have not supported the prosecution’s case and have turned hostile but they have admitted their signature in the panchnamas Ex.P/1 to Ex.P/13. 15. PW-3, Sudharshan Majumdar, who is the Sub-Inspector of Police and a member of the search party, has proved the search and seizure proceeding and stated in his evidence that on 17.09.2017, the police party stopped the silver colour car bearing No. UP91F3592 in front of Police Station, the 10 appellants were there in the car and on being their search 25 packets were recovered from the dicky of the car in which Ganja was found. The total weight of Ganja was 50.490kg, and the appellants were arrested and all of them were taken into the police station. In cross-examination, he disclosed in his police statement Ex.D/1 that Sanjay Tiwari was also sitting in the said car, and if it is not there in his police statement, he could not tell the reason. He admitted that all the proceedings have been done by the T.I., Sharad Dubey. He also stated that in his police statement, he disclosed that from all the 25 packets, a small quantity of Ganja was taken out for its physical verification, and if it is not there, he could not tell the reason. The discrepancies that were asked in his cross-examination by the defence do not dilute the entire search and seizure proceedings, as the discrepancies are not having much significance. 16. PW-4, Hemant Kumar, is the registered owner of the said Alto Car No. UP91 F-3592. He stated in his evidence that he purchased the said car since 5-6 years back. After 2 – 3 years of its purchase, he sold it to one Jaheer Khan resident of the village Urai, District Jalaun and also signed the documents of transfer of ownership of the said vehicle. Before 17.09.2017, he handed over the possession of the said vehicle to its purchaser, Jaheer Khan. The photograph annexed in the police statement Ex.P/15 is the photograph of Jaheer Khan. Kondagaon police have issued him a notice Ex.P/16. The documents submitted for mutation of the name of Jaheer Khan and his no- objection are Ex.P/17, Ex.P/18 and Ex.P/19. The insurance policy of the car is Ex.P/20, and the PUC Certificate is Ex.P/21. In cross-examination, he admitted that after selling the vehicle to Jaheer Khan, who driving the said vehicle, he did not know. 17. PW-5, Kachruram Netam, is the constable who has taken the sample packet of Ganja S-1 to the FSL on 21.09.2017. On 22.09.2017, he deposited it to FSL, Raipur and obtained acknowledgement Ex.P/22. In cross-examination, 11 he remained firm in saying that he deposited the sample packet to FSL in the same condition as it was given to him. He denied tampering with the sample while it was kept by him during the transit. 18. PW-6, Smt. Kshama Yadu is the Nayab Tahsildar, who conducted the inventory, homogenization and sampling proceedings. She stated in her evidence that by the letter dated 18.09.2017, she was directed by the Sub Divisional Magistrate Keshkal to conduct the inventory proceeding. On 20.09.2017, the Station House Officer Keshkal, Sharad Dubey, brought three sealed plastic bags for inventory proceeding. The photographer Haresh Dhruw and witness Devendra Nag were also with them. All three plastic bags were sealed with the seal of the police station, Keshkal. When it was opened, 25 packets were taken out. All the 25 packets were separately weighed by a weighment witness, and the weight of each packet was mentioned in the report. After its weight, all the packets were opened and the Ganja were homogenized and thereafter two samples of 50gm each were drawn and separately sealed with the seal of Police Station, Keshkal. The remaining Ganja was re-filled in three plastic bags, and its weight comes to 50.490kg, which were marked as A, B and C and sample packets were marked as S-1 and S-2. The bags of Ganja were also sealed by the seal of the Police Station, Keshkal. Photography was also done, and she prepared the homogenization and inventory report, which are Ex.P/25 and Ex.P/26. The photographs are articles A-1 to A-7. After completion of inventory and homogenization proceedings, she returned the sample packets, remaining Ganja, and the inventory report to SHO, Sharad Dubey. In cross- examination, she remained firm in the inventory proceeding that she conducted. Though she admitted that the total weight of packets was 50.490kg and even after separating the samples, the total weight of remaining Ganja was written as 50.490kg, but she voluntarily stated that the said weight included the weight of the bag. 12 19. PW-7, Arvind Maatlam, is the constable who took the closed envelope of secret information to the SDOP Office, Keshkal and obtained acknowledgement Ex.P/27. 20. PW-8, Ajay Tekam, is the Head Constable posted as the Reader of SDOP, Keshkal. He stated that on 17.09.2017, he received a letter from Constable Arvind Maatlam, and he issued his acknowledgement Ex.P/27. He telephonically informed the SDOP about the letter and made an entry in the register. On 18.09.2017, the constable Arivnd Maatlam again produced an envelope containing the details of proceedings, a copy of the FIR, seizure memo, crime detail and arrest memo. He also issued his acknowledgement. In cross-examination, he also remained firm that he received the documents from the police station, Keshkal, through the constable Arvind Maatlam. 21. PW-9, Harish Chandra Netam, is the Head Constable and Malkhana Moharir at Police Station, Keshkal. He stated in his evidence that on 17.09.2017, the Station House Officer, Keshkal, had given three sealed bags containing Ganja, one Alto Car No. UP91 F3592, one mobile phone, one driving license for keeping in the safe custody of Malkhana. He kept the Car in the Thana premises and other articles in Malkhana, and he issued an acknowledgement Ex.P/29. The said entry was also made in Malkhana Register Ex.P/30. On 20.09.2017, the SHO Sharad Dubey had taken the said Ganja for its inventory proceeding, which has also been endorsed in Rojnamcha Sanha No. 20 and also in Malkhana Register. On the same day, i.e. on 20.09.2017, the SHO, Sharad Dubey, again deposited three sealed plastic bags containing Ganja and two sealed sample packets of 50gm each, which have also been endorsed in Malkhana Register Ex.P/30 and Rojnamcha Sanha No. 21 dated 20.09.2017. On 31.10.2017, the seized Ganja, which was in three sealed plastic bags, was deposited in the Malkhana of Police Station, Kondagaon, which has also been recorded in Malkhana Register Ex.P/30 and Rojnamcha Sanha No.2 dated 31.10.2017. On 21.09.2017, he sent one 13 sample packet of Ganja to State FSL, Raipur through Constable Kachruram Netam, which has been endorsed in Malkhana Register Ex.P/30 and Rojnamcha Sanha No.3 dated 21.09.2017. After its chemical examination, the sample packets were returned to the Police Station, which he brought with him today. The learned trial Court has examined these sample packets and observed that it was a sealed packet marked with S-1 C/N/364/17 UP105/17 Thana, Keshkal, District Kondagaon. Except for the sample packets, the seized Ganja was destroyed as per rules, and the seized vehicle is kept in safe custody at the Police Station, Vishrampuri. In cross- examination, nothing substantive has come except for a minor discrepancy regarding the timing of the deposition of the articles he could not remember. He could not know the name mentioned on the driving licence or the ownership of the mobile. He also stated in his cross-examination that he could not remember what article was marked in the sample packets. From the cross-examination, the defence could not extract any incriminating circumstances, which makes his evidence doubtful. 22. PW-11, Rajesh Jagat, is the Inspector of Police who registered the FIR Ex.P/57 on the basis of the Dehati Nalishi Ex.P/47. 23. PW-12, Than Singh Chandravanshi, is the Head Constable is also one of the member of the search party. He stated in his evidence that on 17.09.2017, the Station House Officer, Sharad Dubey, informed him about secret information, and then, under his instruction, he called two independent witnesses, Santosh Nag and Saradu Netam. He participated in the entire search and seizure proceeding and seizure of Ganja from the accused persons. He also stated in his evidence the manner in which the Ganja was seized, the weight and arrest of the accused persons and also the preparation of various panchnamas on the spot. The defence could not impute any discrepancy in his cross-examination to disbelieve his evidence or disparticipation in the search and seizure proceeding. 14 24. From the evidence of these witnesses, the prosecution has proved the search and seizure proceedings of Ganja from the accused persons. In the light of the aforesaid evidence available on record. Now I consider the law laid down by the Hon’ble Supreme Court on the grounds of non-compliance of mandatory provisions of the NDPS Act, raised by the appellants. 25. The submission of the learned counsel for the appellants that Provisions of Section 42 of the Act have not been complied with. 26. PW-10, Sharad Dubey, has explained that he sent secret information to his senior official through Constable Arvind Maatlam, and he proved the acknowledgement Ex.-P/27 with respect to the receipt of the intimation about the secret information. Further from the evidence of PW-8, Ajay Tekam, the receipt of a copy of secret information Ex.P/27 has been proved. Even otherwise, Section 42 would not be applicable in the case as the Ganja has been seized from a public place and therefore, Section 43 of the NDPS is applicable, which provides that:- “43. Power of seizure and arrest in public place- Any officer of any of the departments mentioned in section 42 may:- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (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. 15 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.” 27. The contraband was recovered and seized from an open place from the car of the appellants. As the contraband were recovered and seized from the public place which was kept in total 25 packets, as contemplated in Section 43(a), i.e., “seized 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. 28. 28. The next submission of the learned counsel for the appellants 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 in accordance with law as provided under Section 50 of the NDPS Act. 29. The provisions of Section 50 is not applicable to the present search of the accused persons, because in the present case, the Ganja was recovered from the car of the appellants which cannot be said to be their personal search. The search of the car of the appellants does not comes under the requirement of Section 50 of the NDPS Act and search of a person is distinguished from search of any conveyance etc. 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 16 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 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 living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner 17 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 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 the Section 52A 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. 18 33. From the evidence of PW-10, Sharad Dubey, it comes on record that when he received secret information, he constituted the search party, called the independent witnesses and proceeded to the place of the incident. After some time, the accused persons came there on their car, who were found in possession of the alleged Ganja kept in total 25 packets. The total quantity of Ganja was found 50.490 kg. on its weighment. 34. 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. 35. In the matter of Bharat Aambale (supra) the Hon'ble Supreme Court in Para 25 to 37 has held as under: “25. In Noor Aga (supra) the order of conviction had been set-aside not just on the ground of violation of Section 52A but due to several other discrepancies in the physical evidence as to the colour and weight, and due to the lack of any independent witnesses. In fact, this Court despite being conscious of the procedural deficiencies in the said case in terms of Section 52A observed that the matter may have been entirely different if there were no other discrepancies or if the other material on record were found to be convincing or supported by independent witnesses. The relevant observations read as under: - “107. The seal was not even deposited in the malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the recovery was ensured. Even the malkhana register was not produced. 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. 19 Gupta, however, stated that the time of seizure was 8.30 p.m. The appellant's defence was that some carton left by some passenger was passed upon him, being a crew member in this regard assumes importance (see Jitendra para 6). The panchnama was said to have been drawn at 10 p.m. as per PW 1 whereas PW 2 stated that panchnama was drawn at 8.30 p.m. Exhibit PA, containing the purported option to conduct personal search under Section 50 of the Act, only mentioned the time when the flight landed at the airport. xxx xxx xxx 111. In a case of this nature, where there are a large number of discrepancies, the appellant has been gravely prejudiced by their non-examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses had not been examined. The matter might have been different if the evidence of the investigating officer who recovered the material objects was found to be convincing. The statement of the investigating officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure of which we may now take note.” (Emphasis supplied) 26. Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done. What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non-compliance of the procedure envisaged under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution’s case. In such instances of procedural error or deficiency, the courts 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 20 the aspects of possession, seizure or recovery of such material in the first place. 27. In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. 28. In Khet Singh v. Union of India reported in (2002) 4 SCC 380 this Court held that the Standing Order(s) issued by the NCB and the procedure envisaged therein is only intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It further observed that there may, however, be circumstances in which it would not be possible to follow these guidelines to the letter, particularly in cases of chance recovery or lack of proper facility being available at the spot. In such circumstances of procedural illegality, the evidence collected thereby will not become inadmissible and rather the courts would only be required to consider all the circumstances and find out whether any serious prejudice had been caused to the accused or not. Further it directed, that in such cases of procedural lapses or delays, the officer would be duty bound to indicate and explain the reason behind such delay or deficiency whilst preparing the memo. The relevant observations read as under: - “5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance. xxx xxx xxx 21 10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. xxx xxx xxx 16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” (Emphasis supplied) 29. A similar view as above was reiterated in the decision of State of Punjab v. Makhan Chand reported in (2004) 3 SCC 453 wherein this Court after examining the purport of Section 52A of the NDPS Act and the Standing Order(s) issued thereunder, held that the procedure prescribed under the said order is merely intended to guide the officers to see that a 22 fair procedure is adopted by the officer in charge of the investigation and they were not inexorable rules. The relevant observations read as under: - “10. This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with “disposal of seized narcotic drugs and psychotropic substances”. Under sub- section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 27 Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub- section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention.” (Emphasis supplied) 30. Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward 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, 23 or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 28 narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of brining clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may 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 24 the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution’s case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc. 31. At the same time, one must be mindful of the fact that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. It in no manner prescribes how the seizure or recovery of narcotic substances is to be proved or what can be led as evidence to prove the same. Rather, it is the general principles of evidence, as enshrined in the Evidence Act that governs how seizure or recovery may be proved. 32. Thus, the prosecution sans the compliance of the procedure under Section 52A of the NDPS Act will not render itself helpless but can still prove the seizure or recovery of contraband by leading cogent evidence in this regard such as by examining the seizing officer, producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra). 33. Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 29 emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking. 34. At this stage we may clarify the scope and purport of Section 52A sub- section (4) with a view to obviate any 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. 25 35. What this provision entails is that, where the seized substance after being forwarded to the officer empowered is inventoried, photographed and thereafter samples are drawn therefrom as per the procedure prescribed under the said provision and the Rules / Standing Order(s), and the same is also duly certified by a magistrate, then such certified inventory, photographs and samples has to mandatorily be treated as primary evidence. The use of the word “shall” indicates that it would be mandatory for the court to treat the same as primary evidence if twin conditions are fulfilled being (i) that the inventory, photographs and samples drawn are certified by the magistrate AND (ii) that the court is satisfied that the entire process was done in consonance and substantial compliance with the procedure prescribed under the provision and its Rules / Standing Order(s). 36. Even where the bulk quantity of the seized material is not produced before the court or happens to be destroyed or disposed in contravention of Section 52A of the NDPS Act, the same would be immaterial and have no bearing on the evidentiary value of any inventory, photographs or samples of such substance that is duly certified by a magistrate and prepared in terms of the said provision. We say so, because sub-section (4) of Section 52A was inserted to mitigate the issue of degradation, pilferage or theft of seized substances affecting the very trial. It was often seen that, due to prolonged trials, the substance that was seized would deteriorate in quality or completely disappear even before the trial could proceed, by the time the trial would commence, the unavailability of such material would result in a crucial piece of evidence to establish possession becoming missing and the outcome of the trial becoming a foregone conclusion. The legislature being alive to this fact, thought fit to introduce an element of preservation of such evidence of possession of contraband in the form of inventory, photographs and samples and imbued certain procedural safeguards and supervision through the requirement of certification by a magistrate, which is now contained in sub-section (4) of Section 52A. In other words, any inventory, photographs or samples of seized substance that was prepared in substantial compliance of the procedure under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to mandatorily be treated as primary evidence, irrespective of the fact that the bulk quantity has not been produced and allegedly destroyed without any lawful order. 37. Section 52A sub-section (4) should not be conflated as a rule of evidence in the traditional sense, i.e., it should not be construed to have laid down that only the certified inventory, photographs and samples of seized substance will be primary evidence and nothing else. The rule of ‘Primary Evidence’ or ‘Best Evidence’ is now well settled. In order to prove a fact, 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 26 preservation of such substance till the duration of trial, due to Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 30 pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub-section (4) in Section 52A to bring even the inventory, photographs or samples of such seized substance on the same pedestal as the original substance, and by a deeming fiction has provided that the same be treated as primary evidence, provided they have been certified by a magistrate in substantial compliance of the procedure prescribed. This, however, does not mean that where Section 52A has not been complied, the prosecution would be helpless, and cannot prove the factum of possession by adducing other primary evidence in this regard such as by either producing the bulk quantity itself, or examining the witnesses to the recovery etc. What Section 52A sub-section (4) of the NDPS Act does is it creates a new form of primary evidence by way of a deeming fiction which would be on par with the original seized substance as long as the same was done in substantial compliance of the procedure prescribed thereunder, however, the said provision by no means renders the other evidence in original to be excluded as primary evidence, it neither confines nor restricts the manner of proving possession to only one mode i.e., through such certified inventory, photographs or samples such that all other material are said to be excluded from the ambit of ‘evidence’, rather it can be said that the provision instead provides one additional limb of evidentiary rule in proving such possession. Thus, even in the absence of compliance of Section 52A of the NDPS Act, the courts cannot simply overlook the other cogent evidence in the form of the seized substance itself or the testimony of the witnesses examined, all that the courts would be required in the absence of any such compliance is to be more careful while appreciating the evidence.” 36. 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 27 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.” 37. Learned counsel for the appellants have cited the judgment passed by Hon’ble Supreme Court in the Surepally Srinivas vs. State of A.P., 2025 SCC Online SC 683, in which the non-compliance of Standing order No. 1/89 was considered and the appellants have been acquitted. In the present case the benefit of the judgment of Surepally Srinivas (supra) cannot be extended as in the present case there has been substantial compliance with the mandate of Section 52-A of the NDPS Act, and the minor discrepancies does not affect the credibility of the prosecution case or search and seizure of the alleged Ganja from the appellants. From the evidence available in the present case it is clear that the alleged Ganja was seized from the Car in which the appellants were occupaints, after its seizure it was identified and sealed, proper inventory proceeding was drawn by the Executive Magistrate and homogenization and sampling were done, the seized articles were kept in safe custody of Malkhana and without any further delay the sample packets were sent to FSL from where report has been obtained. There is no suspicious circumstances that appear in the case which creates a doubt upon the fair procedure in respect of search and seizure. Therefore, no benefit can be extended to the appellants by the judgment of Surepally Srinivas (supra). 28 38. In the present case, the entire search and seizure proceeding has been found genuine and correct procedure has been drawn by the police officers when the police officers on secret information went on the spot, the accused persons came on their car, and they were found in possession of Ganja which was kept in total 25 packets, which were seized by the police under the procedure and provisions of the NDPS Act. Its inventory proceeding has been proved by the Executive Magistrate/Tahsildar and nothing adverse could be found to disbelieve the evidence of the prosecution witnesses, and it is found proved that the appellants were found in possession of such a huge quantity of Ganja, i.e, 50.490 kg. The appellants were not able to impute any palpable evidence to make good their case that there has been non-compliance of any mandatory provisions of the NDPS Act. Even though the independent witnesses have not supported the prosecution’s case, the members of the search and seizure party have duly proved the seizure of Ganja from the accused persons. 39. There is no material available on record to arrive at the finding that the accused persons have been falsely implicated in the case. Section 20 of the NDPS Act provides that whoever, in contravention of any provisions of this Act or any rule made therein, possesses Ganja shall be punished in accordance with the said provisions. Section 20 (b) uses the "possess". In the present case, the appellants were found in possession of 50.490kg of Ganja in their possession. The judgment passed by the learned trial Court is quite detailed judgment which has dealt with every aspect of the matter, and the analysis made therein clearly proves that the appellants have committed the offence in question. They could not give any explanation as to how that huge quantity of Ganja came to be found in their possession. 40. The FSL report Ex.-P/53 further proves that the sample packets of Ganja, which were drawn from the total quantity of the Ganja, were found to contain 29 Ganja contents, which further corroborates the allegation against the appellants. 41. In view of the above discussion, this Court is of the considered opinion that the judgment passed by the learned trial Court is based on proper appreciation of evidence which is neither perverse nor contrary to the record as well as the law laid down by the Hon'ble Supreme Court and the same needs no interference, as such, the judgment of conviction and the order of sentence awarded to the appellants is hereby affirmed. 42. Accordingly, the appeal filed by the appellants is hereby dismissed. 43. It transpires from the record that the appellant No.1 Sanjay Dwivedi and appellant No.3 Iqbal Khan are in jail since 17.09.2017 and the appellant No.2 Sanjay Kumar Tripathi is on bail by the order dated 13.09.2022 passed in the present appeal. The appellant No. 2 shall be taken into custody to serve out the entire sentence as awarded by the learned trial Court. The appellants are entitled for set-off of their undergone period during the trial as well as during the pendency of the appeal. 44. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail, where the appellants are undergoing their jail sentence to serve the same on the appellants, informing them that they are 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. 45. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.06.03 10:54:39 +0530