1 2025:CGHC:52615 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 817 of 2022 RESERVED ON 9-10-2025 DELIVERED ON 29-10-2025 1 - Vikash Bhoi, S/o Kheru Bhoi, Aged About 28 Years R/o Village Aadhapara, Police Station Jujumura, District Sambalpur (Orissa), District : Sambalpur, Orissa 2 - Sanat Kalet, S/o Amar Kalet, Aged About 23 Years R/o Village Aadhapara, Police Station Jujumura, District Sambalpur (Orissa), District : Sambalpur, Orissa ... Appellants versus State Of Chhattisgarh, Through - Station House Officer, Police Station Dongripali, District Raigarh Chhattisgarh, District : Raigarh, Chhattisgarh ... Respondent For appellants : Mr. Manoj Kumar Jaiswal, Adv. For Respondent : Mr. Dilman Rati Minj, Govt. Adv. (Hon’ble Shri Justice Naresh Kumar Chandravanshi) CAV Judgment 1. This criminal appeal has been preferred by the appellants under Section 374(2) of the Cr.P.C. against judgment of conviction and order of sentence dated 23-4-2022 passed by the Special Judge, (under NDPS Act) Raigarh, Distt. Raigarh (CG) in Special Criminal Case under the NDPS Act No. 37/2020, whereby the learned Special Judge, after holding the appellants guilty, convicted and sentenced each of them in the following manner:- Digitally signed by AVANISH KUMAR PATHAK Date: 2025.10.30 12:07:56 +0530 2 Conviction under Section Jail Sentence Fine Sentence Default stipulation 20(b)(ii)(B) NDPS Act RI for 2 years Rs. 10,000/- RI for 5 months 2. Case of the prosecution in brief is that, on 07-10-2020, Trainee Deputy Superintendent of Police Satish Kumar Bhargava (PW10), posted at Dongripali Police Station, received information from an informer that, two persons were illegally transporting the narcotic substance “Ganja” on a black- blue Hero HF Deluxe motorcycle bearing registration No. OD 15 N 2214 on Sohela to Barmkela main road. He sent constable Krishna Kumar Dansena to summon witnesses. He brought witnesses Manoj Sagar (PW 1) and Rangamani Sagar (PW 9) and weigher Shubham Sahu (PW 4) with him. They were served notices ( Ex. P-1), (Ex. P-35) and (Ex. P-28) under Section 160 of the Code of Criminal Procedure. Subsequently, a Mukhbir Suchna panchnama (Ex. P- 2) was prepared in the presence of witnesses Manoj Sagar (P.W. 1) and Rangamani Sagar (P.W. 9), a copy of the same was sent to the Sub-Divisional Officer, Police, Sarangarh (henceforth referred to as ‘SDOP’). A panchnama (Ex. P-3) regarding the non-receipt of a search warrant, was also prepared. Then Investigating Officer Satish Kumar Bhargava (PW10) and his colleagues proceeded to the scene of crime, cordoned off the scene, and prepared a Gherabandi (Cordon) panchnama (Ex. P-4). Upon the appellants’/ accused arrival at the scene, a notice (Ex. P- 5) was issued to them under Section 50 of the NDPS Act. The accused consented to their search by Investigating Officer Satish Kumar Bhargava (PW 10). Subsequently Investigating Officer got his own search, search of police vehicle and search of witnesses accompanying police force, done by the accused persons and prepared separate search panchnama(s). 3 2.1 Subsequently, the appellants’ vehicle was searched. Upon searching the motorcycle of the appellants bearing registration No. OD 15 N 2214, two packets wrapped in brown tape kept in the motorcycle and one packet wrapped in brown tape kept in the bag carried by appellant Sanat Kalet were found. Panchnama in this regard was prepared vide Ex. P-12. The packets were recovered and a recovery panchnama (Ex. P-13) was prepared. The said narcotic substance kept in aforesaid 3 packets was identified by rubbing, smelling and burning it in front of witnesses, as ‘Ganja’ and an identification panchnama (Ex. P-14) was prepared. Thereafter, the narcotic substance was weighed by Shubham Sahu (P.W. 4). On weighing, the said narcotic substance was found to be 5.00 kg, to which, a weighing panchnama (Ex.P. 16) was prepared. Thereafter, the said Ganja of all packets was mixed and a mixing panchnama (Ex.P- 17) was prepared, samples in two packets of 100 gms. each were prepared from the said narcotic substance and marked as A-1 and A-2 and sample panchnama (Ex. P-18) was prepared. Seal panchnama (Ex. P- 19) was prepared for sealing the narcotic substance. Thereafter, the said narcotic substance was sealed and seal panchnama (Ex. P- 20) was prepared. Photography of proceeding was got done and photography panchnama (Ex. P- 21) was prepared. Thereafter, the said narcotic substance was seized and seizure memo (Ex. P- 22) was prepared. Spot map (Ex. P- 23) was prepared and the accused were arrested vide arrest memo (Ex. P- 24) and (Ex. P- 25). 2.2. Thereafter, a Dehati Nalshi (Ex. P-40) was recorded at the scene of the incident. The FIR No. 57/2020 (Ex. P-41) against the appellants was registered for the offence under Section 20(b) of the Narcotic Drugs and 4 Psychotropic Substances Act (henceforth, referred to as ‘NDPS Act’) in Dongripali Police Station. The seized property was handed over to Head Constable Akhilesh Pandey (PW 6) for safekeeping and a delivery receipt ( Ex. P- 32) was prepared. The detail of the entire proceedings were sent to the Sub-Divisional Officer Police, Sarangarh vide Ex. P-33. Patwari Rambharose Sidar (PW 8) prepared site map (Ex. P-34). The seized articles were sent for examination to Regional State Forensic Science Laboratory, Bilaspur which gave its report vide Ex. P-42 that, Ganja was found in both the samples Article A-1 and A-2. 3. After usual investigation, charge sheet under Section 20(b)(ii)(B) of the NDPS Act was filed against appellants/accused before the Special Judge (NDPS Act), Raigarh. 4. Learned Special Judge framed charge under Section 20(b)(ii)(B) of the NDPS Act against both the accused persons, read over and explained the same to them, which they denied and entered in defence. 5. So as to hold guilty the appellants, prosecution examined as many as 11 witnesses and exhibited 45 documents, the statements of appellants/ accused were recorded under Section 313 of the Cr.P.C., in which they denied all the circumstances appearing against them in the prosecution evidence, pleaded not guilty and false implication, but they have not examined any witness in their defence. 6. Learned Special Judge after appreciating the evidence adduced by the prosecution, convicted and sentenced both the appellants as mentioned in opening paragraph of this judgment. Hence, this appeal. 5 7. Learned counsel for the appellants submits that, in instant case search and seizure witnesses have not supported the case of prosecution and they have turned hostile. Even from police team, except one accompanying Constable i.e. Jaiman Ekka (P.W. 3), no other accompanying police personnel have been examined in support of Investigating Officer Satish Kumar Bhargava (P.W. 10). He further submits that, provisions of Section 42(1) of the NDPS Act have not been complied with as alleged Rojnamcha Sanha in which, the information received from the informer has not been proved. What was the actual quantity of ‘Ganja’ after removing wrapper of 3 packets and after extracting two samples 100 gm each, is also contradictory, as total weight of 3 packets without removing wrappers is said to be 5.00 kg and after extracting 2 samples 100 gm each, total weight of actual Ganja is said to be 4.800 gm. Learned counsel further submits that, compliance of Section 57 of the NDPS Act within specific period has also not been proved and when alleged two samples were taken out from Malkhana of police station and when it was received by concerned Constable is highly contradictory from the deposition of Constable Vishal Yadav (P.W. 5) who took the samples to FSL and Head Constable Heeralal Tiwari (P.W. 11), who has deposed that, when it was sent to the FSL. He further submits that, neither inventory has been prepared nor sampling has been made before the Magistrate. Provision of Section 52A of the NDPS Act has not been complied with at all. Therefore, sanctity of the samples sent to the FSL cannot be held proved beyond reasonable doubt. Hence, the FSL report also cannot be relied upon. He lastly submits that, learned Special Judge without considering the non-compliance of the mandatory provisions of the NDPS Act and material contradictions appearing in the deposition of prosecution witnesses, 6 has convicted and sentenced the appellants, which is perverse and illegal. Therefore, it is prayed that, the appeal may be allowed and the appellants may be acquitted of the offence. 8. In reply, learned counsel for the State submits that alleged contraband substance Ganja was seized from the joint possession of present appellants. He would further submit that two samples were collected after homogenization of seized ganja and the same were sent to FSL for chemical examination and report of the FSL is against the appellants. The prosecution witnesses have proved its case. The impugned judgment is well reasoned judgment based on evidence. Therefore, the appeal is liable to be rejected. 9. I have heard learned counsel for the parties and perused the material available on record including the record of the Special Court. 10. Satish Kumar Bhargava (P.W. 10), who is Investigating Officer of instant case, has deposed in his deposition that, after receiving secret information from the informer, he reduced in writing the same in Rojnamcha Sanha, called witnesses Rangmani Sagar (P.W. 9), Manoj Sagar (P.W. 1) and Shubham Sahu (P.W. 4) weigher and after following mandatory provisions and preparing necessary documents, rushed to Birnipali Barrier Sohela- Baramkela road along with aforesaid independent witnesses and cordoned off the spot. After some time, two persons came on a black – blue coloured motorcycle bearing Regn. No. OD 15 N 2214 and on being searched, 2 packets wrapped with brown tape were seized from motorcycle and one packet wrapped in brown tape was seized from appellant No. 2 Sanat Kalet. On being tested by smelling, rubbing and burning, it was identified as ‘Ganja’ 7 vide Madak Drivya Pahchan Panchnama (Ex. P-14), to which appellants were not having any valid documents, thereafter it was weighed by Shubham Sahu (P.W. 4) and total weight of contraband substance was found to be 5.00 kg, its weighing panchnama (Ex. P-16) was prepared by him. He has further stated that, thereafter contraband substance was homogenized and two samples 100 gm each were taken from homogenized contraband substance, sealed and marked it as ‘A-1’ and ‘A-2’. Remaining contraband substance was kept in a bag (bori) and marked as ‘A’. Then, photography of the proceeding was got done. Thereafter, 4,800 gms contraband substance marked as ‘A’, samples ‘A1’ and ‘A2 and motorcycle were seized vide Ex. P- 22. Dehati Nalshi (Ex. P-40) was prepared and then FIR (Ex. P-41) was registered. The seized articles were handed over to Constable Akhilesh Pandey (P.W. 6) and details of entire proceedings was sent to SDOP, Sarangarh vide Ex. P-33. Seized samples were sent to RFSL, Bilaspur through Constable Vishal Yadav (P.W. 5) and FSL report is Ex. P-42, in which both the samples ‘Article A-1’ and Article ‘A-2’ have been reported to be ‘Ganja’. 11. Manoj Sagar (P.W. 1) and Rangmani Sagar (P.W. 9) are said to be search and seizure witnesses along with all other proceeding, but they have not supported the case of prosecution, except their signatures present on the documents prepared by the Investigating Officer. 12. Shubham Sahu (P.W. 4) is said to be weigher of the alleged ‘Ganja’ and accompanied the police team while cordoning, but he has also not supported the case of the prosecution, except his signatures in Ex. P-16 and Ex. P-29. 8 13. Constable Jagjivan Jolhe (P.W. 2) was a member of the Police team. He has supported the fact of cordoning near Birnipali barrier, where the Investigating Officer had stopped the appellants, who were coming on a motorcycle and on being searched, 5.00 kg ‘Ganja’ was recovered from bags holding by them and from dicky of the motorcycle. He has also stated in his deposition that the Investigating Officer (Dy. S.P. Sahab) had opened the packets and seen the material present in it. Thus, he has supported the deposition of the Investigating Officer Satish Kumar Bhargava (P.W. 10). 14. Constable Jaiman Ekka (P.W. 3) has served Mukhbiri Suchna Panchnama (Ex. P-2) in the office of Sub Divisional Officer Police, Raigarh which was received by Constable Anil Sahu (P.W. 7), who was Reader of the office of SDOP, Raigarh, to which, he also gave receipt by putting his endorsement signature in Ex. P-2. 15. Section 42(1) of the NDPS Act contemplates the provision that, the officer competent to make search and seizure under the NDPS Act, if he has reason to believe from personal knowledge or information given by any person with regard to commission of any offence under this Act, he is obliged with the duty that he takes down in writing the information that any narcotic drug or psychotropic substance or controlled substance, in respect of which, an offence punishable under this Act, has been committed or any document or other documents, which may furnish evidence of commission of that offence……, which is liable for seizure or freezing or forfeiture under Chapter VA of this Act. 16. In the instant case, Investigating Officer Satish Kumar Bhargava 9 (P.W. 10) has stated that on 7-10-2020 at about 11.30 am, he received information to the effect that, two persons are coming in black coloured motorcycle bearing registration No. OD 15 N 2214 from Sohela (Orissa) towards Dongaripali holding contraband substance ‘Ganja’, that information was recorded by him in Rojnamcha Sanha, to which, he also prepared Mukhbir Suchna Panchnama (Ex. P-2), but he has not proved or exhibited that Rojnamcha Sanha. Though he sent information Ex. P-2 vide Mukhbir Suchna Panchnama to SDOP, Sarangarh, which was served by Jaiman Ekka (P.W. 3) and received by Anil Sahu (P.W. 7), who was Reader of office of the SDOP, Sarangarh, but reducing in writing the information received from the informer in Rojnamcha Sanha is different thing and preparing Mukhbir Suchna Panchnama (Ex. P-2) is different thing. Even the time of receiving that information from the informer and time of preparing Mukhbir Suchna Panchnama (Ex. P-2) is also different. Therefore, only by preparing Mukhbir Suchna Panchnama (Ex. P-2) in absence of that Rojnamcha Sanha, in which information was recorded, it cannot be held proved that, aforesaid provision of Section 42(1) of the NDPS Act has been complied with. 17. As per deposition of Satish Kumar Bhargava (P.W. 10) and member of Police team Constable Jagjivan Johle (P.W. 2), 5.00 kg ‘Ganja’ was recovered vide recovery memo (Ex. P-13) and it was seized vide seizure memo (Ex. P-22). Investigating Officer Satish Kumar Bhargava (P.W.10) has further stated in his deposition that aforesaid ‘Ganja’ was kept by the appellants in 3 packets, which were weighed vide weighing panchnama (Ex. P-16), in which total weight of those packets was found to be 5.00 kg and after homogenization of the ‘Ganja’ of all 3 packets, two 10 samples of 100 gm each were prepared and marked as ‘A-1’ and ‘A-2’ vide Ex. P-18. Thereafter, remaining ‘Ganja’ i.e. 4.800 kg was seized and marked as ‘A’. That fact shows that, on being searched all 3 packets along with wrappers, by which alleged ‘Ganja’ was wrapped, its total weight was found to be 5.00 kg then, after extracting 2 samples of 100 gm each, how total weight of Ganja can be found to be 4.800 kg, whether it was with wrapper or without wrapper. It has not been proved by the Investigating Officer that, after homogenization of ‘Ganja’, only that homogenized ‘Ganja’ was weighed or it was weighed along with wrappers also, rather it has been mentioned in Namuna Madak Dravya Panchnama (Ex. P-18) that, after getting separated two samples, on being weighed remaining ‘Ganja’, it was found 4.800 kg. Thus, what was the actual weight of alleged ‘Ganja’ after taking it out from the packets and what what the weight of that ‘Ganja’, when it was kept in wrapped 3 packets, is found to be contradictory from the evidence adduced by the prosecution. 18. Constable Akhilesh Pandey (P.W. 6) was Malkhana Muharrir of P.S. Dongaripali. He has proved that, on 7-10-2020, seized 4.800 kg ‘Ganja’ marked ‘A’ and two samples marked ‘A-1’ and ‘A-2’ along with motorcycle seized in Crime No. 57/2020 was deposited by him in safe custody of the Malkhana of aforesaid police station, to which, he had given receipt (Ex. P- 32). He has denied in cross-examination that, those materials were not sealed, but he has not proved the Malkhana register (Ex. P-45-C). Malkhana register pertaining to the aforesaid entry has been proved by Head Constable Heeralal Tiwari (P.W. 11). 19. Head Constable Heeralal Tiwari (P.W.11) has stated in his 11 deposition para 3 that as per Malkhana register, aforesaid two samples (Article A-1 and A-2) were sent to the FSL on 9-10-2020 through Constable Vishal Yadav (P.W. 5), but Constable Vishal Yadav has stated in his deposition that, those samples were handed over to him on 11-10-2020 to deposit in FSL, which he deposited on 12-10-2020, as it was handed over to him in the night of 11-10-2020. First of all, that entry as to when those samples were taken out from the Malkhana of the police station has not been proved by the prosecution by producing and exhibiting that Malkhana register/entry, and secondly when it was handed over to constable Vishal Yadav (P.W. 5) for depositing it in the FSL is highly contradictory from deposition of aforesaid two witnesses. 20. Section 57 of the NDPS Act provides procedure that, if any arrest or seizure was made under the NDPS Act, then a full report ought to have been sent to immediate official superior to the officer making said arrest or seizure. Section 57 of the NDPS Act reads thus :- “57. Report of arrest and seizure- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.” 21. In the instant case, Investigating Officer Satish Kumar Bhargava (P.W. 10) has stated in his deposition that, vide Ex. P-33, he has sent detailed report to the SDOP, Sarangarh as per Section 57 of the NDPS Act. Constable Anil Sahu (P.W. 7), who was Reader in the office of SDOP, Sarangarh, has deposed that, aforesaid report was received by him, to which he had 12 endorsed receipt on Ex. P-33 itself. As per Ex. P-33, that report was sent to the SDOP, Sarangarh, Distt. Raigarh on 9-10-2020 but at what time, it was received, is neither proved from the deposition of Anil Sahu (P.W. 7) nor Investigating Officer Satish Kumar Bhargava (P.W. 10). 22. When law specifically provides the time within which, such detailed / full report should be sent to the superior officer, then the prosecution ought to have proved the fact that it was served within specific period of time. Section 57 of the NDPS Act provides that, such detailed / full report be served within 48 hours, next after such arrest or seizure, then it ought to have been proved by the prosecution that, detailed report (Ex. P-33) was served within 48 hrs from the time of arrest of appellants and seizure of alleged contraband ‘Ganja’ but it has not been proved in instant case as to whether, that detailed/full report was served to the SDOP, Sarangarh within 48 hrs. from the time of arrest/seizure made in the instant case, as in instant case, arrest and seizure was made between 17.20 hrs to 18.20 hrs on 7-10- 2020 and detailed report (Ex. P-33) was sent on 9-10-2020, particularly at what time it was sent, has not been proved by the prosecution. Therefore, it cannot be held that, provision of Section 57 of the NDPS Act has been complied with. 23. In the instant case, inventory has not been prepared. Learned defence counsel raised objection that search and seizure, and sampling of seized Ganja, has not been done as per provisions of Section 52A of the NDPS Act and even certification has not been done in presence of the Judicial Magistrate. 13 24. In order to examine above contention, it would be relevant to refer the provisions of Section 52A(2), (3) and (4) of the NDPS Act, which provides procedure and manner of seizure, preparation of inventory of seized material, forwarding the same and getting inventory certified by the Magistrate concerned. It further provides that, inventory and the photograph of the seized substance and any list of samples prepared in connection thereof be certified by the Magistrate and the same shall be recognized as primary evidence in connection with the offence lodged under the NDPS Act. 25. For the sake of convenience, relevant sub-section of Section 52A of the NDPS Act is reproduced hereinbelow : “52A. Disposal of seized narcotic drugs and psychotropic substances. (1) … … … (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings 14 under this Act and make an application, to any Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub- section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]” 26. A simple reading of the aforesaid provisions, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to the Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify 15 the correctness of the list of samples so drawn. 27. A perusal of evidence as has been stated in preceding paragraphs clearly shows that, in instant case, procedure prescribed under sub-section (2) & (3) of Section 52A of the NDPS Act was not followed after making seizure and while drawing samples, preparing inventory and getting it certified by the Magistrate concerned. It is evident from the evidence that, samples were drawn by the Investigating Officer Satish Kumar Bhargava (P.W. 10) himself, and list of samples drawn, has not been certified by the Magistrate. Inventory has also not been prepared. 28. Thus, in instant case, samples from seized substances were drawn by the police but it was not in presence of Magistrate. Further, neither the inventory has been prepared nor certified by the Magistrate. 29. In the case of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379, the Supreme Court, while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial. 30. The Supreme Court in the matter of Yusuf @ Asif Vs. State 16 (2023 SCC OnLine SC 1328) has held as under:- “16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. 17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.” 31. Recently, Supreme Court in the case of Bharat Aambale vs. The State of Chhattisgarh (2025 (8) SCC 452), has held that 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, but such lacking will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence. In this regard para 26 and 27 of the Bharat Aambale’s case (supra) are reproduced as under :- “26. Non-compliance or delayed compliance with the procedure prescribed Under Section 52A of the NDPS Act or 17 the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done. What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non- compliance of the procedure envisaged Under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution's case. In such instances of procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place. 27. In such circumstances, particularly where there has been lapse on the part of the police in either following the 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 18 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.” 32. In the instant case, as has been discussed above, provision of Section 52A of the NDPS Act has not been complied with, but as has been held by the Hon’ble Apex Court in the case of Bharat Aambale (supra), non- compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the rules/Standing Order(s) will not by itself, be fatal to the case of prosecution, unless there are discrepancies in the physical evidence, which may not have been there had such compliance been done. 33. Various discrepancies and non-compliance of other provisions of the NDPS Act have been found in instant case, which have been discussed in preceeding paragraphs as compliance of provision of section 42(1) and Section 57 of the NDPS Act in letter and spirit have not been proved. Even what was the actual weight of alleged Ganja seized and when it was taken out from the Malkhana of the police station is also contradictory from the deposition of prosecution witnesses. Thus, there is not only non-compliance of provisions of Section 52A of the NDPS Act, rather other provisions of the NDPS Act have also not been proved to be complied with including material contradictions, which creates doubt to the veracity of the case of the prosecution. But without appreciating the evidence adduced by the prosecution and without keeping in mind the mandatory provisions of the 19 NDPS Act, learned Special Judge has held the appellant guilty of said offence, hence it is found to be not sustainable. 34. Consequently, instant criminal appeal filed by the appellants is allowed. Impugned judgment of conviction and order of sentence dated 23-4- 2022 passed by learned Special Judge (under NDPS Act), Raigarh in Spl. Criminal Case under NDPS Act No. 37/2020 is set aside. Appellants are acquitted of the charge under Section 20(b)(ii)(B) of the NDPS Act. 35. The appellants are reported to be on bail. The bail bonds furnished by them shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 36. Let a certified copy of this judgment along with the original record be transmitted to the Special Court concerned forthwith. Sd/- (Naresh Kumar Chandravanshi) Judge Pathak