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- +0530 tion 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- 3 tered 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 14 provisions 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 21 defence 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 22 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. 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 23 different if there were no other discrepancies or if the other material on record were found to be convincing or supported by independent witnesses. The relevant observations read as under: -
"107. The seal was not even deposited in the malkhana. As no explanation whatsoever has been offered in this behalf, it is difficult to hold that sanctity of the recovery was ensured. Even the malkhana register was not produced.
xxx xxx xxx
108. There exist discrepancies also in regard to the time of recovery. The recovery memo, Exhibit PB, shows that the time of seizure was 11.20 p.m. PW 1 Kulwant Singh and PW 2 K.K. Gupta, however, stated that the time of seizure was 8.30 p.m. The appellant's defence was that some carton left by some passenger was passed upon him, being a crew member in this regard assumes importance (see Jitendra para 6). The panchnama was said to have been drawn at 10 p.m. as per PW 1 whereas PW 2 stated that panchnama was drawn at 8.30 p.m. Exhibit PA, containing the purported option to conduct personal search under Section 50 of the Act, only mentioned the time when the flight landed at the airport.
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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.
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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
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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 37 drawn. The relevant clause reads as under: -
"2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of Ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn."
42. As per Clause 2.8 of the Standing Order No. 1 of 89, while drawing a sample from a particular lot, representative samples are to be drawn, in other words, equal quantity has to be taken from each packet in a particular lot, that then has to be mixed to make one composite sample. The relevant clause reads as under: -
"2.8 While drawing one sample (in duplicate) from a particular lot, it must be ensured that 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