Chattisgarh High Court
Mukesh Sahu vs State Of Chhattisgarh on 12 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
2026:CGHC:11835-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1569 of 2025
Mukesh Sahu S/o Shankar Sahu Aged About 35 Years R/o M.G. Ward No. 16, Kanker,
P.S. Kanker District North Bastar, C.G. ... Appellant(s)
versus
State Of Chhattisgarh Through The Station House Officer, Chura District Gariyaband,
C.G. ...Respondent(s)
(Cause-title taken from Case Information System)
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For Appellant : Shri MPS Bhatia, Advocate For Respondent/State : Shri Soumya Rai, Dy GA
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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Justice Ravindra Kumar Agrawal Judgment on Board Per Ramesh Sinha, Chief Justice 12.03.2026 Heard Shri MPS Bhatia, learned counsel for the appellant. Also heard Shri Soumya Rai, learned Dy GA appearing for the respondent/State.
1. Present appeal under section 415(2) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) has been filed by the appellant against the impugned judgment of conviction and order of sentence dated 22.07.2025 (Annexure A1) passed by the learned Special Judge (NDPS Act), Raipur, District-Raipur in special Criminal Case-158 of 2021, Cra 1569 of 2025 2 whereby the appellant has been convicted and sentenced in the following manner with default stipulation:
Conviction Sentence Under Section 20(b)(ii)(C) RI for 15 years and to pay fine of of the NDPS Act Rs.1,50,000/-
Under Section 25(1)(a) of RI for 7 years and to pay fine of
the Arms Act Rs.1,000/-
(Both the sentences to run
concurrently)
2. The prosecution case, in brief, is that on 03.10.2021 the Investigating Officer, Assistant Sub-Inspector of Police Station Chura, District Gariyaband, received credible information from an informant to the effect that a person was transporting contraband Ganja from the State of Odisha to village Kosmi in a Santro car bearing registration No.CG-04/NG-4134 (for short, 'Santro car'). Acting upon the said information, an informant panchnama was prepared in compliance with the mandatory provisions of the Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS Act), and necessary steps were taken to secure the presence of independent witnesses. Thereafter, the police party proceeded to the indicated spot and cordoned off the area. At the time and place pointed out by the informant, a white Santro car bearing registration No.CG-04/NG-4134 was seen approaching from the side of village-Churkidadar. On noticing the police presence, the driver of the vehicle abandoned the car on the road and fled from the spot along with the keys. The vehicle was thereafter searched on the spot in accordance with law. During the search of the aforesaid Santro car, a total of 73.370 kgs of ganja was recovered, packed in 44 separate Cra 1569 of 2025 3 packets kept inside five plastic bags. In addition thereto, from a black bag lying near the driver's seat, one country-made pistol, and four live cartridges were also recovered. The search and seizure proceedings were conducted in presence of independent witnesses, and the Santro car was duly inspected. The recovered contraband and arms were seized in accordance with law. In compliance with the mandatory provisions of the NDPS Act, representative samples of 100 grams each were drawn from the seized Ganja, properly sealed, and marked for forensic examination. Thereafter, a formal crime was registered, and investigation was set in motion. During the course of investigation, the accused persons as well as the registered owner of the vehicle were traced out. The registered owner, namely Bhagwat Sahu, PW3 disclosed that at the relevant time, the vehicle was in the possession and control of Mukesh Sahu, who is brother of Bhagwat Sahu. The investigating officer interrogated the accused Mukesh Sahu and duly informed him of the grounds for arrest and arrested him. His family members were informed of the arrest of the accused. The investigating officer prepared spot map of the incident and recorded the Dehati Nalishi. After the said proceeding, on returning to the police station, the recovered goods and samples were handed over to the Mal Munshi of the police station in a sealed condition for safekeeping. The investigating officer sent a report of the entire proceedings to his superior officer. After obtaining a draft from the Senior Superintendent of Police, the drugs seized from the accused were sent for testing through a constable. The seized samples were sent to the Forensic Science Laboratory, Raipur, for chemical examination. As per the FSL report, the samples were found to contain Ganja. On the basis of the Cra 1569 of 2025 4 material collected during investigation, it was alleged that the accused was found in illegal possession of commercial quantity of Ganja, along with one country-made pistol (katta), and four live cartridges. Upon completion of the investigation, charge-sheet was filed against the accused for the offences punishable under Section 20(b)(ii)(C) of the NDPS Act and Section 25 of the Arms Act before the competent Court.
3. The learned trial Court framed charges against the accused under Section 20(b)(ii)(C) of the NDPS Act and Section 25(1)(a) of the Arms Act. The contents of the charges were read over and explained to the accused, who denied the same and pleaded not guilty, thereby claiming to be tried.
4. In order to bring home the guilt of the accused, the prosecution examined as many as 11 witnesses. These included independent witnesses, namely Santu Nishad (PW-1), Lucky @ Leela Sinha (PW-2), Bhagwat Sahu (PW-3), Jitendra Dewangan (PW-4), Madhav Sahu (PW-5), Dayanand Gaur (PW-6), SDOP Reader Panchram Netam (PW-7), Johan Aditya (PW-8), Head Constable/Malkhana In-charge Khileshwar Kashyap (PW-9), Investigating Officer Shrawan Vishwakarma (PW-10), and Rewa Ram Dhruw (PW-11) were also examined, and their statements were duly recorded before the Court.
5. After completion of the prosecution evidence, the statement of the accused was recorded under Section 313 of the Cr.P.C. (corresponding to Section 351 read with Section 316 of the BNSS), wherein all incriminating circumstances appearing against him were put to him. The accused denied Cra 1569 of 2025 5 the same, pleaded innocence, and stated that he has been falsely implicated in the present case, and he did not choose to lead any evidence in his defence.
6. Learned counsel for the appellant submitted that the appellant was not found on the spot, and it was an abandoned car, from where the Police seized the contraband Ganja. It is only on the basis of statement of his brother Bhagwat Sahu (PW-3) that the appellant is maintaining the vehicle, he has been made accused in the present case. Mandatory provisions under Sections 40, 41, 42, 50, and 57 of the NDPS Act have not been applied. The independent witnesses have not supported the prosecution case, and in absence of any cogent and clinching evidence against the appellant, he cannot be convicted. It is further contended that the conviction cannot be sustained solely on the basis of testimonies of police officials in the absence of independent corroboration. It is also argued that the investigation suffers from material irregularities and non-compliance of mandatory provisions of law, creating serious doubt about the prosecution case, entitling the accused for his acquittal. It is further submitted that during the pendency of the trial, the appellant remained on bail. Aggrieved by the judgment of conviction and sentence of the learned trial Court, the present criminal appeal has been preferred.
7. On the other hand, learned counsel appearing for the State opposes the submissions of learned counsel for the appellant and would submit that the entire prosecution case as prescribed under the mandatory provisions of NDPS Act have been followed. There is ample evidence on record that after Cra 1569 of 2025 6 seeing the Police party, appellant left the car in abandoned condition, and fled away from the place. When the prosecution gathered information about the control of the abandoned car from its owner, who is none other but brother of present appellant, he disclosed that the appellant was driving the said vehicle. All the mandatory provisions have been applied with, and there is no material irregularities, or infirmity in the impugned judgment passed by the learned trial Court, and therefore, the appeal of the appellant is liable to be dismissed.
8. We have heard learned counsel for the parties, and perused the record.
9. PW10-Shrawan Vishwakarma is the Investigating Officer, who stated in his evidence that on 03.10.2021, he received secret information that one Santro car bearing registration No.CG-04/NG-4134 is coming from Nawapara Kosmi side carrying Ganja in it. Said information was reduced in Roznamchasanha Ex.P26. He called two independent witnesses through Constable Dayanand Gaur (PW6) and his departure was reduced in Roznamchasanha Ex.P27. Two independent witnesses Santu Nishad and Lucky @ Leela Sinha were called vide Ex.P28. The secret information panchnama Ex.P29 was prepared. Copy of the secret information panchnama was forwarded to SDOP through the Constable, and relevant entries have been made in the Roznamchasanha Ex.P30. Police party along with witnesses proceeded towards the indicated spot, and there departure was also reduced in writing in Roznamchasanha Ex.P31. The secret information was also informed to the independent witnesses, and its Cra 1569 of 2025 7 panchnama is Ex.P2. When the Police party reached on the indicated spot, after some time, said Santro car came there. However, the driver of the car after seeing the Police party, stopped the vehicle, and fled away from the place, leaving the vehicle in abandoned condition. On being search of the vehicle, 5 bags containing Ganja was recovered and they prepared Talashi panchnama Ex.P3. They also recovered one country made pistol, one magzin contained with four live cartridges. Then, recovery panchnama Ex.P6 was prepared. The seized ganja was physically identified by its rubbing, smelling, and burning and Ex.P4 was prepared. The weighment witness Jitendra Dewangan was also called through Madhav Sahu, Police Constable, and notice Ex.P19 was given to him. Physical verification panchnama of weighment apparatus is Ex.P5, seized ganja was homogenized and Ex.P8 was prepared. On being weighed, the seized contraband was found to be total 73.370 kg, and weighment Ex.P7 was prepared. Two samples of 100 gms each were drawn from the total quantify of ganja which was marked as A1 and A2, and they were separately sealed, and the relevant panchnama Ex.P9 was prepared. The seizure memo Ex.P3 with respect to seizure of ganja, Santro car, pistol and four live cartridges were prepared. Specimen seal panchnama was also prepared. Accused was arrested and his arrest has been informed to his family vide Ex.P32, spot map Ex.P33 was prepared, Dehati Nalishi Ex.P34 was recorded on the spot. After conducting the search and seizure proceedings, Police party along with seized articles, and car, came back to the Police Station, and their arrival was recorded in Roznamchasanha Ex.P35. The seized ganja and articles were kept in safe custody of Malkhana and obtained Cra 1569 of 2025 8 acknowledgment Ex.P24; FIR Ex.P36 was registered against the accused and the report of details of search and seizure proceeding under Section Ex.P57 of NDPS Act was sent to the Senior Officer SDOP, and the departure of the constable was recorded vide Ex.P37. Along with duty certificate Ex.P38, the sample packets of the ganja were sent to the FSL Raipur for chemical examination. FSL report Ex.P39 and 40 were given by the State FSL Raipur. He recorded statement of the witnesses. The weighment panchnama Ex.P41 and the map of the pistol is Ex.P42. He also issued notice under Section 91 of the CrPC to Mukesh Sahu which is Ex.P43, and after completion of usual investigation, charge-sheet was filed against the present appellant.
In cross-examination, he admitted that in the document Ex.P26 to Ex.P31, and Ex.P35 to Ex.P37, there is no mention of am or pm. He also admitted that immediately after receiving the secret information, he has not informed it in writing to the senior officer. It is also admitted that in the case there is no panchnama they gave their own search to the independent witnesses Santu Nishad and Lucky @ Leela Sahu. They have not taken any photograph of the Car which was found in abandoned condition. He admitted that the vehicle was registered in the name of the Bhagwat Sahu and on the spot, he has not found the accused. He denied the suggestion that he has not seen the accused running from the spot. He further admitted that the subject car was locked by all sides. He has not prepared any panchnama about the fact that how the vehicle has been taken to the Police Station. He denied the suggestion that brother of the appellant was Cra 1569 of 2025 9 stopped by the Police during vehicle checking, and some altercation took place between them, and then, the driver of the vehicle fled away from the place and he took the vehicle to the Police Station, and for that reason, he prepared false case.
10. From the entire evidence, and cross-examination, the defence could not be able to rebut any factual allegation that on 03.10.2021, 73.370kg and one pistol, and four live cartridges were recovered from the Santro car at Nawapara Kosmi. Driver of the said vehicle fled away after seeing the Police party on the road, and on being checked, ganja, pistol and cartridges were recovered from the car.
11. PW1 Santu Nishad, and PW2 Lucky @ Leela Sahu were the independent witnesses. Though they have turned hostile, however, they admitted their signature over the panchnamas Ex.P1 to Ex.P16. PW3 Bhagwant Das is the owner of the said Santro car. He stated that the accused is his brother, and the vehicle was being driven by his brother at the time of incident, and he did not know how to drive the vehicle. No question has been put in cross-examination of this witness by the prosecution. PW4 Jitendra Dewangan, weighment witness is also the independent witness, who signed the panchnamas Ex.P19, Ex.P5 and Ex.P7. He too has been declared hostile, and not supported the prosecution case. PW5- Madhav Sahu is the Constable, who called the weighment witness Jitendra Dewangan, and proved his duty certificate Ex.P19. PW6-Dayanand Gaur is also Constable, who proved Ex.P20, by which he called the independent witnesses Santu Nishad and Lucky @ Leela Sahu. PW7-Panchram Netam Cra 1569 of 2025 10 is the Constable posted as Reader in the Office of SDOP, Gariyaband. He received copy of secret information panchnama and issued acknowledgment Ex.P21 and also received details of proceedings and issued acknowledgment Ex.P22. PW8 Johan Aditya is the Constable posted at PS-Chura, who has taken the secret information panchnama to the Office of SEOP and proved the certificate Ex.P23. PW9 Khileshwar Kashyap, Head Constable posted at Malkhana, PS-Devbhog, District-Gariyaband.
12. In the present case, appellant was not arrested on the spot, and he has taken defence that the subject vehicle Santro car bearing registration No.CG-04/NG-4134 was recovered by the Police in abandoned condition, and he neither driver nor owner of the said vehicle. There was dispute between the younger brother of the appellant and the Police persons and due to that dispute arose during the vehicle checking, the appellant was made accused in the case. The Investigating Officer, PW10-Shrawan Vishwakarma, by whom FIR has been lodged, though has admitted in his evidence that the vehicle was registered in name of PW3-Bhagwat Sahu but he denied the suggestion that he has not seen the appellant running from the place. It is the allegation against the appellant that when the Police party went to the indicated place, and the appellant was coming in the car, and after seeing the Police party, he left the car in abandoned condition on the road, and fled away. One other aspect is also available in the present case that Bhagwat Sahu, who is brother of the appellant has been examined as PW3, and he deposed in his evidence that the vehicle is being driven by his brother, the present appellant and he did not know driving. The said Cra 1569 of 2025 11 evidence of PW3 has not been challenged in his cross-examination. There is no other evidence on record, produced either by the appellant, or his brother that the appellant was not there in the vehicle on the date of alleged incident, and some one else was driving the vehicle in question. When the owner of the vehicle himself stated that the vehicle was being driven by the appellant, he could also have said that on the date of incident, vehicle was being driven by some other person, but PW3-Bhagwat Sahu has not stated so, and thus the involvement of the appellant in the offence in question is found proved by the learned trial Court, in which we also do not find any perversity.
13. So far as the noncompliance of provisions of Section 42 of the NDPS Act is concerned, since the appellant fled away from the place at the relevant time of search and seizure proceeding, after leaving the subject car in abandoned condition, yet the Investigating Officer PW10 reduced the secret information in writing which is Ex.P2, and the same was also entered in the Roznamchasanha Ex.P26. Copy of the secret information panchnama was forwarded on 03.10.2021 to the Senior Officer/SDOP, which has been proved by the document Ex.P21.
14. In the present case, there is allegation that on receipt of secret information by the Police party, the party went to the spot-Nawapara, Kosmi, Piprahi road and seized the contraband from the car. The alleged contraband was seized while transporting through the vehicle, and the same was seized in a car from a public place, for which Section 43 of the NDPS Act would be applicable yet the Police authorities have complied with Cra 1569 of 2025 12 complaint that Section 42 and sent a copy of secret information panchnama to the Senior Officer/SDOP, Gariyaband, and obtained its acknowledgment.
15. Section 43 of the NDPS Act provides the powers of seizure and arrest in public place which reads as under:
"43. Power of seizure and arrest in public place- Any officer of any of the departments mentioned in section 42 may:-
(a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Cra 1569 of 2025 13 Explanation- For the purposes of this section, the expression public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public."
16. The fact of the case as well as evidence available in the present case make it clear that the subject vehicle was found at Nawapara, Kosmi, Piprahi Road. While checking the subject vehicle, it was found contained Ganja of 73.370 kg . Admittedly, the vehicle was found at a public place, and ganja was recovered while in transit, which was being carried by the said vehicle. Therefore, the issue of noncompliance of Section 42 is not applicable in the present case, and the Police authority enacted Section 43 of the NDPS Act as the place of occurrence is a public place and there is access to the public and therefore, it falls within the ambit of 'public place' in view of the provisions of explanation to Section 43, Section 42 of the NDPS Act had no application. Despite that the copy of information panchnama was forwarded to the SDOP, Sitapur on the same day, which has been proved by the witnesses. Ganja was seized during its transit in an abandoned car as contemplated in Section 43(a), i.e. seized in any public place or in transit, this Court is of the considered opinion that Section 43 of the NDPS Act is applicable and as such recording for reason for belief and for taking down the information received in writing with regard to commission of offence for conducting search and seizure is not required to be complied with under Section 43 of the NDPS Act.
Cra 1569 of 2025 14
17. In the matter of Firdoskhan Khurshidkhan vs. State of Gujarat and Another dated 30.04.2024 reported in 2024 SCC OnLine SC 680 has held in para 18 as under:
"18. Section 42 of the NDPS Act deals with search and seizure from a building, conveyance or enclosed place. When the search and seizure is effected from a public place, the provisions of Section 43 of the NDPS Act would apply and hence, there is no merit in the contention of learned counsel for the appellants that non-compliance of the requirement of Section 42(2) vitiates the search and seizure. Hence, the said contention is noted to be rejected."
18. In the matter of State of Haryana vs. Jarnail Singh and Others reported in 2004 (5) SCC 188 in Para 9 and 10 of its judgment the Hon'ble Supreme Court has held that:
"9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his Cra 1569 of 2025 15 satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.
10. In the instant case there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police was also a member of the searching party. It has been held by this Court in M. Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence : (2003) 8 SCC 449 that where a search is conducted by a gazetted officer himself acting under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42. For this reason also, in the facts of this case, it was not necessary to comply with the requirement of the proviso to Section 42 of the NDPS Act."
19. In the matter of Kallu Khan vs. State of Rajasthan reported in 2021 (19) SCC 197 in Para 12, 13 and 16 of its judgment the Hon'ble Supreme Court has held that:
"12. After hearing and on perusal of record and the evidence brought, it is apparent that on apprehending the accused, while making search of the motor cycle, 900 gm of smack was seized Cra 1569 of 2025 16 to which seizure and sample memos were prepared, as proved by the departmental witnesses. In the facts of the case at hand, where the search and seizure was made from the vehicle used, by way of chance recovery from public road, the provisions of Section 43 of the NDPS Act would apply. In this regard, the guidance may be taken from the judgments of this Court in S. K. Raju (supra) and S.K. Sakkar (supra). However, the recovery made by Pranveer Singh (PW6) cannot be doubted in the facts of this case.
13. Now reverting to the contention that the motor cycle seized in commission of offence does not belong to accused, however seizure of the contraband from the motor cycle cannot be connected to prove the guilt of accused. The Trial Court on appraisal of the testimony of witnesses, Constable Preetam Singh (PW1), Constable Sardar Singh (PW2), S.I. Pranveer Singh (PW6) and ConstableRajendra Prasad (PW8), who were members of the patrolling team and the witnesses of the seizure, proved beyond reasonable doubt, when they were on patrolling, the appellant came driving the seized vehicle from opposite side. On seeing the police vehicle, he had taken back the motor cycle which he was riding. However, the police team apprehended and intercepted the accused and made the search of vehicle, in which the seized contraband smack was found beneath the seat of the vehicle. However, while making search at public place, the contraband was seized from the motor cycle driven by the Cra 1569 of 2025 17 accused. Thus, recovery of the contraband from the motor cycle of the appellant was a chance recovery on a public road. As per Section 43 of NDPS Act, any officer of any of the departments, specified in Section 42, is having power of seizure and arrest of the accused from a public place, or in transit of any narcotic drug or psychotropic substance or controlled substance. The said officer may detain in search any person whom he has reason to believe that he has committed an offence punishable under the provisions of the NDPS Act, in case the possession of the narcotic drug or psychotropic substance appears to be unlawful. Learned senior counsel representing the appellant is unable to show any deficiency in following the procedure or perversity to the findings recorded by the Trial Court, affirmed by the High Court. The seizure of the motor cycle from him is proved beyond reasonable doubt, therefore, the question of ownership of vehicle is not relevant. In the similar set of facts, in the case of Rizwan Khan (supra), this Court observed the ownership of the vehicle is immaterial. Therefore, the argument as advanced by learned senior counsel is of no substance and meritless."
20. With respect to non-compliance of provisions of Section 52-A of the NDPS Act, Hon'ble Supreme court has considered the issue in the case of Bharat Ambale Vs State of CG in CRA-250 of 2025, order dated 06.01.2025, and held that irrespective of any failure to follow the procedure led under Section 52-A of the NDPS Act, if other material on record adduced Cra 1569 of 2025 18 by the prosecution inspire confidence, and satisfy the Court regarding both recovery and possession of the contraband from the accused, even in such cases, the Court can without any hesitation, proceed for conviction notwithstanding any procedural difficulty in terms of Section 52-A of the NDPS Act.
21. In the matter of Bharat Aambale (supra) the Hon'ble Supreme Court in Para 25 to 37 has held as under:
25. In Noor Aga (supra) the order of conviction had been set-
aside not just on the ground of violation of Section 52A but due to several other discrepancies in the physical evidence as to the colour and weight, and due to the lack of any independent witnesses. In fact, this Court despite being conscious of the procedural deficiencies in the said case in terms of Section 52A observed that the matter may have been entirely different if there were no other discrepancies or if the other material on record were found to be convincing or 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 Cra 1569 of 2025 19 recovery. The recovery memo, Exhibit PB, shows that the time of seizure was 11.20 p.m. PW 1 Kulwant Singh and PW 2 K.K. Gupta, however, stated that the time of seizure was 8.30 p.m. The appellant's defence was that some carton left by some passenger was passed upon him, being a crew member in this regard assumes importance (see Jitendra para 6). The panchnama was said to have been drawn at 10 p.m. as per PW 1 whereas PW 2 stated that panchnama was drawn at 8.30 p.m. Exhibit PA, containing the purported option to conduct personal search under Section 50 of the Act, only mentioned the time when the flight landed at the airport.
xxx xxx xxx
111. In a case of this nature, where there are a large number of discrepancies, the appellant has been gravely prejudiced by their non-examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to 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 Cra 1569 of 2025 20 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 Cra 1569 of 2025 21 in the prosecution's case. In such instances of procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place.
27. In such circumstances, particularly where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in adequately proving compliance of the same, it would not be appropriate for the courts to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record. Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
28. In Khet Singh v. Union of India reported in (2002) 4 SCC Cra 1569 of 2025 22 380 this Court held that the Standing Order(s) issued by the NCB and the procedure envisaged therein is only intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It further observed that there may, however, be circumstances in which it would not be possible to follow these guidelines to the letter, particularly in cases of chance recovery or lack of proper facility being available at the spot. In such circumstances of procedural illegality, the evidence collected thereby will not become inadmissible and rather the courts would only be required to consider all the circumstances and find out whether any serious prejudice had been caused to the accused or not. Further it directed, that in 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 Cra 1569 of 2025 23 accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance.
xxx xxx xxx
10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in- charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later Cra 1569 of 2025 24 stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody.
xxx xxx xxx
16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course Cra 1569 of 2025 25 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, 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 Cra 1569 of 2025 26 (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."
Cra 1569 of 2025 27 (Emphasis supplied)
30. Thus, from above it is clear that the procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to ensure that a fair procedure is adopted by the officer- in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein. We say so because, due to varying circumstances, there may be situations wherein it may not always be possible to forward the seized contraband immediately for the purpose of sampling. This could be due to various factors, such as the sheer volume of the contraband, the peculiar nature of the place of seizure, or owing to the volatility of the substance so seized that may warrant slow and safe handling. There could be situations where such contraband after being sampled cannot be preserved due to its hazardous nature and must be destroyed forthwith or vice-verse where the nature of the case demands that they are preserved and remain untouched. Due to such multitude of possibilities or situations, neither can the police be realistically expected to rigidly adhere to the procedure laid down in Section 52A or its allied Rules / Orders, nor can a strait-jacket formula be applied for insisting compliance of each procedure in a specified timeline to the letter, due to varying situations or requirements of each case. Thus, what is actually required is only a substantial compliance of the Cra 1569 of 2025 28 procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the court to draw an adverse inference against the police as per the facts of each and every case. When it comes to the outcome of trial, it is only after taking a cumulative view of the entire material on record including such discrepancies, that the court should proceed either to convict or acquit the accused. Non- compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. In other words, the discrepancy should be such that it renders the entire case of the prosecution doubtful, such as instances where there are significant discrepancies in the colour or description of the substance seized from that indicated in the FSL report as was the case in Noor Aga (supra), or where the contraband was mixed in and stored with some other commodity like vegetables and there is no credible indication of whether the narcotic substance was separated and then weighed as required under the Standing Order(s) or Rules, thereby raising doubts over the actual quantity seized as was the case in Mohammed Khalid (supra), or where the recovery itself is suspicious and uncorroborated by any witnesses such as in Mangilal (supra), or where the bulk material seized in contravention of Section 52A was not produced before the court despite being directed to be preserved etc. These illustrations are only for the purposes of Cra 1569 of 2025 29 brining clarity on what may constitute as a significant discrepancy in a given case, and by no means is either exhaustive in nature or supposed to be applied mechanically in any proceeding under the NDPS Act. It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc. The Court may not discard the entire prosecution case looking into such discrepancies as more often than not an ordinarily an officer in a public place would not be carrying a good scale with him, as held in Noor Aga (supra). It is only those discrepancies which particularly have the propensity to create a doubt or false impression of illegal possession or recovery, or to overstate or inflate the potency, quality or weight of the substance seized that may be pertinent and not mere clerical mistakes, provided they are explained properly. Whether, a particular discrepancy is critical to the prosecution's case would depend on the facts of each case, the nature of substance seized, the quality of evidence on record etc.
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 Cra 1569 of 2025 30 down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. It in no manner prescribes how the seizure or recovery of narcotic substances is to be proved or what can be led as evidence to prove the same. Rather, it is the general principles of evidence, as enshrined in the Evidence Act that governs how seizure or recovery may be proved.
32. Thus, the prosecution sans the compliance of the procedure under Section 52A of the NDPS Act will not render itself helpless but can still prove the seizure or recovery of contraband by leading cogent evidence in this regard such as by examining the seizing officer, producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra).
33. Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily Cra 1569 of 2025 31 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 / 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 Cra 1569 of 2025 32 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 Cra 1569 of 2025 33 procedural safeguards and supervision through the requirement of certification by a magistrate, which is now contained in sub- section (4) of Section 52A. In other words, any inventory, photographs or samples of seized substance that was prepared in substantial compliance of the procedure under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to mandatorily be treated as primary evidence, irrespective of the fact that the bulk quantity has not been produced and allegedly destroyed without any lawful order.
37. Section 52A sub-section (4) should not be conflated as a rule of evidence in the traditional sense, i.e., it should not be construed to have laid down that only the certified inventory, photographs and samples of seized substance will be primary evidence and nothing else. The rule of 'Primary Evidence' or 'Best Evidence' is now well settled. In order to prove a fact, only the best evidence to establish such fact must be led and adduced which often happens to be the original evidence itself. The primary evidence for proving possession will always be the seized substance itself. However, in order to mitigate the challenges in preservation of such substance till the duration of trial, due to pilferage, theft, degradation or any other related circumstances, the legislature consciously incorporated sub- section (4) in Section 52A to bring even the inventory, photographs or samples of such seized substance on the same pedestal as the original substance, and by a deeming fiction has Cra 1569 of 2025 34 provided that the same be treated as primary evidence, provided they have been certified by a magistrate in substantial compliance of the procedure prescribed. This, however, does not mean that where Section 52A has not been complied, the prosecution would be helpless, and cannot prove the factum of possession by adducing other primary evidence in this regard such as by either producing the bulk quantity itself, or examining the witnesses to the recovery etc. What Section 52A sub-section (4) of the NDPS Act does is it creates a new form of primary evidence by way of a deeming fiction which would be on par with the original seized substance as long as the same was done in substantial compliance of the procedure prescribed thereunder, however, the said provision by no means renders the other evidence in original to be excluded as primary evidence, it neither confines nor restricts the manner of proving possession to only one mode i.e., through such certified inventory, photographs or samples such that all other material are said to be excluded from the ambit of 'evidence', rather it can be said that the provision instead provides one additional limb of evidentiary rule in proving such possession. Thus, even in the absence of compliance of Section 52A of the NDPS Act, the courts cannot simply overlook the other cogent evidence in the form of the seized substance itself or the testimony of the witnesses examined, all that the courts would be required in the absence of any such compliance is to be more careful while Cra 1569 of 2025 35 appreciating the evidence."
22. Further in the matter of Surepally Srinivas Vs. State of Andhra Pradesh, 2025 SCC Online SC 683, the Supreme Court has held in papa 13 as under:
"13. In Bharat Aambale (supra), this Court held that the purport of Section 52- A, NDPS Act read with Standing Order No. 1/89 extends beyond mere disposal and destruction of seized contraband and serves a broader purpose of strengthening the evidentiary framework under the NDPS Act. This decision stresses upon the fact that what is to be seen is whether there has been substantial compliance with the mandate of Section 52-A and if not, the prosecution must satisfy the court that such non-compliance does not affect its case against the accused. This is also what has been held in Kashif (supra)."
The judgment passed by Honb'le Supreme court also affirms that if there has been substantial compliance with the mandate of Section 52-A, minor discrepancies in conducting search and seizure proceeding does not affect its credibility.
23. In the present case, the entire search and seizure proceedings was found genuine and correct procedure have been drawn by the police authority. Though, the independent witnesses have not supported the prosecution case, but they have admitted their signature over the documents and panchnamas prepared on the spot which has also been duly proved by Cra 1569 of 2025 36 the investigating officer. The seizure of Ganja and its weight and sampling were proved by the witnesses and nothing adverse could be found to disbelieve their evidence, which, further prove that the appellant was found in possession of ganja weighing 73.370 kg in his vehicle Santro car bearing registration No.CG-04/NG-4134. The appellant did not able to impute any palpable to make good his case that there has been noncompliance of any mandatory provisions of the NDPS Act.
24. There is no material available on record so as to arrive at a finding that the appellant has been falsely implicated in the case. Section 20 of the NDPS Act provides that whoever in contravention of any provisions of the Act, or any rules made thereunder, possesses ganja shall be punished in accordance with the said provisions.
25. Section 20(b) uses "possess". In the present case is found in the possession of 73.370 kg ganja in his Santro car. The judgment passed by the learned trial Court is quite in detail judgment which is dealt with every aspect of the matter and the analysis made therein clearly proves that the appellant committed offence in question, and was transporting ganja weighing 73.370 kg. He could not give any explanation as to how the huge quantity of ganja came to be found in his vehicle.
26. FSL report Ex.P40 further proves that the sample packets of ganja which were drawn from the total quantity of ganja found from the car, found to be contained with ganja contents, and further, it was corroborated the allegation against the appellant.
Cra 1569 of 2025 37
27. From the car, which was in possession of the appellant, one country made pistol and four live cartridges have also been seized. Notice under Section 91 of the CrPC was also issued to the appellant to produce any valid document of possession of the said country made pistol and live cartridges. However, appellant has given in writing that he is not having any document with respect to the said pistol, and live cartridges. When it was found that the appellant was found in possession of country-made pistol, and live cartridges, and he could not produce any valid document of their possession with him, the offence under Section 25(1)(a) of the Arms Act was also found proved by the learned trial Court.
28. Learned trial court has also considered that merely on the fact that the Investigating Officer has not tested the said country made pistol by its firing and no panchnama was prepared, that itself does not affect the prosecution case as the appellant himself had given in writing that he is not having any document with respect to possession of the said pistol, and four live cartridges. The finding recorded by the learned trial Court with respect to the conviction of the appellant for the offence of Section 25(1)(a) of the Arms Act was also found to be based on proper appreciation of evidence available on record.
29. In view of the above discussions, this Court is of the considered opinion that the judgment passed by learned trial Court is based on proper appreciation of evidence which is neither perverse nor contrary to the record as well as law laid down by the Hon'ble Supreme Court and the same needs no interference as such the judgment of conviction and order of sentence Cra 1569 of 2025 38 awarded to the appellants is hereby affirmed.
30. Accordingly, the appeal filed by the appellants is dismissed. The appellant is reported to be in jail since 22.07.2025. He shall serve the entire sentence awarded by the trial court.
31. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing him that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.
32. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
padma
Digitally signed by
V PADMAVATHI
Date: 2026.03.23
12:37:13 +0530