1 2025:CGHC:6666 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 453 of 2020 1 - Sudhanshu Nayak S/o Deenbandhu Nayak Aged About 39 Years R/o Padmagiri M.B./85, District Malkangiri, Orissa, District : Malkangiri, Orissa 2 - Kartik Mandal S/o Dukhiram Mandal Aged About 38 Years R/o Padmagiri, District Malkangiri Orrisa, District : Malkangiri, Orissa ... Appellants versus State Of Chhattisgarh Through Station House Officer, Police Station Mohan Nagar, Durg, District Durg Chhattisgarh, District : Durg, Chhattisgarh ---- Respondent (Cause title taken from Case Information System) For Appellants : Mr. Tarendra Kumar Jha, Advocate and Mr. Rohan Kumhare, Advocate For Respondent/State : Ms. Isha Jajodia, Panel Lawyer Hon'ble Shri R avindra Kumar Agrawal, Judge Judgement on Board 05/02/2025 1. The present appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘CRPC) has been filed by the appellants VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.05.16 16:54:27 +0530 2 against impugned judgement of conviction and sentence dated 13.03.2020, passed by learned Special Judge (NDPS Act), Durg, in Special Criminal Case No. 02 of 2019, whereby the appellants have been convicted under Section 20(b)(ii)(C) of Narcotics Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) and sentenced for R.I. for 10 years with fine of Rs. 1,00,000/-, in default of payment of fine, additional R.I. for one year to each of the appellants. 2. The brief facts of the case are that on 25.04.2018, the Inspector of Police, police station Mohan Nagar received a secret information that the driver of TATA 407 vehicle bearing No. CG 07 JB 8303, namely Sudhanshu Nayak and its conductor Kartik Mandal are transporting Ganja by their vehicle by keeping it in the secret chamber prepared in the cabin of its trolley and coming from Rajnandgaon to Raipur. The secret information was recorded in rojnamcha sanha and independent witnesses Mahendra Singh and Manish Jaswani were called through the constable Gajendra Yadav. The independent witnesses were informed about the secret information and secret information panchnama was prepared. The secret information panchnama and necessity to search without warrant panchnama were sent to the senior police officer and thereafter the police party proceeded towards the Bafna Toll Plaza bypass road Durg along with the necessary kit required for search and seizure proceeding. The vehicle of the accused persons was intercepted and they were informed about the secret information. Notice under Section 50 of NDPS Act were given to the accused persons and their right to search have been informed that 3 they may searched by police officer, Magistrate or any gazetted officer. The accused persons gave their consent to be searched by the police officer. The police party have also given their own search and nothing incriminating were found in the search of the police party. When the vehicle of the accused persons was searched, it was found that a cabin was prepared in the trolley of the vehicle, in which total 189 packets wrapped in newspapers tied with plastic rope and tap and again kept in white polythene and Rs. 15,000/- cash which was kept in a handkerchief. The contents of the packets were identified as Ganja by smelling, rubbing and testing. The physical identification of panchnama of Ganja was also prepared. Notice under Section 91 of CRPC was also given to the accused persons, but they failed to produce any document with respect to the legally transportation of said Ganja. The Executive Magistrate was also being informed about the search and seizure proceeding and weighment witness Raja Soni was called along with the weighment apparatus. After physical verification of weighment apparatus, the recovered Ganja was weighed, in which it was found total 10.605 quintals of Ganja. Samples of 50 grams each were separated and separately sealed. The seized Ganja was again refilled in the bags and separately sealed. The appellants, seized Ganja, its sample packets and the vehicle were taken to police station, where the FIR has been registered. The accused persons have been arrested and the seized articles were handed over to Maalkhana Moharrir Bihari Lal to keep it in safe custody of Maalkhana. The sample packets of seized Ganja were sent to State FSL Raipur 4 along with the memo of Superintendent of Police, from where report (exhibit P-45) was received in which the contents of sample packets were found to be Ganja. 3. Statement of the witnesses under Section 161 of CRPC have been recorded and after completion of usual investigation, charge sheet was filed before the learned trial Court against the appellants for the offence under Sections 20(b) and 27(A) of the NDPS Act. 4. The learned trial Court has framed charge against the accused persons for the offence under Sections 20(b)(ii)(C) and 27(A) of NDPS Act. The accused persons denied the charge and claimed trial. 5. In order to prove the charge against the accused persons, the prosecution has examined as many as 10 witnesses. Statement of the accused persons under Section 313 of the CRPC have also been recorded, in which they denied the circumstances appears against them, plead innocence and have submitted that they been falsely implicated in the case. 6. After appreciation of oral as well as documentary evidence, led by the prosecution, the learned trial Court has convicted the accused persons and sentenced them as mentioned in the earlier part of the judgment, hence this appeal. 7. 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 5 witnesses and their evidence cannot be made basis to convict the appellants in the offence in question. The independent witnesses have not supported the prosecution case. The mandatory provisions of Sections 42, 50, 52, 52-A, 55 and 57 of NDPS Act have not been complied with. There is non-compliance of Section 52-A of NDPS Act and the circular of 1/89 issued by the Central Government have not been followed for search and seizure proceeding, which are mandatory in nature. In violation of non-compliance of the mandatory provisions the entire search and seizure proceedings vitiates and the appellants cannot be convicted. He would further submit that the seized Ganja have not been physically produced before the Court as the article, which is the vital defects in the prosecution case and therefore, the appellants cannot be convicted for the alleged offence of NDPS Act. He would further submit that there are discrepancies in the entries made in the Maalkhana Register and the sample packets sent for its chemical examination. The prosecution has failed to prove that the appellants were found in conscious possession of the Ganja, as they were only instructed by the owner of the vehicle to transport the consignment to its destination and they are nowhere concerned with its ownership, therefore, there are lack of cogent and clinching evidence against the appellants and they are entitled for acquittal. 8. Per contra, learned counsel appearing 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, does not 6 affect the credibility of the prosecution case. There is no reason for the prosecution to falsely implicate the appellants in seizure of huge quantity of Ganja and in case of having possession of huge quantity of Ganja. He would further submit that the mandatory provisions of NDPS Act have duly been complied with and proved as per its requirement, there is no explanation from the appellants, as to how they came in possession of huge quantity of Ganja. He would also submit that the Ganja was seized while transporting in a public place, and therefore, the provisions of Section 42 of NDPS Act is not applicable. Since the Ganja was seized from the TATA 407 vehicle, the provisions of Section 50 of NDPS Act is also not applicable. Even if some discrepancies found in complying with the provisions of Section 52-A of NDPS Act, the same itself cannot absolved the appellants from their offence as the search and seizure proceeding have been proved by the prosecution by leading cogent evidence. After considering the entire evidence available on record, the learned trial Court has rightly come into conclusion that the appellants are guilty for the alleged offence and has convicted and sentenced the appellants, which needs no interference. 9. I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspections. 10. In the present case, the prosecution has examined the following witnesses:- i. PW-1, Mahendra Singh Rajput, 7 ii. PW-2, Raja Soni, iii. PW-3, Gajendra Yadav, iv. PW-4, Sarvash Prajapati, v. PW-5, Prakash Das, vi. PW-6, Biharilal, vii. PW-7, Dashrath Padoti, viii. PW-8, Ramesh Kumar Yadav, ix. PW-9, Gopal Vaishya, x. PW-10, Manish Jaswani. 11. The prosecution has proved the following documents in support of the prosecution case:- i. Notice under Section 160 of CRPC – exhibit P-1 ii. Secret Information Panchnama – exhibit P-2 iii. Notice under Section 50 of NDPS Act – exhibit P-3 iv. Consent given by the appellants - exhibit P-4 v. Self Talashi Panchnama – exhibit P-5 vi. Police Force Talashi Panchnama – exhibit P-6 vii. Witnesses Talashi Panchnama – exhibit P-7 viii. Vehicle Talashi Panchnama - exhibit P-8 ix. Recovery Panchnama – exhibit P-9 x. Contraband Identification Panchnama – exhibit P-10 xi. Homogenization Panchnama – exhibit P-11 xii. Physical Verification of Weighment Apparatus Panchnama- exhibit P-12. xiii. Weighment Panchnama – exhibit P-13 xiv. Weighment memorandum of the appellant Sudhanshu Nayak – exhibit P-14. xv. Seizure memo – exhibit P-15 xvi. Specimen Seal Panchnama – exhibit P-16 8 xvii. Arrest memos – exhibit P-17 and P-18 xviii. Spot Map – exhibit P-19 and P-20 xix. Notice under Section 91 of CRPC – exhibit P-21 xx. 161 CRPC statement of Mahendra Singh Rajput – exhibit P-22 xxi. Notice under Section 160 given to Raja Soni – exhibit P-23 xxii. Duty certificate – exhibit P-24 and P-25 xxiii. Acknowledgment issued from the CSP Office – exhibit P-26 xxiv. Maalkhana Register – exhibit P-27 xxv. Duty certificate – exhibit P-28 xxvi. Memo sent to the State FSL from the S.P. Durg – exhibit P- 29 xxvii. Acknowledgment from the FSL Raipur – exhibit P-30 xxviii. Duty certificate – exhibit P-31. xxix. 161 CRPC Statement of Manish Jaswani – exhibit P-32 xxx. Rojnamcha Sanha – exhibit P-32C to P-37C xxxi. Information about arrest of the appellants – exhibit P-38 xxxii. Dehati Nalishi – exhibit P-39 xxxiii. Rojnamcha Sanha – exhibit P-40 xxxiv. FIR – exhibit P-41 xxxv. Information given to CSP, Durg – exhibit P-42 xxxvi. Rojnamcha Sanha – exhibit P-43 xxxvii. Memo from State FSL Raipur - exhibit P-44 xxxviii. FSL report – exhibit P-45. xxxix. Acknowledgment from FSL Raipur – exhibit P-46 xl. Requisition to the Tahsildar, Durg for submitting the spot map and requisition to District Magistrate, Durg for permission to confiscate the vehicle – exhibit P-47 xli. Rojnamcha Sanha – exhibit P-48C 9 12. PW-1, Mahendra Singh Rajput is the independent witness, though he has not supported the prosecution case, but he admitted his signature in the documents (exhibit P-1 to P-21). He has been declared hostile and not supported the prosecution case. 13. PW-2, Raja Soni is the weighment witnesses. He too has turned hostile and not supported the prosecution case, but he stated in his evidence that the police persons have took him to police station along with electronic weighing apparatus, where Ganja packets were kept and got it weighed from him. He admitted his signature in the documents (exhibit P-12 and P-13). In cross-examination, he admitted that he weighed the seized Ganja in the police station and signed the documents. He has not read over the documents as to what has been written in it. 14. PW-3, Gajendra Yadav is a police constable, who called the independent witness and proved his duty certificate (exhibit P-24). 15. PW-4, Sarvesh Prajapati is another police constable, who called the weighment witness Raja Soni and took him to Bafna Toll Plaza along with the electronic weighing machine. He also proved his duty certificate (exhibit P-25). 16. PW-5, Prakash Das is the head constable posted at the office of CSP Durg. He stated that on 25.04.2018, he received a copy of secret information panchnama and rojnamcha sanha on behalf of the CSP 10 through the constable Dashrath Patauti and he issued the acknowledgment (exhibit P-26). 17. PW-6, Biharilal is the head constable and Maalkhana Moharrir at police station Mohan Nagar Durg. He stated in his evidence that on 26.04.2018, the Inspector Gopal Vaishya has handed over the vehicle TATA 407 bearing No. CG 04 JB 8303, total 10.605 quintals Ganja in different packets, cash amount of Rs. 15,000/-, empty plastic polythene, pieces of newspaper, plastic tape and bags and sample packets of Ganja and two mobile phones for keeping it in safe custody in Maalkhana. He made entry at Sr. No. 77 in the Maalkhana register (exhibit P-27). On 28.04.2018, he handed over sample packets to constable Ramesh Yadav to take it to FSL Raipur. After its examination, the report dated 04.05.2018 was submitted by him, which has also entered in register (exhibit P-27). In cross-examination, he admitted that the weighment proceeding was not done in his presence and he made entry in the Maalkhana register (exhibit P-27) as per the seizure memo. He also admitted that in the register (exhibit P-27), there is no entry of specimen seal. He also admitted that there was no ABCD marking in the sample packets. 18. PW-7, Dashrath Padoti is another constable, who took the information of the proceeding to the CSP office Durg, and after delivering the letter, he obtained acknowledgment (exhibit P-26) and his duty certificate is exhibit P-28. 11 19. PW-8, Ramesh Kumar Yadav is the constable who took the sample packets of seized Ganja from Maalkhana to the FSL Raipur along with the memo (exhibit P-29). He obtained acknowledgment (exhibit P-30). In cross-examination, he stated that the Superintendent of Police, Durg had issued memo on 27.04.2018. He received the article from Maalkhana on 28.04.2018, which has been deposited by him at FSL Raipur. 20. PW-9, Gopal Vaishya is the investigating officer of the case. He stated in his evidence that on 25.04.2018, he received secret information that the Ganja is being transporting in TATA 407 vehicle bearing No. CG 04 JB 8303, and going from Rajnandgaon to Raipur. He recorded it in rojnamcha sanha No. 13 dated 25.04.2018, which is exhibit P-32 and its attested copy is exhibit P-32C. He sent the constable Rajendra Yadav to call the independent witnesses, which is exhibit P-33 and he called two independent witnesses Mahendra Singh Rajput and Manish Jaswani. The Secret Information Panchnama (exhibit P-2) was prepared and the secret information was also endorsed in rojnamcha (exhibit P-34). He sent the copy of secret information to the CSP Durg to constable Dashrath Padoti along with a copy of rojnamcha sanha and secret information panchnama, which is exhibit P-26. Constable Dashrath took the acknowledgment from the office of CSP Durg, which has been endorsed in rojnamcha exhibit P-36. He along with the search party along with the necessary kit, proceeded towards the place of incident, which has also been endorsed in rojnamcha which is exhibit P-37. 12 When they reached near Bafna Toll Plaza, Bypass Road, Durg, they intercepted the vehicle TATA 407 bearing No. CG 04 JB 8303 and notice under Section 50 of NDPS Act was given to its driver, which is exhibit P-3. The appellant Sudhanshu gave his consent that he is ready to be searched by him, which is exhibit P-4. He also gave his own search to the appellants, but nothing incriminating articles have been seized and Panchnama (exhibit P-5) was prepared. The appellants have also taken the search of the police force, but nothing incriminating have been seized from them also and Panchnamas (exhibit P-6 and P-7) were prepared. On being searched of the vehicle, 189 packets having wrapped with newspaper tied with plastic rope and tape and kept in while polythene were found, which was kept in the cabin prepared in the trolley of the vehicle. Along with the said 189 packets, Rs. 15,000/- cash was also recovered, which was kept in handkerchief and Talashi Panchnama is exhibit P-8. The seizure memo (exhibit P-9) has also been prepared and thereafter he called the weighment witness Sarvesh Prajapati. The weighment apparatus is physically verified and Panchnama (exhibit P-12) was prepared and thereafter the seized contraband was physically identified by its rubbing, smelling and testing and Panchnama (exhibit P-10) was prepared. The seized Ganja was homogenized and Panchnama (exhibit P-11) was prepared. On being weighed the total quantity of Ganja including the packets were found to be of 10.79 quintals. After removing the empty packets, the net weight of Ganja is found to be of 10.605 quintals and the polythene rope and plastic tape was weighted 13 as 18.5 kgs and Panchnama (exhibit P-13) was prepared. The memorandum statement (exhibit P-14) of the appellant Sudhanshu was recorded on the spot, in which he disclosed about the incident, which was sent by the co-accused Dipak. The vehicle, 189 packets of Ganja, cash of Rs. 15,000/- and sealed sample packets and two mobiles recovered from the accused persons were seized vide seizure memo (exhibit P-15). The Specimen Seal Panchnama (exhibit P-16) has also been prepared. The accused persons were arrested and their arrest have been informed to their family members through the document (exhibit P-38). He recorded the Dehati Nalishi on the spot (exhibit P-39) against the appellants as well as two other accused persons namely Dipak Vishwas and vehicle owner Prasannajit. After entire search and seizure proceeding on the spot, he along with the accused persons, vehicle and seized articles came to police station, which was recorded in rojnamcha (exhibit P-40) and registered the FIR (exhibit P-41). The details of the search and seizure proceeding were sent to CSP office Durg, which is exhibit P-42 and relevant rojnamcha is exhibit P-43. He handed over the seized Ganja and sample packets, vehicle, mobile phones and cash amount to Maalkhana Moharrir for keeping it in safe custody and the rojnamcha sanha is exhibit P-48. He has also sent the sample packets of ‘A to U’ to FSL Raipur along with the memo of Superintendent of Police, Durg dated 27.04.2018, through the constable Ramesh Yadav and its acknowledgment is exhibit P-30. He brought the original Maalkhana register (exhibit P-27) with him. After its examination, report has been received from FSL 14 Raipur which is exhibit P-45, in which the contents of the sample packets were found to be of Ganja. He sent a requisition to the Superintendent of Police and District Magistrate, Durg for confiscation of the vehicle. He recorded the statements of the independent witnesses and after completion of investigation charge sheet was filed against the appellants by the then Station House Officer, Mr. Rajesh Bagde before the learned trial Court against two arrested accused persons (appellants) and two absconding accused persons. 21. During the examination before the Court, he produced the 21 samples packets “A to U” and when it was opened, it was found sealed and the seal was opened, another packet was found contains with the crime number, name of the appellants, specimen seal, signature of the appellants and seal of the FSL. Inside the said packets, Ganja was also found. In all the packets of articles “A to U”, the same contents were found, which was deposed by the investigating officer in his deposition. He sent a requisition to Tahsildar, Durg for preparation of spot map, which is exhibit P-47 and the Patwari has prepared the spot map (exhibit P-20). In cross-examination, he stated that as per Dehati Nalishi (exhibit P-39) the incident is of 07:10 AM on 25.04.2018, whereas the Dehati Nalishi was recorded on 17:20 Hrs on 25.04.2018. He admitted that the time of 07:10 AM is the time, when he received secret information at Mohan Nagar police station. He went near Bafna Toll Plaza, because the speed of the vehicles is normally low there. He has 15 not seized the CCTV recording of Toll Plaza. He has also not seized the toll tax receipt of the vehicle nor the employees of the toll plaza have been made as the witnesses. Despite his lengthy and detailed cross-examination, this witness has remained firm in saying that when he received secret information, he called the independent witnesses, informed the senior officer, prepared the necessary panchnamas and proceeded towards the place of incident. After due procedure, they searched the vehicle of the appellants, from which Ganja was recovered and seized, sample packets were drawn, FIR has been registered. Sample packets were sent in safe custody of Maalkhana, from where it was sent for chemical examination to FSL Raipur, in which the Ganja was found. This witness has proved the entire search and seizure proceeding as well as drawing the samples from the seized Ganja from the appellants. But fur minor and trivial omissions or contradictions, nothing could be extracted from this witness, so that the entire search and seizure proceedings could be disbelieved or vitiated. 22. PW-10, Manish Jaswan is another independent witness, who also turned hostile and have not supported the prosecution case, but he admitted his signatures over the documents (exhibit P-1 to P-21). 23. PW-9 explained that he sent secret information to his senior official through the constable Prakash Das/PW-5, he proved the acknowledgment (exhibit P-39) with respect to the receipt of the intimation about the secret information. Even otherwise, Section 42 16 would not be applicable in the case as the Ganja has been seized from the 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 17 person in his company. Explanation- For the purposes of this section, the expression public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.” 24. The contraband was recovered and seized from an open place from the bag. As the contraband were recovered and seized from the public place which was kept in 5 bags, 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. 25. 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. 26. The provisions of Section 50 is applicable to the present search of the accused, whereas in the present case the Ganja was recovered from the bags kept by the appellants, which cannot be said to be his personal search. The search of the bags of the appellants does not 18 comes under the requirement of Section 50 of the NDPS Act and search of a person is distinguished from search of any bag etc. 27. In the matter of State of Punjab vs. Baldev Singh reported in 1999 (6) SCC 172 in Para 12 of its judgment the Hon'ble Supreme Court has held: "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 28. In the matter of Kulwinder Singh and Another vs. State of Punjab reported in 2015 (6) SCC 674 in Para 18 and 21 of its judgment the Hon'ble Supreme Court has held that: “18. In Dharampal Singh v. State of Punjab, it has been ruled that the expression “possession” is not capable of precise and complete logical definition of universal application in the context of all the statutes. Recently, in Mohan Lal v. State of Rajasthan11, after referring to certain authorities, this Court has held as follows:- 19 “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 20 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 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 21 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 22 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." 29. The next submission made by learned counsel for the appellants 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 appellants are entitled for acquittal. 30. 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 23 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. 31. 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 24 PB, shows that the time of seizure was 11.20 p.m. PW 1 Kulwant Singh and PW 2 K.K. Gupta, however, stated that the time of seizure was 8.30 p.m. The appellant's defence was that some carton left by some passenger was passed upon him, being a crew member in this regard assumes importance (see Jitendra para 6). The panchnama was said to have been drawn at 10 p.m. as per PW 1 whereas PW 2 stated that panchnama was drawn at 8.30 p.m. Exhibit PA, containing the purported option to conduct personal search under Section 50 of the Act, only mentioned the time when the flight landed at the airport. xxx xxx xxx 111. In a case of this nature, where there are a large number of discrepancies, the appellant has been gravely prejudiced by their non- examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses had not been examined. The matter might have been different if the evidence of the investigating officer who recovered the material objects was found to be convincing. The statement of the investigating officer is wholly unsubstantiated. There is 25 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 26 procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place. 27. In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. 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 27 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 28 minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance. xxx xxx xxx 10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the 29 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 30 the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” (Emphasis supplied) 29. A similar view as above was reiterated in the decision of State of Punjab v. Makhan Chand reported in (2004) 3 SCC 453 wherein this Court after examining the purport of Section 52A of the NDPS Act and the Standing Order(s) issued thereunder, held that the procedure prescribed under the said order is merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation and they were not inexorable rules. The 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) 31 of Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub- section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11. Secondly, when the very same Standing Orders came up for consideration in Khet 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) 32 30. Thus, from above it is clear that the procedure prescribed by the Standing Order(s)/Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / 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 33 thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of brining clarity on what may constitute as a significant discrepancy in a given 34 case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution’s case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc. 31. At the same time, one must be mindful of the fact that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules 35 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 36 automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking. 34. At this stage we may clarify the scope and purport of Section 52A sub-section (4) with a view to obviate any confusion. Sub-section (4) of Section 52A provides that every court trying an offence under the NDPS Act, shall treat the inventory, photographs and samples of the seized substance that have been certified by the magistrate as primary evidence. 35. What this provision entails is that, where the seized substance after being forwarded to the officer empowered is inventoried, photographed and thereafter samples are drawn therefrom as per the procedure prescribed under the said provision and the Rules / Standing Order(s), and the same is also duly certified by a magistrate, then such certified inventory, photographs and samples has to mandatorily be treated as primary evidence. The use of the word “shall” indicates that it would be mandatory for the court to treat the same as primary 37 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, 38 photographs and samples and imbued certain procedural safeguards and supervision through the requirement of certification by a magistrate, which is now contained in sub-section (4) of Section 52A. In other words, any inventory, photographs or samples of seized substance that was prepared in substantial compliance of the procedure under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to mandatorily be treated as primary evidence, irrespective of the fact that the bulk quantity has not been produced and allegedly destroyed without any lawful order. 37. Section 52A sub-section (4) should not be conflated as a rule of evidence in the traditional sense, i.e., it should not be construed to have laid down that only the certified inventory, photographs and samples of seized substance will be primary evidence and nothing else. The rule of ‘Primary Evidence’ or ‘Best Evidence’ is now well settled. In order to prove a fact, only the best evidence to establish such fact must be led and adduced which often happens to be the original evidence itself. The primary evidence for proving possession will always be the seized substance itself. However, in order to mitigate the challenges in preservation of such substance till the duration of trial, due to pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub-section (4) in Section 52A to bring even the inventory, 39 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 40 examined, all that the courts would be required in the absence of any such compliance is to be more careful while appreciating the evidence.” 32. Further in Para 41 and 42 of the said judgment of Bharat Aambale (supra) held that: “41. As per Clause 2.5 of the Standing Order No. 1 of 89 i.e., the relevant standing order in force at the time of seizure, where multiple packages or packets are seized, they first have to be subjected to an identification test by way of a colour test to ascertain which packets are of the same sized, weigh and contents. Thereafter, all packets which are identical to each other in all respects will be bunched in lots, in the case of ganja, they may be bunched in lots of 40 packets each. Thereafter from each lot, one sample and one in duplicate has to be drawn. The relevant clause reads as under: - “2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each 41 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.” 33. In the present case, from the entire search and seizure proceedings drawn by PW-9, Gopal Vaishya have been found genuine and it is found that when the police persons on secret information went on the spot and intercepted the vehicle of the appellants, it was found that total 189 packets were carrying in the cabin prepared in the trolley of the vehicle, which contains total 10.605 quintals of ganja. Nothing adverse is 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. 10.605 quintals. The appellants did not able to impute any palpable to make good their case 42 that there has been non-compliance of the mandatory provisions of NDPS Act. 34. There is no material available on record so as to arrive at finding that the accused has been falsely implicated in the case. Section 20 of the NDPS Act provides that whichever in contravention of any provisions of this Act or any rule made therein possess 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 10.605 quintals of Ganja in their possession. The judgment passed by learned trial Court is quite detailed judgment which has dealt with every aspect of the matter and the analysis made therein clearly proves that the appellants have committed the offence in question. They could not give any suggestion as to how that huge quantity of Ganja came to be found in their possession. 35. The FSL report (exhibit P-45) further proves that the sample packets of Ganja which were drawn from the total quantity of the Ganja were found to be contained with Ganja contents which further corroborates the allegation against the appellants. 36. In view of the above discussion, this Court is of the considered opinion that the judgment passed by learned trial Court is based on proper appreciation of evidence which is neither perverse nor contrary to the record as well as law laid down by the Hon'ble Supreme Court and the same needs no interference as such the judgment of conviction and order of sentence awarded to the appellants is hereby affirmed. 43 37. In the result, the appeal filed by the appellants is hereby dismissed. The appellants are reported to be in jail. They shall serve the remaining period of jail sentence as has been awarded to them by the learned trial Court. 38. 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. 39. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- (Ravindra Kumar Agrawal) Judge ved