1 - Harilal @ Hiralal Ram S/o Prabhunath Ram Aged About 35 Years R/o v. 1 - State of Chhattisgarh Through P.S. Komakhan, District - Mahasamund, Chhattisgarh
Case Details
1 2025:CGHC:5197-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 355 of 2024 1 - Harilal @ Hiralal Ram S/o Prabhunath Ram Aged About 35 Years R/o Village Sasamusa, P.S. - Kuchai, District - Gopalganj, Bihar --- Appellant(s) versus 1 - State of Chhattisgarh Through P.S. Komakhan, District - Mahasamund, Chhattisgarh. --- Respondent(s) CRA No. 687 of 2024 1 - Atees Kumar Singh S/o Uma Shankar Singh Aged About 23 Years R/o Village Ward No. 11, Kripa Rai Ka Dera Shivpur Dear Numberi, P.S. Hardev Singh Ka Dera, District : Ballia, Uttar Pradesh ---Appellant(s) Versus 1 - State of Chhattisgarh Through Station House Officer Koma Khan, District : Mahasamund, Chhattisgarh --- Respondent(s) For Appellant(s) : Mr. Rajesh Jain, Advocate (CRA No. 355/2024) Mr. Sandeep Yadav, Advocate (CRA No. 687/2024) For Respondent(s) : Mr. Sangharsh Pandey, Govt. Advocate. 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J. 29/01/2025 1. Both these appeals are arising out of the same crime number, same sessions trial and by a common judgment, therefore, they are being heard and decided together. 2. Both these appeals are arising out of the impugned judgment of conviction and sentence dated 20.11.2023 passed by Learned Special Judge (NDPS Act) Mahasamund, District- Mahasamund, (C.G.) in Special Criminal Case (NDPS Act) No. H-45/2021, whereby the appellants have been convicted for the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced for R.I. for 20 years with fine of Rs. 2,00,000/- in default of payment of fine further R.I. for 1 year. 3. Brief facts of the case are that on 24.06.2021 the Inspector Siddheshwar Pratap Singh (PW-1) Police Station, Komakhan was in vehicle checking duty at Forest Barrier, Temrinaka. He received the secret information that in Eicher Truck No. OD/02/U-7795, the cannabis (Ganja) is being transporting and coming from Orissa to Chhattisgarh and the cannabis (Ganja) was kept under the vegetables. The secret information panchnama and search without warrant panchnama was prepared and the police proceeded towards the place of incident. When the suspected vehicle came there, they stopped it and when they inquired from the driver, he informed that the vehicle was loaded with cabbage and when the police persons insisted for checking the vehicle, the person who was sitting in helper seat, started running from there. He was caught-hold by the police persons then the driver has 3 disclosed his name as Harilal @ Heeralal and the person who started running from there disclosed his name as Atish Kumar Singh. When they were interrogate, they disclosed that they are carrying cannabis (Ganja) by hiding it under the cabbage and when the body of the truck was checked, cannabis (Ganja) was recovered which was kept in 52 plastic bags under the cabbage. The recovery panchnama was prepared in presence of the witnesses. The recovered cannabis (Ganja) was homogenized and physical verification was done by its rubbing and smelling and it was found to be of cannabis (Ganja). The weighment witnesses were called along with the weighment apparatus and after its physical verification, the recovered cannabis (Ganja) were weighed which was found 1300 kg. Two samples of 100gm each were separated and separate panchnama was prepared. From the accused persons, 2 Aadhar Card, cash amount of Rs. 680/- and Rs. 7000/- respectively, one mobile phone, one State Bank ATM card have been seized. The accused persons were arrested and their arrest have been informed to their family members. The seized truck, cannabis (Ganja), its sample packets and other articles seized from the appellants as well as appellants were taken to police station where FIR has been registered against them. The articles were kept in safe custody of Malkhana and the sample packets were sent for its chemical examination to State FSL, Raipur from where FSL report has been received and according to which the sample packets were fond contained with cannabis (Ganja). The inventory was also prepared by the concerned Executive Magistrate and panchnama was prepared during the investigation, it was found that vehicle was being plying by forged number plate. There was no number of its engine, therefore, the offence under Sections 467, 468 and 471 was also added against the accused persons and after completion of usual investigation, charge-sheet was filed against the present appellants/accused persons for the offence under Section 20(b), 29 of NDPS Act and Section 467, 468 and 471 of IPC before the learned trial Court. 4 4. The learned trial Court has framed charge against the appellants for the offence under Section 20(b)(ii)(C) of NDPS Act, the appellants denied the charge and claimed trial. 5. In order to prove the charge against the appellants, the prosecution has examined as many as 15 witnesses. Statement under Section 313 of Cr.P.C. of the appellants have also been recorded in which they denied the circumstances appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 6. On 18.10.2023, after hearing the parties, the case was fixed for passing of the judgment on 28.10.2023 and again on 01.11.2023. On 01.11.2023 the additional charge for the offence under Section 467, 468 and 471 of the IPC have also been framed against the appellants. The appellants have also denied the additional charge. Right to lead further evidence, examined and cross-examined the witnesses have been given to the prosecution as well as the accused persons. But they did not want to examine or re-examine or re- cross-examination the witness who have already examined and cross-
Facts
examined and then the learned trial Court again heard their submissions and passed the judgment. 7. After appreciating oral as well as documentary evidence led by the prosecution, the learned trial Court has acquitted the appellants from the offence of Section 467, 468 and 471 of IPC. However, they have been convicted for the offence under Section 20(b)(ii)(C) of the NDPS Act, and sentenced as mentioned in the earlier part of this judgment. Hence this appeal. 8.
Legal Reasoning
10. In the instant case there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police was also a member of the searching party. It has been held by this Court in M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence : (2003) 8 SCC 449 that where a search is conducted by a gazetted officer himself acting under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42. For this reason also, in the facts of this case, it was not necessary to comply with the requirement of the proviso to Section 42 of the NDPS Act." 36. In the matter of Kallu Khan vs. State of Rajasthan reported in 2021 (19) SCC 197 in Para 12, 13 and 16 of its judgment the Hon'ble Supreme Court has held that: 12. After hearing and on perusal of record and the evidence brought, it is apparent that on apprehending the accused, while making search of the motor cycle, 900 gm of smack was seized to which seizure and sample memos were prepared, as proved by the departmental witnesses. In the facts of the case at hand, where the search and seizure was made from the vehicle used, by way of chance recovery from public road, the provisions of Section 43 of the NDPS Act would apply. In this regard, the guidance may be taken from the judgments of this Court in S. K. Raju (supra) and S.K. Sakkar (supra). However, the recovery made by Pranveer Singh (PW6) cannot be doubted in the facts of this case. 20 13. Now reverting to the contention that the motor cycle seized in commission of offence does not belong to accused, however seizure of the contraband from the motor cycle cannot be connected to prove the guilt of accused. The Trial Court on appraisal of the testimony of witnesses, Constable Preetam Singh (PW1), Constable Sardar Singh (PW2), S.I. Pranveer Singh (PW6) and ConstableRajendra Prasad (PW8), who were members of the patrolling team and the witnesses of the seizure, proved beyond reasonable doubt, when they were on patrolling, the appellant came driving the seized vehicle from opposite side. On seeing the police vehicle, he had taken back the motor cycle which he was riding. However, the police team apprehended and intercepted the accused and made the search of vehicle, in which the seized contraband smack was found beneath the seat of the vehicle. However, while making search at public place, the contraband was seized from the motor cycle driven by the accused. Thus, recovery of the contraband from the motor cycle of the appellant was a chance recovery on a public road. As per Section 43 of NDPS Act, any officer of any of the departments, specified in Section 42, is having power of seizure and arrest of the accused from a public place, or in transit of any narcotic drug or psychotropic substance or controlled substance. The said officer may detain in search any person whom he has reason to believe that he has committed an offence punishable under the provisions of the NDPS Act, in case the possession of the narcotic drug or psychotropic substance appears to be unlawful. Learned senior counsel representing the appellant is unable to show any deficiency in following the procedure or perversity to the findings recorded by the Trial Court, affirmed by the High Court. The seizure of the motor cycle from him is proved beyond reasonable doubt, therefore, the question of ownership of vehicle is not relevant. In the similar set of facts, in the case of Rizwan Khan (supra), this Court observed the ownership of the vehicle is immaterial. Therefore, the argument as advanced by learned senior counsel is of no substance and meritless. 37. The next submission of the learned counsel for the appellant that Section 50 of NDPS Act has also not been complied with as the right to the appellant about their search have not been informed by the police authority as provided under Section 50 of the NDPS Act. The provisions of Section 50 is applicable to the personal search of the accused persons whereas in the present case the cannabis (Ganja) was recovered from the vehicle belongs to the accused persons which cannot said to be their personal search. The search of a vehicle does not comes under the requirement of Section 50 of the NDPS Act and search of a person is distinguished from search of any vehicle etc. 21 38. In the matter of Kallu Khan (supra) the Hon'ble Supreme Court has also considered the applicability of Section 50 of NDPS Act in search of the vehicle. In Para 16, the Hon'ble Supreme Court has held that: "16. Simultaneously, the arguments advanced by the appellant regarding non−compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this Court, the argument of non−compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled." 39. In the matter of State of Punjab vs. Baldev Singh reported in 1999 (6) SCC 172 in Para 12 of its judgment the Hon'ble Supreme Court has held: "12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 40. In the matter of Kulwinder Singh and Another vs. State of Punjab reported in 2015 (6) SCC 674 in Para 18 and 21 of its judgment the Hon'ble Supreme Court has held that: 18. In Dharampal Singh v. State of Punjab, it has been ruled that the expression “possession” is not capable of precise and complete logical definition of universal application in the context of all the statutes. Recently, in Mohan Lal v. State of Rajasthan11, after referring to certain authorities, this Court has held as follows:- “21. From the aforesaid exposition of law it is quite vivid that the term “possession” for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal 22 knowledge as to the existence of the “chattel” i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others.
Arguments
Mr. Rajesh Jain, learned counsel appearing for the appellant Harilal @ Hiralal in (CRA No. 355/2024) would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses. The 5 independent witnesses have not supported the prosecution case and only the departmental witnesses are there. There are material inconsistency in the evidence which cannot be made basis for conviction of the present appellant. The mandatory provisions of the NDPS Act have not been complied with and even the procedure for drawing the samples in the Standing Order No. 1/89 issued by the Central Government have not been complied with and in absence of any proper procedure for drawing the sample, the entire procedure vitiates. There is non-compliance of Provisions of Section 42 and 50 of the NDPS Act which does affects the prosecution case. There are material irregularity in the search and seizure proceedings and there are major discrepancies in the evidence of I.O. in preparing the various panchnamas. The present appellant is only a driver and was working under the instruction of his vehicle owner. Therefore, in absence of any cogent and clinching evidence, it cannot be said that the seized contraband cannabis (Ganja) was in fact seized from the conscious possession of the appellant, therefore, the appellant is entitled for benefit of doubt and he may be acquitted from the alleged offence. 9. Mr. Sandeep Yadav, learned counsel for the appellant Atees Kumar Singh in (CRA No. 687/2024) would also submit that the mandatory provisions of Section 42, 50, 52, 52-A, 55 and 57 of the NDPS Act have not been complied with. In absence of non-compliance of mandatory Provisions of the NDPS Act the appellant cannot be convicted. There is no corroborative evidence with respect to the search and seizure from the appellant except the evidence of the I.O. The independent witnesses have not supported the prosecution case. He being the helper of the truck does not have any interest in the goods loaded in it. He is working under the vehicle owner on his instruction, therefore, the knowledge of the transporting contraband cannabis (Ganja) cannot be imputed on his part, therefore, he is also entitled for benefit of doubt and he may also be acquitted from the offence. 10. On the other hand, learned counsel for the State opposes and have 6 submitted that the entire procedure as prescribed under the NDPS Act have been followed in its letter and spirit and after considering the evidence available on record. The learned trial Court has rightly convicted and sentenced the appellants for the alleged offence. The appellants were found in possession of the vehicle who are driver and helper of the said truck in which the huge quantity of cannabis (Ganja) i.e. 1300kg of Ganja was being transported by the appellants. There has been no explanation offered by the appellants as to how they came into possession of such huge quantity of cannabis (Ganja) in their vehicle. All the mandatory provisions have been duly complied with. When the appellants were found in possession of the cannabis (Ganja) and it has been proved that the huge quantity of cannabis (Ganja) have been seized from the possession of the appellants, even if some irregularity found in the search and seizure proceedings that itself cannot vitiates the entire procedure of search and seizure. Therefore, there is no irregularity or infirmity in the impugned judgment passed by learned trial Court and the appeal of the appellants are liable to be dismissed. 11. We have heard learned counsel for the parties and perused the record of the case with utmost circumspection. 12. PW-11, Siddheshwar Pratap Singh who was Inspector of Police posted at police station, Komakhan on the date of incident, he stated in his evidence that on the date of incident i.e. on 24.06.2021 he along with the Assistant Sub Inspector and other constables were proceeded towards Forest Barrier, Temrinaka for checking of the vehicles along with the investigation kit and while checking of the suspected vehicles, he received secret information that one Eicher Truck No. OD/02/U-7795 is coming from Orissa having Narcotic Drugs in it. He prepared the secret information panchnama Ex.P/32 and search without warrant panchnama Ex.P/33. The secret information report Ex.P/34 was also prepared on the spot. The intimation about secret 7 information was sent to Sub Divisional Officer (Police) (in short, 'SDOP'), Bagbahara through a constable Ganeshwar Thakur. When the SDOP, Bagbahara was not found in his Office, the intimation was submitted before the Reader to the Office and obtained acknowledgment. After a short while, the suspected vehicle bearing No. OD/02/U-7795 came there. He stopped the vehicle after seeking the vehicle checking and then both the accused persons stared running from the place who were detained by the police persons. The independent witnesses Rajkumar Dewangan and Ramesh Kumar were given notice to remain present which is Ex.P/1 and Ex.P/28. 13. The notice under Section 50 of NDPS Act was separately given to the accused persons which are Ex.P/2 and Ex.P/3. They have been apprised about their right to be searched from Gazetted Officer, Magistrate, or by him and then both the accused persons have given their consent that they are ready to be searched by him and consent panchanama Ex.P/4 and Ex.P/5 was also prepared. The police party and the police vehicles were also been searched by the accused persons and except the investigation kit, no any incriminating articles were found on their search and the Talashi panchnama Ex.P/6 and Ex.P/7 was prepared. When the body of the Truck No. OD/02/U-7795 was searched by the police persons, it was found 52 plastic bags kept under the bags of cabbage in which the contraband cannabis (Ganja) like substance are there. The Talashi panchanam Ex.P/8 was prepared and recovery panchnama Ex.P/9 was also prepared. From all the 52 bags, very small quantity was taken out for its physical verification and after its rubbing and smelling, it was physically verified that it was cannabis (Ganja) and physical identification panchnama Ex.P/10 was prepared. Notice under Section 91 of the Cr.P.C. Ex.P/11 and Ex.P/12 were also given to the accused persons and then they disclosed in writing that they are having no document with respect to the transportation of the cannabis (Ganja). The weighment witness and 8 weighment apparatus were being called through the constable Tuleshwar Sahu and notice Ex.P/26 was issued to the weighment witnesses. The physical verification of weighment apparatus was done and panchnama Ex.P/13 was prepared. Thereafter the contents of the 52 bags were homogenized on a tarpaulin by eight repeated process of homogenization and panchnama Ex.P/14 was prepared. Total 25.100kg cannabis (Ganja) was found in each bags and the total 1300kg Ganja was found in total 52 bags and weighment panchnam Ex.P/15 was prepared. Two samples of 100gm each were drawn from the homogenized Ganja which was marked as article A-1 and article A- 2 and sealed on the spot. The remaining quantity of Ganja i.e. 1299.800kg was again re-filled in 52 plastic bags and it was also sealed in presence of the witnesses. 14. The sample panchnama Ex.P/16 was also prepared and specimen seal panchnama Ex.P/17 was also prepared. The search panchnama of the accused persons Ex.P/18 and Ex.P/19 was prepared and seizure memo Ex.P/20 with respect to the Eicher Truck No. OD/02/U-7795, cannabis (Ganja) and its sample packets, one mobile phone, 2 aadhar card, one State Bank ATM Card, cash amount of Rs. 7618/-, 2 notices under Section 91 of Cr.P.C., 2 notices of Section 50 of NDPS Act were also prepared. Both the appellants were arrested on the spot. The arrest of the appellants were informed to their family members through mobile phone and the document to that effect is Ex.P/44. Spot map Ex.P/41 was also prepared. The Dehati Nalishi Ex.P/45 was recorded on the spot against the accused persons. The seized truck, seized cannabis (Ganja) and its sample packets and other seized articles were taken to police station Komakhan and FIR Ex.P/46 was recorded. The seized articles were kept in safe custody of Malkhana through Malkhana Moharir who issued the acknowledgment Ex.P/47. Statement of the witnesses have been recorded by him and he prepared the detailed report of the proceedings and forwarded it to the SDOP Office through the 9 constable Bindu Harbanj and his duty certificate is Ex.P/31 and the detailed report of the proceedings is Ex.P/36. On 26.06.2021 he sent a memo to the Executive Magistrate for the proceedings under Section 52-A of the NDPS Act which is Ex.P/48. He has taken two sample packets of 100gm each which was return to them after its chemical examination from FSL and it was found marked with article A-1 and article A-2 and slip was there. When the sample packets were opened cannabis (Ganja) like contents were found inside the packets and then it was again closed. 15. In cross-examination he admitted that in the Dehati Nalashi it has been mentioned that after homogenization the Ganja was re-filled in 12 bags and weighed. He also admitted that in the document Ex.P/21 the time and date have not been mentioned along with the signature of the witnesses. He admitted that in the document Ex.P/2 and Ex.P/3, it is not mentioned that the accused persons were given their consent to be searched by him. He voluntarily stated that the accused persons were apprised about their rights of his search which is mentioned in the notice under Section 50 given to them. He also admitted that no date and time has been mentioned in the Ex.P/2 and Ex.P/3. He further admitted that the documents are not in his handwriting but it has been prepared on his instruction. He also admitted that in the document Ex.P/4, Ex.P/6 and Ex.P/7 there is no mention of date and time along with the signature of the witnesses. He further admitted that there is no mention in the document Ex.P/8 that from the vehicle of the accused persons any tarpaulin was also recovered or not. He further admitted that in the document Ex.P/10 it is not mentioned that who has physically identified the cannabis (Ganja) by rubbing and smelling. He further admitted that in the document Ex.P/26 the place has not been mentioned as to at which the same has been given to the weighment witnesses. He voluntarily stated that in the document Ex.P/26 the place of incident is mentioned as Forest Barrier, Temrinaka. Although this witness 10 have been cross-examined regarding physical verification of the electronic weighing machine but from the cross-examination, it cannot be said that the weighing machine was not called on the spot and seized cannabis (Ganja) was not weighed. He further stated that he did not know about the Standing Order No. 1/89 and also did not know any instruction that the homogenization cannot be done on one stroke if the seized packets are more than 40 in numbers. He voluntarily stated that during his training he was learnt about the procedure of homogenization. He further admitted that after homogenization panchnama, the cannabis (Ganja) was re-filled in bags and thereafter it was weighed. After its homogenization the cannabis (Ganja) was re-filled after weighing the weight and each bags was 25kg in weight. He further admitted that in the document Ex.P/15 there is no mention that that bags were re-filled after homogenization. He also admitted that in the document Ex.P/16, it has not been mentioned that the two samples were drawn from each bag out of 52 bags. He denied the suggestion that the seal used at the time of search and seizure has not been re-deposited in Malkhana. He admitted that there is no document with the effect that the seal which was used during the search and seizure has been re-deposited in Malkhana. The specimen seal bears with “P-3 Komakhan”. 16. He further admitted that in the document Ex.P/50, the sample packets were sent in two plastic box whereas in the document Ex.P/49, which is the document of FSL, two samples packets were shown and he could not tell about its difference. He further admitted that in the document Ex.P/48 which has been given to the Tahsildar, he has not mentioned any specific date for inventory proceedings. He further admitted that in the proceeding under Section 52-A, weight of each bags are different and lesser then the weight mentioned at the time of seizure and depositing in Malkhana. He voluntarily stated that the proceedings under Section 52-A is done after 4 months of the incident and due to its dryness in the intervening period the weigh might 11 have been reduced. He further stated that there is endorsement in the Malkhana Register with respect to the taking out the cannabis (Ganja) from Malkhana and depositing the same with the Malkhana after inventontory proceeding by the Executive Magistrate. He also admitted that he has not obtained any certificate under Section 65-B of the Evidence Act with respect to the photographs Article A-1 to A-7. He also admitted that he has not verified due to truck was engaged with any igenia company or not. He denied that to save the actual culprits, he prepared the documents against the appellants. This witness further stated that in sample packets article A-1 the seal of FSL is there. Though he admitted that article A-1 and article A-2 there is no slip of FSL. When witness was re-examined, he proved the FSL report Ex.P/56 in which the sample packets were found to be contained with cannabis (Ganja). From the evidence of this witness it is quite vivid that that when he was in checking of the suspected vehicles along with the police party, he received secret information that cannabis (Ganja) was transporting in the truck and when the suspected truck reached there, they stopped the same and on being search, cannabis (Ganja) was found in the body of the truck which was kept under the bags of cabbage. On being weight total 1300kg cannabis (Ganja) was recovered from the possession of the appellants. The samples were drawn which was sent for FSL examination and in FSL examination it was found to be cannabis (Ganja) and thus the possession of 1300kg cannabis (Ganja) is found proved as per the evidence of the witness PW-11 who conducted the search and seizure proceedings. 17. PW-1, Nomesh Kumar Patel and PW-3, Rajkumar Dewangan who are the independent witnesses and they are witnesses of the memo Ex.P/1 to Ex.P/24 but they have turned hostile and not supported the prosecution case, however, they have admitted their signatures in the aforesaid memos. 18. PW-2, Kishan Sahu, is the weighment witness have stated in his evidence that on the date of incident the police persons have taken his electronic 12 weighing machine. On the next date he was called at police station and obtained his signature in the papers. He admitted that his signature in physical verification panchnama and the weighment apparatus Ex.P/13 and weighment panchnama Ex.P/15. Thereafter, this witness have declared hostile and not supported the prosecution case. 19. PW-4, Ran Sai Miri who is the Assistant Sub Inspector of Police and a member of search party have stated in his evidence that on 24.06.2021, he along with the Station House Officer, Siddheshwar Pratap Singh had gone to Forest Barrier, Temri for vehicle checking. During the checking, one Eicher Truck No. OD/02/U-7795 came there and when they stopped the said vehicle, the driver have disclosed his name as Harilal @ Heeralal and the helper have disclosed his name as Atish Kumar. The helper started running from there who was being detained by the police staff. When they have been interrogated they disclosed that under the cabbage bags, cannabis (Ganja) is there. The Station House Officer prepared the panchnama of search without warrant and report has been sent to SDOP Office Bagbahara. The persons who were by-passing have been served with notice to be the independent witnesses. Rajkumar Dewangan and Nomesh Kumar Patel were the independent witnesses. The notice under Section 50 was served upon the accused persons and then they gave their consent to be searched by the Police Officer. The police party have also gave their own search to the accused persons. When the truck of the appellants were searched, it was found 52 bags kept under the bags of cabbage which were recovered by the police and its contents were taken out and physically identified by rubbing and smelling and taste, then it was found of cannabis (Ganja). The Notice under Section 91 of Cr.P.C. was also given to the accused persons but they have failed to submit any valid documents. The weighment witness was also called along with the weighment apparatus and after its weighment, the total quantity of 13 cannabis (Ganja) was found 13 quintals. The weighment panchnama was also prepared. Two samples packets of 100gm each were drawn and it was sealed on the spot by the seal of police station and specimen seal panchnama was also prepared. The accused persons were also searched and after preparing the seizure memo both the accused persons were arrested and Dehati Nalishi was recorded on the spot. After, conducting search and seizure proceedings they return back to police station and seized articles were kept in safe custody of Malkhana through Malkhana Moharir. In cross-examination he duly proved the manner in which they have conducted the search and seizure proceedings and duly supported the evidence of PW-11 Siddheshwar Pratap Singh. He also stated that they were not having any prior intimation about transportation of cannabis (Ganja) but it was a chance recovery. He was present throughout the search and seizure proceedings. Nothing could be elicited from the evidence of this witness in his cross-examination which makes the evidence of this witness doubtful. 20. PW-5, Ganeshwar Thaku is also one of the member of search party. He stated in his evidence that when they were in vehicle checking at Forest Barrier Temrinaka, a truck came there which was being stopped by them. On being suspicion, the Investigating Officer prepared the secret information panchnama and search without warrant panchnama and sent him to SDOP Office. After submitting the intimation, he obtained acknowledgment and return back to his own police station. This witness has also proved the service of the intimation to the Office of SDOP. 21. PW-6, Top Singh Dhruv is the Patwari who prepared the spot map Ex.P/22. 22. PW-7, Bintu Kumar is the constable who has taken the detailed report of the proceedings to the Office of SDOP, Bagbahara and after its submissions, he obtained acknowledgment and came back to his own police station. He too have proved the submission of the detailed report of search and seizure proceedings to the Senior Police Officer. 14 23. PW-8, Shobharam Bervanshi is the Assistant Sub Inspector of Police was posted as Reader in the Office of SDOP, Bagbahara, he proved that on 24.06.2021 he received secret information panchanama and search without warrant panchnama. Through the constable Ganeshwar Tahkur and he issued the acknowledgment which is Ex.P/32, Ex.P/33 and Ex.P/34. The dispatch register is Ex.P/35. In cross-examination he too have remain firm in saying that he received the above said panchnamas in the Office of SDOP, Bagbahara. 24. PW-9, Gagan Sharma was the Nayab Tahsildar Executive Magistrate posted at Bagbahara. He stated in his evidence that on 22.10.2021, he had gone to the police station Komakhan for the proceedings under Section 52 of the NDPS Act. In the Malkhana of police station Komakhan, total 1300kg Ganja was kept which was in 52 bags, two samples of 100gm and remaining Ganja 1299.800kg in sealed condition was found kept in Malkhana of police station Komakhan. The said contraband were taken out from Malkhana and after physical verification of the electronic machine, it was re-weighed and found 1291.925kg including the weight of its bags. The sample of 100gm was separated and marked as article A-3 and the remaining quantity of cannabis (Ganja) was re-filled in bags and after affixing his signed slip, it was again kept in Malkhana. The entire proceeding was photographed. The Station House Officer, Siddheshwar Pratap Singh have prepared a panchnama of the proceeding done by him which is Ex.P/38. The physical verification of weighment apparatus Ex.P/39, the inventory under Section 52-A is Ex.P/40 and the photographs are article A-1 to article A- 7. In cross-examination he admitted that the bags were taken out from Malkhana were in sealed condition but it has not mentioned in Ex.P/38. He admitted that there is no letter annexed in the charge-sheet with respect to his authorization to conduct the proceeding under Section 52-A of NDPS 15 Act. He admitted that the weight of the contraband mentioned in Ex.P/39 is the weight prior to taking out the sample. He further stated that after taking the sample, bags were not separately weighed. The reduction of weight of the contraband has also not been mentioned in the panchnama. He further admitted that in the inventory Ex.P/30 the total weight of contraband was mentioned as 1299.800kg. He further admitted that when the weighment of the contraband was conducted in his presence, it was found 1291.825kg but it not mentioned in the inventory Ex.P/40. 25. PW-10, Kuleshwar Sahu is the constable who stated in his evidence that he was a member of search party and when suspected truck came at Forest Barrier Temrinaka, it was found contained with cannabis (Ganja) which was kept under the bags of cabbage. He was instructed by the Station House Officer to call the weighment witnesses and then he has taken the weighment witnesses Kishan Sahu along with electronic weighing machine. After its physical verification it was found correct and on being weight, the contraband was found 1300kg out of which 2 sample packets of 100gm each were separated and he was present in the entire proceedings. In the cross-examination he also remained firm in saying that he called the weighment witness and contraband was weighed in his presence. 26. PW-12, Toshram Diwan is another constable who has taken the sample of Ganja article A-1 and article A-2 to the FSL, Raipur along with the memo of Superintendent of Police, Mahasamund. He deposited the samples on the same day obtained the acknowledgment Ex.P/51 and return back to police station. Nothing in his cross-examination which makes his evidence doubtful that he has taken the sample to FSL or it was tempered while transit to the FSL. 27. PW-13, Kartik Rai Ratre he is the Malkhana Moharir at police station Komakhan and have stated in his evidence that on 25.06.2021. He received the Eicher Truck No. OD/02/U-7795, 1300kg cannabis (Ganja) which was 16 kept in 52 bags (25.100kg in each bags) including 2 samples 100gm each kept in plastic box and marked with article A-1 and A-2 in sealed condition. Except two samples of cannabis (Ganja) the remaining quantity of cannabis (Ganja) i.e. 1299.800kg which was kept in 52 bags were marked as 1 to 52. He also received one mobile phone, 2 aadhar card, one ATM card and cash amount of Rs. 8680/- and two notices of Section 91 of Cr.P.C. and Section 50 of NDPS Act and he issued acknowledgment Ex.P/47 for the same. The articles which was kept in Malkhana has also endorsed in Malkhana register at serial No. 60 and he brought original register with him which is Ex.P/52 and its attested true copy Ex.P/52-C. He also brought Rojnamcha Sanha with respect to their departure from police station which is Ex.P/53 and arrival Rojnamcha which is Ex.P/54. In his cross-examination though he admitted that the Station House Officer has not given any written application to kept it in Malkhana but from the evidence of this witness, it is not reflected that the seized articles were not kept in Malkhana rather in cross- examination the suggestion was given that the contraband which was kept in 52 bags were given by Station House Officer to him to kept it in safe custody of Malkhana. 28. PW-14, Miss Litesh Singh who is the SDOP, Bagbahara has proved the secret information Ex.P/32 and search without warrant panchnama Ex.P/33 and report Ex.P/34 which was sent to her office. 29. PW-15, Ganesh Mahari is the person who claimed ownership of the Eicher Truck No. OD/02/U-7795. He stated in his evidence that he is the resident of Bhubhaneswar and a transportor, he is having a Eicher Truck No. OD/02/U- 7795. Two years back, the Komakhan police have informed him that they caught the Eicher Truck bearing No. OD/02/U-7795 and then he disclosed them that his vehicle was having local Orrisa permit and his vehicle was seized at Bhubaneswar near Manchirevar police station and the vehicle which has been seized by them is not his vehicle. The engine number and 17 chassis number of his vehicle is mentioned in the document Ex.P/55 and the number plate of his vehicle has been used by the accused persons. In cross-examination he stated that the police have inquired him from mobile phone. He clarified in his cross-examination that his vehicle was standing near Manchishevar police station Bhubhaneswar. He was having 7 vehicles and out of which 2 are having National permit and 4 are having local permit. 30. From the aforesaid evidence it is quite vivid that on 24.06.2021 the police while checking at Forest Barrier Temrinaka, stopped the truck in which 1300kg cannabis (Ganja) was found and seized which was kept in 52 bags under the bags of cabbage and after drawing the search and seizure proceedings, the same has been seized from the appellants. 31. The submissions made by learned counsel for the appellants that the provisions of Section 42 of the NDPS Act have not been complied with. From the evidence it appears that the police party was not having any prior information that the contraband cannabis (Ganja) was being transporting in the truck and they have received secret information when they have already in vehicle checking at forest Barrier Temrinaka. It can be said that it was only a chance recovery. They received secret information on the spot a few minutes before when the truck came there yet they sent the secret information panchnama and search without warrant panchnama to the Senior Police Officer, SDOP, Bagbahara. The sending of the intimation has also been proved by PW-14 Miss Litesh Singh. Although as an abundant caution, the provisions of Section 42 is complied with but in the fact that the cannabis (Ganja) was seized in the public place from the vehicle, Section 42 of the NDPS Act is not applicable and Section 43 of the NDPS Act is applicable. 32. Section 43 of the NDPS Act provides the powers of seizure and arrest in public place which reads as under: [43. Power of seizure and arrest in public place- Any officer of any of 18 the departments mentioned in section 42 may:- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation- For the purposes of this section, the expression public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.] 33. The contraband were recovered and seized while in transit. As the contraband were recovered and seized during transit in the Truck, as contemplated in Section 43(a) i.e. "Seize in any public place or in transit", this Court is of the considered opinion that Section 43 of the NDPS Act is applicable and as such, recording for reason for belief and for taking down of information received in writing with regard to the Commission of offence before conducting search and seizure, is not required to be complied with under Section 43 of NDPS Act. 34. In the matter of Firdoskhan Khurshidkhan vs. State of Gujarat and Another, reported in 2024 SCC OnLine SC 680, the Hon'ble Supreme Court has held in para 18 that: "18. Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of 19 Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected." 35. In the matter of State of Haryana vs. Jarnail Singh and Others reported in 2004 (5) SCC 188 in Para 9 and 10 of its judgment the Hon'ble Supreme Court has held that: "9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.
Decision
22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion." 21. In State of H.P. v. Pawan Kumar, it has been held that: “10. We are not concerned here with the wide definition of the word “person”, which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word “person” appears to be — “the body of a human being as presented to public view usually with its appropriate coverings and clothing”. In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one’s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. 23 Therefore, the work 'person' would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act." 41. The next submission made by learned counsel for the appellant is the Section 52 of the NDPS Act as well as Circular of 1/89 issued by Central Government have not been complied with in the case for drawing of the samples from the seized articles. Therefore, there is substantial non- compliance of the mandatory provisions of the NDPS Act and the appellant is entitled for acquittal. 42. PW-9, Gagan Sharma Executive Magistrate has prepared inventory on 22.10.2021, went to police station, Komakhan, taken out the seized contraband from the Malkhana, after its weighment, drawn a sample of 100gm, marked as article A-3. He re-filed the said contraband Ganja in the bags and return it to kept in safe custody of Malkhana. He drawn the inventory panchnama Ex.P/40 and physical verification panchnama of weighment apparatus is Ex.P/39 and its photographs is article A-1 to article A-7. On its weighment total quantity of Ganja was found 1291.8250kg. Though the quantity of Ganja is lesser than the quantity mentioned in seizure memo but the Investigating Officer PW-11 has clarified in para-50 of his cross-examination that since the inventory was done after about 4 24 months and thereafter the weight of Ganja can be reduced due to its dryness. The grounds raised by the learned counsel for the appellants that the procedure prescribed in Circular No. 1/89 issued by the Central Government has not been followed and the samples have been drawn in a defective manner. It is also the ground of the appellants that the public authorities should have drawn samples from each of the packets before homogenization or they should drawn the sample from the packets seized from the vehicle randomly but the procedure drawn by the police that they first homogenized the entire quantity of Ganja drawn the sample is the defective procedure which vitiated entire search proceedings. Though the procedure is laid down in the Standing Order No. 1/89 for drawing the samples but merely non-compliance of the procedure for drawing the sample does not vitiates the entire search and seizure proceedings when the other evidences have duly supported the prosecution case. In the present case it has been found proved that the Ganja was seized from the possession of the appellants. 43. 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 possession of the contraband 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. 44. 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 25 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 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 26 prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case. Such delay or deviation from Section 52A of the NDPS Act or the Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of the prosecution, unless there are discrepancies in the physical evidence which may not have been there had such compliance been done. What is required is that the courts take a holistic and cumulative view of the discrepancies that exist in the physical evidence adduced by the prosecution and correlate or link the same with any procedural lapses or deviations. Thus, whenever, there is any deviation or non-compliance of the procedure envisaged under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution’s case. In such instances of procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place. 27. In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act. 28. In Khet Singh v. Union of India reported in (2002) 4 SCC 380 this Court held that the Standing Order(s) issued by the NCB and the procedure envisaged 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 27 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 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 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. 28 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 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 29 consideration in Khet Singh v. Union of India this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself. Hence, we do not find any substance in this contention.” (Emphasis supplied) 30. Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed 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 30 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 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, 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 31 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. 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 32 proceed, by the time the trial would commence, the unavailability of such material would result in a crucial piece of evidence to establish possession becoming missing and the outcome of the trial becoming a foregone conclusion. The legislature being alive to this fact, thought fit to introduce an element of preservation of such evidence of possession of contraband in the form of inventory, 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, 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 33 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. 45. Further in Para 41 and 42 of the said judgment of Bharat Aambale (supra) held that: 41. As per Clause 2.5 of the Standing Order No. 1 of 89 i.e., the relevant standing order in force at the time of seizure, where multiple packages or packets are seized, they first have to be subjected to an identification test by way of a colour test to ascertain which packets are of the same sized, weigh and contents. Thereafter, all packets which are identical to each other in all respects will be bunched in lots, in the case of ganja, they may be bunched in lots of 40 packets each. Thereafter from each lot, one sample and one in duplicate has to be drawn. The relevant clause reads as under: - “2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each 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.” 46. In the present case the entire search and seizure proceedings have found genuine and the correct procedure have been drawn by the police persons. The independent witnesses have duly supported the prosecution case that when the vehicle was being stopped two persons were found sitting, they disclosed their names, on being checked the vehicle was found contained 34 with 52 bags in which cannabis (Ganja) was found which was found in their possession. The seizure of cannabis (Ganja) and its weight and sampling were proved by the Tahsildar/Executive Magistrate and nothing adverse could be found to disbelieve their 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. 47. There is no material available on record so as to arrived at finding that the accused persons have been falsely implicated in this case. Section 20 of the NDPS Act provides that whoever in contravention of any provisions of this Act or any rule made therein possess cannabis (Ganja) shall be punished in accordance with the said provisions. Section 20 (b) uses the "possess". In the present case. The appellants were found in possession of 1300kg of cannabis (Ganja) in their Truck which they were carrying at the relevant time. The judgment passed by learned trial Court is quite detailed judgment which has dealt with every aspect of the matter and the analysis made therein clearly proves the appellants have committed the offence in question and were transporting cannabis (Ganja) weighing 1300kg. They could not given any explanation as to how that huge quantity of cannabis (Ganja) came to be found in the vehicle which belong to the accused persons. 48. The FSL report Ex.-P/27 further proves that the sample packets of cannabis (Ganja) which were drawn from the total quantity of cannabis (Ganja) were found to be contained with cannabis (Ganja) contents and further corroborates the allegation against the appellants. 49. In view of the above discussion, this Court is of the considered opinion that the judgment passed by learned trial Court is based on proper appreciation of evidence which is neither perverse nor contrary to the record as well as law laid down by the Hon'ble Supreme Court and the same needs no 35 interference. As such the judgment of conviction and order of sentence awarded to the appellants are hereby affirmed. 50. In the result, the appeal filed by the appellants are hereby dismissed. The appellants are reported to be in jail. They shall serve the remaining period of jail sentence as has been awarded to them by the learned trial Court. 51. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 52. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok