JUDGMENT : NARESH KUMAR CHANDRAVANSHI, J. 1. This Criminal Appeal has been preferred under Section 374(2) of the CrPC, against judgment of conviction and order of sentence dated 13.5.2022 passed by Special Judge (NDPS), Baloda Bazar, Distt. Baloda Bazar-Bhatapara (CG) in Special Criminal (NDPS) Case No. 04/2018, whereby the learned Special Judge, after holding the appellant guilty, convicted and sentenced her in the following manner:- Sl.No. Conviction under Section Jail Sentence FineSentence Defaultstipulation 01. 20(b)(ii)(C)of NDPS Act RI for 10 years Rs.1,00,000/- RI for 01 year 2. Case of the prosecution, in brief, is that on 16.02.2018 at about 02:30pm, an information was received by Sub Inspector RS Singh (PW-16) of Police Chouki, Karhibazar, Police Station City Kotwali, Baloda Bazar that the appellant/accused had illegally stored contraband substance Ganja in her house with intention to sell it. The information was reduced in writing by him in Rojnamchasanha (EX-P/25C). After calling two witnesses namely Heeraram and Amardas Manikpuri, mukhbir Suchna Panchnama (Ex-P/2) was prepared. Thereafter fearing the possibility of mishandling of the contraband substance or concealment of evidence, he took his accompanying staff and witnesses to the house of the accused at village Bitkuli and called out the appellant, who was in her house, informed her about secret information and notice (Ex-P/4) was served to her under Section 50 of the NDPS Act. Necessary panchnamas were prepared, the accused/ appellant and her house were searched, wherein a yellow plastic gunny bag with a ‘Gold Mohar’ trademark written on it contained 25 packets of contraband substance like ganja wrapped in a white film, and a black backpack bag with a ‘Sky Bags’ trademark written on it contained 03 packets of contraband substance like ganja wrapped in a packing tape, Aadhar card, voter ID, etc. of the accused were recovered from her possession in her house. In this regard, a recovery panchnama (Ex.P/11) was prepared. The recovered substance was smelled, rubbed, and burned to identify it and it was found as ‘Ganja’. An identification panchnama (Ex.P/12) was prepared in this regard. Thereafter 28 seized packets were got weighed by weigher Uma Shankar Patel, in which plastic bag containing 25 packets and black bag containing 3 packets were found to be total 29.104 Kg ganja like substance, out of which, two samples of 100 gms each were separately prepared and panchnama in this regard was prepared. Thereafter 28 seized packets were got weighed by weigher Uma Shankar Patel, in which plastic bag containing 25 packets and black bag containing 3 packets were found to be total 29.104 Kg ganja like substance, out of which, two samples of 100 gms each were separately prepared and panchnama in this regard was prepared. The appellant was not having any valid documents to have possession of the aforesaid contraband substance, hence, it was along with Aadhar Card and Voter ID card were seized and seizure memo Ex-P/16 was prepared. The appellant was arrested vide Ex- P/17 and Dehati nalishi (Ex-P/36) was prepared on the spot, spot Map (Ex- P/37) was also prepared. Upon reaching the police station, unnumbered FIR (Ex-P/38) was recorded and numbered FIR was also registered in Police Station, Baloda Bazar. The seized articles were deposited in the malkhana of police station for safe custody and receipt was obtained. On 18.02.2018, inventory was prepared before Executive Magistrate, Bhatapara vide Ex-P/31, the seized contraband substance was weighed, sealed and the proceedings were photographed. Seized two samples were sent to FSL, Raipur for chemical examination vide Ex- P/23, in which vide FSL report (Ex- P/42), it was reported to be ‘Ganja’. The Sub-Divisional Officer (Police), Baloda Bazar was informed about entire proceedings. After investigation, charge sheet under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) was filed against the appellant before Special Judge (NDPS), Baloda Bazar (CG). 3. The learned Special Judge, framed charge under Section 20(b) (ii)(C) of the NDPS Act against the accused, read it over and explained the same to her, which she denied and claimed for trial. 4. In order to bring home the guilt of the appellant/accused, the prosecution has examined as many as 16 witnesses and exhibited following documents:- 5. Learned Special Judge examined the appellant under Section313 CrPC, in which she denied all the incriminating circumstances appearing against her in the prosecution evidence, pleaded innocence and claimed false implication, but she has not examined any witness in her defence. 6. The learned Special Judge after appreciating the evidence adduced by the prosecution, convicted the appellant under Section 20(b)(ii) (C) of the NDPS Act and sentenced her as mentioned in opening paragraph of this judgment. Hence, this appeal. 7. 6. The learned Special Judge after appreciating the evidence adduced by the prosecution, convicted the appellant under Section 20(b)(ii) (C) of the NDPS Act and sentenced her as mentioned in opening paragraph of this judgment. Hence, this appeal. 7. Learned counsel for the appellant submits that in the instant case, as per the case of the prosecution, 28 packets of ganja were seized from the house of the appellant. But Investigating Officer RS Singh (PW-16) himself has admitted in his cross-examination para 37 that, out of 28 packets, he had opened only one packet and examined the material of that packet only. He has specifically admitted that he had not opened remaining 27 packets. Learned counsel further submits that though RS Singh (PW-16) was the investigating officer, but he admitted in his cross-examination that he could not tell in whose custody he kept the alleged contraband substance after its recovery. Learned counsel further submits that after seizure of alleged contraband substance, it was kept in the custody of Constable Jageshwar Prasad (PW-8) (malkhana muharim), who had taken contraband substance and made entry in malkhana register (Ex-P/24C). This witness has specifically stated that alleged two sample packets were kept in malkhana but this fact does not get support from the copy of malkhana register (Ex-P/24C), as in that documents, only 28 packets have been endorsed to be kept in malkhana. No entry has been made with regard to keeping two alleged sample packets in the malkhana. He further submits that in the instant case, inventory (Ex-P/33) has been prepared in the presence of Executive Magistrate (PW-13), rather it ought to have been prepared before Judicial Magistrate. He next submits that since sample has not been collected from all the packets or it has been collected after homogenizing alleged contraband substance of all the packets and further after collection of alleged sample, which was also not collected before Judicial Magistrate, it was not clear whether the same was kept in safe custody prior to sending it to FSL for chemical examination on 19.02.2018, therefore, it cannot be ruled out that any tampering or mischief might have occurred with regard to the said sample, which was reported to be ganja in FSL report Ex-P/42. He lastly submits that prosecution has failed to prove its case, therefore, he prays that the appellant may be acquitted of the charges levelled against her by granting benefit of doubt. In this regard he placed reliance in the case of Surepally Srinivas vs. State of Andhra Pradesh (Now State of Telangana), (2025 SCC Online SC 683). 8. Per contra, learned counsel for the State submits that though inventory was not prepared before Judicial Magistrate or samples were not collected before him, but it has been proved by the prosecution that alleged contraband substance was seized from possession of the appellant, that too from her house. He further submits that in the case of Bharat Aambale vs. State of Chhattisgarh , [ (2025) 8 SCC 452 ] , the Hon’ble Supreme Court has held that, only because of non-compliance of provisions of Section 52 A of the NDPS Act in its letter and spirit, the appellant cannot be acquitted unless there is other lacunas in the case of the prosecution. But the appellant has failed to prove any other material lacuna in the case, hence, the appellant cannot be granted benefit of doubt. Therefore, he prays that the appeal may be dismissed. 9. I have heard learned counsel for the parties and perused the material available on record including the record of the Special Court. 10. RS Singh (PW-16) was the investigating Officer of the instant case. He has stated in his deposition that on 16.02.201, an information was received through informer that the appellant had hidden ganja in her house for sale. Thereafter it was reduced in writing vide Ex-P/25C and independent witnesses were called. He along with independent witnesses and accompanying police personnel went to the house of the appellant, served her notice under Section 50 of the NDPS Act and after preparation of necessary panchnamas, search was conducted in the house of the appellant and during search, a plastic bag bearing ‘Gold Mohar’ trademark tied with twine was recovered from the room of the house of the appellant, in which 25 packets of contraband substance like ganja were found packed in a white film and in a black bag bearing ‘Sky Bag’ trademark contained three packets of contraband substance like ganja wrapped in packing tape, Aadhaar Card and Voter ID of the appellant were also recovered from her house. He further deposed that search panchnama of the accused's house is Ex.P/10 and he prepared narcotic substance recovery panchnama vide Ex.P/11. He further deposed that by smelling, rubbing, and burning said articles in presence of the witnesses, it was identified vide Ex-P/12 and the narcotic substance like ganja on being weighed by weigher Umashankar Patel (PW-3) on an electronic weighing scale, 25 packets of contraband substance was found to be 26.094 kg and 03 packets of contraband substance was found to be 3.110 kg. Thus, total weight of the contraband substance was found to be 29.104 kg, from which, 02 samples each containing 100 gms were prepared and weighed separately vide weighing Panchnama Ex-P/14. Since the appellant was not having any valid documents for possession of aforesaid contraband substance, therefore, 28 packets of ganja like substance totaling 29.104 kg, worth Rs.1 lakh and 12 thousand were seized from the accused along with her Aadhaar card and Voter ID card vide seizure memo Ex-P/16. 11. Investigating Officer RS Singh (PW-16) has further deposed that seized materials were kept in malkhana for safe custody and a detailed report was sent to SDO(P), Baloda Bazar vide Ex-P/28. The seized samples were sent to FSL for chemical examination in packets marked ‘A’ & ‘B’ and the samples were reported to be ‘Ganja’ in FSL report (Ex-P/42). 12. In cross-examination para 35, the Investigating Officer (PW-16) has stated that, after the recovery of contraband substance vide Ex.P/11, the recovered narcotic substances were kept in police custody, however, he could not tell which police officer was in possession of the recovered items at the time of the investigation, but this ignorance does not have much significance. He has further stated in cross-examination that the contraband substances were sealed after seizure. 13. Search and seizure witnesses, i.e. Heeram Ram (PW-1), Amardas Manikpuri (PW-2) and weigher Umashankar Patel (PW-3) have not supported the case of the prosecution except, their signature on respective documents. 14. Constable Mukesh Verma (PW-5), Constable Satyadev Banjare (PW-6), Constable Dhannu Sirso (PW-7), Constable Shiv Chaturvedi (PW-10) and Assistant Sub Inspector Jagdev Kumar Sahu (PW-15) were the accompanying police personnel, who were present at the place of incident and during the proceedings conducted by the Investigating Officer. They have supported the deposition pertaining to the proceedings conducted by Investigating Officer RS Singh (PW-16). 15. They have supported the deposition pertaining to the proceedings conducted by Investigating Officer RS Singh (PW-16). 15. As per the deposition of Investigating Officer RS Singh (PW-16), total 28 packets of contraband substance ganja were seized from the house of the appellant from her possession, out of which, two samples of 100 gms each were prepared and weighed by weigher Umashankar Patel (PW-3) vide Ex-P/15, but neither it has been mentioned in Ex-P/15 that the alleged two samples of 100 gms each were extracted from one packet or from each packet or from how many packets. This fact has also not been specifically stated by the Investigating Officer in his examination-in-chief, rather in cross- examination para 37, he has specifically stated that out of 28 packets, only one packet was opened, from which, some contraband substance was taken out and identified and other 27 packets were not opened. Meaning thereby, two samples were taken from the alleged one packet and the same were sent for chemical examination to FSL and vide FSL report (Ex-P/42), it has been reported to be ‘Ganja’. However, since the other 27 packets were not opened and no samples were taken from it, the same could not be identified by smelling, rubbing or burning, nor the samples of these packets were sent to the FSL for chemical examination. It has also not been proved by the Investigating Officer or other prosecution witnesses that, all the 28 packets had any similar trade mark, identification mark or any similar things to hold that all the packets were of the same identity, therefore, on testing the alleged contents of only one packet, it cannot be proved that the contents present in other 27 packets were also ganja. 16. Though as per the deposition of the Investigating Officer (PW- 16), only one packet, out of 28 packets, was opened, but it has neither been mentioned in baramdagi panchnama (Ex-P/11) nor in narcotic identification panchnama (Ex-P/12) nor in sample narcotic weighing panchnama (Ex-P/15) nor in seizure memo (Ex-P/16) nor in any of the documents prepared by the Investigating Officer that, after opening that packet, it was sealed and kept separately from other packets. Further weigher Umashankar Patel (PW-3) has stated in his deposition that alleged two sample packets, each containing 100 grams, were extracted from seized contraband substance on the next day and at that time, those packets were opened. Further weigher Umashankar Patel (PW-3) has stated in his deposition that alleged two sample packets, each containing 100 grams, were extracted from seized contraband substance on the next day and at that time, those packets were opened. Considering the aforesaid contradictions, as also the fact that in the malkhana register (Ex-P/24C), it has not been mentioned that on 16.02.2018 alleged two sample packets were deposited in the malkhana, it cannot be held proved beyond reasonable doubt that the alleged two samples sent for chemical examination to FSL were the contraband substance seized from the possession of the appellant. 17. In the instant case, procedure prescribed under Section 52A(2) of the NDPS Act, has been got done from Executive Magistrate Rajani Bhagat (PW-13), who prepared panchnama (Ex-P/31), inventory (Ex-P/33) and proceedings conducted before her were also photographed. However, the procedures under Section 52A(2) of the NDPS Act, ought to have been conducted before the Judicial Magistrate and not before Executive Magistrate. It has also not been proved that samples were extracted before Executive Magistrate Rajani Bhagat (PW-13) from seized contraband substance and that samples were got examined from the FSL, therefore, it cannot be held proved that provisions of Section 52A(2) of the NDPS Act, has been complied with. 18. 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. 19. The Supreme Court in the matter of Yusuf @ Asif Vs. State (2023 SCC OnLine SC 1328) has held as under:- “16. 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. 19. The Supreme Court in the matter of Yusuf @ Asif Vs. State (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.” 20. 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 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. 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 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.” 21. Reverting to the facts of the case in hand, as has been discussed above, provisions of Section 52A of the NDPS Act, has not been complied with, but non compliance or delayed compliance of aforesaid procedure of the Act or the Rules/Standing order(s), will not by itself be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence, as has been held by the Apex Court in the case of Bharat Aambale (Supra), but in the instant case, apart from non compliance of provisions of Section 52A of the Act, there are other material discrepancies in the physical evidence adduced by the prosecution, which has been discussed in the preceding paragraphs. 22. Having considered those material discrepancies, it is not found proved beyond reasonable doubt that, the alleged 28 packets seized from the possession of the appellant from her house, were ‘Ganja’. 23. Thus, in the instant case, there is not only non-compliance of the procedure prescribed under Section 52A of the NDPS Act, rather there are also material discrepancies in physical evidence. Hence, the appellant cannot be held guilty for the offence levelled against her, but, learned Special Court, without considering the material discrepancies in the physical evidence and non-compliance of Section 52A of the NDPS Act, has held the appellant guilty, therefore, impugned judgment is not found to be sustainable. 24. In view of the above discussion, this appeal is allowed. Impugned judgment of conviction and order of sentence dated 13.5.2022, passed by Special Judge (NDPS), Baloda Bazar, Distt. Baloda Bazar-Bhatapara (CG) in Special Criminal (NDPS) Case No. 04/2018, is set aside. The appellant is acquitted of the charge under Section 20(b)(ii)(c) of the NDPS Act. 25. The appellant is on bail. The bail bonds furnished by her shall remain in operation for a period of 06 months from today in view of the provisions contained under Section 481 of the Bhartiya Nagrik Suraksha Sanhita, 2023. 26. Let a certified copy of this judgment along with record of the concerned Court below be transmitted forthwith for compliance and needful, if any.