Chattisgarh High Court
Shanker Lal Vaishnav vs State Of Chhattisgarh on 6 August, 2025
1
2025:CGHC:39337
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order Reserved on 07.05.2025
Order delivered on 06.08.2025
CRA No. 2269 of 2024
1 - Shanker Lal Vaishnav S/o Jodha Ram Vaishanav Aged About 30 Years R/o
Kasiram Nagar, Near Hanuman Mandir, Telibandha, District Raipur,
Chhattisgarh.
... appellant(s)
versus
1 - State Of Chhattisgarh Through P.S. Mahasamund, District Mahasamund,
Chhattisgarh. ----Respondent
For Appellant : Mr. H. S. Ahluwalia, Advocate, assisted by
Ms. Manisha Yadava and Ms. Durga Mehar
Advocates.
For State : Ms. Isha Jajodia , P.L.
Hon'ble Shri Arvind Kumar Verma, Judge
CAV Order
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 28.11.2024 passed by the learned Special Judge under
the Narcotic Drugs and Psychotropic Substances Act, 1985 (here-
inafter referred as “the Act 1985′) Mahasamund District Mahasamund
(C.G.), in Special Criminal NDPS Act Case No. H-7/2021, whereby
the appellant has been convicted and sentenced as follows:-
2
Convicted Sentenced to
under
Sections
21(C) of R.I. for 10 years with fine of Rs.
N.D.P.S. Act, 1,00,000/- and in default of payment
1985 of fine, additional R.I. for 1 year
25 of Arms RI for 7 years with fine Rs. 10,000/-
Act 1959 and in default of payment of fine, R.I.
for 1 years separately.
All the sentences will run concurrently.
2. The prosecution case, in brief, is that on 12.08.2020, a secret informa-
tion was received by the police of police station Mahasamund (C.G),
that one person is coming in blue color two wheeler moped without
registration number, is carrying psychotropic substances Brown
Sugar (Diacetylene Morphin) for the purpose of selling which was
Digitally
signed by
JYOTI JHA
Date:
2025.08.11
18:13:41
coming from Ghodari to Mahasamund. After receiving secret informa-
+0530tion necessary formalities were complied and police team proceeded
to spot for further investigation. At the spot after making due compli-
ance of Section 50 of the Act, the appellant was made searched and
on search two mobiles, small polyethene packet containing powder of
Brown Sugar, Cash Rs. 950/- photocopy of driving license, Aadhar
Card, Pistol, from dicky of moped one bottle of Horlicks company con-
tains brown sugar and one plastic box contains brown sugar and one
plastic box contains brown sugar, one empty pistol magine, one digital
electronic weight machine, one spoon and 25 small polyethene zipper
packets was seized from the accused/appellant. Thereafter on weigh-
ment of the total seized powder material which comes to 730 gm
which was seized from the exclusive possession of the appellant and
same was sent for scientific test in which it was found to be Brown
Sugar (Dye-acetyls Morphin) and the investigation authorities regis-
3tered an FIR as Crime No. 420/2020 at Police Station – Mahasamund,
District Mahasamund under Section 21 & 22 of the NDPS Act and
Section 25 of the Arms 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 22 (C) of the NDPS Act
and Section 25 of Arms Act.
3. The learned Special Judge (N.D.P.S.), Act, Mahasamund, District
Mahasamund (C.G.), after appreciating oral and documentary evi-
dence available on record vide judgment dated 28.11.2024, convicted
the appellant for the offence punishable under Section 21(C ) of the
N.D.P.S. and under Section 25 of Arms Act and sentenced him as
mentioned in opening paragraph of this order.
4. The learned counsel for the appellant submitted that there is non com-
pliance of Section 50 of NDPS Act; personal search notice (ExP/5)
was given on 12.08.2020 at 10:35 am and consent given by the appel-
lant to be searched by investigating officer is Ex.P-6. As per search
memo (Ex.P/9) contraband was seized from front right side jeans
pocket which is evident from the evidence of IO PW-16 in para-11.
Further seizure was also made from motorcycle but personal search
was also conducted therefore provision of Section 50 of NDPS Act will
be applicable for whole seizure quantity of contraband seized. It is not
disputed that Yogesh Ku Soni (PW-16) was posted as Assistant Sub
Inspector, in police station, Mahasamund, he was not a gazetted offi-
cer. It is evident from search and seizure proceeding that such pro-
ceeding was conducted by the IO PW-16 himself but not in presence
of either magistrate or a Gazetted Officer. The search and seizure pro-
4
ceeding was done by IO and further there is non compliance of sec-
tion 50(6) in which the officer shall record the reasons for such belief
that it is not possible to take the person to be search to the nearest
Gazetted Officer or Magistrate and send a copy to his immediate off-
cial superior within 72 hours.
5. In support of this contention, learned counsel for the appellant relied
upon a decision of the Hon’ble Supreme Court in the matter of Arif
Khan @ Agha Khan Vs. State of Uttarakhand, 2018 0 AIR(SC)
2123 whereby the Hon’ble Supreme Court held that search and recov-
ery of the contraband “Charas” was not made from the appellant in
the presence of any Magistrate or Gazetted Officer; none of the police
officials of the raiding party, who recovered the contraband “charas”
from him, was the Gazetted Officer therefore, they were not empow-
ered to make search and recovery from the appellant of the contra-
band “Charas” as provided under Section 50 of the NDPS Act except
in the presence of either a Magistrate or a Gazetted Officer.
6. Further learned counsel for the appellant submitted that there is non
compliance of section 55 of NDPS Act. Ingredients of section 55; the
officer in charge or a police station shall take charge and keep in safe
custody the seized articles under his seal on such articles. However,
in the present case, the officer in charge of police station was Shers-
ingh Bange PW-17 and he in his evidence nowhere had stated about
compliance of provision of section 55 of the Act. Neither the seizure
memo (ExP-21) nor sample panchnama (ExP-19), nor seizure panch-
nama (ExP25) does show the seal of officer in charge of PS. Also de-
hati nallis (ExP-45) does not disclose the same. Further above fact is
evidence from the para-08 of the evidence. The impression seal of
5
SHO was not affixed in memo for sending samples articles to FSL
(Ex.P51). Further receipt of articles (Ex-P/52) issued by the FSL does
not disclose that the sample of seal of SHO. Moreover, the Malkhana
register (Ex.P34) does not show that the sample was send with seal of
SHO. Further Station House Officer of Police Station Mahasamund
(PW-17) did not affix his seal on the articles alleged to have been de-
posited in the Malkhana. In support of his contention, learned counsel
for the appellant placed his reliance upon a decision of the Hon’ble
High Court in the matter of Lalit @ Deepak Patel Vs. State of CG in
CRA No. 614/2015 wherein the Hon’ble High Court held non affixing
the seal of station house officer is clear violation of provision of section
55 of NDPS Act resulted in acquittal of the appellant.
7. Further, learned counsel for the appellant submits that in the present
case neither seized articles & specimen impression of seal were not
produced before the trial Court it is evident from the evidence of the IO
PW-16 in paragraph 85. In support of this contention, learned counsel
for the appellant placed his reliance upon a decision of the Hon’ble
Supreme Court in the matter of Gorakh Nath Prasad Vs. State of
Bihar 2018 AIR(SC) 704 whereby the Hon’ble Supreme Court held
that non production of the seized material is considered as fatal to the
prosecution and independent witnesses turned hostile it will not be
safe to rely upon the witnesses of police officers for conviction of the
accused. Further held that non production of contraband before the
court and independent witnesses turned hostile, the seizure of the ma-
terial does not establish the seizure of the brown sugar from the pos-
session of the appellants.
8. Moreover, learned counsel for the appellant argued on the evidence
6
that the panch witnesses PW-1 & PW-3 has not supported the prose-
cution case and turned hostile. They had not supported the proceed-
ing of seizure panchnama (ExP10 & ExP12), weightment panchnama
(ExP17), sample panchnama (Ex.P19) and the seizure memo
(ExP21). Further they denied their presence and participation in the
proceedings and have also explained how their signatures were ob-
tained on documents. Further the weightment witness (PW-6) has not
supported the prosecution case and turned hostile. As per court state-
ment in para 02 & para 08 clearly indicates that the appellant was not
on spot while weightment of the contraband was done. In para 5
clearly deny that the notice was issued to him by the authority for con-
ducting the weightment of the seized articles. In para-8 clearly states
that he has not done the proceeding of weightment of the contraband
on spot. He has stated that his signatures were obtained in police sta-
tion. The malkhana register (Ex,P/34) do not show that plastic boxes
containing contrabands was entrusted in a sealed condition. The testi-
mony of malkhana moharar (PW-11) does not show that as required
under section 55 of the Act, before entrusting the aforesaid articles to
the safe custody of the Malkhana, the Station House Officer (SH) has
affixed his seal on the articles so as to prevent any tempering with the
samples. As per sample panchnama (Ex.P19) four samples of 25gm,
25gm, 20gm & 20 gm were taken and kept in plastic box marked as A,
B, C & D respectively. Where as in malkhana register ExP/34, the
samples shown to be kept in plastic zipper marked as A,B,C & D
which is also confirmed by the Malkhana Moharar (PW-11) in para 7
of this Court evidence. Further there is no explanation by the prosecu-
tion about above discrepancy which creates doubt whether the same
7
samples was send to the FSL. Further the Malkhana Moharar (PW-
11) in para-07 of his court evidence states that the articles were de-
posited in plastic zippers and later on while sending it to FSL it has
repacked in boxes. There was no proceeding conducted nor any
memo was prepared by the police officers for repacking the deposited
articles in new package to establish that the repacking of the articles
in boxes were properly kept in sealed condition under the seal of SHO
to prevent any tampering with the samples. The entry in column no 8
to 12 of malkhana register (Exp/34) indicates that on 15/08/2020 the
seized samples were taken by constable Loknath (Pw-07) to FSL and
returned back on same day. Whereas the said witness had clearly de-
nied about the fact mentioned in the column No 8 to 12 dated
15/08/2020. Further the said witness clearly stated that no duty certifi-
cate was issued by the authority to take the samples to FSL. On con-
trary the malkhana moharar (Pw-11) in para 08- deny the suggestion
that on 15/08/2020 the samples were not send to FSL. Further deny
the suggestion that on 15/08/2020 the samples of contraband was not
handed over to the constable Loknath (Pw-07) for FSL. That in light of
the above facts the prosecution has failed to explain in which condition
the samples were taken from malkhana on 15/08/2020 and whether it
was brought back in proper sealed condition to malkhana or not.
9. Learned counsel for the appellant further argued on the point that
samples were not taken as per standing order 1/89 issued bythe cen-
tral government that it is evident from Samras Panchnama (Exp/14)
and court evidence of IO (Pw-16) in para-16 that the contraband sub-
stances was found in two bottles and in one plastic zipper. The
IO(Pw-16) has clearly stated that the substances found in three differ-
8
ent container was mixed together and thereafter samples were pre-
pared which is contrary to the instruction issued in order No 1/89 by
the Central Government. In para-72 the IO(pw-16) has clearly stated
that samples were not taken separately from each container. In sup-
port of this contention learned counsel for the appellant relied upon a
decision of the Hon’ble Division Bench of this Court in Hemant Singh
& Another Vs. State of CG, Cr.A No. 1697/2018, wherein, the Divi-
sion bench of this high court dealt with similar issue and held that the
Investigating Officer had not complied with the Standing Order 1/89
and not taken sample from each of 27 packets. Total 27 packets of
ganja were seized from the vehicle and only two samples were taken
out from the contraband after mixing them. which is not permissible as
per law.
10. Further, learned counsel for the appellant argued on the point of non
compliance of section 52A the Act, 1985 that PW-17, Shersingh
Bande, DSP court statement in para-2 stated that on 28/11/2020 (ie
after 106 days) in presence of Executive Magistrate the samples of
seized substances were prepared and list of samples were prepared
and sealed and in para-3 stated that the inventory was prepared
which is marked as Exp/39 and in para-4 stated that the seized sub-
stances were taken from Malkhana in presence of naib tehsildar (Pw-
12) but in entry made in malkhana register there is no signature of
naib tehsildar neither his signature, further in para-10 stated that the
inventory was not prepared in presence of independent witnesses nei-
ther it contains their signatures. PW-12, Naib Tehsildar, Neeta Alsare,
in her court statement in para-9 stated there was independent person
for weighment of the physcotropic substances, further photographs
9
does not shows the presence of any independent witnesses and in
para-10 stated that the photographs does not show the bottles of Hor-
licks and Backofon in which the substances were kept. The indepen-
dent witnesses PW- 1 & PW-3 have not supported the prosecution
case and turned hostile. Further they had denied their presence and
participation in the proceedings and have also explained how their sig-
natures were obtained on documents.
11. Learned counsel for the appellant submitted that from above analysis
it is clear that the proceeding under section 52A was done after 106
days of seizure and in presence of Naib Tehsildar and there was no
independent witnesses to such proceeding therefore it is apparent that
the said seized contraband and the samples drawn therefrom would
not be a valid piece of primary evidence in the trial. Once there is no
primary evidence available, the trial as a whole stands vitiated.
12. Learned counsel for the appellant argued that the appellant himself
examined as DW-1 and had clearly stated in para -02, 03, 04, 05, 07,
09 & 11 that he got enmity with one constable named as Pawan Ku-
mar Yadav who gave him threatening to implicate him in false case.
Further stated the manner he was called and taken into custody by the
police personnel. Further the appellant has categorically stated in his
court evidence that he had been falsely implicated in present case due
to enmity with Pawan Kumar Yadav and IO has taken his signature on
blank papers. Further there is no explanation to injuries incurred to the
appellant as mentioned in ExD/3.
13. Learned counsel for the appellant further argued that the conviction
cannot based upon witnesses being police officers only in present
case. As per statement of the IO(PW-16) a secret information was re-
10
ceived regarding the fact that appellant carrying psychotropic sub-
stances and accordingly secret information panchnama (Ex.P-2) was
prepared. Whereas the independent Panch witnesses PW-1 & PW-3
has not supported the version of IO and turned hostile. Further the
other police officer witnesses i.e. PW-02 & PW-04 clearly stated in
their court evidence that during routine checking the vehicle of the ap-
pellant was stopped and on search such substance were seized. It re-
flects that the case of the prosecution is false. The IO in his court evi-
dence para-100 clearly denied the suggestion that on 15/08/2020 the
samples were not taken from malkhana. Whereas the constable Lok-
nath Singh (Pw-7) had clearly denied that on 15/08/2020 samples
were taken from malkhana. Further suggestion was put up to the IO
that on 15/08/2020 the samples were kept by him which was denied
by the IO. In support of his contention, learned counsel for the appel-
lant relied upon a decision of the Hon’ble Supreme Court in the matter
of Gorakh Nath Prasad Vs. State of Bihar reported in
2018AIR(SC)704 wherein it has been held that non production of the
seized material is considered as fatal to the prosecution and indepen-
dent witnesses turned hostile, it will not be safe to rely upon the wit-
nesses of police officers for conviction of the accused.
14. Learned counsel for the appellant further argued that seizure of pistol
has not not proved because the independent seizure witnesses Pw-1
& PW-3 had not supported the prosecution case and have turned hos-
tile, therefore there is no evidence regarding seizure of pistol from the
appellant. In present case no one has been examined to prove the
sanction (Exp-49) accorded by the District Magistrate under section
39 of the Arms Act therefore in absence of proof of valid sanction the
11
conviction under section 25 Arms Act cannot sustain. It is also ob-
served that weapon in question is not produced before the trial court
and no explanation for non production of the aforesaid articles has
been offered by the prosecution. The witness Dinesh Yadav (Pw-10),
Head Constable on the post of armour, had clearly stated in his court
evidence in para-03 that no sample seal was brought before him to
compare the seal affixed on the seized pistol. In support of his con-
tention learned counsel for the appellant relied upon a decision of the
Hon’ble Court in the matters of Santosh Kumar And Etc. VS State
of Chhattisgarh, 2006 3 CGLJ 82 and RATAN SINGH VS. STATE
OF MP, CRA NO 1059/1999 wherein it has been held that the hon’ble
court above held that the weapon in question is not produced before
the trial court and no explanation for non production of the aforesaid
articles has been offered by the prosecution. Section 39 of the Arms
Act provides that previous sanction of the District Magistrate is neces-
sary for the prosecution against any person in respect of any offence
under Section 3. Sanction is not a mere formality. It has to be proved
that it was granted by the authority after applying his mind. It must be
shown that the firearm or weapon with respect to which sanction was
prayed was actually taken to the authority concerned and after looking
to it the relevant papers, understanding and after applying his mind
sanction was granted.
15. Lastly, learned counsel for the appellant argued that in view of the fact
that independent witnesses PW-1, PW-3 & PW-6 have not supported
the prosecution case, defence version including injuries on the body of
the appellant, the prosecution evidence at trial is not trustworthy being
contradictory in material particulars. The learned trial court had also
12
failed to consider the judgment of MP high court regarding grant of
sanction by District Magistrate for prosecution of accused in Arms Act
in Sukhlal Banshi Lodhi Vs. State of MP reported in 1998(1)
MPLJ 288. On Conjoint reading of independent witnesses and con-
tradictory evidence of police witnesses and defence version of appel-
lant makes the prosecution case untrustworthy. The trial court without
considering the above points passed the conviction judgment which is
liable to be setaside by this Hon’ble court. In the given circumstances
the prosecution failed to prove beyond reasonable doubt the charges
levelled against the appellant therefore it is prayed that appeal may be
allowed and judgment dt 28/11/2024 of the trial court be set aside and
accused be acquitted from all the charges.
16. On the other hand, learned State Counsel would support the im-
pugned judgment and submit that the prosecution has proved its case
beyond reasonable doubt and the learned Trial Court after considering
the material available on record and evidence adduced by the prose-
cution has convicted the appellant for offence under Section 21(C) of
the NDPS Act and under Section 25 of Arms Act 1959, in which no in-
terference is called for.
17. I have heard learned counsel for the parties, considered their rival
submissions made hereinabove and also went through the records
with utmost circumspection.
18. The first question arises in this case whether Investigation Officer
(PW-16) has complied with the provision of Section 42 of the NDPS
Act.?
19. Section 42(1) of the NDPS Act 1985 provides that the prior informa-
tion was received by the empowered officer should necessarily be
13
taken down in writing. In the present case, as per statement of IO
(PW-16), the secret information has been received by him and the
same has been taken down in writing in Roznamcha Sanha and sent
the information to the SDOP (PW-13) and in this regard duty certifi-
cate was also issued to constable which is proved from the statement
of I.O. (PW-16), SDOP (PW-13), therefore, it is crystal clear that I.O
has sent the information forthwith to his immediate official superior i.e.
SDOP which is proved from (Ex.P-1). Therefore, Section 42(1) of
NDPS Act has been duly complied with; As per the statement of PW/
16, verbal information was given to senior officers and secret informa-
tion was recorded in Roznamcha Sanha & Duty certificate was also is-
sued to constable for sending the information in compliance of section
42 of the Act, 1985.
20. There is also compliance of Section 42(2) of NDPS Act; that PW/4
went to submit the permit for search before SDOP (PW/13). The same
has also been corroborated by the statement of PW/13. Permit for
search without warrant was also sent to SDOP as per Exhibit P/3 and
Panchnama for search without warrant was prepared as Exhibit P/4.
Exhibit P/3 & P/4 along with Secret information Panchnama prepared
as Exhibit P/2 was taken by PW/4 before SDOP PW/13. Therefore, in
the considered opinion of this Court, I.O. (PW-16) has complied the
mandatory provisions of Section 42(1) and 42(2) of the Act, 1985.
21. Whether the Investigation Officer (PW-16) has complied with the pro-
vision of Section 50 of the NDPS Act 1985?.
22. Section 50 of NDPS Act provides as under:
Conditions under which search of persons shall be
conducted.-(1) When any officer duly authorised under
Section 42 is about to search any person under the
14provisions of Sections 41 and 42 or Section 430, he
shall, if such person so requires, take such person
without unnecessary delay to nearest Gazetted Officer
of any of the departments mentioned in Section 42 or
to the nearest Magistrate(2) If such requisition is made, the officer may detain
the person until he can bring him before the Gazetted
Officer or the Magistrate referred to in sub-section (1).
The Gazetted Officer or the Magistrate before whom
any such person is brought shall, if he sees no rea-
sonable ground for search, forthwith discharge the
person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting
a female.
((5) When an officer duly authorised under section 42
has reason to believe that it is not possible to take the
person to be searched to the nearest Gazetted Officer
or Magistrate without the possibility of the person to be
searched parting with possession of any narcotic drug
or psychotropic substance, or controlled substance or
article or document, he may, instead of taking such
person to the nearest Gazetted Officer or Magistrate,
proceed to search the person as provided under sec-
tion 100 of the Code of Criminal Procedure, 1973 (2 of
1974).
(6) After a search is conducted under sub-section (5),
the officer shall record the reasons for such belief
which necessitated such search and within seventy-
two hours send a copy thereof to his immediate official
superior.]
23. The Investigation Officer has given notice (Ex.P-5) under Section 50 of
the NDPS Act 1985 to the accused/appellant. The relevant part of the no-
tice which is as under:- “vkidks oS?kkfud laj{k.k izkIr gS fd vki viuh ryk’kh
eftLVsªV vFkok jktif=r vf/kdkjh ds le{k djk ldrs gS A ml laca/k esa vkidks lwpuk
nh tkrh gS A”
24. Section 50 is a procedural provision that lays down the manner in
which the search of a person suspected of carrying contraband sub-
stances is to be conducted. A bare reading of the provision makes it abun-
dantly clear that the officer conducting the search shall apprise the sus-
pect of his right to be searched in the presence of a Gazetted Officer or a
Magistrate and thereafter if such person so requires, produce him forth-
15
with before a Gazetted Officer or a Magistrate.
25. The Constitution Bench was constituted in Vijaysinh Chandubha
Jadeja case [(2011) 1 SCC 609) wherein the Bench unanimously reiter-
ated the position as laid down in Baldev Singh case [(1999) 6 SCC 172)
and held that the empowered officer is bound to apprise the person in-
tended to be searched of his right under Section 50 of the NDPS Act to be
searched before a Gazetted Officer or a Magistrate. The Bench further
held that it is not necessary that the information required to be given
should be in a prescribed form or in writing, but it is mandatory that the
suspect is made aware of the existence of his right to be searched before
a Gazetted Officer or a Magistrate, if so, required by him and this manda-
tory provision requires strict compliance. Thereafter, the suspect may or
may not choose to exercise the right provided to him under the said provi-
sion. Further it was observed that in order to impart authenticity, trans-
parency, and creditworthiness to the entire proceedings, in the first in-
stance, an endeavour should be made to produce the suspect before the
nearest Magistrate, who enjoys more confidence of the common man
compared to any other officer. It would not only add legitimacy to the
search proceedings; it may verily strengthen the prosecution as well.
26. In the present case, as per the statement of PW/16, the Exhibit P/5 is
the notice which was given to the accused before conducting his personal
search and the accused was made well aware about his right to be
searched before the Magistrate or Gazetted Officer and only after getting
the knowledge of his rights, the accused has given consent to be
searched by the Investigating Officer voluntarily i.e., PW/16 as per Exhibit
P/6. Thus there is strict compliance of Section 50 of NDPS Act has been
16
proved by the prosecution.
27. It is crystal clear that the accused was made aware of his rights by the
IO (PW-16), but as per Section 50(1) of the NDPS Act, the appellant has
not made any statement that he requires to search in presence of nearest
Gazetted Officer or nearest Magistrate. As per Ex.P-6, the accused/appel-
lant specifically gave consent letter stating therein in which the accused/
appellant has signed from “c” to “c” part that ^^eSa ‘kadj yky oS”.ko Fkkuk egk-
leqn ds mifuj{kd ;ksxs’k dqekj lksuh ls vius Lo; esjk ,oa vius okgu fcuk uEcj
okyh lhrjax हीरो मेस्ट् रो एज स्कूटर dh ryk’kh djkus dh lgefr iznku djrk gw¡A^^
Therefore, in the considered opinion of this Court, I.O. (PW-16) has fully
complied the Section 50(1) of the NDPS Act.
28. Moreover, DW/1 stated in his evidence which is given by the appel-
lant/accused himself that the accused had a controversy with one Pawan
Kumar Yadav and Pawan Kumar Yadav have threatened the appellant
and on 11/08/2020 i.e., just before the date of incident, the appellant was
forcefully made seated in an Odisha series number 17 blue colored
Baleno car with Sadeep Bhoi and Sanjay Singh Rajput and one another.
After sitting inside the car, all of them started beating the accused. From
there the appellant was taken to Cyber Cell City Kotwali, Mahasamund
where the accused was beaten again by Navdharam and Dev Kosariya.
From there the accused was taken to his government residence in Raipur
by other 10-15 people and allegedly looted money and jewelry from him
and after that he was informed that an NDPS FIR has been lodged
against him.
29. From bare reading of the statement of the appellant himself it can be
inferred that the appellant has been beaten before the date of incident due
17
to which he incurred the injuries. Secondly after the alleged incident of
beating of the appellant took place, the appellant admittedly never lodged
a complaint nor the appellant have raised alarm against any authority re-
garding the alleged beatings and atrocities of the police officials. It can
also be inferred from the documentary evidence produced by the appel-
lant himself in Ex.D/3 which is a health screening proforma, no serious
hurt or injury can be seen in the body of the accused.
30. As per the statement of PW/16 and property seizure memo of the ac-
cused as per Exhibit P/10 and search memo as per Exhibit P/9, it reflects
that in the left front pocket of the jeans pants of the accused, 2 mobile
phones were seized and from right from pocket white colored zipper poly-
thene packet was seized in which brown colored powder brown sugar like
substance was present. In left back pocket Rs. 960/- cash was seized
along with driving license and Aadhar Card and inside the left side of the
pocket a pistol was tucked inside the pant of the accused and the gun was
loaded with one complete round of magzine was also seized. After that the
two-wheeler vehicle of the accused was searched in which in the goods
compartment a 500gm Horlicks bottle was seized in which brown colored
brown sugar like powder was present and another white colored box in
which Bake O Fun was written was seized in which gun without magazine,
one silver colored digital weighing machine and 1 steel spoon and small
packets of zipper polythene pouches in total 25 numbers. Exhibit P/11 is
the search memo and seizure memo are exhibit P/12.
31. The evident facts are that the identification of the seized brown sugar
was done as per Exhibit P/13 and after that the accused was served with
notice under section 91 of CrPC (exhibit P/18) to give explanation and
18
documents for keeping the seized illegal substances to which the accused
give in writing that he does not have any document or explanation regard-
ing the possession of seized article and neither he could provide the docu-
ment in future. After that the seized brown sugar was opened and mixed
together and samras panchnama Exhibit P/14 was prepared by PW/16
and the weighing proceeding was done by the weigher PW/6 at the crime
spot. Physical Verification of the weighing machine was as per Exhibit P/
16. Then weighing proceeding was conducted in the presence of raid
team and weigher and other witnesses and accused. Out of the total
seized brown sugar, two samples of 25 grams each were taken and kept
in two separate boxes which was labelled as Article “A” and “B” and from
the seized brown sugar, two separate samples of 20 grams each was
taken and filled in two empty bottles labelled as Article “C” and “D” and
sample memo was prepared as Exhibit P/19. Sketch of seized arms were
prepared as Exhibit P/23. After returning to the police station PW/14
lodged the FIR (Exhibit P/61) as per Dehati Nalsi and returning of seized
articles in police station after raid proceeding was recorded in Roznamcha
Sanha No. 34 of 12/08/2020 at 16.30 (Exhibit P/61). The seized articles
except vehicle was handed over to PW/11 who is the goods clerk of the
police station for safely keeping the custody of seized articles in malkhana
and Japtmal Supurdnama Receipt was prepared as per Exhibit P/38 and
this proceeding was entered in Roznamcha Sanha no. 41 of 12/08/2020.
The same has also been entered in the seized goods register in serial no.
120. register is exhibit P/34. After that the Investigating Officer PW/16 has
prepared a report of complete proceeding done by the Investigating Offi-
cer along with his team the said report of Exhibit P/40 was taken by PW/5
to SDOP office of PW/13 and also received a receipt. In this way the IO
19
has completed his duty of informing the senior officer within 48 hours and
complied with the mandatory provision under section 57 of NDPS Act.
32. The submission made by learned counsel for the appellant is that Sec-
tion 52 of the NDPS Act as well as Circular of 1/89 issued by Central Gov-
ernment have not been complied with in the case for drawing of the sam-
ples from the seized articles. Therefore, there is substantial non-compli-
ance of the mandatory provisions of the NDPS Act and the appellant is en-
titled for acquittal.
33. Investigating Officer(PW-16) has stated that on 28.08.2020 a report
was written to the Sub-Divisional Magistrate Mahasamund for
compliance of Section 52A of the Act,1985 of the seized narcotics in the
above case, which is Ex.P. 50. On 28.11.2020, in the above mentioned
crime number 420/22 of police station Mahasamund, for compliance of
Section 52A of the Act 1985 of the seized drug, Executive Magistrate
Mahsamund was present in the Malkhana of police station Mahsamund.
He was present during the proceeding and he had prepared a
panchnama regarding the proceedings taken by the Executive
Magistrate. The panchnama/inventory is Ex.P-25, Ex.P-26 and Ex.P39.
Thereafter, two sample packets of 25-25 grams each of the seized
Brown Sugar, which are article A and B and two separate samples of 20
grams each was taken and filled in one bottle labelled as Article C and D,
were sent to the Forensic Science Laboratory, Raipur for FSL test
through constable number 872 Roop Ram Sidar with the memorandum
of Superintendent of Police Mahasamund.
34. Naib Tehsildar, Nita Alsare (PW-12) also supported the statement of
Investigation Officer/Inspector and stated that he was posted as Naib
20
Tehsildar in Tehsil Office, since April 2016. On the directions of Sub-
Divisional Magistrate, Mahasamund, she went to Police Station
Mahasamund on 28.11.2020 for compliance of Section 52 A of NDPS
Act and in front of her, the seized brown sugar kept in sealed condition in
two separate-separate boxes, the weight of which was mentioned to be
730 gm, and two samples of 25 grams each were taken out and two
samples of 20 grams each were taken out from the bottle of Horlicks and
the remaining brown sugar was found to be separately sealed and kept in
the Malkhana Mahasamund, which was taken out of the Malkhana in
front of two witnesses. After physical verification of the electronic scale,
on weighing, the total weight of all the narcotics including the sacks was
found to be 730 gm, from which a brown sample of 25-25 and 20-20
grams was taken out from boxes kept separately and sealed and kept
back, and the remaining brown sugar 640 grams were kept separately in
a sack and returned to the Malkhana after affixing a signature slip. From
the Namuna Seal Panchnama and from the seizure memo, it is clearly
reflect the seal of “PS Mahasamund”
35. Investigating Officer/Inspector Yogesh Kumar Soni (PW-16) has
admitted in the cross-examination that he had initiated the proceedings
under Section 52A of the Act 1985. It was not conducted before a judicial
magistrate. In the said paragraph of cross-examination, the said witness
has denied the fact that no goods were recovered from the accused,
hence photographs of the entire goods and sample were not taken. The
defence has based its case on the non-conduct of proceedings under
Section 52A by the judicial magistrate. Non-conduct of proceedings
under Section 52A of the Act, 1985 by the judicial magistrate does not
have any adverse effect on the case, hence the basis taken by the
21defence in this regard is also not acceptable. In the case, no
contradiction of any kind has been found in the statements of the
investigating officer/inspector Yogesh Kumar Soni (PW-16). No such
important fact has come to light in the cross-examination of the said
witness due to which their statements can be disbelieved. The
statements of the witness is also confirmed by the Panchnama/Inventory
Ex.P.-25/Ex.P39, physical verification of 52A-3 Ex.P.-26. Thus, on the
above grounds, it is also shown that the provisions of Section 52A NDPS
Act were followed in the present case. Section 52A of NDPS Act has
been duly complied with because proceeding of section 52A of NDPS
Act was done in the presence of Executive Magistrate i.e., PW/12 in
Police Station Inventory.
36. The another submission made by learned counsel for the appellant is
the procedure prescribed in the Circular 1/89 issued by the Central
Government has not been followed and the samples have been drawn in
a defective manner. The public authorities should have drawn sample
from each of the packets before homogenization or they should have
drawn the sample from the packets seized from the vehicle randomly but
the procedure drawn by the police that first they have homogenized the
entire quantity of brown sugar, therefore, drawing of 2 samples is the
defective procedure which vitiates the entire search proceedings.
Though it reflect from the evidence available on record that when the
police stopped the vehicle they found the brown sugar kept in his pocket
as well as bottle of Horlicks company contains Brown Sugar. On the spot
it was homogenized and out of the total seized brown sugar, two samples
of 25 grams each were taken and kept in two separate boxes which was
labelled as Article “A” and “B” and from the seized brown sugar, two
22separate samples of 20 grams each was taken and filled in two empty
bottles labelled as Article “C” and “D” and sample memo was prepared
as Exhibit P/19. Though the procedure is laid down in the Standing order
1/89 for drawing of the sample has not been fully complied with but
merely non-compliance of the procedure for drawing of the sample does
not vitiates the entire search and seizure proceedings when other
evidences have duly supported the prosecution case that the brown
sugar was seized from the possession of the appellant. The Standing
Order 1/89 is guideline for drawing of the sample.
37. 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.
38. 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
23different if there were no other discrepancies or if the
other material on record were found to be convincing or
supported by independent witnesses. The relevant
observations read as under: –
“107. The seal was not even deposited in the
malkhana. As no explanation whatsoever has
been offered in this behalf, it is difficult to hold that
sanctity of the recovery was ensured. Even the
malkhana register was not produced.
xxx xxx xxx
108. There exist discrepancies also in regard to
the time of recovery. The recovery memo, Exhibit
PB, shows that the time of seizure was 11.20 p.m.
PW 1 Kulwant Singh and PW 2 K.K. Gupta,
however, stated that the time of seizure was 8.30
p.m. The appellant’s defence was that some
carton left by some passenger was passed upon
him, being a crew member in this regard assumes
importance (see Jitendra para 6). The
panchnama was said to have been drawn at 10
p.m. as per PW 1 whereas PW 2 stated that
panchnama was drawn at 8.30 p.m. Exhibit PA,
containing the purported option to conduct
personal search under Section 50 of the Act, only
mentioned the time when the flight landed at the
airport.
xxx xxx xxx
111. In a case of this nature, where there are a
large number of discrepancies, the appellant has
been gravely prejudiced by their non-examination.
It is true that what matters is the quality of the
evidence and not the quantity thereof but in a
case of this nature where procedural safeguards
were required to be strictly complied with, it is for
24
the prosecution to explain why the material
witnesses had not been examined. The matter
might have been different if the evidence of the
investigating officer who recovered the material
objects was found to be convincing. The
statement of the investigating officer is wholly
unsubstantiated. There is nothing on record to
show that the said witnesses had turned hostile.
Examination of the independent witnesses was all
the more necessary inasmuch as there exist a
large number of discrepancies in the statement of
official witnesses in regard to search and seizure
of which we may now take note.”
(Emphasis supplied)
26. Non-compliance or delayed compliance with the
procedure prescribed under Section 52A of the NDPS
Act or the Rules / Standing Order(s) thereunder may
lead the court to draw an adverse inference against the
prosecution. However, no hard and fast rule can be laid
down as to when such inference may be drawn, and it
would all depend on the peculiar facts and
circumstances of each case. Such delay or deviation
from Section 52A of the NDPS Act or the Standing
Order(s) / Rules thereunder will not, by itself, be fatal to
the case of the prosecution, unless there are
discrepancies in the physical evidence which may not
have been there had such compliance been done. What
is required is that the courts take a holistic and
cumulative view of the discrepancies that exist in the
physical evidence adduced by the prosecution and
correlate or link the same with any procedural lapses or
deviations. Thus, whenever, there is any deviation or
non-compliance of the procedure envisaged under
Section 52A, the courts are required to appreciate the
same keeping in mind the discrepancies that exist in the
25
prosecution’s case. In such instances of procedural error
or deficiency, the courts ought to be extra-careful and
must not overlook or brush aside the discrepancies
lightly and rather should scrutinize the material on record
even more stringently to satisfy itself of the aspects of
possession, seizure or recovery of such material in the
first place.
27. In such circumstances, particularly where there has
been lapse on the part of the police in either following
the procedure laid down in Section 52A of the NDPS Act
or the prosecution in adequately proving compliance of
the same, it would not be appropriate for the courts to
resort to the statutory presumption of commission of an
offence from the possession of illicit material under
Section 54 of the NDPS Act, unless the court is
otherwise satisfied as regards the seizure or recovery of
such material from the accused persons from the other
material on record. Similarly, irrespective of any failure
to follow the procedure laid under Section 52A of the
NDPS Act, if the other material on record adduced by
the prosecution inspires confidence and satisfies the
court regarding both the recovery and possession of the
contraband from the accused, then even in such cases,
the courts can without hesitation proceed for conviction
notwithstanding any procedural defect in terms of
Section 52A of the NDPS Act.
28. In Khet Singh v. Union of India reported in (2002)
4 SCC 380 this Court held that the Standing Order(s)
issued by the NCB and the procedure envisaged therein
is only intended to guide the officers and to see that a fair
procedure is adopted by the officer-in-charge of the
investigation. It further observed that there may,
however, be circumstances in which it would not be
possible to follow these guidelines to the letter,
particularly in cases of chance recovery or lack of proper
26
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
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
27
the force of law. They are intended to guide the
officers and to see that a fair procedure is
adopted by the officer-in-charge of the
investigation. It is true that when a contraband
article is seized during investigation or search, a
seizure mahazar should be prepared at the spot
in accordance with law. There may, however, be
circumstances in which it would not have been
possible for the officer to prepare the mahazar at
the spot, as it may be a chance recovery and the
officer may not have the facility to prepare a
seizure mahazar at the spot itself. If the seizure is
effected at the place where there are no
witnesses and there is no facility for weighing the
contraband article or other requisite facilities are
lacking, the officer can prepare the seizure
mahazar at a later stage as and when the
facilities are available, provided there are
justifiable and reasonable grounds to do so. In
that event, where the seizure mahazar is
prepared at a later stage, the officer should
indicate his reasons as to why he had not
prepared the mahazar at the spot of recovery. If
there is any inordinate delay in preparing the
seizure mahazar, that may give an opportunity to
tamper with the contraband article allegedly
seized from the accused. There may also be
allegations that the article seized was by itself
substituted and some other items were planted to
falsely implicate the accused. To avoid these
suspicious circumstances and to have a fair
procedure in respect of search and seizure, it is
always desirable to prepare the seizure mahazar
at the spot itself from where the contraband
articles were taken into custody.
28
xxx xxx xxx
16. Law on the point is very clear that even if
there is any sort of procedural illegality in
conducting the search and seizure, the evidence
collected thereby will not become inadmissible
and the court would consider all the
circumstances and find out whether any serious
prejudice had been caused to the accused. If the
search and seizure was in complete defiance of
the law and procedure and there was any
possibility of the evidence collected likely to have
been tampered with or interpolated during the
course of such search or seizure, then, it could
be said that the evidence is not liable to be
admissible in evidence.” (Emphasis supplied)
29. A similar view as above was reiterated in the
decision of State of Punjab v. Makhan Chand
reported in (2004) 3 SCC 453 wherein this Court after
examining the purport of Section 52A of the NDPS Act
and the Standing Order(s) issued thereunder, held that
the procedure prescribed under the said order is merely
intended to guide the officers to see that a fair procedure
is adopted by the officer in charge of the investigation
and they were not inexorable rules. The relevant
observations read as under: –
“10. This contention too has no substance for two
reasons. Firstly, Section 52-A, as the marginal
note indicates, deals with “disposal of seized
narcotic drugs and psychotropic substances”.
Under sub-section (1), the Central Government,
by a notification in the Official Gazette, is
empowered to specify certain narcotic drugs or
psychotropic substances, having regard to the
hazardous nature, vulnerability to theft,
29
substitution, constraints of proper storage space
and such other relevant considerations, so that
even if they are material objects seized in a
criminal case, they could be disposed of after
following the procedure prescribed in sub-sections
(2) and (3). If the procedure prescribed in sub-
sections (2) and (3) of Section 52-A is complied
with and upon an application, the Magistrate
issues the certificate contemplated by sub-section
(2), then sub-section (4) provides that,
notwithstanding anything to the contrary contained
in the Indian Evidence Act, 1872 or the Code of
Criminal Procedure, 1973, such inventory,
photographs of narcotic drugs or substances and
any list of samples drawn under sub-section (2) of
Section 52-A as certified by the Magistrate, would
be treated as primary evidence in respect of the
offence. Therefore, Section 52-A(1) does not
empower the Central Government to lay down the
procedure for search of an accused, but only
deals with the disposal of seized narcotic drugs
and psychotropic substances. 11. Secondly, when
the very same Standing Orders came up for
consideration in Khet Singh v. Union of India this
Court took the view that they are merely intended
to guide the officers to see that a fair procedure is
adopted by the officer in charge of the
investigation. It was also held that they were not
inexorable rules as there could be circumstances
in which it may not be possible for the seizing
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
30
supplied)
30. Thus, from above it is clear that the procedure
prescribed by the Standing Order(s) / Rules in terms of
Section 52A of the NDPS Act is only intended to guide
the officers and to ensure that a fair procedure is
adopted by the officer- in-charge of the investigation,
and as such what is required is substantial compliance
of the procedure laid therein. We say so because, due to
varying circumstances, there may be situations wherein
it may not always be possible to forward the seized
contraband immediately for the purpose of sampling.
This could be due to various factors, such as the sheer
volume of the contraband, the peculiar nature of the
place of seizure, or owing to the volatility of the
substance so seized that may warrant slow and safe
handling. There could be situations where such
contraband after being sampled cannot be preserved
due to its hazardous nature and must be destroyed
forthwith or vice-verse where the nature of the case
demands that they are preserved and remain
untouched. Due to such multitude of possibilities or
situations, neither can the police be realistically
expected to rigidly adhere to the procedure laid down in
Section 52A or its allied Rules / Orders, nor can a strait-
jacket formula be applied for insisting compliance of
each procedure in a specified timeline to the letter, due
to varying situations or requirements of each case. Thus,
what is actually required is only a substantial compliance
of the procedure laid down under Section 52A of the
NDPS Act and the Standing Order(s) / Rules framed
thereunder, and any discrepancy or deviation in the
same may lead the court to draw an adverse inference
31
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 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
32
Court may not discard the entire prosecution case
looking into such discrepancies as more often than not
an ordinarily an officer in a public place would not be
carrying a good scale with him, as held in Noor Aga
(supra). It is only those discrepancies which particularly
have the propensity to create a doubt or false
impression of illegal possession or recovery, or to
overstate or inflate the potency, quality or weight of the
substance seized that may be pertinent and not mere
clerical mistakes, provided they are explained properly.
Whether, a particular discrepancy is critical to the
prosecution’s case would depend on the facts of each
case, the nature of substance seized, the quality of
evidence on record etc.
31. At the same time, one must be mindful of the fact
that Section 52A of the NDPS Act is only a procedural
provision dealing with seizure, inventory, and disposal of
narcotic drugs and psychotropic substances and does
not exhaustively lay down the evidentiary rules for
proving seizure or recovery, nor does it dictate the
manner in which evidence is to be led during trial. It in no
manner prescribes how the seizure or recovery of
narcotic substances is to be proved or what can be led
as evidence to prove the same. Rather, it is the general
principles of evidence, as enshrined in the Evidence Act
that governs how seizure or recovery may be proved.
32. Thus, the prosecution sans the compliance of the
procedure under Section 52A of the NDPS Act will not
render itself helpless but can still prove the seizure or
recovery of contraband by leading cogent evidence in
this regard such as by examining the seizing officer,
producing independent witnesses to the recovery, or
presenting the original quantity of seized substances
before the court. The evidentiary value of these
33
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 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 /
34
Standing Order(s), and the same is also duly certified by
a magistrate, then such certified inventory, photographs
and samples has to mandatorily be treated as primary
evidence. The use of the word “shall” indicates that it
would be mandatory for the court to treat the same as
primary evidence if twin conditions are fulfilled being (i)
that the inventory, photographs and samples drawn are
certified by the magistrate AND (ii) that the court is
satisfied that the entire process was done in consonance
and substantial compliance with the procedure
prescribed under the provision and its Rules / Standing
Order(s).
36. Even where the bulk quantity of the seized material
is not produced before the court or happens to be
destroyed or disposed in contravention of Section 52A of
the NDPS Act, the same would be immaterial and have
no bearing on the evidentiary value of any inventory,
photographs or samples of such substance that is duly
certified by a magistrate and prepared in terms of the
said provision. We say so, because sub-section (4) of
Section 52A was inserted to mitigate the issue of
degradation, pilferage or theft of seized substances
affecting the very trial. It was often seen that, due to
prolonged trials, the substance that was seized would
deteriorate in quality or completely disappear even
before the trial could proceed, by the time the trial would
commence, the 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
35
magistrate, which is now contained in sub-section (4) of
Section 52A. In other words, any inventory, photographs
or samples of seized substance that was prepared in
substantial compliance of the procedure under Section
52A of the NDPS Act and the Rules / Standing Order(s)
thereunder would have to mandatorily be treated as
primary evidence, irrespective of the fact that the bulk
quantity has not been produced and allegedly destroyed
without any lawful order.
37. Section 52A sub-section (4) should not be conflated
as a rule of evidence in the traditional sense, i.e., it
should not be construed to have laid down that only the
certified inventory, photographs and samples of seized
substance will be primary evidence and nothing else.
The rule of ‘Primary Evidence’ or ‘Best Evidence’ is now
well settled. In order to prove a fact, only the best
evidence to establish such fact must be led and
adduced which often happens to be the original
evidence itself. The primary evidence for proving
possession will always be the seized substance itself.
However, in order to mitigate the challenges in
preservation of such substance till the duration of trial,
due to pilferage, theft, degradation or any other related
circumstances, the legislature consciously incorporated
sub-section (4) in Section 52A to bring even the
inventory, photographs or samples of such seized
substance on the same pedestal as the original
substance, and by a deeming fiction has provided that
the same be treated as primary evidence, provided they
have been certified by a magistrate in substantial
compliance of the procedure prescribed. This, however,
does not mean that where Section 52A has not been
complied, the prosecution would be helpless, and
cannot prove the factum of possession by adducing
other primary evidence in this regard such as by either
36
producing the bulk quantity itself, or examining the
witnesses to the recovery etc. What Section 52A sub-
section (4) of the NDPS Act does is it creates a new
form of primary evidence by way of a deeming fiction
which would be on par with the original seized
substance as long as the same was done in substantial
compliance of the procedure prescribed thereunder,
however, the said provision by no means renders the
other evidence in original to be excluded as primary
evidence, it neither confines nor restricts the manner of
proving possession to only one mode i.e., through such
certified inventory, photographs or samples such that all
other material are said to be excluded from the ambit of
‘evidence’, rather it can be said that the provision
instead provides one additional limb of evidentiary rule in
proving such possession. Thus, even in the absence of
compliance of Section 52A of the NDPS Act, the courts
cannot simply overlook the other cogent evidence in the
form of the seized substance itself or the testimony of
the witnesses examined, all that the courts would be
required in the absence of any such compliance is to be
more careful while appreciating the evidence.
39. 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
37drawn. The relevant clause reads as under: –
“2.5 However, when the packages/containers
seized together are of identical size and weight,
bearing identical markings, and the contents of
each package given identical results on colour
test by the drug identification kit, conclusively
indicating that the packages are identical in all
respects, the packages/containers may be
carefully bunched in lots of ten
packages/containers except in the case of Ganja
and hashish (charas), where it may be bunched in
lots of 40 such packages/containers. For each
such lot of packages/containers, one sample (in
duplicate) may be drawn.”
42. As per Clause 2.8 of the Standing Order No. 1 of 89,
while drawing a sample from a particular lot,
representative samples are to be drawn, in other words,
equal quantity has to be taken from each packet in a
particular lot, that then has to be mixed to make one
composite sample. The relevant clause reads as under: –
“2.8 While drawing one sample (in duplicate) from
a particular lot, it must be ensured that represen-
tative samples in equal quantity are taken from
each package/container of that lot and mixed to-
gether to make a composite whole from which the
samples are drawn for that lot.”
40. In the present case the entire search and seizure proceeding have
been found genuine and correct procedure have been drawn by the police
persons when the police persons on secret information went on the spot,
he found on the spot, that powder of brown sugar was recovered from the
appellant along with his scooty and which were seized by police under the
procedure and provisions of NDPS Act and Its weigh and sampling were
proved by the Executive Magistrate/Tahsildar and from the Namuna Seal
38
Panchnama and from the seizure memo, it is clearly reflect the seal of “PS
Mahasamund” and nothing adverse could be found to disbelive the evi-
dence of the prosecution witnesses and it is found proved that the appel-
lant was found in possession of such a huge quantity of brown sugar
which comes to 730 gm which was seized from the exclusive possession
of the appellant and same was sent for scientific test in which it was found
to be Brown Sugar (Dye-acetyles Morphin). The appellant did not able to
impute any palpable to make good his case that there has been non-com-
pliance of any mandatory provisions of the NDPS Act.
41. There is no material available on record so as to arrive at finding that
the accused has been falsely implicated in the case. Section 21 (C ) of the
NDPS Act provides that whoever, in contravention of any provision of this
Act or any rule or order made or condition of licence granted thereunder,
manufactures, possesses, sells, purchases, transports, imports inter-
State, exports inter-State or uses any manufactured drug or any prepara-
tion containing any manufactured drug shall be punishable. In the present
case the appellant was found in possession of 730 gm of Brown Sugar. It
clearly proves that the appellant has committed the offence in question.
He could not given any suggestion as to how that huge quantity of psy-
chotropic substance came to be found in his possession.
42. The impression seal “PS Mahasamund” was also affixed in memo for
sending samples articles to FSL test. FSL Exhibit P/53 report shows that
there is brown sugar seized from the accused. It is mentioned in the report
that the seized sample is containing Dycetyle Morphine and the seized
powder is brown sugar which further corroborates the allegation against
the appellant.
39
43. This Court is of the considered view that the quantity of brown sugar
seized is more than 250 grams which is a commercial quantity, therefore,
it is crystal clear that the commercial quantity has been found from the ex-
clusive possession of the appellant. As such the prosecution has estab-
lished his case beyond reasonable doubt against the appellant. Therefore,
learned trial Court has rightly convicted the appellant under Section 21 (C)
of NDPS in Special Criminal NDPS Act Case No H-07/2021. Therefore,
there is no need for interference in the finding recorded by the Special
Judge in convicting the appellant under Section 21(C ) of NDPS Act.
44. As regard the conviction of appellant under Section 25 of Arms Act is
concerned, in the present case no one has been examined to prove the
sanction (ExP-49) accorded by the District Magistrate under Section 39 of
the Arms Act, and the weapon in question is not produced before the trial
Court and no explanation for non production of the aforesaid articles has
been offered by the proseuction and the witness Dinesh Yadav (PW-10)
had clearly stated in his court evidence in para-03 that no samples seal
was brought before him to compare the seal affixed on the seized pistol,
therefore in absence of proof of valid sanction, the conviction under Sec-
tion Section 25 of Arms Act cannot be sustainable, therefore the applicant
is acquitted from the offence punishable under Section 25 of Arms Act.
45. So far as the sentence 10 years of R.I. under Section 21 (C ) of NDPS
Act with fine of Rs. 1,00,000/-, awarded by the trial Court is concerned, it
is a minimum punishment prescribed under the Act, therefore there is no
need for interference on the sentence part also.
46. In the result, so far as conviction under Section 25 of the Arms Act,
the appellant is acquitted and the conviction of the appellant under
40
Section 21 (C ) of the NDPS Act is maintained. Thus the appeal filed by
the appellant is hereby partly allowed. The appellant is reported to be in
jail. He shall serve the remaining period of jail sentence as has been
awarded to him under Section 21(C ) of the NDPS Act by the learned trial
Court.
47. Registry is directed to send a copy of this judgment to the concerned
Superintendent of Jail where the appellant is undergoing his jail sentence
to serve the same on the appellant informing him that he is at liberty to
assail the present judgment passed by this Court by preferring an appeal
before the Hon’ble Supreme Court with the assistance of High Court
Legal Services Committee or the Supreme Court Legal Services
Committee.
48. Let a copy of this judgment and the original records be transmitted to
the trial Court concerned forthwith for necessary information and compli-
ance.
Sd/-
(Arvind Kumar Verma)
Judge