Chattisgarh High Court
Amar Dubey @ Gogo vs State Of Chhattisgarh on 15 July, 2025
1
Digitally
2025:CGHC:33029
signed by
SHOAIB
SHOAIB ANWAR
ANWAR Date:
2025.07.21
NAFR
17:28:23
+0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 3 of 2016
Amar Dubey @ Gogo S/o Arun Dubey Aged About 28 Years R/o Bhathi Road
Brahaman Para, P.S. Ambikapur, Distt. Surguja, Chhattisgarh., Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through Police Station Ambikapur, Distt. Surguja,
Chhattisgarh., Chhattisgarh
... Respondent(s)
(Cause title taken from CIS) For Petitioner(s) : Shri A.N. Pandey, Advocate.
For Respondent(s) : Ms. Isha Jajodia, Panel Lawyer Hon'ble Shri Bibhu Datta Guru, Judge Order on Board Per Bibhu Datta Guru, Judge 15.07.2025
1. Heard Shri A.N. Pandey, learned counsel for the appellant. Also heard Ms. Isha Jajodiya, learned Panel Lawyer, appearing for the State/respondent.
2. This Criminal appeal is preferred against the judgment and order dated 14.12.2015 passed by the learned Special Judge (NDPS Act) Ambikapur, 2 Disrict Surguja (C.G.) in Special Session Trial No. 02/2015, whereby the appellant has been convicted and sentenced for the offence punishable under Section 21 (B) of Narcotic Durgs and Psychotropic Substance Act, 1985 (for short, 'NDPS') and sentenced him to undergo rigoruous imprisonment for 10 years with fine of Rs. 1,00,000/- and in default of payment of fine amount additional rigorous imprisonment for 01 year.
3. The case of the prosecution in brief is that on 19.02.2015, the Sub-
Inspector of Police Station Ambikapur received a secret information that the appellant has illegally possessed the brown sugar and selling it near the Kerala Coffee House and on the basis of information, the police after completing all the formality summoned two witnesses Sanjeev Pandey and Arvind Tiwari and after preparing Mukhbiri Panchnama (Ex.P/1) left for further raid near the Coffee House and arrested the appellant and seized 47.150 gm of Brown Sugar from the pocket of the appellant Subsequently, an FIR was lodged. After completion of investigation, a charge-sheet was filed against the appellant.
4. In order to bring home the offence, the prosecution has examined 08 witnesses in its support. Statement of the accused/appellant under Section 313 Cr.P.C was recorded, wherein he has pleaded his innocence and false implication in the matter.
5. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 14.12.2015 has convicted and sentenced the appellant as mentioned in paragraph two of this judgment. Hence, this appeal.
6. (a) Learned counsel for the appellant would submit that the 3 prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis to convict the appellant for the alleged offence. There are non-compliance of the mandatory provisions of Section 42, 50, 52, 52-A, 55 and 57 of the NDPS Act. There is absolutely non-compliance of the Standing Order of 1/89 issued by the Central Government with respect to the procedure for drawing of the samples and in absence of any proper procedure for drawing the samples, the entire procedure vitiates. Therefore, the appellant cannot be convicted for the alleged offence.
(b) learned counsel submits that the seizure was made by the police in absence of any Class-II Officer, therefore the whole procedure in respect of seizure of the Brown Sugar from the exclusive possession of the appellant is doubtful. He further submit the packet of Brown Sugar was not provided to the Mal Mohrir in closed packet and even the said packet was not weighed. Learned counsel submit that the prosecution has not complied the mandatory provision of NDPS Act in respect of seizure of the Brown sugar. Thus, the impugned judgment of conviction and order of sentence are bad in law and the same deserve to be set aside. In the alternate, he would pray for reduction of jail sentence.
7. On the other hand, learned counsel for the State opposes and has submitted that the entire procedure as prescribed under the NDPS Act has been followed in its letter and spirit and after considering the evidence available on record, the learned trial Court has rightly 4 convicted and sentenced the appellant for the alleged offence. The appellant was found in possession of Brown Sugar i.e. 47.150 gms and there has been no explanation offered by him as to how he came into the possession of such a huge quantity. All the mandatory provisions have been duly complied with, therefore, there is no irregularity or infirmity in the impugned judgment passed by learned trial Court and the appeal of the appellant is liable to be dismissed.
8. I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection.
9. PW5- Sanjeev Pandey, who is a independent witness, has stated that when he was called at the Mission Chowk after notice, he saw that the police personnel had already caught hold one person. He deposed that the police personnel had seized some powder type ingredients from the appellant.
In cross-examination, this witness has categorically examined that though he was searched on the said date, except him no one was searched. He also stated that though he had signed certain documents in respect of the proceedings, the police personnel had not disclosed him what was written on them.
10. PW7- Ashish Tiwari, who is also a independent witness, has stated that he had signed the notice (ExP/8) in the Police Station. He deposed that while he along with Sanju Pandey (PW5) were going to their house, they saw there was some crowd gathered at Mission Chowk. The police 5 personnel stopped that and in front of them, the appellant was searched and some packets containing white type powder was seized. He had signed certain documents, but he had not read them.
In cross-examination, he denied that when he was studying in his house, the police had served notice upon him. He also denied that when the notice was served upon them, they had come to Kerla Coffee House. He also admitted that the Brown sugar, which was seized from the appellant, was told to him by the police.
11. PW2- Rupendra Soni has stated that he had gone to the police station two months ago and had signed notice Ex.P. 3. This witness says that he had not gone anywhere with the weighing scale though his signatures are on parts A to A of the weighing certificate Ex.P. 4. The witness says that when he had gone to the police station, the police personnel had asked one or two boys to take out some stuff which he had weighed and in the said packet there was something like powder and today he cannot tell the correct weight because a lot of time has passed. This witness has said that he does not remember the weight of brown sugar being 47.150 grams. He himself said that it has been a long time and that is why he does not remember. But after weighing it, the police personnel made him sign the papers of Ex. P. 4.
In cross-examination, the witness has denied that he had gone to the police station for his own work and has voluntarily said that the police personnel had called him and taken him away. The witness admits that the police personnel did not open the said packet and show it 6 to him and has also admitted that he does not know from where the police personnel had brought the said packet.
12. In this way, the prosecution story regarding the action taken at the spot by the panch witnesses and the weigher in the case has not been supported. Now, it is worth considering in the case that if the fact of seizure of drug Brown Sugar has not been proved by the independent witnesses, then whether the evidence of the police witnesses presented by the prosecution can be believed. In this regard, it has been held by the Hon'ble Supreme Court in many judicial precedents that if the evidence of police witnesses is worthy of belief then the accused can be convicted on the basis of their reliable evidence also. Similarly, the judicial precedent Nathusingh Vs. State of Madhya Pradesh reported in AIR 1973 SC 2783, the Hon'ble Supreme Court has opined that there is no law that the statement of a police office or excise officer cannot be accepted in the absence of support. If the police officer's single evidence is of such a quality that it cannot disbelieved, then on the basis of his sole evidence, a conclusion can be drawn about the recovery of something (narcotic substance). In the context of the opinion expressed in the above honorable judicial precedents, it is now to be considered whether as per the evidence in the case, the Investigating Officer has conducted the investigation by following the mandatory and directive provisions of the NDPS Act which is supported by other evidence in the case.
13. PW6- A.K. Das has stated that he is posted as Assistant Sub Inspector in Ambikapur Police Station from the year 2014 till date. On 19.02.15, he 7 received information from an informer that a person namely Amar Dubey alias Gogo (the appellant) wearing a white and blue checkered shirt and a resident of Bhatti Road is keeping brown sugar in large quantities and is selling it on the road near Kerala Coffee House. Then on 19.02.15, he mentioned the informer's information in the diary entry No. 25. After this, he summoned the witnesses Sanju Pandey (PW5) and Ashish Tiwari (PW7) by issuing summons. The carbon copy of the summons is Ex.P. 8, on which his signatures are on parts B to B. When both the witnesses were present in the police station, he informed them about the informer information and prepared the informer information panchnama Ex.P.1 on which his signature is there and the format for not receiving the search warrant is Ex.P.2 on which his signature is there which he prepared in front of the witnesses and informed the CSP office Ambikapur which he has recorded in the diary Sanha No. 29 dated 19.02.15. This witness has further deposed that accused Amar Dubey has signed and given his consent in front of witnesses to get himself searched by him and subsequently, he had prepared consent Panchnama Ex.P. 11 on which parts B to C are his signature and on parts C to C the accused has signed it. He deposed that after the appellant searched him in front of witnesses and no objectionable item or narcotic substance was found with him during the search, then he prepared his own search Panchnama Ex.P. 12 in front of witnesses on which parts B to B are his signature and on parts C to C the accused has signed.
He further deposed that after the appellant searched the police force present with him one by one, Panchnama Ex.P. 13 of the police 8 staff in front of witnesses was prepared which is bearing signatures of the witnesses. He also deposed that after the appellant searched the witnesses namely Sanju Pandey and Ashish Tiwari present with him one by one in front of witnesses and when no objectionable object or intoxicant was found with the witnesses either, he prepared the search panchnama of the witnesses Ex.P.14, on which my signature is there from B to B and the accused has signed on C to C. He deposed that he searched the appellant in front of witnesses and then a brown coloured powder kept in a transparent polythene was found in the right pocket of the full pant worn by the accused, which was taken out from his pant. He deposed that on suspicion of brown sugar, he opened the transparent polythene found with the accused and smelled and burnt it in front of witnesses, then the intoxicant was found to be like brown sugar. Subsequently, he prepared its identification panchnama Ex.P. 16, on whose B to B part his signature is there and on C to C the accused has signed. He opened the brown sugar found from the accused and mixed it in front of witnesses and duly harmonized it and prepared its harmonized panchnama Ex.P. 17, on whose B to B part his signature is there and on C to C the accused has signed.
14. PW 4- Rizni Tikka, Constable, has stated that a sealed packet was given to her by the station in-charge Ambikapur to be deposited in the Regional Forensic Forensic Science Laboratory Ambikapur along with draft Ex.P./6 of the Superintendent of Police, Surguja, which she took and deposited on 23/02/2012, in respect of which the receipt is Ex.P. 7. 9
In cross-examination, the witness admits that the name and number of the constable is not mentioned in Ex.P. 6. She herself says that she was given a duty certificate. The witness has admitted that the duty certificate is not attached to the case. The witness has also admitted that she did not open the said sealed packet and neither did she weigh it. The witness admits that no seal was given to her along with the sealed packet.
15. (PW 7) Ashish Tiwari has admitted that when the policemen searched Amar Dubey near Kerala Coffee House, brown sugar was found from the accused. He also admitted that when the brown sugar was weighed, its weight was found to be 47.150 grams and in the cross-examination conducted by the accused. The witness admits that Rupendra Soni was called by the police by giving him a notice or he does not know how he came to the scene of the incident. The witness has admitted that no weighing of any kind has taken place in his presence. He has accepted that Police personnel had packed the brown sugar in a packet and sealed it.
16. PW8- Dilesh Singh (Head Constable) has stated that on 19.02.2015 a sealed packet of brown sugar was given to him by Assistant Sub- Inspector (PW6) A.K. Das to keep in the store room. After receiving it, he gave an acknowledgment which is Ex.P. 27 on which his signatures are present on parts B to B. He has recorded the said sealed packet in serial number-21 of the seized goods register on 19/02/2015. The seized goods register is Ex.P. 35 whose photocopy is Ex.P. 35C. He had given the said sealed packet to the Head Constable Lekhar on 20/02/2015 for 10 FSL examination. In cross-examination, the witness has admitted that he had not opened the sealed packet and had not even weighed it, due to which he cannot tell its weight. The witness also admits that column number 20 is blank in Ex.P. 35C and number 20 is filled in the register which he has brought. He himself says that number 20 was written on which a paper was placed and a photocopy was made. The witness has also admitted that the sealed packet was given for examination, the name of that head constable is not mentioned in Ex.P. 35 and the crime number is also not mentioned.
17. It is apparent from the record that the appellant has been given notice under Section 50 of the NDPS Act by the I.O. in which the accused has been informed of his legal rights to be searched by a Magistrate or a Gazetted Officer, in which the accused has signed the consent Panchanama (Ex. P/11), which shows that the consent has been taken, thereafter the accused has been searched, in relation to which the Panchanama (Ex. P/15) is prepared which shows that a brown coloured substance like brown sugar has been recovered from the accused in a transparent polythene, which has been supported by (PW-5) Sanjeev Pandey and (PW-7) Ashish Tiwari, (Independent Witness).
18. As far as argument of learned counsel for the appellant about non-
compliance of prescribed procedure at the time of seizure is concerned, Section 43 of the NDPS Act provides the powers of seizure and arrest in public place which towards as under:
[43. Power of seizure and arrest in public place- Any officer of any of the departments mentioned in section 42 may:-11
(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.
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.
19. The facts of the case well establishes that on the basis of secret information the police intercepted the appellant near Kerala Coffee house and following the due process of law seized the brown sugar of 47.150 gms from the pocket of the appellant. Admittedly the seizure was made in a public place. Therefore, the issue of non-compliance of Section 42 is not applicable in the present case and the police authority have acted under Section 43 of the NDPS Act. Section 43 of the NDPS Act, when the place of occurrence was a public place and accessibility to the public and fell within the ambit of the public place. 12
20. In view of the provisions of explanation to Section 43, the Section 42 of the NDPS had no application.
21. The contraband were recovered and seized, as contemplated in Section 43(a) i.e. "Seize 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 of information received in writing with regard to the Commission of offence before conducting search and seizure, is not required to be complied with under Section 43 of NDPS Act.
22. 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."
23. 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 13 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 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."
24. 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 14 was seized 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 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 15 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.
25. In the matter of State of Punjab vs. Baldev Singh reported in 1999 (6) SCC 172 in Para 12 of its judgment the Hon'ble Supreme Court has held:
"12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."
26. In the matter of Kulwinder Singh and Another vs. State of Punjab reported in 2015 (6) SCC 674 in Para 18 and 21 of its judgment the Hon'ble Supreme Court has held that:
18. In Dharampal Singh v. State of Punjab, it has been ruled that the expression "possession" is not capable of precise and complete 16 logical definition of universal application in the context of all the statutes. Recently, in Mohan Lal v. State of Rajasthan11, after referring to certain authorities, this Court has held as follows:-
"21. From the aforesaid exposition of law it is quite vivid that the term "possession" for the purpose of Section 18 of the NDPS Act could mean physical possession with animus, custody or dominion over the prohibited substance with animus or even exercise of dominion and control as a result of concealment. The animus and the mental intent which is the primary and significant element to show and establish possession. Further, personal knowledge as to the existence of the "chattel" i.e. the illegal substance at a particular location or site, at a relevant time and the intention based upon the knowledge, would constitute the unique relationship and manifest possession. In such a situation, presence and existence of possession could be justified, for the intention is to exercise right over the substance or the chattel and to act as the owner to the exclusion of others.
22. In the case at hand, the appellant, we hold, had the requisite degree of control when, even if the said narcotic substance was not within his physical control at that moment. To give an example, a person can conceal prohibited narcotic substance in a property and move out thereafter. The said person because of necessary animus would be in possession of the said substance even if he is not, at the moment, in physical control. The situation cannot be viewed differently when a person conceals and hides the prohibited narcotic substance in a public space. In the second category of cases, the person would be in possession because he has the necessary animus and the intention to retain control and dominion."
21. In State of H.P. v. Pawan Kumar, it has been held that: 17
"10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common- sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word "person" appears to be -- "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilised society appropriate coverings and clothing are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the work 'person' would mean a human being with appropriate coverings and clothings and also footwear.
11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such.18
They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."
27. The next submission made by learned counsel for the appellant is that Section 52 of the NDPS Act as well as Circular of 1/89 issued by Central Government have not been complied with in the case for drawing of the samples from the seized articles. Therefore, there is substantial non- compliance of the mandatory provisions of the NDPS Act and the appellant is entitled for acquittal.
28. 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.
19
29. 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 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 20
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 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 21 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 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 22 chance recovery or lack of proper facility being available at the spot. In such circumstances of procedural illegality, the evidence collected thereby will not become inadmissible and rather the courts would only be required to consider all the circumstances and find out whether any serious prejudice had been caused to the accused or not. Further it directed, that in such cases of procedural lapses or delays, the officer would be duty bound to indicate and explain the reason behind such delay or deficiency whilst preparing the memo. The relevant observations read as under: -
"5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDPS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance.
xxx xxx xxx
10. The instructions issued by the Narcotics 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 23 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.
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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 24 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, 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 25 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 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 26 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 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 27 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 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 28 but can still prove the seizure or recovery of contraband by leading cogent evidence in this regard such as by examining the seizing officer, producing independent witnesses to the recovery, or presenting the original quantity of seized substances before the court. The evidentiary value of these materials is ultimately to be assessed and looked into by the court. The court should consider whether the evidence inspires confidence. The court should look into the totality of circumstances and the credibility of the witnesses, being mindful to be more cautious in their scrutiny where such procedure has been flouted. The cumulative effect of all evidence must be considered to determine whether the prosecution has successfully established the case beyond reasonable doubt as held in Noor Aga (supra).
33. Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence. If the prosecution can otherwise establish the chain of custody, corroborate the seizure with credible testimony, and prove its case beyond reasonable doubt, the mere non-compliance with Section 52A may not be fatal. The emphasis must be on substantive justice rather than procedural technicalities, and keeping in mind that the salutary objective of the NDPS Act is to curb the menace of drug trafficking.
34. At this stage we may clarify the scope and purport of Section 52A sub-section (4) with a view to obviate 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, 29 photographed and thereafter samples are drawn therefrom as per the procedure prescribed under the said provision and the Rules / Standing Order(s), and the same is also duly certified by a magistrate, then such certified inventory, photographs and samples has to mandatorily be treated as primary evidence. The use of the word "shall" indicates that it would be mandatory for the court to treat the same as primary evidence if twin conditions are fulfilled being (i) that the inventory, photographs and samples drawn are certified by the magistrate AND (ii) that the court is satisfied that the entire process was done in consonance and substantial compliance with the procedure prescribed under the provision and its Rules / Standing Order(s).
36. Even where the bulk quantity of the seized material is not produced before the court or happens to be destroyed or disposed in contravention of Section 52A of the NDPS Act, the same would be immaterial and have no bearing on the evidentiary value of any inventory, photographs or samples of such substance that is duly certified by a magistrate and prepared in terms of the said provision. We say so, because sub-section (4) of Section 52A was inserted to mitigate the issue of degradation, pilferage or theft of seized substances affecting the very trial. It was often seen that, due to prolonged trials, the substance that was seized would deteriorate in quality or completely disappear even before the trial could proceed, by the time the trial would commence, the unavailability of such material would result in a crucial piece of evidence to establish possession becoming missing and the outcome of the trial becoming a foregone conclusion. The legislature being alive to this fact, thought fit to introduce an element of preservation of such evidence of possession of contraband in the form of inventory, photographs and samples and imbued certain procedural safeguards and supervision through the requirement of certification by a magistrate, which is now contained in sub-section (4) of Section 52A. In other words, 30 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 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 31 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.
30. Further in Para 41 and 42 of the said judgment of Bharat Aambale (supra) held that:
41. As per Clause 2.5 of the Standing Order No. 1 of 89 i.e., the relevant standing order in force at the time of seizure, where multiple packages or packets are seized, they first have to be subjected to an identification test by way of a colour test to ascertain which packets are of the same sized, weigh and contents. Thereafter, all packets which are identical to each other in all respects will be bunched in lots, in the case of Ganja, they may be bunched in lots of 40 packets each. Thereafter from each lot, one sample and one in duplicate has to be drawn. The relevant clause reads as under: -
"2.5 However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the 32 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 representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot."
31. In the present case the entire search and seizure proceedings have found genuine and the correct procedure have been drawn by the police persons. Though the independent witnesses and weighing witness have not supported the case of prosecution, but the seizure of brownsugar and its weight and sampling were proved by Investigating Officer and nothing adverse could be found to disbelieve their evidences which further proves that the appellant was found in possession of brownsugar. The appellant did not able to impute any palpable to make good his case that there has been non-compliance of any mandatory provisions of the NDPS Act.
32. Having gone through the material available on record and the evidence of 33 the witnesses Constable (PW3), Sanjeev Pandey (PW5), Investigating Officer (PW6), and Ashish Tiwari (PW7), which establish the involvement of the appellant in the crime in question beyond reasonable doubt. Thus, considering the oral and documentary evidence on record the seizure of brown sugar from the possession of the accused/appellant which was subsequently found to be brown sugar (diacetylmorphine) as per FSL report vide Ex. P/28, this Court does not see any illegality in the findings recorded by the trial Court as regards conviction of the appellant under Section 21(B) of Narcotic Drugs and Psychotropic Substances Act.
33. Considering the evidence available on record, and the findings recorded by the learned trial Court as discussed above, the appellant has rightly been convicted and sentenced by the trial Court as aforementioned, I do not find any scope for interference in the judgment impugned. Even this Court does not find any substance for reduction of jail sentence imposed upon the appellant by the trial Court. Consequently, the appeal is liable to be and is hereby dismissed.
34. As the appellant, is stated to be on bail. His bail bonds are cancelled and sureties discharged. He shall surrender forthwith before the concerned trial Court for serving remaining sentence as awarded by the trial Court, failing which he shall be taken into custody by the trial Court.
35. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial Court concerned forthwith for necessary information and compliance and the appellants are at liberty to 34 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.
Sd/-
(BIBHU DATTA GURU) JUDGE Shoaib