-1- 2025:CGHC:51435 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment Reserved on 09.09.2025 Judgment Delivered on 15.10.2025 CRA No. 1600 of 2024 Abhishek Ahirwar S/o Shri Bhanwarlal Ahirwar Aged About 19 Years R/o Village Belkhadi Jaitul, Police Station Vidisha District Vidisha, (Madhya Pradesh) --- Appellant (s) versus State Of Chhattisgarh Through Station House Officer, Police Station Komakhan, District- Mahasamund (C.G.) --- Respondent(s) ____________________________________________________________ For Appellant (s) : Mr. Sunil Verma and Mr. Amit Balbhadra, Advocates For State : Ms. Sunita Manikpuri, Dy. Govt. Advocate _______________________________________________________ CRA No. 166 of 2025 Akash Dhakad S/o Santosh Dhakad Aged About 19 Years R/o Village Sulatniya, Ps Karariya, District Vidisha (M.P.) ---Appellant (s) Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.10.17 17:54:58 +0530 -2- Versus State Of Chhattisgarh Through Police Station Komakhan, District Mahasamund, Chhattisgarh --- Respondent(s) ____________________________________________________________ For Appellant (s) : Mr. Shubhank Tiwari, Advocate For State : Ms. Sunita Manikpuri, Dy. Govt. Advocate _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge CAV Judgment Heard. 1. Criminal Appeal No.1600 of 2024 filed by appellant- Abhishek Ahirwar and Criminal Appeal No.166 of 2025 filed by appellant – Akash Dhakad are being decided by this common judgment as both the appeals arises out of judgment of conviction and order of sentence dated 15th July 2024 passed by the learned Special Judge (NDPS Act) Mahasamund in NDPS Act Case No. H-21 of 2023 whereby both the appellants- Abhishek Ahirwar and Aakash Dhakad have been convicted for the offence punishable under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the NDPS Act”) and sentenced to undergo RI for 10 years and fine of Rs.50,000/- and in default of payment of fine, to further undergo RI for 6 months. 2. Case of the prosecution, in brief, is that on 07.06.2023, Assistant Sub- Inspector Shiv Kumar (PW-11) along with his other companions were on patrolling duty. As soon as they reached to village Patparpali, they received -3- information from an informer that two persons sitting in a blue coloured Activa scooter were coming from Odisha State for sale of illegal ganja kept in a white coloured sack. On the said information, spot was cordoned off. After some time, two persons were seen coming in a blue coloured un- numbered Activa scooter. On stopping and questioning them, person driving the scooter told his name to be Akash Dhakad and the person sitting behind him told his name to be Abhishek Ahirwar. They were made aware of their legal rights and on searching their vehicle, illegal narcotic substance ganja was recovered in a white coloured plastic sack kept in the footrest of the scooter, upon weighing, it found to be of 20 kgs. After taking samples of 100-100 grams, remaining narcotic substance and the samples were sealed separately. Crime number 61/2023 under Section 20 (B) of NDPS Act was registered against the accused persons, they were arrested. Seized sample and the remaining narcotic substance were deposited in malkhana for safe custody. Seized sample was sent to the Regional Forensic Science Laboratory Raipur, District Raipur Chhattisgarh through Superintendent of Police Mahasamund for FSL investigation. According to the report received from Forensic Science Laboratory Raipur, seized sample was found to be ganja. After completion of investigation, charge sheet against accused- appellants was filed on 04.08.2023 before the concerned jurisdictional Magistrate from where the case was committed to Court of Special Judge, Mahasamund for trial. Charges against accused persons were framed under Sections 20 (b) (ii) (B) of the NDPS Act and were explained to them. Accused denied the charges and demanded trial. 3. In order to prove charge against the appellants, prosecution examined as -4- many as 14 witnesses and exhibited 61 documents. No defence witness was examined by the accused/appellant. Statement of the appellants under Section 313 of the Cr.P.C. were recorded in which they denied the circumstances appearing against them, pleaded innocence and have submitted that they have been falsely implicated in the offence. 4. After appreciation of the evidence led by the prosecution, learned trial Court convicted and sentenced the appellants as mentioned in para-1 of this judgment. Hence, this appeal. 5. Learned counsel for the appellants would submit that prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellants for the alleged offence. There is non-compliance of the mandatory provisions as envisaged under NDPS Act. According to proceeding drawn Ex.P-10, two bags containing contraband were seized, however, in malkhana register there is entry of only one bag which makes the case of prosecution suspicious . Independent witnesses have not supported the prosecution’s case and the prosecution has failed to prove that the 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. In alternate, learned counsel for the respective appellants submits that as the appellant- Abhishek Ahirwar has undergone 18 months and 16 days of jail sentence and appellant – Akash Dhakad has undergone 2 years and 20 days of jail sentence, if the Court comes to conclusion that judgment of conviction -5- awarded by learned trial Court is on appreciation of evidence and does not requires any interference then sentence awarded to appellants be reduced to the period already undergone by them. 6. On the other hand, learned counsel for the State opposed the submission of learned counsel for the appellants and submitted that the prosecution has proved its case beyond reasonable doubt. But for minor omissions or contradictions their evidence are fully reliable. Minor discrepancies which are trivial in nature does not affect the credibility of the prosecution's case. There is no reason for the prosecution to falsely implicate the appellants in huge quantity of ganja. He would further submit that the mandatory provisions of the NDPS Act have been duly complied with as per its requirement. There is no explanation from the appellants as to how they came into possession of such huge quantity of ganja. After considering the entire evidence available on record, learned trial Court has rightly come to conclusion that the appellants are guilty of the offence under Section 20 (b) (ii) B of NDPS Act and has convicted and sentenced the appellants which needs no interference. 7. I have heard rival submission of learned counsel for respective parties and perused the record. 8. The entire investigation of the case was conducted by Assistant Sub- Inspector Shiv Kumar (PW-11), Investigating Officer of the case, who at relevant point of time was posted at Police Station Komakhan, District Mahasamund, Chhattisgarh. According to the evidence of Shiv Kumar (A.W. 11), on the information, notice was given to the passerby witnesses -6- Rohit Sahu and Ajay Nirala and they were made aware of informer’s information and notice under Section 160 of Cr.P.C was given to both the witnesses Rohit Sahu and Ajay Nirala for being present as companions during the proceedings for verification of the informer’s information, which are Ex.P 21 and Ex.P 22 respectively. After the proceedings, in the presence of the witnesses, informer information panchnama Ex. P 13, document of report of proceeding with the action without search warrant were prepared, which are Ex.P 13 and Ex.P 14. 9. Rohit Sahu (PW-12) and Ajay Nirala (PW-13) are panch witnesses of the proceedings. Both of them during course of trial did not recognize the accused. Both the witnesses have not supported prosecution case regarding proceeding with the investigating officer in the seizure procedure of ganja and participating in all the proceedings and giving their statement before the police. They have only supported signing of documents. Similarly, independent witness Hemant Sonwani (PW-14) has also not supported the prosecution case regarding weighing proceedings. This witness has only supported the fact that he had signed the documents of notice given to him Ex.P. 35, physical verification of the weighing panchnama Ex.P. 36 and weighing panchnama Ex.P. 37. The oral evidence of Shiv Kumar (PW 11), Jageshwar Thakur (PW 7) and the documentary evidence of the diary entry of Ex.P. 7 and Ex.P. 8 confirms that on the date of incident i.e 07.06.2023 at 10:30 am, the investigating officer, along with his staff, left for the countryside from the police station for investigation of crime. 10.Section 42 of NDPS Act grants certain officers the power to enter, search, -7- seize, and arrest an individual without a warrant or prior authorization under specific conditions. Section 42 (2) requires that where an officer takes down an information in writing under sub-section (1), he shall send a copy thereof to his immediate senior officer. As per the evidence of Shiv Kumar (PW 11), the informer’s information panchnama prepared on the spot and the report proceeded for action were sent along with constable No. 640 Panchram Jangde with the certificate of work with instruction to go to the SDO(P) office in Bagbahara and deposit it before the SDOP and get the receipt. 11. From the oral evidence of Shiv Kumar (PW 11), Panchram Jangde (PW 06), Mansingh Bhadoria (PW 09), SDO (P) Garima Dadar (PW 03), informer’s information panchnama Ex.P. 13, report of proceeding without search warrant Ex.P. 14, work certificate Ex.P. 04, incoming and outgoing register Ex.P. 16 supported by oral and documentary evidence, it is found that on receiving informer’s information during rural visit, notice Ex.P. 21, Ex.P. 22 under section 160 Cr.P.C. was given to both the independent witnesses and informer’s information panchnama and panchnama of proceeding without search warrant was prepared and work certificate Ex.P. 04 was issued to Panchram Jangde (PW 06) and information regarding Ex.P. 13 and Ex.P. 14 was sent by the investigating officer to his senior officer from the place of incident. Information regarding Ex.P. 13, Ex.P. 14 was received by the SDO(P) office through Mansingh Bhadoria (PW 09) of the SDO(P) office. This is also confirmed by the evidence of SDO(P) Garima Dadar (PW 03). Therefore, prosecution has proved beyond doubt that the mandatory provisions of Section 42 (1) (2) NDPS Act was duly complied with in the case. This has not been refuted by accused/appellants in their defence in -8- any way, nor any submission is made by counsel for appellants that mandatory provisions are not complied with. 12.Other mandatory provisions of NDPS Act such as Sections 52, 55 , 57 have been duly followed and while conducting search and investigation proceedings, ganja was recovered from the vehicle of the accused. Sampling proceedings have been done as per law. After returning from the place of incident, sample which was kept in a safe custody in the store room was subjected to FSL test in which it was found to be ganja. Regarding the action taken by the investigating officer, information to the senior officer was given within the time limit as per the law under the provisions of NDPS Act. The quantity of ganja seized from the joint possession of accused Akash Dhakad and Abhishek Ahirwar is 20 kg which is punishable under section 20 (b) (ii) (B) of the NDPS Act. Even if the independent witnesses have not supported the seizure, reliable testimony of the Investigating Officer who has scrupulously followed the requirement of Sections 42, 50 & 57 of the NDPS Act with regard to search, seizure, sampling and safe custody has rightly been relied upon by the learned trial Court to hold the appellants guilty. 13.Hon’ble Supreme Court in case of Rizwan Khan Vs. State of Chhattisgarh (2020) 9 SCC 627, while considering the evidentiary value of testimony of official witnesses on the ground of non-corroboration by independent witnesses has held thus: “12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non- corroboration by independent witness. As observed -9- and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] ]. 13. In the recent decision in Surinder Kumar v. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] , while considering somewhat similar submission of non- examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under : (SCC p. 568) “15. The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191] , relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. 16. In State (NCT of Delhi) v. Sunil [State (NCT of Delhi) v. Sunil, (2001) 1 SCC 652 : 2001 SCC (Cri) 248] , it was held as under : (SCC p. 655) ‘It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.’” 14. Applying the law laid down by this Court on the -10- evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials.” 14.In case at hand also, police officials examined by prosecution as PW1, PW2, PW3 (DSP), PW4, PW5, PW6, PW7, PW9, PW10 and PW 11 (I.O.) in the opinion of this Court, their evidence are found to be reliable and trustworthy and, therefore, no error has been committed by learned trial Court in convicting the accused relying upon the said evidence. 15.In case of Rizwan Khan (supra), Hon’ble Supreme Court has further observed that ownership of vehicle is not required to be established and proved but requirement for convicting the person under the NDPS Act is that whether they were found in possession of the contraband (ganja) or not. In case at hand, police seized 20 kg ganja from possession of appellants. 16.In case at hand, scooter on which appellants were travelling was intercepted on main road. Upon checking, contraband (ganja) was found to be transporting on the scooter. 17.Hon’ble Supreme Court in case of Bharat Aambale Vs. State of Chhattisgarh (2025) 8 SCC 452 has observed thus: “28. In Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] the order of conviction -11- had been set aside not just on the ground of violation of Section 52-A 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 52-A 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 : (SCC pp. 467-68, paras 107-108 & 111) “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. *** 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 [Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004 SCC (Cri) 2028] , 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 *** 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. -12- 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) 29. Non-compliance or delayed compliance with the procedure prescribed under Section 52-A 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 52-A 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 52- A, 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 -13- or brush aside the discrepancies lightly and rather should scrutinise 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. 30. In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52-A 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 52-A 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 52-A of the NDPS Act. 31. In Khet Singh v. Union of India [Khet Singh v. Union of India, (2002) 4 SCC 380 : 2002 SCC (Cri) 806] 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 -14- 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 : (SCC pp. 384-85 & 387, paras 5, 10 & 16) “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. *** 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 -15- 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. *** 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) 32. A similar view as above was reiterated in the decision of State of Punjab v. Makhan Chand [State of Punjab v. Makhan Chand, (2004) 3 SCC 453 : 2004 SCC (Cri) 830] wherein this Court after examining the purport of Section 52-A of the NDPS Act and the Standing Order(s) issued thereunder, held that the procedure prescribed under the said order is merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation and they were not inexorable rules. The relevant observations read as under : (SCC p. 457, paras 10-11) “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 -16- 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 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 [Khet Singh v. Union of India, (2002) 4 SCC 380 : 2002 SCC (Cri) 806] 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) 33. Thus, from above it is clear that the procedure prescribed by the Standing Order(s)/Rules in terms of Section 52-A 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 -17- therein. 33.1. 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-versa 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 52-A or its allied Rules/Orders, nor can a straitjacket 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. 33.2.Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52-A 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. 34. 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 52-A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. -18- 34.1. 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 [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] , 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 Mohd. Khalid [Mohd. Khalid v. State of Telangana, (2024) 5 SCC 393 : (2024) 2 SCC (Cri) 650] , or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal [Mangilal v. State of M.P., (2023) 19 SCC 364] , or where the bulk material seized in contravention of Section 52-A was not produced before the court despite being directed to be preserved, etc. 34.2. These illustrations are only for the purposes of bringing 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. 34.3. At the same time, we may caution the courts, not to be hypertechnical 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 ordinarily an officer in a public place would not be carrying a good scale with him, as held in -19- Noor Aga [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] . 35. 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. 36. At the same time, one must be mindful of the fact that Section 52-A 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 govern how seizure or recovery may be proved. 37. Thus, the prosecution sans the compliance of the procedure under Section 52-A 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 -20- 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 [Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] . 38. Even in cases where there is non-compliance with the procedural requirements of Section 52-A, it does not necessarily vitiate the trial or warrant an automatic acquittal. The 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 52-A may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking. 39. At this stage we may clarify the scope and purport of Section 52-A sub-section (4) with a view to obviate any confusion. Sub-section (4) of Section 52-A 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. 40. 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 have to -21- 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). 41. Even where the bulk quantity of the seized material is not produced before the court or happens to be destroyed or disposed of in contravention of Section 52-A 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 52-A 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 52-A. In other words, any inventory, photographs or samples of seized substance that was prepared in -22- substantial compliance of the procedure under Section 52- A 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. 42. Section 52-A sub-section (4) should not be conflated as a rule of evidence in the traditional sense i.e. it should not be construed to have laid down that only the certified inventory, photographs and samples of seized substance will be primary evidence and nothing else. The rule of “Primary Evidence” or “Best Evidence” is now well settled. In order to prove a fact, only the best evidence to establish such fact must be led and adduced which often happens to be the original evidence itself. The primary evidence for proving possession will always be the seized substance itself. However, in order to mitigate the challenges in preservation of such substance till the duration of trial, due to pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub-section (4) in Section 52-A 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 52-A 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. 43. What Section 52-A sub-section (4) of the NDPS Act does is it creates a new form of primary evidence by way of -23- a deeming fiction which would be on a 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 materials 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 52-A 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.” 18.Considering the aforementioned facts of case and decisions of Hon’ble Supreme Court as discussed above and further decisions in case of Mukesh Singh Vs. State (Narcotic Brach of Delhi) (2020) 10 SCC 120 and Firdoskhan Khurshidkhan Vs. The State of Gujarat & Ors. (AIR 2024 SC 3846), I do not find any illegality or infirmity in impugned judgment of conviction passed by learned trial Court convicting appellants for commission of offence under Section 20 (b) (ii) (B) of NDPS Act. 19.In the result, I do not find any merit in these appeals. Both the appeals fail and are hereby dismissed. Sd/- Sd/- Sd/- (Parth Prateem Sahu) Judge Praveen