IN THE HIGH COURT OF PUNJAB & HARYANA AT

CHANDIGARH

CRA-D No.457-DB of 2016 (O&M)

Date of Decision:04.11.2025

Malkiat Singh

…Appellant

Versus

State of Punjab

…Respondent

CORAM

: HON’BLE MRS. JUSTICE LISA GILL

HON’BLE MRS. JUSTICE MEENAKSHI I. MEHTA

Argued by:- Mr. D.N. Ganeriwala, Advocate and

Mr. Kanisth Ganeriwala, Advocate

for the appellant.

Mr. Raghav Garg, AAG, Punjab

for the respondent-State.

*****

Meenakshi I. Mehta, J.

By way of instant Criminal Appeal, the afore-named appellant

has laid challenge to the judgment and order on sentence, handed down by

learned Judge, Special Court, Ferozepur (for short ‘the trial Court’), on

01.04.2014 in the criminal case arising out of FIR No.08 dated 19.01.2013

as registered at Police Station Mamdot, under Section 21 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’),

whereby he (appellant) has been held guilty for committing the offence

punishable under Section 21 of the Act and has been sentenced to undergo

rigorous imprisonment for a period of 12 years and pay a fine of Rs. one

(01) lac and in case of default in the payment of fine, to further undergo

rigorous imprisonment for 06 months.

CRA-D No.457-DB of 2016 (O&M) -2-

2. Shorn and short of unnecessary details, the facts, leading to the

filing of present appeal, are that on 19.01.2013, Inspector Joginder Singh,

along-with some other police officials, was going from Village Rahime Ke

to Village Sadar Ke, in connection with checking of suspected vehicles and

the persons on private vehicles. On the way, they held ‘Nakabandi’ (putting

up barricades) at the bridge on Canal Minor in the area of Village Rahime

Ke. There, they saw a young person coming from Village Sadar Ke side on a

motor-cycle, without registration number. On seeing the police party, that

person turned the motor-cycle back but however, in the meantime, its engine

stopped. On suspicion, the above-said motor-cyclist was apprehended and

on interrogation, he disclosed his name as Malkiat Singh (appellant). The

afore-named Inspector apprised the appellant of his right to get his own

search as well as the search of his motor-cycle and the plastic bag, as kept

thereon, conducted by him or some Gazetted Officer or a Magistrate. The

appellant opted for getting the search conducted in the presence of any

Gazetted Officer. Then, the Inspector informed Sh. Jasbir Singh, Deputy

Superintendent of Police, Ferozepur, on his mobile-phone, about the facts

of the case, with a further request to him to arrive at the spot and he (DSP)

reached there accordingly and disclosed his identity to the appellant and

sought his option regarding his search and the search of plastic bag and

motor-cycle by him (DSP) or any other Gazetted Officer or Magistrate. The

appellant consented for his own search and the search of plastic bag and

motor-cycle by the DSP vide Consent Memo Exhibit PC. Thereafter, the

plastic bag, as lying on the front side of motor-cycle, was opened and its

CRA-D No.457-DB of 2016 (O&M) -3-

search resulted in the recovery of six (06) packets, containing heroin. Two

(02) samples, each weighing 10 grams, were separated out from each packet

and these samples, along-with the remaining heroin in the packets, which

weighed 980 grams each, were separately packed and sealed with the seals

bearing impressions ‘JS’ and ‘JS’. Specimen seal was prepared on Form M-

29. The appellant was arrested. On returning to the police station, the case

property, along-with the appellant and witnesses and Form M-29, was

produced before ASI Karnail Singh, the officiating SHO who, after verifying

facts of the case, sealed all the eighteen parcels with his seal having

impression ‘KS’. Further necessary investigation was, then, carried out and

on the completion thereof, Challan/Police Report under Section 173 Cr.P.C

was prepared against the appellant and was presented in the Court.

3. After hearing learned Public Prosecutor for the State and

learned defence counsel and perusing the Challan/Final Police Report as also

the documents annexed therewith, learned trial Court framed the charge

against the appellant under Section 21 of the Act. He pleaded not guilty to

the charge and claimed trial.

4. In order to substantiate its allegations against the appellant, the

prosecution examined as many as six (06) witnesses namely Constable Param

Preet Singh as PW1, Inspector Joginder Singh as PW2, ASI Karnail Singh as

PW3, Inspector Paramjit Singh as PW4, Surinder Bhandari as PW5 and SP

Jasbir Singh as PW6. Then, learned Public Prosecutor for the State closed the

prosecution evidence. Thereafter, the appellant was examined under Section

313 Cr.P.C to explain the incriminating material/circumstances, appearing

CRA-D No.457-DB of 2016 (O&M) -4-

against him in the prosecution evidence, as led on record, wherein he pleaded

innocence and stated that he had falsely been got involved in the instant case.

However, he did not lead any evidence in his defence. After hearing learned

counsel for the parties and appraising the record, learned trial Court held the

appellant guilty and awarded sentence to him, as already described in the

opening para of this judgment.

5. We have heard learned counsel for the appellant as well as

learned counsel for the respondent-State in the present appeal and have also

gone through the record carefully.

6. Learned counsel for the appellant have contended that the

provisions, as contained in Section 50 of the Act, had not been complied with

at the time of conducting the search of appellant and the bag, which allegedly

contained six (06) packets of heroin and this infirmity eats into the vitals of

entire case of prosecution and makes it a highly doubtful one. They have also

contended that as per prosecution version, the samples of heroin had been

drawn and the same, along-with bulk parcels, were sealed at the spot itself

whereas Section 52-A(2)(c) of the Act provides for drawing such samples in

the presence of Magistrate and non-compliance of the above-said provisions

renders the trial proceedings and the impugned judgment and order on

sentence, illegal. To buttress this contention, they have placed reliance upon

the observations made by Hon’ble the Supreme Court in Bothilal vs. The

Intelligence Officer, Narcotics Control Bureau 2023(2)RCR (Criminal)

828; Simranjit Singh vs. State of Punjab Criminal Appeal No.1443 of

2023; Yusuf @ Asif vs. State 2023 INSC 912; Bharat Aambale vs. State of

CRA-D No.457-DB of 2016 (O&M) -5-

Chhattisgarh 2025 INSC 78; Surepally Srinivas vs. The State of Andhra

Pradesh (now State of Telangana) 2025 INSC 414 and by the Co-ordinate

Bench of this Court in Charan Singh vs. State of Punjab CRA-D No.1002-

DB of 2007. They have, further, contended that no independent witness had

been joined at the time of affecting the alleged recovery of heroin despite the

fact that the place of recovery was a public place, i.e the bridge over Canal

Minor on the road and this fact casts a shadow of doubt on the prosecution

version and they have urged that in view of the afore-discussed facts and

circumstances, the instant appeal deserves to be allowed and the appellant is,

therefore, entitled to his acquittal.

7. Per-contra, learned State counsel has argued that the provisions

contained in Sections 50 and 52-A(2)(c) of the Act had duly been complied

with and the case property and appellant, along-with Inventory Report, had

been produced before the concerned Magistrate on 20.01.2013, i.e the very

next day of recovery of the contraband and the seals, as affixed on samples,

had been found to be intact, as mentioned in FSL Report Exhibit PM and

specified by the Magistrate as well, in her order dated 20.01.2013 and mere

non-joinder of any independent witness does not make the testimonies of

official witnesses doubtful at all and in such circumstances, the present

appeal is liable to be dismissed.

8. As regards the contention qua violation of the provisions as

contained in Section 50 of the Act, it is pertinent to mention here that PW2

Inspector Joginder Singh has categorically deposed during his examination-

in-chief itself that he had told the accused (appellant) that his search as well

CRA-D No.457-DB of 2016 (O&M) -6-

as search of the bag, was to be conducted and vide Non-Consent Statement

Exhibit PB, he (appellant) had opted for getting the search conducted by a

Gazetted Officer and thereafter, he had requested DSP Jasbir Singh to reach

at the spot and he (DSP) had arrived there. PW6 Jasbir Singh, the then DSP,

has also deposed that he had apprised the appellant of his legal right to get

his search conducted in his presence or in the presence of any other Gazetted

Officer or Magistrate and he (appellant) had reposed confidence in him and

his (appellant’s) Consent Statement Exhibit PC was reduced into writing and

thereafter, the search had been conducted which resulted into the recovery of

six packets of heroin from the bag, as carried by the appellant on the motor-

cycle. These depositions sufficiently establish the compliance of Section 50

of the Act in this case.

9. Seen from yet another angle also, six (06) packets of heroin had

allegedly been recovered during the search of the bag, as kept on the motor-

cycle which was being driven by the appellant at the relevant time, meaning

thereby that the said recovery had not been affected during personal search

of the appellant. In State of Himachal Pradesh vs. Pawan Kumar, Appeal

(Crl.) 222 of 1997 (decided on 08.04.2005), a three Judges’ Bench of

Hon’ble Supreme Court has held as under: -

“xxx In view of the discussion made earlier, Section 50 of

the Act can have no application on the facts and

circumstances of the present case as opium was allegedly

recovered from the bag, which was being carried by the

accused. xxx"

In Ranjan Kumar Chadha vs. State of Himachal Pradesh

CRA-D No.457-DB of 2016 (O&M) -7-

2023 INSC 878, the Apex Court has made the following observations:-

“125. For all the foregoing reasons, we are of the view

that the High Court was justified in holding the appellant

guilty of the offence under the NDPS Act and at the same

time, the High Court was also correct in saying that

Section 50 of the NDPS Act was not required to be

complied with as the recovery was from the bag.”

In a recent verdict rendered in State of Kerala vs. Prabhu,

Criminal Appeal No.3434 of 2024 (decided on 20.08.2024) also, Hon’ble

Supreme Court has observed as under:-

“7. Thus, it is evident that the exposition of law on the

question regarding the requirement of compliance with

Section 50 of the NDPS Act is no more res integra and

this Court in unambiguous term held that if the recovery

was not from the person and whereas from a bag carried

by him, the procedure formalities prescribed under

Section 50 of the NDPS Act was not required to be

complied with. xxx”

In view of these observations, it becomes quite explicit that

Section 50 of the Act applies only in the eventuality of recovery of any

contraband during the search of person of an accused and hence, these

provisions are not applicable to the instant case.

10. So far as the contention regarding non-compliance of Section

52-A(2)(c) of the Act is concerned, the same is devoid of merit because as

mentioned earlier, the case property and appellant had been produced before

the concerned Magistrate on 20.01.2013, i.e on the very next day of alleged

recovery of contraband (heroin) and in her order passed on the same day on

CRA-D No.457-DB of 2016 (O&M) -8-

the Inventory Report presented under Section 52 of the Act, the Magistrate

has specifically mentioned that she had gone through the seals attached on

the case property and the seals bearing impressions ‘JS’, ‘JS’ and ‘KS’ were

intact and accordingly, the inventory was certified. The verdicts rendered by

Hon’ble Supreme Court in Bothilal (supra) (DOD 26.04.2023), Simranjit

Singh (supra) (DOD 09.05.2023) and Yusuf @ Asif (supra) (DOD

13.10.2023) are of no avail to the appellant in view of the subsequent

observations made by the Apex Court in Narcotics Control Bureau vs.

Kashif 2024 INSC 1045 (decided on 20.12.2024) and the judgment passed

by the Co-ordinate Bench in Charan Singh (supra) (DOD 19.12.2024)

would also not come to the rescue of the appellant in view of the following

observations made in Narcotics Control Bureau vs. Kashif (supra): -

“35. None of the provisions in the Act prohibits sample to

be taken on the spot at the time of seizure, much less

Section 52A of the said Act. On the contrary, as per the

procedure laid down in the Standing Orders and

Notifications issued by the NCB and the Central

Government before and after the insertion of Section 52A

till the Rules of 2022 were framed, the concerned officer

was required to take samples of the seized contraband

substances on the spot of recovery in duplicate in

presence of the Panch witnesses and the person in whose

possession the drug or substance recovered, by drawing

a Panchnama. It was only with regard to the remnant

substance, the procedure for disposal of the said

substance was required to be followed as prescribed in

Section 52A.

36. At this stage, we must deal with the recent judgments

in case of Simarnjit vs. State of Punjab, (Criminal

CRA-D No.457-DB of 2016 (O&M) -9-

Appeal No.1443/2023), in case of Yusuf @ Asif vs. State

(2023 SCC Online SC 1328), and in case of Mohammed

Khalid and Another vs. State of Telangana ((2024) 5

SCC 393) in which the convictions have been set aside by

this Court on finding non-compliance of Section 52A and

relying upon the observations made in case of Mohanlal.

Apart from the fact that the said cases have been decided

on the facts of each case, none of the judgments has

proposed to lay down any law either with regard to

Section 52A or on the issue of admissibility of any other

evidence collected during the course of trial under the

NDPS Act. Therefore, we have considered the legislative

history of Section 52A and other Statutory Standing

Orders as also the judicial pronouncements, which

clearly lead to an inevitable conclusion that delayed

compliance or non-compliance of Section 52A neither

vitiates the trial affecting conviction nor can be a sole

ground to seek bail. In our opinion, the decisions of

Constitution Benches in case of Pooran Mal and Baldev

Singh must take precedence over any observations made

in the judgments made by the benches of lesser strength,

which are made without considering the scheme, purport

and object of the Act and also without considering the

binding precedents.

37. It hardly needs to be reiterated that every law is

designed to further ends of justice and not to frustrate it

on mere technicalities. If the language of a Statute in its

ordinary meaning and grammatical construction leads a

manifest contradiction of the apparent purpose of the

enactment, a construction may be put upon it which

modifies the meaning of the words, or even the structure

of the sentence. It is equally settled legal position that

where the main object and intention of a statute are

CRA-D No.457-DB of 2016 (O&M) -10-

clear, it must not be reduced to a nullity by the

draftsman's unskillfulness or ignorance of the law. In

Maxwell on Interpretation of Statutes, Tenth Edition at

page 229, the following passage is found: -

"Where the language of a statute, in its ordinary

meaning and grammatical construction, leads to a

manifest contradiction of the apparent purpose of

the enactment, or to some inconvenience or

absurdity, hardship or injustice, presumably not

intended, a construction may be put upon it which

modifies the meaning of the words, and even the

structure of the sentence. … Where the main object

and intention of a statute are clear, it must not be

reduced to a nullity by the draftsman's

unskilfulness or ignorance of the law, except in a

case of necessity, or the absolute intractability of

the language used."

38. As observed by this Court in K.P. Varghese vs.

Income Tax Officer, Ernakulam and Another (1981) 4

SCC 173, a statutory provision must be so construed, if it

is possible, that absurdity and mischief may be avoided.

Where the plain and literal interpretation of statutory

provision produces a manifestly absurd and unjust result,

the Court may modify the language used by the

Legislature or even do some violence to it, so as to

achieve the obvious intention of the Legislature and

produce a rational construction and just result.

39. The upshot of the above discussion may be

summarized as under:

(i) The provisions of NDPS Act are required to be

interpreted keeping in mind the scheme, object and

purpose of the Act; as also the impact on the

society as a whole. It has to be interpreted literally

CRA-D No.457-DB of 2016 (O&M) -11-

and not liberally, which may ultimately frustrate

the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the

Court must bear in mind the provisions of Section

37 of the NDPS Act which are mandatory in

nature. Recording of findings as mandated in

Section 37 is sine qua non is known for granting

bail to the accused involved in the offences under

the NDPS Act.

(iii) The purpose of insertion of Section 52A laying

down the procedure for disposal of seized Narcotic

Drugs and Psychotropic Substances, was to ensure

the early disposal of the seized contraband drugs

and substances. It was inserted in 1989 as one of

the measures to implement and to give effect to the

International Conventions on the Narcotic drugs

and psychotropic substances.

(iv) Sub-section (2) of Section 52A lays down the

procedure as contemplated in sub-section (1)

thereof, and any lapse or delayed compliance

thereof would be merely a procedural irregularity

which would neither entitle the accused to be

released on bail nor would vitiate the trial on that

ground alone.

(v) Any procedural irregularity or illegality found

to have been committed in conducting the search

and seizure during the course of investigation or

thereafter, would by itself not make the entire

evidence collected during the course of

investigation, inadmissible. The Court would have

to consider all the circumstances and find out

whether any serious prejudice has been caused to

the accused.

CRA-D No.457-DB of 2016 (O&M) -12-

(vi) Any lapse or delay in compliance of Section

52A by itself would neither vitiate the trial nor

would entitle the accused to be released on bail.

The Court will have to consider other

circumstances and the other primary evidence

collected during the course of investigation, as also

the statutory presumption permissible under Section

54 of the NDPS Act.”

11. Though, the appellant has relied upon the judgment passed in

Bharat Aambale (supra) but again, the same would be of no help to him

because in the above-referred appeal, the only plea as canvassed by the

appellant, was the violation of Section 52-A of the Act and Rule 10 of the

NDPS Rules, 2022 on the ground that Investigating Officer had allegedly

mixed all 73 packets of the seized contraband together and had, thereafter,

proceeded to draw two samples of 100-100 grams each from the mixture,

meaning thereby that in the afore-mentioned case also, the samples had

been drawn by the Investigating Officer. However, the appeal had been

dismissed while observing as under:-

“40. Having gone through the materials on record, we

are in complete agreement with the reasoning of the High

Court. Although, from the testimony of PW-15 i.e., the

officer-in-charge of the police station where the seized

substance was forwarded it may appear that the seized

substances were simpliciter mixed together without

following the procedure of segregating similar packets of

same quality and nature into lots and thereafter taking

representative samples therefrom, yet a closer reading of

the Trial Court's judgment would reveal that the police

officers herein had duly followed the procedure

CRA-D No.457-DB of 2016 (O&M) -13-

prescribed to the letter and spirit.

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 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

CRA-D No.457-DB of 2016 (O&M) -14-

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."

43. As aforementioned in the preceding paragraphs, the

above Standing Order came to be repealed by the

enactment of the NDPS Rules in 2022. However, as per

Rule 29 of the aforesaid NDPS Rules, notwithstanding

such repeal of the erstwhile Standing Order(s), all

actions that were done on the basis of such order or

guidelines shall be deemed to have been done under the

corresponding provision of these Rules. Furthermore, the

procedure that was delineated in Clause(s) 2.5 and 2.8 of

the said Standing Order have been reincorporated as

Rule 10 and 11 in the NDPS Rules without any

significant alteration.

xxxx xxxx xxxx xxxx

50.xxxxx

(V) Mere non-compliance of the procedure under

Section 52A or the Standing Order(s) / Rules

thereunder will not be fatal to the trial unless there

are discrepancies in the physical evidence

rendering the prosecution's case doubtful, which

may not have been there had such compliance

been done. Courts should take a holistic and

cumulative view of the discrepancies that may exist

in the evidence adduced by the prosecution and

appreciate the same more carefully keeping in

mind the procedural lapses.”

In the present case, the testimonies of PW2 Inspector Joginder

Singh, PW4 Inspector Paramjit Singh and PW6 SP Jasbir Singh, coupled

CRA-D No.457-DB of 2016 (O&M) -15-

with the depositions of PW5, the Registration Clerk, sufficiently establish

the factum of recovery of six (06) packets of heroin from the bag, as found

lying on the motor-cycle which belonged to the appellant and there is

nothing on the record to doubt the truthfulness/veracity of the depositions

as made by the above-referred prosecution witnesses.

12. Further, the verdict rendered by the Apex Court in Surepally

Srinivas (supra) is again of no avail to the appellant because in the afore-

cited case, the Court had observed that the seized contraband had not been

properly sealed and though, the same had been seized on 18.06.2010 but it

had been produced in the Court for the first time on 03.07.2010 whereas in

the present case, PW2 Inspector Joginder Singh had produced the case

property and appellant before PW3 ASI/officiating SHO Karnail Singh on

19.01.2013, i.e the day of recovery itself, and PW3 had produced the same,

along-with Inventory Report Exhibit PK, before the concerned Magistrate

on 20.01.2013, i.e the day following the date of recovery of contraband and

as recorded by the Magistrate in her order dated 20.01.2013 and mentioned

in FSL Report Exhibit PM, seals bearing impressions ‘JS’, ‘JS’ and ‘KS’

were found to be duly intact and the Magistrate had also certified the

Inventory in her order.

13. The contention regarding non-joinder of independent witness

from public, also does not render the case of the prosecution doubtful at all

because Exhibit PH is the ‘ruqa’ as sent by PW2 Inspector Joginder Singh to

the police station for registration of the case and it has specifically been

mentioned therein that before conducting the search, an effort had been

CRA-D No.457-DB of 2016 (O&M) -16-

made to join witness from public but none was available. In such a scenario,

the Court is required to appraise and evaluate the testimonies of the official

witnesses cautiously. In the instant case, as discussed in the preceding

paragraphs, testimonies of PW2, PW4 and PW6 inspire confidence and these

corroborate the prosecution version on all the material particulars and hence,

the same can safely be relied upon to record the conviction of the appellant.

14. As a sequel to the fore-going discussion, it follows that the

impugned judgment and order on sentence, as passed by learned trial Court

on 01.04.2014, do not suffer from any infirmity, illegality or perversity or

irregularity so as to warrant any interference by this Court. Resultantly, the

appeal in hand, being sans any merit, is dismissed.

15. Pending applications, if any, stand disposed of accordingly.

(LISA GILL) (MEENAKSHI I. MEHTA)

JUDGE JUDGE

November 04, 2025

neetu

Whether speaking/reasoned: Yes

Whether Reportable: No