1 2025:CGHC:14133 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 244 of 2023 1 - Mohd. Abdul Sajid S/o Mohd. Abdul Haq Aged About 27 Years R/o Bazaar Para, Village Chingadh, District Sukma Chhattisgarh 2 - Mohd. Salim Qureshi S/o Gulam Warish Qureshi Aged About 45 Years R/o Bazaar Para, Village Chingadh, District Sukma Chhattisgarh ... Appellants(s) versus State Of Chhattisgarh Through Station House Officer Darbha, District Bastar Chhattisgarh ... Respondent(s) For Appellants(s) : Mr. Vijay Kumar Mishra alongwith Mr. K.K. Khatri, Advocates. For Respondent(s) : Ms. Ankita Shukla, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 24/03/2025 1. Though, today the present appeal has been listed for hearing on I.A. No.8 of 2024, which is an application for suspension of sentence and grant of bail, however with the consent of learned counsel for the parties and considering the period of detention of the appellants, the appeal is heard finally. AKHILESH KUMAR DEWANGAN Digitally signed by AKHILESH KUMAR DEWANGAN 2 2. Accordingly, I.A. No. 08 of 2024 stands disposed of. 3. This appeal is directed against the judgment of conviction and order of sentence dated 05.01.2023 passed by learned Special Judge, NDPS Act, Jagdalpur, District – Bastar (C.G.) in Special Criminal Case (NDPS Act) No.34/2020 whereby the learned trial Court after holding the appellants guilty for the offence punishable under Section 20 (b) (ii) (C) of the Narcotic Drug and Psychotropic Substance Act, 1985 and sentenced him to undergo R.I. for 10 years and fine of Rs.1,00,000/-, in default of payment of fine to further undergo R.I. for 1 year. 4. The judgment of conviction and order of sentence is challenged on the ground that without there being any evidence relating to conscious possession of contraband article (Ganja) and ignoring the fact that the prosecution has not complied with the mandatory provisions of the Act which is meant for providing the safeguard to the accused, learned trial Court has committed an illegality in convicting and sentencing the appellants as aforementioned. 5. Case of the prosecution, in brief, is that on April 30, 2020, Sub- Inspector Shishupal Sinha of Darbha Police Station received information from an informant via mobile phone that a green- colored ten-wheeler truck, bearing registration No.MP 07/HB/4546, with "KGN" written on its body, was carrying two persons, had a secret chamber containing ganja (marijuana). The truck was headed from Chhindgarh-Tongpal to Jagdalpur via 3 Darbha. Based on this information, the police team set out for the scene and after completing all the proceedings under the NDPS Act, a case was registered on the spot under Dehati Nalsi Crime No.0/20 under Section 20 (b) of NDPS Act, on the basis of which a crime has been registered as case, FIR No. 19/2020 (Ex.P-55), under Section 20(b) of the NDPS Act. The above information was recorded in the diary and after informing the senior officers through phone, informer information panchanama, information about receipt of crime information, panchanama of not being able to obtain search warrant was prepared and sent through special post through Constable No.346 Rajesh Sinha to SDOP office Keshlur and Constable No.279 Hansaram Masram was sent to summon two independent witnesses by giving him duty certificate. Constable No.279 Hansaram Masram called two independent witnesses, Daulat Shrivastava and Raghu Baghel to the scene, informed about the informant's information, and asked to participate in the NDPS investigation. They gave their written consent under Section 160 of the CrPC. Following instructions of senior officers, the police team, alongwith the witnesses and staff, proceeded to the scene, NH 30, in front of Darbha Police Station. Upon arrival, they set up a blockade and soon stopped the truck, bearing registration No.MP07/HB/4546, matching the informant's description. Two persons were inside; one escaped, while the other, Mohammad Abdul Sajid, was caught and revealed that the escaped truck driver's name was Mohammad Salim Qureshi. 4 6. Thereafter, the accused were informed of their legal rights under Section 50 of the NDPS Act before being searched. The search revealed a chamber above and behind the cabin of the truck, containing 97 packets of ganja (marijuana) weighing 500 Kgs. Since the accused failed to produce any documents or permits for the possession and transportation of this large quantity of ganja, it was seized, and a seizure report was prepared in the presence of witnesses vide Ex. P-6. The action of accused persons attracted Section 20(b)(ii)(C) of the NDPS Act, leading to their arrest under Section 52 of the NDPS Act. The accused were informed of the grounds for their arrest, and their family members were notified of the arrest. Further states that during the investigation, the scene of the incident was inspected, and a spot map (Ex.P-21) was prepared. The seized ganja was inventorized, and FSL testing was conducted. A Patwari map was also prepared. The statements of necessary witnesses were recorded, and a numbered crime was registered upon returning to the police station. Thus, after completing the investigation under the NDPS Act, based on the statements of witnesses and all the evidence collected, a charge-sheet was filed against the accused under Section 20(b) of the NDPS Act, as their offense was proved. 7. In order to prove the guilt of the appellants/accused, the prosecution has examined as many as 8 witnesses and exhibited 57 documents (Ex.P-1 to Ex.P-57). Statement of the accused/appellants were recorded under Section 313 of the Code 5 of Criminal Procedure, 1973, in which they denied all incriminating evidence available against them, pleaded innocence and false implication and in their defence, none has been examined. 8. Learned Special Judge after affording an opportunity of hearing to the parties, convicted and sentenced the accused/appellants as aforementioned against which, the instant appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973. 9. Learned counsel for the appellants submits that the learned trial Court has failed to appreciate the fact that the independent witness PW-04, namely, Daulat Shrivastav itself not supported the case of the prosecution. He also submits that the learned trial Court has failed to appreciate that as per Standing Order, Clause 2.4, in case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in the case of seizure of more than one package/container. But in the present case total 97 packets have been seized but the sample has been taken from only one packet and it is apparent from para 37 of the judgment passed by the learned trial Court, further the appellant No.1 has served out about 4 years 10 months of jail sentence and appellant No.2 has served out about 3 years 1 month of jail sentence, therefore, the sentence already undergone by them may suffice to meet the ends of justice. 10. On the other hand, judgment impugned is supported on behalf of 6 the respondent/State and submits that conscious possession of the accused has been established by the prosecution by adducing evidence. The prosecution has complied with the provisions of Special Act and conviction and sentence is sustainable under the law. 11. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court. 12. In order to establish the complicity of the accused/appellants in the crime in question, the prosecution has examined Mr. Sishupal Sinha (PW-7), Inspector who has categorically deposed that on April 30, 2020, he received information from an informant via mobile phone that a green-colored ten-wheeler truck, MP 07 HB/4546, with "KGN" written on its body, was carrying two persons and had a secret chamber containing ganja. The truck was headed from Chhindgarh-Tongpal to Jagdalpur through Darbha. He informed senior officers through phone and recorded the information in the daily diary, Roznamcha Sanha No. 33, at 19:10 hours, which is Ex.P-25. He also prepared a memo, informant information, and a warrant for search, which are Exs.P- 26, 27, and 28. These documents were sent to the SDOP office in Keshalur via constable Rajesh Sinha, and the duty certificate is Ex.P- 29. On the same day, at 20:30 hours, he sent constable Hansaram Masram to summon two independent witnesses. This was recorded in the daily diary, Roznamcha Sanha No. 34, Ex.P- 7 32. Later, at 21:10 hours, the constable returned with two witnesses, Daulat Shrivastav and Raghuram Baghel, and this was recorded in the daily diary, Roznamcha Sanha No. 35, Ex.P- 33. The duty certificate for this task is Ex.P- 15. 6. On the same day, at 21:20 and 21:30 hours, independent witnesses Daulat Shrivastava and Raghuram Baghel were given written notices under Section 160 CrPC to become witnesses, which are Ex.P-17 and Ex.P-01. Both witnesses provided written consent to become witnesses, which is mentioned in Ex.P-17 and Ex.P-01. He prepared a verification report of the informant's information, Ex.P- 02, at 21:40 hours on April 30, 2020, which bears my signature on parts A and B. At 22:00 hours on April 30, 2020, he, along with staff members Mukesh Singh, Ajay Sahu, Khemchand Sahu, Hansaram Masram, and Ramesh Markam, left for the scene of the incident, NH 30, in front of Darbha Police Station, with the necessary kit, emergency light, documents, arms, and ammunition. The departure was recorded in the daily diary, Roznamcha Sanha No. 38, at 22:00 hours, Ex.P-34. As per the informant's information, the truck bearing registration No.MP-07- HB-4546, was stopped at the checkpoint. Abdul Sajid, the occupant of the vehicle, was given a notice under Section 50 at 22:40 hours, Ex.P-03. The suspect provided written consent for the search, which is mentioned on Ex.P-03. Abdul Sajid also provided separate written consent for the search of the truck in his possession, Ex.P-35. On April 30, 2020, at 23:30 hours, he 8 prepared a search report, Ex.P-04, which bears his signature on parts A and B. The search of the suspect did not yield any objectionable items or substances. A search of the truck was conducted, and a report was prepared at 23:50 hours, Ex.P- 05. On May 1, 2020, at 00:30 hours, a search of truck in question revealed 97 packets wrapped in Khakhi colored tape containing Ganja like intoxicant substance, a black mobile phone, and vehicle documents, including the RC book, insurance, and national permit. A seizure report, Ex.P-06, was prepared, which bears his signature on parts A and B. 13. Mr. Hansaram Masram (PW-2), Constable has stated in his statement that on April 30, 2020, around 7 P/M., Sub-Inspector Shishupal Sinha received information from an informant that two individuals were transporting ganja in a truck, MP 07 HB/4546. This information was recorded in the daily diary, and the officer in charge instructed him to summon witnesses from Gram Darbha. Thereafter he visited Daulat Shrivastav's residence near the Police Station and requested his assistance as a witness in the ganja case. After Daulat agreed, he met Raghuram Baghel near the Darbha hospital and asked him to be a witness as well. Raghuram also agreed, and both witnesses were taken to the Police Station and then to Sub-Inspector Shishupal Sinha's office, where they were given notice to serve as witnesses and provided written consent. The officer in charge of the police station provided him with a duty certificate, which included the his report 9 (Ex.P-15) with their signature on parts A and B. The two witnesses were instructed to proceed to Forest Naka. The team, consisting of Sub-Inspector Shishupal Sinha, Inspector Mukesh Singh, constables Ghanshyam Meshram (64), Ajay Sahu (955), Ramesh Markam (1076), and Khemchand Sahu, gathered necessary documents, materials, and electronic scales to conduct the ganja operation at Forest Naka. After reaching the scene, about 10 minutes later, a green-colored truck, MP 07 HB/4546, arrived, matching the informant's description. The truck was stopped, and two people were found inside. As soon as the vehicle was stopped, the driver fled, and the other person was questioned. He introduced himself as Mohammad Abdul Sajid and provided the name of the escaped driver, which he don't remember now. The search and seizure report, EX.P- 4, bears his signature on parts B to B. A total of 97 packets were recovered from the truck's cabin and rear chamber, all containing ganja. The packets were opened and identified in the presence of witnesses. The accused was asked to produce documents related to the transportation of ganja but failed to do so, stating in writing that he had no documents. The seized packets were weighed by Ajay Sahu, constable 955, and found to weigh 500 Kgs. The packets were seized by the officer in charge. 14. Mr. Raghu Baghel (PW-1), Independent Witness has stated in his statement that the incident occurred almost a year ago. He had gone to Darbha CHC for treatment of his friend, where he met 10 Hansaram Masram, a Police Constable from Darbha Police Station. He informed him about a tip from an informant regarding a ganja-related case. He asked him to be a witness on behalf of the police and accompany them to the scene. He was not the only one; Daulat Shrivastav, whose house is opposite to the Police Station, was also summoned as a witness. Hansaram took them to the Police Station, where they met Shishupal Sinha. He briefed them about the informant's tip, stating that a truck, MP 07 HB/4546, was carrying ganja. They reached the Police Station around 10 P.M.. He was given a notice by the officer in charge to become a witness, which he accepted. The notice, Ex.P- 1, bears his signature on parts A and B. Shishupal Sinha, Hansaram, and the two witnesses (Daulat and he) went to Forest Naka to set up a checkpoint. They arrived around 10:00-10:30 P.M.. About half an hour later, a ten-wheeler truck arrived, which they stopped and moved to the side. The driver fled upon seeing the police, while the person sitting next to the driver's seat introduced himself as Abdul Sajid (appellant No.1) from Chhindgarh. Abdul Sajid stated that the driver's name was Mohammed Salim (appellant No.2). 15. 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 11 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. 16. In the matter of Bharat Aambale (supra) the Hon'ble Supreme Court in Para 25 to 37 has held as under: 25. In Noor Aga (supra) the order of conviction had been set-aside not just on the ground of violation of Section 52A but due to several other discrepancies in the physical evidence as to the colour and weight, and due to the lack of any independent witnesses. In fact, this Court despite being conscious of the procedural deficiencies in the said case in terms of Section 52A observed that the matter may have been entirely different if there were no other discrepancies or if the other material on record were found to be convincing or supported by independent witnesses. The relevant observations read as under: - “107. The seal was not even deposited in the malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the recovery was ensured. Even the malkhana register was not produced. xxx xxx xxx 108. There exist discrepancies also in regard to the time of recovery. The recovery memo, Exhibit PB, shows that the time of seizure was 11.20 p.m. PW 1 Kulwant Singh and PW 2 K.K. 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 12 have been drawn at 10 p.m. as per PW 1 whereas PW 2 stated that panchnama was drawn at 8.30 p.m. Exhibit PA, containing the purported option to conduct personal search under Section 50 of the Act, only mentioned the time when the flight landed at the airport. xxx xxx xxx 111. In a case of this nature, where there are a large number of discrepancies, the appellant has been gravely prejudiced by their non-examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses had not been examined. The matter might have been different if the evidence of the investigating officer who recovered the material objects was found to be convincing. The statement of the investigating officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure of which we may now take note.” (Emphasis supplied) 26. Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it 13 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 Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both 14 the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. 28. In Khet Singh v. Union of India reported in (2002) 4 SCC 380 this Court held that the Standing Order(s) issued by the NCB and the procedure envisaged therein is only intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It further observed that there may, however, be circumstances in which it would not be possible to follow these guidelines to the letter, particularly in cases of chance recovery or lack of proper facility being available at the spot. In such circumstances of procedural illegality, the evidence collected thereby will not become inadmissible and rather the courts would only be required to consider all the circumstances and find out whether any serious prejudice had been caused to the accused or not. Further it directed, that in such cases of procedural lapses or delays, the officer would be duty bound to indicate and explain the reason behind such delay or deficiency whilst preparing the memo. The relevant observations read as under: - “5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment 15 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 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 16 allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. xxx xxx xxx 16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” (Emphasis supplied) 29. A similar view as above was reiterated in the decision of State of Punjab v. Makhan Chand reported in (2004) 3 SCC 453 wherein this Court after examining the purport of Section 52A of the NDPS Act and the Standing Order(s) issued thereunder, held that the procedure prescribed under the said order is merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation and they were not inexorable rules. The relevant observations read as under: - “10. This contention too has no substance for two 17 reasons. Firstly, Section 52-A, as the marginal note indicates, deals with “disposal of seized narcotic drugs and psychotropic substances”. Under sub- section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 27 Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India this Court took the view that they are merely intended to guide the officers to see that a fair procedure is 18 adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention.” (Emphasis supplied) 30. Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / 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 19 of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 28 narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of brining clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in 20 mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution’s case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc. 31. At the same time, one must be mindful of the fact that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. It in no manner prescribes how the seizure or recovery of narcotic substances is to be 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, 21 producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra). 33. Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The Bharat Aambale vs The State Of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org/doc/94312390/ 29 emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking. 34. At this stage we may clarify the scope and purport of Section 52A sub-section (4) with a view to obviate any confusion. Sub-section (4) of Section 52A provides that every court trying an offence under the NDPS Act, shall treat the inventory, photographs and samples of the seized substance that have been certified by the magistrate as primary evidence. 22 35. What this provision entails is that, where the seized substance after being forwarded to the officer empowered is inventoried, photographed and thereafter samples are drawn therefrom as per the procedure prescribed under the said provision and the Rules / Standing Order(s), and the same is also duly certified by a magistrate, then such certified inventory, photographs and samples has to mandatorily be treated as primary evidence. The use of the word “shall” indicates that it would be mandatory for the court to treat the same as primary evidence if twin conditions are fulfilled being (i) that the inventory, photographs and samples drawn are certified by the magistrate AND (ii) that the court is satisfied that the entire process was done in consonance and substantial compliance with the procedure prescribed under the provision and its Rules / Standing Order(s). 36. Even where the bulk quantity of the seized material is not produced before the court or happens to be destroyed or disposed in contravention of Section 52A of the NDPS Act, the same would be immaterial and have no bearing on the evidentiary value of any inventory, photographs or samples of such substance that is duly certified by a magistrate and prepared in terms of the said provision. We say so, because sub-section (4) of Section 52A was inserted to mitigate the issue of degradation, pilferage or theft of seized substances affecting the very trial. It was often seen that, due to prolonged trials, the substance that was seized would deteriorate in quality or completely disappear even before the trial could proceed, by the time the trial would commence, the unavailability of such material would result in a crucial piece of evidence to establish possession becoming missing and the outcome of the trial becoming a foregone conclusion. The legislature being alive to this fact, thought fit to introduce an element of preservation of such evidence of 23 possession of contraband in the form of inventory, photographs and samples and imbued certain procedural safeguards and supervision through the requirement of certification by a magistrate, which is now contained in sub-section (4) of Section 52A. In other words, any inventory, photographs or samples of seized substance that was prepared in substantial compliance of the procedure under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to mandatorily be treated as primary evidence, irrespective of the fact that the bulk quantity has not been produced and allegedly destroyed without any lawful order. 37. Section 52A sub-section (4) should not be conflated as a rule of evidence in the traditional sense, i.e., it should not be construed to have laid down that only the certified inventory, photographs and samples of seized substance will be primary evidence and nothing else. The rule of ‘Primary Evidence’ or ‘Best Evidence’ is now well settled. In order to prove a fact, only the best evidence to establish such fact must be led and adduced which often happens to be the original evidence itself. The primary evidence for proving possession will always be the seized substance itself. However, in order to mitigate the challenges in preservation of such substance till the duration of trial, due to Bharat Aambale vs The State of Chhattisgarh on 6 January, 2025 Indian Kanoon - http://indiankanoon.org /doc/94312390/ 30 pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub-section (4) in Section 52A to bring even the inventory, photographs or samples of such seized substance on the same pedestal as the original substance, and by a deeming fiction has provided that the same be treated as primary evidence, provided they have been certified by a magistrate in substantial compliance of the procedure prescribed. This, 24 however, does not mean that where Section 52A has not been complied, the prosecution would be helpless, and cannot prove the factum of possession by adducing other primary evidence in this regard such as by either producing the bulk quantity itself, or examining the witnesses to the recovery etc. What Section 52A sub- section (4) of the NDPS Act does is it creates a new form of primary evidence by way of a deeming fiction which would be on par with the original seized substance as long as the same was done in substantial compliance of the procedure prescribed thereunder, however, the said provision by no means renders the other evidence in original to be excluded as primary evidence, it neither confines nor restricts the manner of proving possession to only one mode i.e., through such certified inventory, photographs or samples such that all other material are said to be excluded from the ambit of ‘evidence’, rather it can be said that the provision instead provides one additional limb of evidentiary rule in proving such possession. Thus, even in the absence of compliance of Section 52A of the NDPS Act, the courts cannot simply overlook the other cogent evidence in the form of the seized substance itself or the testimony of the witnesses examined, all that the courts would be required in the absence of any such compliance is to be more careful while appreciating the evidence. 17. 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 25 which are identical to each other in all respects will be bunched in lots, in the case of ganja, they may be bunched in lots of 40 packets each. Thereafter from each lot, one sample and one in duplicate has to be drawn. The relevant clause reads as under: - “2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.” 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.” 18. In the present case the entire search and seizure proceedings have found genuine and the correct procedure have been drawn by the police persons. Though one of the independent witnesses has not supported the case of prosecution, but the seizure of 26 cannabis (Ganja) and its weight and sampling were proved by Investigating Officer nothing adverse could be found to disbelieve his evidences which further proves that the appellants were found in possession of such a huge quantity of cannabis (Ganja) in their vehicle. The appellants did not able to impute any palpable to make good their case that there has been non-compliance of any mandatory provisions of the NDPS Act. 19. Now coming to the FSL Report; as per FSL Report, (Ex.P-51) upon opening the sealed packet marked A-1, greenish-brown leaves, seeds, and flower-bearing dry botanical substance were found, which was stated to be ganja in the document and on examination, the botanical substance found in Exhibit A-1 was subjected to necessary physical, chemical, microscopic, and TLC examinations, all of which tested positive for ganja. Moreover, the appellants have failed to give plausible explanation with respect to the huge recovery of the contraband article which were recovered, hidden in chamber above and behind the cabin of the truck and the appellants were found inside the vehicle in question, one appellant escaped, while the other, Mohammad Abdul Sajid (appellant No.1), was caught and revealed that the escaped truck driver's name was Mohammad Salim Qureshi (appellant No.2). 20. The defence has not been able to elicit anything in their cross- examination to discredit their testimony. Statement of Mr. Sishupal Sinha (PW-7), Investigating Officer is corroborated by the 27 statements of Mr. Hansaram Masram (PW-2), Constable and Mr. Raghu Baghel (PW-1), Independent Witness. 21. Considering the evidence available on record, also considering the statement of Investigating Officer Mr. Sishupal Sinha (PW-7), other prosecution witnesses and seizure memo (Ex.P-6), the learned Special Judge has arrived at a finding that the appellants were found in possession of 500 Kgs contraband articles (Ganja) and convicted and sentenced the appellants as aforementioned. I do not find any scope for interference in the judgment impugned. Consequently, the appeal is liable to be dismissed and it is hereby dismissed./ - Sd/- (Ramesh Sinha) CHIEF JUSTICE Akhil