Deendayal Sahu @ Deenu vs State Of Chhattisgarh on 28 March, 2025

Chattisgarh High Court

Deendayal Sahu @ Deenu vs State Of Chhattisgarh on 28 March, 2025

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                                                          2025:CGHC:15069


                                                                         NAFR

               HIGH COURT OF CHHATTISGARH AT BILASPUR


                               CRA No. 423 of 2025

 1 - Deendayal Sahu @ Deenu S/o Shri Narayan Prasad Sahu Aged About 24
 Years R/o Village _ Karuhanar, P.S. Lormi, Distt. - Mungeli C.G.) Presently
 R/o J.K. Video Hall, Sankara, P.S. Dharshiva, Distt. - Raipur (C.G.)
                                                            ... Appellant(s)
                                       versus


 1 - State Of Chhattisgarh Through Police Station Dharsiwa, Distt., Raipur
 (C.G.)                                                     ---Respondent

 For Petitioner          :   Mr. Pragalbha Sharma, Advocate
 For Respondent    : Ms. Laxmeen Kashyap, P.L.
              Hon'ble Shri Justice Arvind Kumar Verma,

                                 Order on Board

28.03.2025

1. This criminal appeal has been filed under Section 415(2) of B.N.S.S.

by the appellant against the judgment of conviction and order of sen-

tence dated 01.02.2025 passed by the learned Special Judge

(N.D.P.S. Act) Raipur District Raipur (C.G.), in Special Criminal

Case(NDPS) No. 26/2024, whereby the appellant has been convicted

and sentenced as follows:-

                  Convicted under                    Sentenced to
                    Sections

20(b)(ii)(B) of N.D.P.S. R.I. for 10 years with fine of Rs. 1,00,000/-
Act, 1985 and in default of payment of fine, additional
R.I. for 02 years
2 / 11

2. The prosecution case, in brief, is that on 16.01.2024, a secret informa-

tion was received by the police of police station -Dharsiwa, that one

white car having registration No. CG04HZ4676, is carrying contra-

band/Ganja for the purpose of selling which was coming from Raipur to

Dharsiwa. On the said information the police intercepted the said vehi-

cle near under the bridge and carried out search and thereby seized

5.356 KG of Ganja/cannabis in the said vehicle. The investigation au-

thorities registered an FIR as Crime No. 25/2024 at Police Station –

Dharsiwa, Raipur under Section 20(B) of the NDPS, Act against the

appellant. After completion of the investigation, charge-sheet was filed

before the learned trial Court where on the said charge-sheet, the

learned trial Court framed charges against the appellant under Section

20(b)(ii)(B) of the NDPS Act.

3. The learned Special Judge (N.D.P.S.), Act, Raipur District Raipur

(C.G.), after appreciating oral and documentary evidence available on

record vide judgment dated 01.02.2025, convicted the appellant for

the offence punishable under Section 20(b)(ii)(B) of the N.D.P.S. and

sentenced him as mentioned in opening paragraph of this order.

4. The appellants were in jail from 17.09.2022 to 10.11.2022 (54 days)

during trial and they are in jail from the date of judgment dated

02.05.2024 (total 5 months)

5. Learned Counsel appearing for the appellant submitted that without

there being sufficient and clinching evidence available on record, the

Trial Court has wrongly convicted the appellant. Further, the prosecu-

tion has failed to comply the provisions of Section 50 of the Act. He

would further submit that general procedure for sampling provided in

Standing Order No.1 of 1989 dated 13.06.1989 has not been complied

with by the prosecution. He contended that the learned trial Court

wrongly appreciated that the investigation has been done properly and
3 / 11

mandatory provisions of Sections 52-A, 55 and 57 of the NDPS Act

have been complied with. The learned trial Court also failed to appreci-

ate that the entire action of seizure and sampling is wholly illegal. Sam-

ples were not taken from each packet. It was done in violation of the

mandatory provisions of Section 52A(2) of the NDPS Act as the proce-

dure prescribed therein was not followed in drawing the samples and

seizing the alleged narcotic substance. Further, there is a serious

doubt about the correctness of samples sent for analysis as to whether

they were actually the samples of the seized contraband. The posses-

sion of contraband by appellant has not been proved by the prosecu-

tion as memorandom seizure witness PW-1 & Pw-2 has been turned

hostile. Weighing machine used by police to weigh the said packages

is not a government approved machine and no report for authenticity or

dual check is submitted before the learned trial Court. Moreover, IO

had a prior knowledge about the appellant carrying some psychotropic

substances from the Mukhbir still they did not bother to carry an au-

thentic weighing machine along with them and relied on a random

weighing scale/machine and its authenticity cannot be established.

There are several discrepancies in the prosecution case which makes

the custody of the seized articles and sampling extremely doubtful. The

witnesses of the seizure had not supported the prosecution case and

the evidence of the official witnesses is not reliable. As such, the crimi-

nal appeal deserves to be allowed and the impugned judgment de-

serves to be set aside. In support of his submission, learned counsel

for the appellant referred to a decision of three Bench Judges of the

Hon’ble Supreme Court in the case of Union of India vs. Three

Judge Bench reported in SCC 2009(12) 161.

6. On the other hand, learned State Counsel would support the impugned

judgment and submit that the prosecution has proved its case beyond
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reasonable doubt and the learned Trial Court after considering the ma-

terial available on record and evidence adduced by the prosecution

has convicted the appellant for offence under Section 20(b)(ii)(B) of the

NDPS Act, in which no interference is called for.

7. I have heard learned counsel for the parties, considered their rival sub-

missions made here-in-above and also went through the records with

utmost circumspection.

8. Recently in the matter of Bharat Aambale vs. The State of Chhat-

tisgarh 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 mate-

rial on record adduced by the prosecution inspires confidence and sat-

isfies the Court regarding both recovery and possession of the contra-

band and from the accused, then even in such cases the Courts can

without hesitation proceed for conviction notwithstanding any proce-

dural difficulty in terms of Section 52-A of the NDPS Act.

9. In the matter of Bharat Aambale (supra) the Hon’ble Supreme Court

in Para 25 to 37, 41 and 42 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 dis-

crepancies 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 Sec-
tion 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 expla-
nation 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 Jiten-
dra 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 dis-
crepancies, the appellant has been gravely prejudiced by their non-

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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 proce-
dural safeguards were required to be strictly complied with, it is for the
prosecution to explain why the material witnesses had not been exam-
ined. The matter might have been different if the evidence of the inves-
tigating officer who recovered the material objects was found to be
convincing. The statement of the investigating officer is wholly unsub-
stantiated. 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 dis-
crepancies in the statement of official witnesses in regard to search
and seizure of which we may now take note.”

(Em-

phasis supplied) 26. 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 in-
ference 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 de-
pend 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 corre-
late or link the same with any procedural lapses or deviations. Thus,
whenever, there is any deviation or non-compliance of the procedure en-
visaged under Section 52A, the courts are required to appreciate the
same keeping in mind the discrepancies that exist in the prosecution’s
case. In such instances of procedural error or deficiency, the courts ought
to be extra-careful and must not overlook or brush aside the discrepan-
cies lightly and rather should scrutinize the material on record even more
stringently to satisfy itself of the aspects of possession, seizure or recov-
ery 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 Sec-
tion 52A of the NDPS Act or the prosecution in adequately proving com-
pliance of the same, it would not be appropriate for the courts to resort to
the statutory presumption of commission of an offence from the posses-
sion 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, ir-
respective 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 notwith-
standing 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 proce-
dure 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 investiga-
tion. It further observed that there may, however, be circumstances in
which it would not be possible to follow these guidelines to the letter, par-
ticularly in cases of chance recovery or lack of proper facility being avail-
able at the spot. In such circumstances of procedural illegality, the evi-
dence 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 obser-
vations read as under: –

“5. It is true that the search and seizure of contraband article is a seri-
ous 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
6 / 11

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 in-
structions 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 pre-
pared at the spot in accordance with law. There may, however, be cir-
cumstances 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 requi-
site 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 re-
covery. If there is any inordinate delay in preparing the seizure mahazar,
that may give an opportunity to tamper with the contraband article al-
legedly 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 circum-
stances 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 proce –
dural illegality in conducting the search and seizure, the evidence col-
lected 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 ev-
idence collected likely to have been tampered with or interpolated during
the course of such search or seizure, then, it could be said that the evi-
dence 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 thisCourt 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 proce-
dure is adopted by the officer in charge of the investigation and they were
not inexorable rules. The relevant observations read as under: –

“10. This contention too has no substance for two reasons. Firstly,
Section 52-A, as the marginal note indicates, deals with “disposal of
seized narcotic drugs and psychotropic substances”. Under sub-sec-
tion (1), the Central Government, by a notification in the Official
Gazette, is empowered to specify certain narcotic drugs or psy-
chotropic substances, having regard to the hazardous nature, vulnera-
bility 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 fol-
lowing the procedure prescribed in sub-sections (2) and (3). If the pro-
cedure prescribed in sub-sections (2) and (3) of Bharat Aambale vs
The State Of Chhattisgarh 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 any-
thing 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 consider-
ation in Khet Singh v. Union of India this Court took the view that they
are merely intended to guide the officers to see that a fair procedure is
adopted by the officer in charge of the investigation. It was also held
that they were not inexorable rules as there could be circumstances in
which it may not be possible for the seizing officer to prepare the ma-
hazar 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)
7 / 11

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 situa-
tions 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 re-
main untouched. Due to such multitude of possibilities or situations, nei-
ther can the police be realistically expected to rigidly adhere to the proce-
dure 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 compli-
ance 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 sig-
nificant 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
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 contra-
vention 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, keep-
ing 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 dis-
crepancies 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 propen-
sity to create a doubt or false impression of illegal possession or recov-
ery, or to overstate or inflate the potency, quality or weight of the sub-
stance seized that may be pertinent and not mere clerical mistakes, pro-
vided 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, inven-
tory, 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 nar-
cotic 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 inde-
pendent witnesses to the recovery, or presenting the original quantity of
seized substances before the court. The evidentiary value of these mate-
rials is ultimately to be assessed and looked into by the court. The court
8 / 11

should consider whether the evidence inspires confidence. The court
should look into the totality of circumstances and the credibility of the wit-
nesses, 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 es-
tablished the case beyond reasonable doubt as held in Noor Aga (supra).

33. Even in cases where there is non-compliance with the procedural re-
quirements of Section 52A, it does not necessarily vitiate the trial or war-
rant an automatic acquittal. Courts have consistently held that procedural
lapses must be viewed in the context of the overall evidence. If the prose-
cution can otherwise establish the chain of custody, corroborate the
seizure with credible testimony, and prove its case beyond reasonable
doubt, the mere non-compliance with Section 52A may not be fatal. The
Bharat Aambale vs The State Of Chhattisgarh emphasis must be on sub-
stantive justice rather than procedural technicalities, and keeping in mind
that the salutary objective of the NDPS Act is to curb the menace of drug
trafficking.

34. At this stage we may clarify the scope and purport of Section 52A
sub-section (4) with a view to obviate any confusion. Sub-section (4) of
Section 52A provides that every court trying an offence under the NDPS
Act, shall treat the inventory, photographs and samples of the seized sub-
stance 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 pre-
scribed under the said provision and the Rules / Standing Order(s), and
the same is also duly certified by a magistrate, then such certified inven-
tory, photographs and samples has to mandatorily be treated as primary
evidence. The use of the word “shall” indicates that it would be manda-
tory 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 Or-
der(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 sam-
ples 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 deteri-
orate in quality or completely disappear even before the trial could pro-
ceed, by the time the trial would commence, the unavailability of such
material would result in a crucial piece of evidence to establish posses-
sion 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 certifi-
cation by a magistrate, which is now contained in sub-section (4) of Sec-
tion 52A. In other words, any inventory, photographs or samples of
seized substance that was prepared in substantial compliance of the pro-
cedure under Section 52A of the NDPS Act and the Rules / Standing Or-
der(s) thereunder would have to mandatorily be treated as primary evi-
dence, irrespective of the fact that the bulk quantity has not been pro-
duced and allegedly destroyed without any lawful order.

37. Section 52A sub-section (4) should not be conflated as a rule of evi-
dence 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 evi-
dence for proving possession will always be the seized substance itself.
However, in order to mitigate the challenges in preservation of such sub-
stance 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 mag-
istrate in substantial compliance of the procedure prescribed. This, how-
ever, does not mean that where Section 52A has not been complied, the
9 / 11

prosecution would be helpless, and cannot prove the factum of posses-
sion by adducing other primary evidence in this regard such as by either
producing the bulk quantity itself, or examining the witnesses to the re-
covery 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 withthe 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 con-
fines 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 ab-
sence of compliance of Section 52A of the NDPS Act, the courts cannot
simply overlook the other cogent evidence in the form of the seized sub-
stance 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.

38. 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 rele-

vant 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 identi-
cal 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 pack-
ages/containers. For each such lot of packages/containers, one sam-
ple (in duplicate) may be drawn.

42. As per Clause 2.8 of the Standing Order No. 1 of 89, while draw –
ing 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 com –
posite 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.”

10. From perusal of the records, it transpires that on 16.01.2024, a secret

information was received to the police of police station -Dharsiwa, that

one white car having registration No. CG04HZ4676, is carrying contra-

band/Ganja for the purpose of selling which was coming from Raipur to

Dharsiwa. Thereafter, I.O. has note down in writing the information and

sent the information to the immediate superior officer and thereafter he

proceeded for search and seizure and for arresting of a person without

warrant. Therefore, it is crystal clear that I.O. has followed the manda-

tory provisions of Section 42(2) of the NDPS Act, 1985.

10 / 11

11. It is most important fact that contraband (Ganja) 5.356 Kg has been re-

covered from the car bearing registration No. CG04HZ4676, therefore

contraband has not seized from the personal search of appellant, hence

50 of the NDPS Act would not be applicable in this case.

12. It is also pertinent to mention herein that prosecution has proved that

the procedure as prescribed under Section 52A(a), (b) and (c) of the

NDPS Act was followed while making the seizure and drawing sample

such as preparing the inventory and getting it certified by the Magistrate

and sample packets were also sent for FSL report and samples were

found to be contained with ganja which corroborates the allegation

against the appellant. On security of evidence, nothing adverse could be

found to disbelive the evidence of the prosecution witnesses and it is

found proved that the appellant was found in possession of ganja i.e.

5.356 KG.

13. Taking into consideration the aforesaid facts, this Court has no hesita-

tion to hold that the findings recorded by the trial Court convicting the

accused/appellant under Section 20(b)(ii)(B) of the NDPS Act are

based on due appreciation of the evidence on record and deserve to be

and is hereby maintained.

14. So far as sentence i.e. R.I. for 10 years with fine of Rs. 1,00,000/- has

been awarded by the trial Court is concerned. Considering the age of

the appellant i.e. 24 years at present and further the quantity of contra-

band seized from the possession of the appellants i.e. 5.356 Kg contra-

band(ganja), which is intermediate quantity and there is no previous

criminal antecedents against him and further the appellant has already

undergone 5 months of jail sentence awarded by the trial Court, this

Court is of the opinion that the fine and sentence of 10 years imprison-

ment imposed by the trial Court appears to excessively on the higher

side, therefore, in the interest of justice, the sentence imposed upon
11 / 11

him is reduced to rigorous imprisonment for one year and fine imposed

by trial Court i.e. Rs. 1,00,000/- is reduced to Rs. 50,000/- and in de-

fault of payment of fine, additional R.I. for three months.

15. The appellant is in jail and he shall serve out the sentence as modified

above.

16. With the aforesaid observations, the criminal appeal is partly allowed

to the extent indicated hereinabove.

17. Let a copy of this order and the original records be transmitted to the

trial court concerned forthwith for necessary information and compli-

ance.

Sd/-

(Arvind Kumar Verma )
Judge

Jyoti
Digitally
signed by
JYOTI JHA
Date:

2025.04.17
11:56:58
+0530