Koraput, Orissa v. State of Chhattisgarh Through The Police Station Nagarnar, District Bastar, Chhattisgarh, District : Bastar
Case Details
1 2025:CGHC:33036 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 486 of 2022 Upendra Dalai S/o Hari Dalai Aged About 22 Years R/o Paldapur Machkund District Koraput, Odisha, District : Koraput, Orissa --- Appellant versus State of Chhattisgarh Through The Police Station Nagarnar, District Bastar, Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh --- Respondent For Appellants : Mr. Praveen Kumar Tulsyan, Advocate. For Respondent : Ms. Ankita Shukla, Panel Lawyer. Along with CRA No. 631 of 2022 1. 2. Jagannath Dalei S/o Shyamson Dalei Aged About 38 Years R/o Paldapur, Police Station- Machkund, District- Koraput, Odhisa. Kamraju Mandi S/o Anchul Mandi Aged About 45 Years R/o Bansuguda Police Station Machkund, District- Korput, Odhisa. Versus State of Chhattisgarh Through The Police Station Nagarnar, District- Bastar, Chhattisgarh. --- Appellants --- Respondent For Appellants : Mr. Pranjal Agrawal, Advocate. For Respondent : Ms. Ankita Shukla, Panel Lawyer. PREETI KUMARI Digitally signed by PREETI KUMARI Date: 2025.07.22 19:04:43 +0530 15.07 . 2025 Hon'ble Mr. Ramesh Sinha, Chief Justice Judgment on Board 1. As the matter is of the year 2022 and out of 10 years of jail imprisonment as has been awarded by the learned trial Court, the appellants, namely, Upendra Dalai and Kamraju Mandi have already undergone more than 2 years and 5 months in jail, and the appellant, namely, Jagannath Dalei 2 have already undergone more than 2 years and 7 months in jail, as he was again arrested in compliance of non-bailable warrant issued against him, on account of his non-appearance before the registry after being granted bail by this Court. Hence, with the consent of the parties, this Court proceeds to dispose of the matter on merits. 2. The appellants have preferred this appeal under Section 374(2) of Code of Criminal Procedure, 1973 (for short, ‘CrPC’) questioning the impugned judgment dated 22.02.2022 passed by the learned Special Judge (N.D.P.S. Act), 1985, Jagdalpur, District – Bastar (C.G.) in Special Criminal Case (NDPS Act 1985) No. 15/2020, whereby the learned Special Judge after holding the appellants guilty for the offence punishable under Section 20(B)(ii)(C) of the Narcotic Drug and Psychotropic Substance Act, 1985 (hereinafter refereed to as ‘the Act’) and sentenced them to undergo R.I. for 10 years and to pay fine of Rs. 1,00,000/- each, in default of payment of fine to further undergo additional imprisonment for 1 year. 3. Case of the prosecution, in brief, is that on 13/09/2019 at 6.10 a.m., applicant Sub-Inspector Khomraj Thakur of Police Station Nagarnar received information from an informer that three persons were illegally transporting narcotic substance ganja in a Mahindra Company Commander Jeep number OR-08-C/7260 from Odisha state to Jagdalpur. On the basis of the above information, he left for the spot, and after completing the entire proceedings of the NDPS Act, a rural
Legal Reasoning
complaint FIR No. 0/19 was registered under Section 20 (b) of the NDPS Act, on the basis of which a crime has been registered in the police station as per the First Information Report No. 209/19. The above information was recorded in the diary and senior officers were informed 3 over phone and after preparing informer information panchnama, information about receipt of crime information, panchnama about not being able to obtain search warrant, it was sent through special post to CSP office Jagdalpur and constable number 378 Yashwant Dhruv was given duty certificate and asked to summon two independent witnesses. Constable number 378 Yashwant Dhruv brought two independent witnesses- Wahid Ahmed and Champul Kashyap and after informing them about the informer information, they were told to be present in the NDPS proceedings to be conducted with the police and to agree as witnesses and written consent was obtained by giving notice under Section 160 CrPC. Thereafter, on the instructions of senior officers, along with investigation kit of NDPS Act, independent witness and staff, they left for the incident spot- village Nagarnar near village Bhejapadar road culvert. After reaching there, a blockade was put up; then after a while a vehicle matching the description given by the informer, a Commander Jeep number - OR / 08-C/7260 was seen coming from Orissa. It looked suspicious. It was stopped. Three persons were sitting in it as per the description given by the informer. The person sitting on the driver's seat gave his name as Jagannath Dalai, the person sitting on the seat next to the driver gave his name as Kamaraju Mandi and the person sitting on the back seat gave his name as Upendra Dalai. 4. The prosecution case further states that the accused/appellants were informed of their legal rights by giving them notice under Section 50 NDPS Act regarding the search. On search, when illegal drug ganja was found inside plastic bags in the vehicle commander jeep, a search panchnama was prepared for the suspects and when notice was given to them, they did not produce any documents regarding possession of the seized substance, so a total of 41 kg of ganja found in bags in their 4 possession was recovered and a recovery panchnama was prepared in front of witnesses. Thus, when the accused, along with other co-accused, expressed their desire to keep more than commercial quantity of ganja in their possession and did not produce valid and relevant documents / licenses regarding transportation, 41 kg of prohibited drug ganja filled in bags was seized as above. Since the act of the accused was found to be in violation of Section 20B (ii) (C) of the NDPS Act, as per the constitutional law, notice was given to them under Section 52 of the NDPS Act and they were duly informed about the reasons for arrest and their family members were informed about the arrest as per the arrest slip. 5. During the investigation, the crime scene was inspected and a site map was prepared, inventory of the seized narcotic substance ganja was taken and FSL test was done, Patwari map was prepared. Statements of necessary witnesses were recorded and after returning to the police station, a numbered crime was registered. Thus, on the basis of the entire investigation of the case, proceedings under NDPS Act, statements of witnesses and all the evidence collected, the accused were found to have committed the crime, so after the completion of the investigation, a charge sheet was presented before the Court against the accused under section 20 (B) NDPS Act. 6. After recording the statement of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 and after completion of investigation, charge sheet was filed in the Court of the Special Judge (N.D.P.S. Act), Jagdalpur (C.G.). 5 7. During examination of the accused under Section 313 CrPC, they stated that they were innocent and that they had been falsely implicated and no witness was produced in their defence. 8. In order to prove the guilt of the appellants/accused, the prosecution has examined as many as 08 witnesses and exhibited 57 documents in support of its case. Statement of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973, in which they denied the circumstances appearing against them and pleaded innocence and false implication in the case. 9. Learned Special Judge after affording an opportunity of hearing to the parties, convicted and sentenced the accused/appellants as aforementioned. 10.
Legal Reasoning
Learned counsel for the appellants submits that the Special Court are based on presumptions and surmises and therefore, the impugned conviction and sentence of the appellants is bad in the eyes of law and it is liable to be set-aside. He further submits that the recovery of the said samples from the possession of the appellants has not been proved by the prosecution by leading cogent and reliable evidence as both the independent witnesses have not supported the prosecution case and turned hostile. He further submits that the investigation has been carried out in a mechanical manner, perusal of the order-sheet would reflect that the charge-sheet was submitted on 09.03.2020 without the FSL report, it is submitted that the charge-sheet without FSL is an incomplete charge-sheet and on the basis of an incomplete charge-sheet the learned trial Court had proceeded with the trial. Further, the prosecution has failed to prove the case against the appellants beyond reasonable doubt. The conviction is based on uncorroborated testimony of the witness. The 6 trial Court has not appreciated the evidence on record properly and came into erroneous conclusion while passing the judgment of conviction which is liable to be set-aside. Further, the appellants, namely, Upendra Dalai and Kamraju Mandi have already undergone more than 2 years and 5 months in jail out of 10 years of jail sentence, and the appellant, namely, Jagannath Dalei have already undergone more than 2 years and 7 months in jail out of 10 years of jail sentence, as he was again arrested in compliance of non-bailable warrant issued against him, on account of his non-appearance before the registry after being granted bail by this Court, therefore, the sentence already undergone by them may be suffice to meet the ends of justice. 11. On the other hand, judgment impugned is supported on behalf of the respondent/State and submits that conscious possession of the appellants have been established by the prosecution by adducing evidence. The prosecution has complied with the provisions of Special Act and conviction and sentence is sustainable under the law. 12. I have heard learned counsel for the parties, perused the impugned judgment and records of the trial Court. 13. In order to establish the complicity of the accused/appellants in the crime in question, the prosecution has examined Mr. Khomraj Thakur (PW-08), Inspector, who is the Investigating Officer of the case has categorically deposed that after receiving information regarding the incident from the informer through mobile at 6.10 pm on 13/09/2019, diary No. 08, Exhibit P-32 was registered and information was given to the senior officer, Police Station Incharge and CSP Jagdalpur. Also, in relation to the above information, information regarding receipt of crime (Exhibit P-33, time-6.10 pm), Panchnama for not being able to obtain 7 search warrant (Exhibit P-34, time-6.30 pm) and informer information Panchnama (Exhibit - 23, time-7.25 pm) have been prepared and sent to CSP Jagdalpur through constable K. 1176 Lalit Baghel at 7.30 pm. The said constable has returned to the police station and given his arrival diary Sanha No. 22. Time 11.45 am. After registering the informer information at 6.10 pm, the argument of the defence that circumstances giving rise to doubt exist on the basis of delay in sending the information of the said information to the City Superintendent of Police Jagdalpur at 7.30 pm under Section-42 NDPS Act cannot be accepted, because the said delay is not shown to be so long. Besides, it is shown from the documents available in the record that during the said period, necessary action was completed by the investigating officer before reaching the scene of incident. 14. Mr. Satyendra Banjara (PW-06), Constable who was present with the investigator as weigher/weighing scale verifier, has also presented evidence confirming the above action taken by the investigator at the scene of the incident before him and has stated that during the action at the scene of the incident and on the instructions of the in-charge himself, after switching on and off the electronic scale taken with him and doing physical verification at 11.00 am as per the scale verification panchnama Exhibit P-11, the total weight of the drug recovered from the possession of the accused/appellants was weighed and it was found to be 41 kg. Regarding which weighing panchnama Exhibit P-12 was prepared. The said witness has admitted that he does not know from which accused the seizure has been made in the case. But the said witness, by whom the proceedings of weighing panchnama Exhibit P-11, weighing panchnama Exhibit P-12 have been done, is proven to be unbroken on the said point. 15. Mr. Khomraj Thakur (PW-08) Investigating Officer has stated that the 8 material filled in two plastic bags recovered from the accused's vehicle commander jeep was harmonized as per Samras Panchnama Exhibit P-13. As per seizure memo Exhibit P-14, 41 kg of narcotic substance ganja, commander jeep bearing registration number- OR/08- C/7260, Aadhar card of Jagannath Dalai, weighing 26 and 15 kg respectively, were seized from the accused/appellants in front of witnesses at the scene of crime. The accused/appellants have also been duly arrested as per arrest memo Exhibit P-19, 20, 21 respectively by the Investigating Officer. Therefore, in this case, it is proved that the appellants were duly searched as per the mandatory provisions of the NDPS Act and 26 and 15 kg of illegal drugs, thus totaling 41 kg, were seized from their possession. 16. 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 and from the accused, then even in such cases the Courts can without hesitation proceed for conviction notwithstanding any procedural difficulty in terms of Section 52-A of the NDPS Act. 17. 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 9 evidence as to the colour and weight, and due to the lack of any independent witnesses. In fact, this Court despite being conscious of the procedural deficiencies in the said case in terms of Section 52A observed that the matter may have been entirely different if there were no other discrepancies or if the other material on record were found to be convincing or supported by independent witnesses. The relevant observations read as under: - “107. The seal was not even deposited in the malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the recovery was ensured. Even the malkhana register was not produced. xxx xxx xxx 108. There exist discrepancies also in regard to the time of recovery. The recovery memo, Exhibit PB, shows that the time of seizure was 11.20 p.m. PW 1 Kulwant Singh and PW 2 K.K. Gupta, however, stated that the time of seizure was 8.30 p.m. The appellant's defence was that some carton left by some passenger was passed upon him, being a crew member in this regard assumes importance (see Jitendra para 6). The panchnama was said to 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 10 not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses had not been examined. The matter might have been different if the evidence of the investigating officer who recovered the material objects was found to be convincing. The statement of the investigating officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure of which we may now take note.” (Emphasis supplied) 26. Non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may lead the court to draw an adverse inference against the prosecution. However, no hard and fast rule can be laid down as to when such inference may be drawn, and it 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 11 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 12 such cases of procedural lapses or delays, the officer would be duty bound to indicate and explain the reason behind such delay or deficiency whilst preparing the memo. The relevant observations read as under: - “5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment 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 13 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. 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 14 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 Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub- section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances. 11. Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India this Court took the view that they are merely intended to guide the officers to see that a fair procedure is 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 15 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 16 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 narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of brining clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in 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. 17 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 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 emphasis must be on substantive justice rather than procedural 18 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 proceed, by the time the trial would commence, the 19 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 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 20 possession by adducing other primary evidence in this regard such as by either producing the bulk quantity itself, or examining the witnesses to the recovery etc. What Section 52A sub-section (4) of the NDPS Act does is it creates a new form of primary evidence by way of a deeming fiction which would be on par with the original seized substance as long as the same was done in substantial compliance of the procedure prescribed thereunder, however, the said provision by no means renders the other evidence in original to be excluded as primary evidence, it neither confines nor restricts the manner of proving possession to only one mode i.e., through such certified inventory, photographs or samples such that all other material are said to be excluded from the ambit of ‘evidence’, rather it can be said that the provision instead provides one additional limb of evidentiary rule in proving such possession. Thus, even in the absence of compliance of Section 52A of the NDPS Act, the courts cannot simply overlook the other cogent evidence in the form of the seized substance itself or the testimony of the witnesses examined, all that the courts would be required in the absence of any such compliance is to be more careful while appreciating the evidence. 18. 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, 21 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.” 19. 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 seizure of cannabis (Ganja) and its weight and sampling were proved by Investigating Officer nothing adverse could be found to disbelieve his evidences which further proves that the appellants were found in possession of such a huge quantity of cannabis (Ganja) in their vehicle. The appellants did not able to impute any palpable to make their case that there has been non-compliance of any mandatory provision of the NDPS Act. 20. Now coming to the FSL Report i.e. Exhibit P-44, on 05/12/2019, a sealed packed marked as A-1 containing dry botanical material greenish-brown colored leaves, seeds and dry plant material containing inflorescence. 22 The said sample was subjected to necessary physical, chemical, microscopic, and TLC tests, which yielded positive results for ganja. 21. After appreciating the evidence available on record, the statement of Investigating Officer Mr. Khomraj Thakur (PW-08), Constable Mr. Satyendra Banjara (PW-06), other prosecution witnesses and the documents available on records, particularly, and the FSL report (Ex.P-44), the learned Special Judge has arrived at a finding that the appellants were found in possession of 41 Kgs of contraband articles (Ganja), further, the appellants have failed to give plausible explanation with respect to the huge recovery of the contraband article which were recovered from their possession and thus, they were convicted and sentenced as aforementioned. 22. Considering the evidence available on record, and the findings recorded by the learned trial Court as discussed above, the appellants have rightly been convicted and sentenced by the trial Court as aforementioned. I do not find any scope for interference in the judgment impugned. Consequently, the appeal is liable to be and is hereby dismissed. 23. As the appellants – Upendra Dalai and Kamraju Mandi, is stated to be on bail. His bail bonds are cancelled and sureties discharged. He shall surrender forthwith before the concerned trial Court for serving remaining sentence as has been awarded to them, failing which they will be taken into custody through the trial Court concerned. 24. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial Court concerned forthwith for necessary information and compliance and the appellants are at liberty to assail the present judgment passed by this Court by preferring an appeal 23 before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- (Ramesh Sinha) Chief Justice Preeti