1 - Avinash Mandal S/o Amrit Mandal Aged About 27 Years Resident Of Padamgiri v. State Of Chhattisgarh Through The Station House Officer, Police Station, Darbha, District Bastar
Case Details
1 2025:CGHC:39518 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1152 of 2022 1 - Avinash Mandal S/o Amrit Mandal Aged About 27 Years Resident Of Padamgiri, M.V. 84, Police Station Malkangiri District Malkangiri (Odisha) 2 - Prakash Sarkar S/o Ravindra Sarkar Aged About 27 Years Resident Of Padamgiri, M.V. 84, Police Station Malkangiri, District Malkangiri (Odisha) ... Appellant(s) versus State Of Chhattisgarh Through The Station House Officer, Police Station, Darbha, District Bastar (C.G.) ... Respondent(s) For Appellants(s) : Ms. Savita Tiwari, Advocate. For Respondent(s) : Ms. Ankita Shukla, Panel Lawyer. Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 07/08/2025 1. Though, today the matter is listed for production of the appellant No.1-namely Avinash Mandal, before this Court, but considering the fact that the appellant No.1-Avinash Mandal has absconded and brought in police custody from concerned jail and is identified and represented by his counsel Ms. Savita Tiwari and appellant No.2 namely Prakash Sarkar is also represented by her and she submits 2 that she is ready to argue the matter finally. Hence, with the consent of learned counsel for the parties and considering the period of detention of the appellants, the appeal is heard finally. 2. This appeal is directed against the judgment of conviction and order of sentence dated 12.07.2022 passed by learned Special Judge, NDPS Act, Jagdalpur, District – Bastar (C.G.) in Special Criminal Case (NDPS Act) No.15/2018 whereby the learned trial Court after holding the appellants guilty for the offence punishable under Section 20 (b) (ii) (C) of the Narcotic Drug and Psychotropic Substance Act, 1985 and sentenced them to undergo R.I. for 10 years with fine of Rs.1,00,000/-, in default of payment of fine to further undergo R.I. for 1 year. 3. The judgment of conviction and order of sentence is challenged on the ground that without there being any evidence relating to conscious possession of contraband article (Ganja) and ignoring the fact that the prosecution has not complied with the mandatory provisions of the Act which is meant for providing the safeguard to the accused, learned trial Court has committed an illegality in convicting and sentencing the appellants as aforementioned. 4. Case of the prosecution, in brief, is that on 23.01.2018, Sub- Inspector Vishnu Prasad Yadav of Police Station Darbha, received information from an informer that a white Bolero vehicle bearing registration number CG-04/HA/9043, carrying two persons, was coming from Malkangiri, Odisha towards Jagdalpur and that the said persons were in possession of illegal contraband, ganja. Acting 3 upon this information, he proceeded to the spot. In compliance with the provisions of the NDPS Act, the necessary formalities were carried out and an offence under Section 20(b) of the NDPS Act was registered at the police station vide FIR No. 07/18. The information was duly recorded in the daily diary and the senior officers were informed over telephone. A memo regarding receipt of informer’s information, a memo of inability to obtain a search warrant and other requisite documents were prepared and sent by special post to the office of the SDOP, Keshkal. Constable No. 567, Sandeep Rana, was deputed with a duty certificate to procure two independent witnesses. Upon his return with two witnesses, namely Khemchand Kashyap and Nutendra, they were apprised of the informer’s tip-off and informed about the proposed NDPS proceedings, and their consent to act as witnesses was obtained in writing by issuing notice under Section 160 of the Cr.P.C. Thereafter, as per the instructions of senior officers, the NDPS investigation kit, independent witnesses, and police staff proceeded to the spot in front of Police Station Darbha on National Highway-30 and set up a blockade. After some time, the vehicle described by the informer was intercepted. The driver/appellant No.1 identified himself as Avinash Mandal, and the other occupant/appellant No.2 as Prakash Sarkar. In compliance with Section 50 of the NDPS Act, the accused persons were served notice and apprised of their legal rights before the search. Upon search, 30 packets containing contraband ganja were found concealed in the chamber beneath the middle and rear seat footboard of the Bolero vehicle. As no 4 documents authorising possession or transportation of the contraband were produced, the total quantity of 100 kilograms of ganja was seized in the presence of witnesses and a seizure memo was prepared. Since the accused persons, acting in concert, were found in possession of and transporting commercial quantity of contraband ganja without any valid licence or permit, the contraband was seized as per law. The accused were served notice under Section 52 of the NDPS Act, informed of the grounds of their arrest, formally arrested, and intimation of their arrest was given to their relatives. During investigation, the scene of occurrence was inspected and a site plan was prepared. The seized contraband was inventoried and sent for FSL examination. A revenue map was also prepared and statements of material witnesses were recorded. Upon returning to the police station, the registered crime was taken up for investigation. On completion of investigation and upon finding sufficient evidence establishing commission of the offence under Section 20(b)(ii)(C) of the NDPS Act, a charge-sheet was filed before the competent court against the accused persons. 5. In order to prove the guilt of the appellants/accused, the prosecution has examined as many as 13 witnesses and exhibited 52 documents (Ex.P-1 to Ex.P-52C). Statement of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure, 1973, in which they denied all incriminating evidence available against them, pleaded innocence and false implication and in their defence, none has been examined. 5 6. Learned Special Judge after affording an opportunity of hearing to the parties, convicted and sentenced the accused/appellants as aforementioned against which, the instant appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973. 7. Learned counsel for the appellants submit that the two seizure witnesses examined by the prosecution are stock or pocket witnesses of the police, being persons under the influence and control of the investigating agency and are habitually procured for such proceedings. Consequently, their testimony lacks independence and impartiality, rendering their evidence unreliable for establishing the alleged recovery. She further submits that the
Legal Reasoning
prosecution case suffers from serious procedural infirmities with regard to the seizure, handling, and inventory of the alleged contraband, thereby rendering the recovery doubtful. It is submitted that PW-8, Onkar Patra, who is a constable, has stated in his deposition that he took out the seized articles from the malkhana for the purpose of conducting the inventory proceedings and that the entire process was carried out by the Investigating Officer. She further stated that he was merely handed over two sample boxes and was unaware as to whether any seal of any police station was affixed on them or not. It is further submitted that PW-11, Pravin Kumar Joshi, who was the malkhana moharir, has admitted that the malkhana register (Exhibit P-26) was taken away by the Investigating Officer himself, who filled in the entries and deposited the property. PW-11 did not conduct any independent verification of the property, nor did he weigh the seized material himself. Whatever 6 details regarding quantity and description were entered in the register were solely on the instructions and as per the statement of the Investigating Officer. 8.
Legal Reasoning
Learned counsel for the appellants further contended that even as per the evidence of the Investigating Officer, there were 30 packets allegedly containing 100 kilograms of ganja, however, there is no mention of any specific property number or distinctive identification in the relevant records. Such omissions, it is argued, are fatal in light of the mandatory requirements under Section 52-A of the NDPS Act relating to preparation of inventory, certification by the Magistrate, proper sealing, and identification of the seized contraband. The non-compliance with these statutory safeguards creates a serious doubt regarding the integrity of the case property and the fairness of the investigation. She further submits that on these grounds, it is urged that the prosecution has failed to establish beyond reasonable doubt the safe custody, proper sealing, and authenticity of the alleged contraband, and therefore, the appellants are entitled to the benefit of doubt. She lastly submits that the appellant No.1 has served out about 4 years 10 months of jail sentence and appellant No.2 has served out about 2 years 5 month of jail sentence out of 10 years, therefore, the sentence already undergone by them may suffice to meet the ends of justice. 9. On the other hand, judgment impugned is supported on behalf of the respondent/State and submits that conscious possession of the accused has been established by the prosecution by adducing evidence. The prosecution has complied with the provisions of Special Act and conviction and sentence is sustainable under the 7 law. 10. I have heard learned counsel for the parties and perused the judgment impugned and record of the trial Court. 11. In order to establish the complicity of the accused/appellants in the crime in question, the prosecution has examined Mr. Rajesh Sinha (PW-2), Inspector who has categorically deposed that on 25.01.2018, as per the instructions of the Station House Officer, Darbha, he carried the report regarding the entire proceedings of Crime No. 07/18, registered under Section 20(b) of the NDPS Act, to the office of the Sub-Divisional Police Officer, Keshkal, by post. The said report was handed over to Head Constable Chaitu Ram Nag, and he obtained an acknowledgment for the same. On 28.02.2018, as per the instructions of the Station House Officer, Darbha, the seized property in Crime No. 07/18, under Section 20(b) of the NDPS Act, was produced before the learned Judicial Magistrate First Class, Jagdalpur, for inventory proceedings under Section 52-A(2) of the NDPS Act. The inventory proceedings were carried out in his presence. The inventory memo is marked as Exhibit P-2, bearing his signature from point B to B. On 28.02.2018, at about 12:30 p.m., upon weighing, sampling, and sealing of the seized contraband by the Presiding Officer in the Court of learned JMFC, Jagdalpur, one sealed plastic container affixed with the Court seal, having a total weight of 70 grams, containing 50 grams of substance resembling ganja, and bearing the signature of the learned JMFC, was seized in his presence. A 8 seizure memo was prepared in this regard, which is marked as Exhibit P-4, bearing his signature from point A to A. 12. Mr. Ghanshyam Meshram (PW-1), Head Constable has stated in his statement that he has been serving as a Head Constable at Police Station Darbha since the year 2017. On 23.01.2018, at about 4:00 p.m., Sub-Inspector Vishnu Prasad Yadav received information from an informer that a white Bolero vehicle was transporting ganja from Odisha towards Jagdalpur. Acting upon the said information, a check-post was set up in front of Police Station Darbha on NH-30, and the vehicles passing through were being stopped and checked. At that time, as per the informer’s description, a white Bolero vehicle bearing registration No. CG-04/HA/9043 approached, which was stopped and checked. Inside the said vehicle, two persons were found, who, upon being questioned about their names and addresses, disclosed their names as Avinash Mandal and Prakash Sarkar. Thereafter, in the presence of two independent witnesses, the accused persons were interrogated and upon checking the said vehicle, approximately 30 bundles wrapped in khaki-coloured paper were found between the rear and middle seats. These bundles were opened and examined in the presence of the independent witnesses, who identified the substance as ganja. Since there was continuous vehicular movement on NH-30, the accused persons along with the seized articles were brought to the police station for further proceedings. Subsequently, as per the instructions of his superior officer, he was sent to the CRPF Camp to bring a weighing scale. He brought back 9 an electronic weighing scale and under the instructions of his superior officer, weighed the seized contraband. The total weight of ganja contained in all the bundles was found to be 100 kilograms. The weighing panchnama is (Exhibit P-01), bearing his signature from point A to A as the person who conducted the weighing. On 28.02.2018, the seized property was produced before the learned Judicial Magistrate First Class, Jagdalpur, where an inventory was prepared under Section 52-A(2) of the NDPS Act. In the presence of the Court, the seized ganja was weighed, samples were drawn after proper homogenisation and the samples were sealed. The verification report prepared by the learned competent Court is (Exhibit P-02), bearing his signature from point A to A. 13. Mr. Khemchand Kashyap (PW-3), has stated in his statement that he had seen the accused persons on the date of the incident, from whom the police personnel had seized ganja. About one year ago, the police personnel from Darbha Police Station had called him before the police station and informed him that they were going to conduct proceedings for apprehending persons in possession of ganja. In this regard, the police gave him a notice under Section 160 of the Cr.P.C., which is (Exhibit P-5). On the said notice, at portion marked A to A, he signed after giving his consent to act as a witness. He do not remember at that day where they went from the police station, but at the spot, the police stopped a Bolero vehicle, checked it, and found two persons inside. The police interrogated them, but he do not remember the names of both accused persons. He now recollect that the police had set up a blockade on the road 10 in front of the police station itself and there they intercepted a Bolero vehicle, from which ganja was recovered from the possession of the accused persons. However, he do not know how much ganja was seized from the said vehicle. After apprehending the accused, the police carried out the documentation of the proceedings and took them to the police station. The witness was shown the following documents: mukhbiri soochna tasdeek panchnama (Exhibit P-6), notice under Section 50 NDPS Act given to accused Avinash Mandal (Exhibit P-7), notice under Section 50 NDPS Act given to accused Prakash Sarkar (Exhibit P-8), search panchnama of the police force (Exhibit P-9), kabuli panchnama (Exhibit P-10), search panchnama (Exhibit P-11), seizure panchnama (Exhibit P-12), identification panchnama (Exhibit P-13), weighing scale verification panchnama (Exhibit P-14), seizure memo (Exhibit P-15), sample seal panchnama (Exhibit P-16), arrest panchnama of accused Prakash Sarkar (Exhibit P-17), arrest panchnama of accused Avinash Mandal (Exhibit P-18), and site plan (Exhibit P-19), and on each of the documents, at the portions marked from A to A, the witness admitted his signatures. On being shown the weighing panchnama (Exhibit P-1), the witness admitted his signature at portion marked S to S. The police had also recorded his statement in connection with the incident. 14. Mr. Ramvilas Negi (PW-5), Assistant Sub-inspector has stated in his statement that he was posted as an Assistant Sub-Inspector at Police Station Darbha from April 2017 to June 2019. Presently, he is serving as an Assistant Sub-Inspector at Police Station 11 Bodhghat. On 23.01.2018, Station In-charge S.I. Vishnu Prasad Yadav received confidential intelligence regarding the illegal transportation of cannabis. The information stated that a white Bolero vehicle bearing registration number CG/04/HA/9043 was transporting illegal narcotic substance (ganja) from Malkangiri towards Darbha. Acting upon this information, the Station In- charge, after completing the necessary formalities at the police station, proceeded towards the spot along with the staff members, including himself, Head Constable- Ajay Sahu No. 955, and other personnel. They reached in front of the police station on NH-30 for vehicle checking. They reached the spot at around 5:00 p.m., and after approximately 45 minutes, the vehicle described in the intelligence input arrived. The Station In-charge stopped the said vehicle. Two persons, including the driver, were found inside. On inquiry, they disclosed their names as Avinash Mandal and Prakash Sarkar, both residents of Padmagiri, Odisha. Upon questioning, they admitted that they had constructed an iron chamber in the rear portion of the vehicle for transporting cannabis. At the spot, the Station In-charge served both the accused with separate notices under Section 50 of the NDPS Act, informing them of their legal rights. Before conducting the search of the accused, the Station In- charge ensured that the accused were allowed to search all police personnel present, including himself, as well as the independent witnesses accompanying them. The search panchnama is marked as Exhibit P-9, bearing his signature on the relevant portion. During the investigation, the Station In-charge conducted proceedings 12 under the NDPS Act at the spot. Upon weighing the seized contraband, it was found to be 100 kilograms of illegal cannabis. When asked to produce any legal documents for the possession or transportation of the substance, the accused failed to do so. He was present at the scene throughout the entire procedure. After completing all the NDPS proceedings and documentation at the spot, the seized cannabis, along with the vehicle and the accused, was brought back to Police Station Darbha. At the police station, further necessary proceedings were carried out by the Station In- charge, and his statement regarding the incident was recorded. 15. Mr. Prem Baghel, (PW-6), Constable, has stated in hi statement that he was posted as a Constable at Police Station Darbha in the year 2018. Presently, he is serving as a Constable at Police Station City Kotwali. On 23.01.2018, Station In-charge Shri Yadav received confidential information from an informant that a Bolero vehicle was illegally transporting cannabis from Malkangiri towards Darbha. Acting upon this information, the Station In-charge carried out necessary formalities at the police station. On the same date, 23.01.2018, as per the instructions of the Station In-charge, he was handed over sealed official correspondence related to the NDPS proceedings, which included, the panchnama of the informant’s disclosure, the panchnama recording the receipt of information about the offence, and the panchnama regarding the inability to obtain a search warrant. He was directed to deliver this sealed packet to the SDOP Office, Keshlur. Accordingly, he delivered the same to the office of the SDOP, Keshlur, where he handed it over to 13 Head Constable Chaitu Ram Nag. He obtained acknowledgment on the carbon copies of all three documents, which are annexed to the case file as Exhibit P-6, Exhibit P-21, and Exhibit P-22, bearing postal dispatch No. 127/2018. 16. Mr. Onkar Patra (PW-8), Constable, has stated in the statement that he was posted and serving at Police Station Darbha in the year 2018. Presently, he is serving as a Constable at Police Outpost Bakawand. He is acquainted with the accused persons, namely Avinash Mandal and Prakash Sarkar. He also know the complainant, Shri Vishnu Prasad Yadav, who, at the time of the incident, was posted as a Sub-Inspector at Police Station Darbha. He had participated along with the Station In-charge in the inventory proceedings relating to the seized contraband, illegal cannabis weighing a total of 104 kilograms, in this case. As per the orders of the learned Special Court, during the inventory proceedings, the Station In-charge weighed the seized cannabis, which was found packed in thirty separate brown plastic sheets, with a total weight of 104.500 kilograms. During the said proceedings, the entire quantity of cannabis was homogenized and a representative sample of 50 grams was drawn. The inventory proceedings are recorded in Exhibit P-2, bearing his signature on the marked portion “C to C.” After the weighing, homogenizing and other processes carried out during the inventory proceedings, two sealed plastic containers containing the drawn sample were prepared, each affixed with the seal and label of the Court. One sealed plastic container, along with the container itself, weighed 70 grams and the other sealed plastic 14 container also weighed 70 grams. These were deposited in the premises of the District & Sessions Court, Jagdalpur. In his presence, the Station In-charge seized the said sealed containers and prepared the seizure memo (Exhibit P-4), which bears his signature on the marked portion “B to B.” 17. Mr. Pravin Kumar Joshi, (PW-11) Assistant Sub-Inspector, has stated in his statement that he served as Head Constable at Police Station Darbha from the year 2015 to 2021 and was in charge of the Malkhana (property room). Presently, he is posted in the Traffic Branch, Jagdalpur. During his tenure at Police Station Darbha, on 23.01.2018, in connection with Crime No. 07/18 under Section 20(b) of the NDPS Act, the Station In-charge, Sub-Inspector Shri Vishnu Prasad Yadav, deposited in the Malkhana the seized articles for safe custody. These included, one white Bolero vehicle bearing registration No. CG 04/HA/9043, in which a concealed chamber had been made between the front and rear seats, containing 30 khaki-coloured packets filled with cannabis, the RC book of the vehicle, the vehicle’s pollution certificate, the driver’s licence, and the insurance policy issued by Oriental Insurance. The 30 packets of cannabis found in the said vehicle contained the following quantities: 2 packets, each weighing 10 kg — total 20 kg, 13 packets, each weighing 5 kg — total 65 kg, 15 packets, each weighing 1 kg, total 15 kg. The combined weight of the contraband was 100 kilograms. He entered the details of these seized articles in the Seized Property Register at serial entry No. 06. At that day he has brought the original Seized Property Register before the 15 learned Court, the relevant entry being Exhibit P-26, with its photocopy annexed to the case record as Exhibit P-26C. On 28.02.2018, under instructions from the Station In-charge, the seized cannabis was produced before the Judicial Magistrate First Class for sampling proceedings. After completion of the sampling process, the learned trial Court handed over two sealed white plastic containers, each containing 50 grams of the sample, which were deposited in the Malkhana on the same date. This was recorded at serial entry No. 15 in the Seized Property Register, marked as Exhibit P-28, with its photocopy annexed as Exhibit P- 28C. One of these sample containers were sent, on the instructions of the Station In-charge, through Constable No. 1177 Rajesh Bhoi to the State Forensic Science Laboratory, Raipur, for chemical examination. On 28.02.2018, due to the large quantity of seized cannabis, and under the instructions of the Station In-charge, the contraband was securely deposited in the Double Locking Facility of the Reserve Centre, Jagdalpur, through Head Constable No. 964 Ghanshyam Meshram. (A photocopy of the deposit receipt is annexed with the Seized Property Register, recorded as Exhibit P- 27, with its photocopy marked as Exhibit P-27C). 18. Mr. Vishnu Prasad Yadav, (PW-13) Sub-Inspector has stated that from 2017 to 2019 he was posted at Police Station Darbha. On 23.01.2018 at about 15:30 hours, he received information from an informer on his mobile that a white Bolero bearing number C.G.04/H.A./9043 was going from Malkangiri to Jagdalpur via NH- 30, carrying illegal Ganja. He recorded the said information in 16 Roznamcha Sanha No. 23 (Ex.P/31-C) and informed senior officers. He also recorded Roznamcha Sanha Nos. 24 and 25 (Ex.P/33-C) after sending Constable Sandeep Rana to bring two independent witnesses, who returned at 16:10 hours. Thereafter, he prepared Informer Information Panchnama (Ex.P/32) and, in compliance with Section 42 of the NDPS Act, prepared necessary documents including Panchnama of receipt of crime information and Panchnama of inability to obtain warrant (Ex.P/22) and sent copies to the SDOP Keshlur through Constable Premsingh Baghel. After completing the formalities, he took NDPS kit, documents, and other necessary articles, along with staff and independent witnesses, and set up a blockade on NH-30 in front of the police station. At about 17:20 hours, the white Bolero vehicle mentioned by the informer was intercepted. Two persons were seated in the vehicle. Upon interrogation, the driver disclosed his name as Avinash Mandal and the other person as Prakash Sarkar, both residents of Odisha. In the presence of witnesses, he prepared Informer Verification Panchnama (Ex.P/6) and Confessional Panchnama (Ex.P/10), wherein both accused admitted that 30 packets of Ganja weighing about 100 kg were concealed in a chamber under the step of the middle and rear seats of the vehicle. He served notices under Section 50 of the NDPS Act (Ex.P/7 and Ex.P/8) to both accused. As the location was a busy and sensitive area and there was no lighting arrangement, both accused and the vehicle were brought to Police Station Darbha. At about 19:00 hours, in the presence of witnesses, personal search of both accused was conducted 17 (Ex.P/9) and the vehicle was searched (Ex.P/11), in which 30 packets of Ganja weighing 100 kg were found concealed in the said chamber. Identification Panchnama (Ex.P/13) was prepared after making the witnesses smell, taste, and burn a portion of the substance. He also prepared Weighment Panchnama (Ex.P/1), according to which packets No. 1 and 2 weighed 10 kg each, packets No. 3 to 15 weighed 5 kg each, and packets No. 16 to 30 weighed 1 kg each, totaling 100 kg. The seized Ganja, vehicle, and related documents were seized under Seizure Panchnama (Ex.P/5). Sample Seal Panchnama of circular brass seal inscribed with “P.S. Darbha C.G.” was also prepared (Ex.P/16) and marked separately (Ex.P/38). Both accused were informed of the reason for arrest and Arrest Panchnamas (Ex.P/17 and Ex.P/18) were prepared. Their family members were informed via wireless message (Ex.P/40). An FIR bearing Crime No. 07/18 was registered, and seized property was deposited in the Malkhana. On 25.01.2018, a detailed report of the proceedings was sent to SDOP Keshlur through Constable. In compliance with Section 52-A of the NDPS Act, an application for inventory was moved before the JMFC, Jagdalpur, and on 28.02.2018 inventory proceedings were conducted, representative samples were drawn, and seizure memo was prepared in the Court (Ex.P/4). The remaining Ganja was deposited in the Reserve Centre, and samples were later sent to FSL Raipur, which confirmed the seized substance as Ganja (Ex.P/46). He further stated that a site map of the place of interception was prepared by the Patwari (Ex.P/23 to P/25), and vehicle 18 ownership details were obtained from the RTO office (Ex.P/48 and P/49). A notice under Section 91 Cr.P.C. was issued to the registered owner Sunil Kumar for production of vehicle documents (Ex.P/50). Statements of all relevant witnesses were recorded during the investigation. After completion of the entire proceedings, a charge-sheet was filed before the Special Court (NDPS). 19. 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. 20. In the matter of Bharat Aambale (supra) the Hon'ble Supreme Court in Para 25 to 37 has held as under: 25. In Noor Aga (supra) the order of conviction had been set-aside not just on the ground of violation of Section 52A but due to several other discrepancies in the physical evidence as to the colour and weight, and due to the lack of any independent witnesses. In fact, this Court despite being conscious of the procedural deficiencies in the said case in terms of Section 52A observed that the matter may have been entirely different if there were no other discrepancies or if the other material on record were found to be convincing or 19 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 20 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 21 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 22 officer-in-charge of the investigation. It further observed that there may, however, be circumstances in which it would not be possible to follow these guidelines to the letter, particularly in cases of chance recovery or lack of proper facility being available at the spot. In such circumstances of procedural illegality, the evidence collected thereby will not become inadmissible and rather the courts would only be required to consider all the circumstances and find out whether any serious prejudice had been caused to the accused or not. Further it directed, that in such cases of procedural lapses or delays, the officer would be duty bound to indicate and explain the reason behind such delay or deficiency whilst preparing the memo. The relevant observations read as under: - “5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment 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 23 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 24 procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. xxx xxx xxx 16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence.” (Emphasis supplied) 29. A similar view as above was reiterated in the decision of State of Punjab v. Makhan Chand reported in (2004) 3 SCC 453 wherein this Court after examining the purport of Section 52A of the NDPS Act and the Standing Order(s) issued thereunder, held that the procedure prescribed under the said order is merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation and they were not inexorable rules. The relevant observations read as under: - “10. This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with “disposal of seized 25 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 26 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 27 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 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 28 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. 29 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 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 30 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 31 seized would deteriorate in quality or completely disappear even before the trial could proceed, by the time the trial would commence, the unavailability of such material would result in a crucial piece of evidence to establish possession becoming missing and the outcome of the trial becoming a foregone conclusion. The legislature being alive to this fact, thought fit to introduce an element of preservation of such evidence of 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, 32 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 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 33 be more careful while appreciating the evidence. 21. 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 34 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.” 22. 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 good their case that there has been non-compliance of any mandatory provisions of the NDPS Act. 23. Now coming to the FSL Report; as per FSL Report, (Ex.P-46) upon opening the sealed packet marked A-1, greenish-brown leaves, seeds, and flower-bearing dry botanical substance were found, which was stated to be ganja in the document and on examination, the botanical substance found in Exhibit A-1 was subjected to necessary physical, chemical, microscopic, and TLC examinations, all of which tested positive for ganja. Moreover, the appellants have failed to give plausible explanation with respect to the huge recovery of the contraband article which were recovered, hidden in chamber beneath the middle and rear seat footboard of the Bolero vehicle and the appellants were found inside the vehicle in question. 35 24. From the deposition of (PW-13), it is clearly established that the entire investigation was conducted in strict compliance with the mandatory provisions of the NDPS Act. The receipt of secret information was duly recorded in the Roznamcha, senior officers were informed, and a copy was forwarded to the superior authority in terms of Section 42. Independent witnesses were associated, and the accused were served notices under Section 50 before conducting any search. The interception of the Bolero vehicle, recovery of 30 packets of Ganja weighing 100 kg, preparation of detailed Panchnamas at every stage, and proper sealing and marking of samples confirm procedural integrity. Further, inventory and sampling were carried out under Section 52-A before the learned Magistrate, and the FSL report conclusively established that the seized substance was Ganja. These facts, taken cumulatively, prove that the accused were in conscious possession of the contraband, and the prosecution has successfully established its case beyond reasonable doubt. 25. The defence has not been able to elicit anything in their cross- examination to discredit their testimony. Statement of Mr. Vishnu Prasad Yadav (PW-13), Investigating Officer is corroborated by the statements of Mr. Rajesh Sinha (PW-2), Constable and Mr. Ghanshyam Meshram (PW-1), Head Constable. 26. Considering the evidence available on record, also considering the statement of Investigating Officer Vishnu Prasad Yadav (PW-13), 36 other prosecution witnesses and seizure memo (Ex.P-4), the learned Special Judge has arrived at a finding that the appellants were found in possession of 100 Kgs contraband articles (Ganja) and convicted and sentenced the appellants as aforementioned. I do not find any scope for interference in the judgment impugned. Consequently, the appeal is liable to be dismissed and it is hereby dismissed./ 27. The appellant No. 1 is in jail who shall serve out the remaining part of sentence as awarded by the trial Court. The appellant No.2 is reported to be on bail. He shall surrender before the learned trial Court within a period of two weeks from today, failing which he shall be taken into custody and sent to jail to serve out the remaining part of sentence as awarded by the learned trial Court. 28. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail term, 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 the High Court Legal Services Committee or the Supreme Court Legal Services Committee. 29. Let a certified copy of this order along with original record be transmitted to the trial Court concerned for necessary information and follow up action.- Sd/- Kunal (Ramesh Sinha) CHIEF JUSTICE