Page No.# 1/24 GAHC040005532024 2026:GAU-AP:93 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./12/2024 Bikash Boro, aged about 25 years, S/o Mangla Boro, Resident of Swrangjuli Village, P.O.- Hugrajuli, P.S.-Dhekiajuli, Sonitpur District, Assam. ...... Appellant – VERSUS – 1. The State of Arunachal Pradesh, represented by Public Prosecutor, Arunachal Pradesh. 2. Shri Chandan Kanu, S/o Lt Lakhan Kanu, Constable Rupa P.S., West Kameng, Arunachal Pradesh. ........ Respondents Page No.# 2/24 Advocate for the Appellant : Mr. A. Bhattacharya. Advocates for the Respondents : Ms. L. Hage, Addl. P.P. Date on which Judgment was reserved : 28.01.2026 Date of pronouncement of Judgment : 30.01.2026 Whether the pronouncement is of the operative part of the Judgment ? : NA Whether the full Judgment has been pronounced ? : Yes :::BEFORE::: HON’BLE MRS. JUSTICE YARENJUNGLA LONGKUMER JUDGMENT & ORDER (CAV) Dated: 30.01.2026 Heard Mr. A. Bhattarchaya, learned counsel for the appellant. Also heard Ms. L. Hage, learned Additional Public Prosecutor for the State respondent. 2. The instant appeal is directed against the impugned judgment and order dated 04.03.2024 and the sentence order dated 12.03.2024, passed by the learned Special Judge, NDPS, for the Districts of West Kameng, East Kameng, and Tawang at Bomdila, Arunachal Pradesh, in NDPS Case No. 20/2023, arising out of Rupa P.S. Case No. 06/2023 under Section 20(C) of the NDPS Act, 1985, whereby the appellant has been convicted under Section 20(b)(ii)(C) of the Page No.# 3/24 NDPS Act and sentenced to undergo rigorous imprisonment for 10 (ten) years with a fine of Rs.1,00,000/-, and in default thereof, to undergo simple imprisonment for another 3 (three) months. 3. The prosecution case, in brief, is that on 03.05.2023, while discharging duties at the Nagmandir Check Gate, the police personnel apprehended the appellant and his vehicle was detained at the said Check Gate. The Check Gate In-Charge immediately informed the Officer-in-Charge of Rupa P.S. about the matter, and thereafter, the O.C. of Rupa P.S., along with the SDPO, the Executive Magistrate, and independent witnesses, came to the Nagmandir Check Gate, searched the vehicle as provided under the NDPS Act, and seized the suspected contraband. The appellant/accused and his Hyundai Xcent vehicle along with the alleged contraband substance were taken over by the O.C., Rupa P.S., and a written FIR was lodged in connection with the incident. 4. On receipt of the FIR, Rupa P.S. Case No. 06/2023 under Section 20(C) of the NDPS Act was registered, and the investigation was carried out. During the investigation, the contraband substance was seized in the presence of the Magistrate and samples were collected in the presence of the Executive Magistrate. The suspected cannabis packed in 28 white-coloured polythene bags was recovered, and upon weighing the same with a digital weighing machine, it was found to be 136 kilograms, which is a commercial quantity. The inventory of the seized materials was also prepared, and the same was certified along with photographs by the Executive Magistrate, as provided under Section 52(A) of the NDPS Act. The seized contraband was sealed in plastic gunny bags, and the appellant was arrested. Information regarding the arrest was given to the wife of the accused person. Information regarding the arrest of the accused and Page No.# 4/24 recovery of the contraband substance was also given to the Superintendent of Police. Samples of the seized articles were sent to the FSL for analysis, and the FSL report confirmed that the samples contained cannabis. Having found a prima facie case against the accused appellant, the police submitted a charge- sheet against the appellant under Section 20(C) of the NDPS Act. The charge was framed against the accused/appellant under Section 20(b)(ii)(C) of the NDPS Act, read with Section 25 of the NDPS Act, on 13.11.2023. The charge was read over and explained to the accused/appellant, and he pleaded not guilty and claimed to be tried. The matter accordingly went to trial. 5. In order to bring home the charges against the appellant/accused, the prosecution examined 10 (ten) witnesses and exhibited 26 (twenty-six) documents along with 2 (two) material exhibits. The defence produced the wife of the accused as DW-1. 6. Upon examining the evidence available on record, the learned Trial Court was of the view that the prosecution had succeeded in establishing the case against the appellant/accused and had proved the charges brought against the appellant under Section 20(b)(ii)(C) of the NDPS Act beyond reasonable doubt and, accordingly, convicted and sentenced the appellant/accused. 7. Assailing the impugned judgment dated 04.03.2024 and the impugned sentence order dated 12.03.2024, the learned counsel for the appellant has submitted that there are major contradictions in the testimonies of the prosecution witnesses, rendering their evidence doubtful; however, the learned Trial Court placed undue reliance on the statements of the prosecution witnesses and, therefore, reached an erroneous conclusion, thereby wrongly Page No.# 5/24 convicting the appellant under Section 20(b)(ii)(C) of the NDPS Act. Learned counsel further submits that the learned Trial Court overlooked the failure on the part of the investigating agency to adhere to the mandatory provisions of Sections 41, 42, 50, and 52(A) of the NDPS Act, which has caused serious prejudice to the appellant. It is also argued that the learned Trial Court failed to appreciate that the prosecution did not comply with the mandatory provisions of Section 52(A) of the NDPS Act while seizing and sealing the alleged contraband, inasmuch as there is no material on record to show that a proper inventory, as mandated under Section 52(A), had been prepared, thereby casting serious doubt upon the seizure and sealing of the contraband. There was further no signature of the accused on the bag in which the contraband was packed. 8. Another submission of the learned counsel for the appellant is that PW-6, during her cross-examination, stated that she was not familiar with the NDPS Act. She further stated that she was neither a First Class Magistrate nor a Metropolitan Magistrate, but was simply officiating as the Additional Deputy Commissioner (ADC), Singchung, and that she had no knowledge as to who is the competent authority to issue authorisation under Section 41(2) of the NDPS Act. PW-6 also deposed that she did not know why certification under Section 52(A) is required. She further deposed that she could not say whether the procedure under the NDPS Act was followed during the search and seizure. In this connection, learned counsel for the appellant submits that under the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, Section 2(d) provides that the word “Magistrate” means a Judicial Magistrate and not any other Magistrate. Therefore, in the instant case, PW-6, in her cross-examination, admitted that she is a Medical Officer and is neither a Judicial Magistrate nor a Metropolitan Magistrate. Further, there was Page No.# 6/24 no proof that, on the day of the incident, she was empowered to act as the ADC, Singchung, as the prosecution did not exhibit any document to show that the regular ADC, Singchung, was on leave and that PW-6 was officiating as ADC, Singchung on that day. The learned counsel, therefore, submits that no proper or due process was followed while drawing the samples of the alleged contraband and that PW-6 was merely acting as a spectator. Therefore, learned counsel submits that the learned Trial Court committed a grave error in arriving at the conclusion that Section 52(A) of the NDPS Act had been complied with. 9. Learned counsel has also submitted that under the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, Rule 10 provides that one sample in duplicate is to be drawn from each package or container seized; and where the packages or containers seized together are of identical size and weight, bearing identical markings, and the contents of each package give identical results on colour test, indicating that the packages are identical in all respects, the packages or containers are to be bunched in lots of not more than 10 packages or containers, and for each such lot, one sample in duplicate shall be drawn. In the case of ganja, the packages or containers may be bunched in lots of not more than 40 packages or containers. In the case of drawing samples from a particular lot, it is to be ensured that representative samples in equal quantity are taken from each package or container of that lot and mixed together to make a composite whole, from which the samples are drawn for that lot. The Rules also provide that the quantity to be drawn for sampling in the case of ganja should be not less than 24 grams for each sample. The learned Trial Court failed to appreciate that the Investigating Agency had not adhered to any of the Rules as stated above. Page No.# 7/24 10. Another submission of the learned counsel for the appellant is that the Rules relating to storage of samples were also not followed. It is further submitted that the learned Trial Court overlooked the fact that on 24.05.2023, when the appellant was produced before the Chief Judicial Magistrate, the Investigating Officer of the case did not produce any inventory list, nor the seized contraband, nor the samples. Learned counsel for the appellant also states that the register of the Nagmandir Check Gate was not seized by the Investigating Officer during the investigation, which creates serious doubt as to whether the vehicle of the appellant was indeed seized at the Nagmandir Check Gate. Further, PW-9, in his cross-examination, admitted that there is no CCTV at the Nagmandir Check Gate, which was a serious lapse on the part of the prosecution. 11. Learned counsel for the appellant submits that the main accused in the present case was one Rajiv Basumatary. However, the Investigating Officer deposed before the Court that he had not visited the residence of Rajiv Basumatary, and he did not try to locate the location of the phone number of the said Rajiv Basumatary. The prosecution also did not produce the Malkhana register before the Court during the trial to prove the chain of custody. Learned counsel has further submitted that Section 54 of the NDPS Act raises a presumption, and the burden falls on the accused to explain how he came into possession of the seized contraband. Learned counsel also submits that before raising such presumption, the prosecution has to prove beyond reasonable doubt that the recovery was made from the accused and that he was in conscious possession of the seized contraband. However, in the instant case, there is only one independent witness to the seizure, namely PW-7. Therefore, a serious doubt is cast upon the search and seizure allegedly made, as there is no Page No.# 8/24 credible evidence to prove that the search and seizure was made from the accused or from his vehicle. 12. The learned counsel for the appellant has relied on the following authorities in support of his contentions: (i) Union of India vs. Mohanlal & Anr., (2016) 3 SCC 379; (ii) Simarnjit Singh vs. State of Punjab, Criminal Appeal No. 1443 of 2023; (iii) Yusuf@Asif vs. State, Criminal Appeal No. 3191 of 2023; (iv) Mohammed Khalid & Anr. vs. The State of Telangana, Criminal Appeal No(s). 1610 of 2023; (v) Mangilal vs. The State of Madhya Pradesh, 2023 LiveLaw (SC) 549; (vi) Sharukh vs. State of Karnataka, Criminal Appeal No. 200230 of 2023(374); (vii) Chandrashekhar Shivhare vs. Intelligence Officer, Revenue, Intelligence Directorate (D.R.I.), Criminal Appeal No. 808 of 2023; (viii) Mange Ram vs. The State of Bihar, Criminal Appeal (DB) No. 808 of 2021; (ix) Noor Aga vs. State of Punjab & Anr., (2008) 16 SCC 417; and (x) Sanjeet Kumar Singh @ Munna Kumar Singh, 2022 LiveLaw (SC) 724. 13. In view of the submissions made above, and relying on the judgments as stated, the learned counsel submits that it is apparent that the recovery of the contraband item from the possession of the appellant has not been proved beyond reasonable doubt by the prosecution. The loopholes in the prosecution Page No.# 9/24 case give rise to the inference that the prosecution has failed to prove the chain of custody regarding the safe custody of the seized article from the time of seizure till the time it reached the Special Court, NDPS. The settled principle of criminal jurisprudence is that an accused is innocent until proven guilty. The burden of proof lies on the prosecution, and the prosecution must prove beyond reasonable doubt that the appellant committed the crime. In cases under the NDPS Act, the foundational facts regarding seizure and possession have to be first established by the prosecution, and only then can the presumption of culpable mental state under Section 35 of the NDPS Act be drawn. Learned counsel for the appellant, therefore, prayed that the impugned judgment and order dated 04.03.2024, as well as the sentence order dated 12.03.2024, passed by the learned Special Court for the Districts of West Kameng, East Kameng, and Tawang at Bomdila, may be quashed and set aside. 14. Ms. L. Hage, learned Addl. P.P., on the other hand, has argued that the prosecution has led sufficient evidence to establish that the appellant/accused committed the offence under Section 20(b)(ii)(C) of the NDPS Act. She has submitted that Section 52(A) of the NDPS Act is procedural in nature and that violation of Section 52(A) cannot vitiate the entire trial. It is stated that PW-6 was a gazetted officer and an empowered Magistrate in the absence of the Additional Deputy Commissioner, Singchung. She has submitted that the search and seizure were, therefore, conducted in the presence of a Magistrate as mandated under the Act. It is an admitted fact that the accused was alone in his own vehicle, which is proved by the deposition of DW-1, the wife of the accused, who deposed in her cross-examination that the vehicle driven by the accused was his personal vehicle. DW-1 further deposed that her husband was apprehended alone with the vehicle and the contraband substance, and that no Page No.# 10/24 other person was present. She also deposed that she had no knowledge as to whether any other person had loaded the contraband substance into her husband’s vehicle or whether he had loaded it himself. The learned Addl. P.P., therefore, submits that it has been proved that the accused was driving his own vehicle and was alone in the vehicle at the time when the seized contraband was recovered. 15. The learned Addl. P.P. has taken the Court through the documents available in the paper book. She has submitted that the authorisation to search the vehicle under Section 41(2) of the NDPS Act was duly given by PW-6 with the seal of the Executive Magistrate, Singchung, as she was the empowered Magistrate on the day of the incident. It is also evident from the records that notice under Section 50 of the NDPS Act was served upon the accused person with the seal of the Executive Magistrate, Singchung. The police self-search memo also shows that the police personnel searched themselves on 23.05.2023 before the Executive Magistrate, prior to conducting the search of the accused person. The seizure memo is also countersigned by the Executive Magistrate and the independent witness, who is the Gaon Bura of New Kashpi Village. The learned Addl. P.P. has further submitted that the inventory was prepared and photographs were taken, all of which were duly countersigned by the Executive Magistrate, Singchung. The weighing scale memo, with details of the manufacturer, is also on record and was duly certified by the Executive Magistrate and the independent witness. The arrest intimation was sent to the wife of the accused person. A rough sketch map was prepared, and the samples were sent to the FSL, Police Training Centre, Banderdewa. All the aforementioned documents were exhibited during the trial by the prosecution. The FSL report dated 21.07.2023 indicates that the seals were intact and Page No.# 11/24 tallying with the specimen seal on the forwarding letter containing the exhibits. The FSL report confirmed that the samples received contained cannabis/ganja. 16. The learned Addl. P.P., relying on the prosecution evidence, has submitted that PW-1, PW-2, PW-3, and PW-4 have proved that while checking vehicles at the Nagmandir Check Gate on 23.05.2023, they had stopped the vehicle of the accused person. Thereafter, PW-9, the Officer-in-Charge of Rupa P.S., and PW-6, the Executive Magistrate, arrived at the Nagmandir Check Gate and conducted the search and seizure. Subsequently, PW-9, the Officer-in-Charge of Rupa P.S., and PW-6, the Executive Magistrate, have proved the seizure of the contraband from the vehicle being driven by the accused. The learned Addl. P.P., therefore, submits that all procedural requirements were duly complied with by the Investigating Agency and that the foundational facts regarding the seizure and conscious possession of the seized articles have been proved. Accordingly, it is contended that the impugned judgment and sentence do not warrant interference by this Court. 17. The learned Addl. P.P. has relied on the case of Bhapo Marphew Vs. State of Arunachal Pradesh, reported in 2025 Supreme (Online) Gau 1025. It is submitted that in the aforementioned case, the Coordinate Bench of this Court held that unlike other provisions of the NDPS Act, such as Section 36A, where the legislature has expressly referred to Judicial Magistrate, Section 52A(2) employs the word, “any Magistrate" which is not restrictive in nature and would include both Executive and Judicial Magistrate. Relying on the case of State of Punjab Vs. Makhan Chand, reported in AIR 2004 SC 3061, the Court held that the certification process under Section 52A(2) appeared to be purely procedural and does not require an adjudicatory function, thereby Page No.# 12/24 making Executive Magistrates equally competent to undertake the responsibility. And it would not be appropriate to give a restrictive interpretation that limits the term “any Magistrate" exclusively to Judicial Magistrate which would not only run counter to the legislative intent but also create unnecessary procedural impediments in law enforcement, particularly in a State like Arunachal Pradesh when the availability of Judicial Magistrate may be limited, such a constraint would result in undue delay and disrupt the chain of custody of seized contraband. 18. The learned Addl. Public Prosecutor has also relied on the case of Bharat Aambale V. State of Chhattisgarh, reported in 2025 INSC 78, wherein the Hon’ble Supreme Court has held that the primary evidence for proving possession will always be the seized substance itself. The Hon’ble Supreme Court further held that even in cases where there is non-compliance with the procedural requirements of Section 52(A), such non-compliance 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, mere non-compliance with Section 52(A) may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, keeping in mind that the solitary objective of the NDPS Act is to curb the menace of drug trafficking. The Hon’ble Supreme Court also observed that mere non-compliance with the procedure under Section 52(A) or the Standing Orders will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution’s case doubtful, which may not have existed had such compliance been effected. The Court should take a Page No.# 13/24 holistic and cumulative view of the discrepancies, if any, in the evidence produced by the prosecution and appreciate the case more carefully, keeping in mind the procedural lapses. 19. I have considered the arguments advanced by the learned counsel for the respective parties and have examined the evidence available on record. The trial court records have also been perused. 20. As noted above, there are 10 (ten) prosecution witnesses and 1 (one) defence witness. 21. PW-1 deposed that on 23.05.2023, he received information from the Officer-in-Charge of Rupa P.S. to conduct checking of vehicles, as they were expecting a suspected vehicle. Thereafter, they started checking the vehicles passing through the Nagmandir Check Gate. Early in the morning, at about 3:00 a.m., one vehicle arrived at the check gate, and they noticed suspected ganja in the vehicle. They informed the Officer-in-Charge of Rupa P.S. and detained the suspected vehicle. He identified the accused person as the person who was detained along with the vehicle at the check gate. He further deposed that after they informed the Officer-in-Charge, Rupa P.S., the Officer-in-Charge of Rupa P.S. came along with the Magistrate, and they checked the vehicle and seized the contraband. In his cross-examination, PW-1 denied the suggestion that there was no contraband in the seized vehicle. He also deposed that on 23.05.2023, he was on duty at the Nagmandir Police Check Gate. He identified the accused person and further deposed that the Officer-in-Charge of Rupa P.S. came along with the Page No.# 14/24 Magistrate and the SDPO and conducted the search and seizure of the contraband. 22. In his cross-examination, the deposition of PW-2 was not controverted by the defence. PW-3 also deposed that he was on duty on 23.05.2023 and that he could identify the accused person, as the accused was brought to the police station while he was present there, at the time of seizure and weighment of the contraband. He denied the suggestion that the contraband substance was not seized from the possession of the accused. 23. PW-4 deposed that he had been working at Rupa P.S. for about 11 years. He further deposed that he went to the check gate along with the Officer-in- Charge of Rupa P.S. and the Executive Magistrate, where he saw that the suspected contraband was present in the vehicle of the accused person. He further deposed that he, along with the Officer-in-Charge of Rupa P.S. and the Executive Magistrate, took the accused and his vehicle, along with the contraband substance, to the police station. PW-4 was not cross-examined. 24. PW-5 deposed that he was also posted at Rupa P.S. on the day of the incident. PW-5 is the SDPO of Kalaktang. He also went to the Nag Mandir Check Gate along with the Officer-in-Charge of Rupa P.S. and the Executive Magistrate. After some time, they started the search of the vehicle in the presence of the Magistrate and found about 27–28 white polythene bags in the vehicle of the accused/appellant. Two independent witnesses were also present, and the articles were weighed and seized at the place of occurrence. He deposed that he had received information regarding the seizure of the suspected contraband substance and the arrest of the accused person from the Officer-in-Charge of Page No.# 15/24 Rupa P.S. He identified the accused person as the person who was detained at the check gate along with the seized vehicle and the contraband substance. On cross-examination, PW-5 deposed that at the time of the incident he was discharging his duties as SDPO, Kalaktang, and that Rupa P.S. falls under the jurisdiction of SDPO, Kalaktang. He further deposed that the Nagmandir Check Gate also comes within the jurisdiction of Rupa P.S. He stated in his cross-examination that PW-1 is not a gazetted officer and that PW-1 had only intercepted the vehicle of the accused at the check gate, but had not searched the vehicle. PW-5 further reaffirmed in his cross-examination that the contraband substance was recovered from the possession of the accused on 23.05.2023. 25. PW-6 deposed that she is a Senior Medical Officer at Singchung Primary Health Centre. On the day of the incident, the ADC, Singchung, was on leave. Being the senior-most administrative officer of the Singchung Sub-Division, she was entrusted with the charge of ADC, Singchung, during his absence for performing magisterial duties. She could identify the accused person but could not remember his name. She deposed that she was asked by the Officer-in- Charge of Rupa P.S. to come to the Nagmandir Check Gate on 23.05.2023 to witness the seizure of suspected ganja in her presence. She immediately proceeded to the Nagmandir Check Gate and saw that the police officers, including the Officer-in-Charge of Rupa P.S., were already present. The police opened the car of the accused in her presence and started the search. She also issued authorisation to the police to search the vehicle bearing registration No. AS-12L-6691 under Section 41(2) of the NDPS Act. PW-6 further deposed that during the search of the vehicle, several white-coloured polythene packets Page No.# 16/24 containing suspected contraband substance were found inside the dicky and the back seat of the vehicle, covered with a black-coloured cloth. During the search and seizure, the police also called a Gaon Bura of the locality to the check gate and brought a weighing machine. The police counted and weighed the contraband substance in her presence, and it was found to be 136 kg contained in 28 bags. The police collected samples from the bags in her presence and sealed the same for sending to the FSL for examination. She further deposed that the police seized 28 numbers of white-coloured polythene bags, a white-coloured Hyundai Xcent vehicle bearing registration No. AS-12L-6691, one Redmi 10 Pro mobile handset with SIM card, one SBI ATM card, one HDFC ATM card, and one Bank of Baroda debit card in her presence. She put her signature as a witness. She also received a letter from the Officer- in-Charge of Rupa P.S. praying for issuance of certification of the inventory, photographs, and samples of the seized narcotic drugs. The police prepared an inventory of the seized substances, and she put her signature and seal, certifying the correctness of the same. She also signed the certification regarding the correctness of the inventory, photographs, and samples collected. The police further prepared a weighing scale memo, and she put her signature on the memo, certifying its correctness. PW-6 proved the aforementioned documents as Exhibits P/4, P/6, P/7, P/8, P/9, P/9(a), P/10, and P/10(a), along with the material exhibits, namely 16 photographs of the seized vehicle marked as Exhibit M.O.B.1, the seized contraband substance in an envelope marked as Exhibit M.O.B.2, and the duplicate sample of the seized article marked as Exhibit M.O.B.3. Page No.# 17/24 On cross-examination, PW-6 stated that on 23.05.2023, she was officiating as an Executive Magistrate. In her cross-examination, PW-6 reiterated that on 23.05.2023, she was an Executive Magistrate and that Exhibit M.O.B.2, being the seized contraband substance which she identified and proved, was recovered from inside the detained vehicle. 26. PW-7 stated that he is the Gaon Bura of New Kaspi Village and that his residence is near the Nagmandir Check Gate. On the day of the incident, the Officer-in-Charge of Rupa P.S. called him over the phone and asked him to come to the check gate. He went to the place of occurrence (P.O.) and was present during the seizure of the contraband substance. He also put his signature as a witness to the seizure at the P.O. He stated that the police had weighed the contraband substance in his presence and deposed that the seized contraband substance was 136 kg. PW-7 proved the seizure memo as Exhibit P/7 and proved Exhibits P/7(c) and P/7(d) as his signatures. 27. PW-8 is the driver of the O.C. of Rupa P.S. He identified the accused in the Court and deposed that on 23.05.2023, he received a phone call from the CHM of Rupa P.S. and thereafter proceeded towards the Nagmandir Check Gate. He also went along with the Officer-in-Charge of Rupa P.S. to the Nagmandir Check Gate and saw the accused with the vehicle being detained there. He stated that the Officer-in-Charge of Rupa P.S. had seized the contraband substance and other materials in the presence of the Magistrate and the Gaon Bura, and that after the seizure of the contraband substance, they took the accused along with the seized vehicle and contraband substance to Rupa P.S. In his cross-examination, PW-8 also deposed that he was present on the Page No.# 18/24 day of the incident and reaffirmed that he had seen the Magistrate and other officials seizing the contraband substance from the vehicle of the accused person. 28. PW-9 is the Investigating Officer of the case. He could identify the accused person and stated that on 23.05.2023, he received a phone call from PW-1, who was in charge of the Nagmandir Check Gate, informing him that a vehicle had been detained. At that time, the ADC, Singchung, was in Itanagar, and PW-6 was in charge of the ADC, Singchung. Accordingly, he called her over the phone and asked her to come to the Nagmandir Check Gate to perform the search and seizure procedure. The Gaon Bura of Kaspi Village, who lived near the Nagmandir Check Gate, was also informed to witness the procedure of search and seizure. On reaching the place of occurrence, he received written authorization from the Magistrate for the search of the vehicle belonging to the accused in the presence of the Magistrate and the Gaon Bura. During the search, 28 packets of white polythene bags containing contraband substance were recovered from the dicky as well as the back seat of the vehicle. He used a digital weighing machine, and the contraband substance was weighed in the presence of the Magistrate and found to be 136 Kg. He collected two samples each from the seized contraband substance in the presence of the Magistrate and sealed the same. Thereafter, the seized vehicle, contraband substance, and the accused were taken to Rupa P.S. He further deposed that he sent the samples for FSL examination, and the FSL report confirmed that the seized contraband contained cannabis, commonly known as ganja. Accordingly, he submitted the charge-sheet under Sections 20(C) and 25 of the NDPS Act against the accused person. Page No.# 19/24 PW-9 exhibited and proved the FIR as Exhibit P/1, the seizure memo as Exhibit P/7, the inventory of the seized material as Exhibit P/8, the memo of the weighing machine as Exhibit P/10, the application for certification of correctness of inventory, photographs, and samples of seized contraband as Exhibit P/11, various intimations as Exhibit P/12, the seized vehicle details as Exhibit P/13, the FSL report as Exhibit P/15, and the charge-sheet as Exhibit P/27. He also exhibited the duplicate copy of the seized sample under sealed cover as Exhibit M.O.B.3 and the returned sample after FSL examination as Exhibit M.O.B.4. In his cross-examination, the defence could not controvert his testimony regarding the recovery and seizure of the contraband substance from the possession of the accused person. 29. PW-10 is the scientific expert. She deposed that on 30.05.2023, the FSL, Banderdewa, received the sample materials in connection with Rupa P.S. Case No. 06/2023. Upon examination, it was found that the dry leaves with flowering tops contained cannabis, commonly known as ganja. Thereafter, she submitted the report through the Director, FSL, Banderdewa. PW-10 proved the FSL report as Exhibit P/15 and Exhibit P/15(a) as her signature. She also proved the forwarding letter dated 21.07.2023, by which the FSL report was forwarded, as Exhibit P/16, and the returned sample after FSL examination as Exhibit M.O.B.4. 30. The defence examined the wife of the accused as DW-1. DW-1 deposed that on 23.05.2023, she was called by the Officer-in-Charge of Rupa P.S. and informed that her husband had been arrested. When she reached Rupa P.S., the Page No.# 20/24 Investigating Officer informed her that her husband was arrested for possessing and transporting contraband substance. When she inquired from her husband, he told her that he had no knowledge about the matter and that when he went to have tea, some person had placed the materials in his vehicle. When he inquired about the materials, that person told him that they were just goods. Her husband told her that when he stopped the vehicle at the Nagmandir Check Gate for making an entry, the police searched the vehicle and informed him that there was ganja in the vehicle, and only then did he come to know about the goods. She deposed that her husband is falsely implicated in this case. On cross-examination, she deposed that the vehicle driven by her husband is his own personal vehicle and that her husband was apprehended alone with the vehicle and the contraband substance; no other person was present. She further deposed that one Rajiv Basumatary had hired her husband's vehicle to visit Arunachal Pradesh. She stated that she has no personal knowledge about the offence. 31. In the case of Noor Aga v. State of Punjab, reported in 2008 16 SCC 417, the Hon’ble Supreme Court expressed the view that the initial burden to establish the foundational facts lies squarely on the prosecution. Only after this burden is discharged does the onus shift to the accused. For sustaining the conviction of a person under the NDPS Act, it must be shown that the possession was conscious and not accidental or without knowledge. The accused must know that he is in possession of the contraband and have control over the situation. 32. In Bharat Aambale (supra), the Hon’ble Apex Court stated that if other Page No.# 21/24 materials on record produced by the prosecution, whether oral or documentary, inspire confidence and satisfy the Court regarding the recovery as well as conscious possession of the contraband by the accused persons, the Court can, without hesitation, proceed to hold the accused guilty, notwithstanding any procedural defect in terms of Section 52(A) of the NDPS Act. The Hon’ble Apex Court held that once the foundational facts indicate non-compliance with Section 52(A) of the NDPS Act, the onus lies on the prosecution to prove, by cogent evidence, that (i) there was substantial compliance with the mandate of Section 52(A) of the NDPS Act; or (ii) such non-compliance does not affect its case against the accused, the standard of proof being beyond reasonable doubt. Therefore, it is clear from the aforementioned case that if the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, mere non-compliance with Section 52(A) may not be fatal. 33. This Court is of the view that the purpose of Section 52(A) of the NDPS Act is to preserve the identity of the seized contraband, to enable its disposal, to allow secondary evidence in the form of inventory, photographs, and samples, and to permit the same to be taken as primary evidence. 34. In the cases of Union of India v. Mohanlal (supra), Simranjit Singh (supra), and Yusuf @ Asif (supra), the Hon’ble Supreme Court emphasized judicial supervision in the exercise of powers under Section 52(A). The 2022 Rules also reflect this intention. That having been said, the NDPS Act does not expressly exclude an Executive Magistrate. Mohanlal (supra) also does not hold that “Magistrate” must mean “Judicial Magistrate”. The defect, if any, is therefore procedural. The Hon’ble Supreme Court, in a catena of decisions, has Page No.# 22/24 held that non-compliance with Section 52(A) is not per se fatal unless it causes prejudice or creates doubt about the identity of the contraband, provided the following are proved: (i) legal seizure; (ii) conscious possession; (iii) proper sealing; (iv) chain of custody; (v) FSL confirmation; and (vi) the contraband is accounted for or a sample is produced before the trial Court. 35. Therefore, it has been observed by the Trial Court that the irregularity did not affect the integrity of the samples and that no reasonable doubt was created regarding the identity of the contraband. If the prosecution is able to prove the seizure and possession independently, and is able to demonstrate that there was no tampering, no substitution, no seal mismatch, no break in the chain of custody, and no doubt as to the identity of the contraband, then no prejudice is caused to the accused, even though there may have been some irregularity in the exercise under Section 52(A) of the NDPS Act. 36. In the instant case, this Court has observed that PW-6 was entrusted with the charge of Executive Magistrate on the day of the incident. The inventory, photographs, and samples were all signed and sealed under the authority and seal of the Executive Magistrate, Singchung, West Kameng District, Arunachal Pradesh. It is not the case of the appellant that the seal of the Executive Magistrate was used without jurisdiction or authority. This Court has carefully examined the evidence and is of the view that the foundational facts regarding the seizure and conscious possession have been proved by the prosecution beyond reasonable doubt. The search and seizure were conducted in the presence of the Executive Magistrate, and the sampling and sealing were also done under her supervision. It has been proved by the evidence that the accused was travelling alone in the seized vehicle, with no other person present Page No.# 23/24 at the time of seizure, indicating that he was in conscious possession of the contraband substance. Therefore, the seizure was conducted in accordance with law, proper sealing was done, and the FSL report confirmed that the sample contained cannabis/ganja. The returned sample of the seized contraband, produced during the trial, constituted primary evidence. It is also noted that the sealing, sampling, and certification of the inventory and photographs were all done in the presence of the Executive Magistrate, after being duly signed and sealed by her. There is no allegation of tampering, substitution, seal mismatch, or any break in the chain of custody. 37. As submitted by the learned Addl. P.P., the forwarding letter from the FSL, Banderdewa, clearly states that the sample had seven (7) seals, all of which were intact and tallying with the specimen seal on the forwarding letter. There is no doubt that the cases relied upon by the appellant have laid down important principles of law regarding cases under the NDPS Act. However, they cannot be applied in the present case, as in the instant case the foundational facts have been proved. Upon analysis and appreciation of the evidence, there is no possibility of having two views that would give the benefit of doubt to the appellant. In view of the seizure/recovery and conscious possession being proved beyond reasonable doubt, the irregularities alleged by the appellant regarding the sampling procedure are therefore mere procedural irregularities and cannot vitiate the entire trial as the conviction is not based solely on the inventory. 38. In view of the foregoing analysis and conclusions, this Court is of the opinion that the learned Trial Court has not committed any error, either in law or in fact, in convicting the accused/appellant. Therefore, the judgment and order Page No.# 24/24 dated 04.03.2024 and the sentence order dated 12.03.2024, passed by the learned Special Judge, NDPS for the Districts of West Kameng, East Kameng, and Tawang at Bomdila, Arunachal Pradesh, in NDPS Case No. 20/2023, arising out of Rupa P.S. Case No. 06/2023, do not warrant any interference by this Court and are therefore, upheld. 39. The appeal stands dismissed accordingly. No order as to costs. 40. The Registry shall return the records to the Trial Court expeditiously. JUDGE Comparing Assistant