CRA-S-1781-SB-2004 (O&M)

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CRA-S-1781-SB-2004 (O&M)

Reserved on: 26.05.2026

Pronounced on: 29.07.2026

Uploaded on: 29.07.2026

Whether only operative part of the judgment is Pronounced : No

Whether full judgment is pronounced: Yes

Puran Singh

...Appellant

Versus

State of Haryana

...Respondent

CORAM: HON’BLE MS. JUSTICE RUPINDERJIT CHAHAL

Present: Mr. KPS Virk, Advocate, for the appellant.

Mr. Mohit Chaudhary, AAG, Haryana.

***

RUPINDERJIT CHAHAL, J.

1. The present appeal has been directed against the judgment of

conviction dated 08.09.2004 and order of sentence dated 10.09.2004,

passed by the Learned Special Judge, Panipat whereby the appellant was

held guilty and convicted under Section 18 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (for short 'NDPS Act) and sentenced to

undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 Lac,

in default of payment of fine, to further undergo rigorous imprisonment for

a period of two years and six months.

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2. The facts, in brief, are that on 23.04.2001, a police party headed

by PW-4 Inspector Dhian Singh was present at the General Bus Stand,

Panipat, in connection with patrolling and crime detection. During the

course of patrolling, one person was seen approaching the outer gate of the

bus stand carrying a bag in his right hand. On noticing the police party, he

immediately turned back and started walking briskly, which aroused

suspicion. Consequently, he was apprehended by the police party. Upon

enquiry, he disclosed his identity. Suspecting that he was carrying some

contraband, the Investigating Officer served upon him a notice (Exhibit PD)

under Section 50 of the Narcotic Drugs and Psychotropic Substances Act,

1985. In response thereto, vide reply (Exhibit PD-1), he opted to be

searched in the presence of a Magistrate. In pursuance of the option

exercised by him, PW-3 Shri K.Κ. Amrohi, District Revenue Officer,

Panipat, reached the spot. Thereafter, the search of the bag being carried by

the appellant was conducted in his presence. The bag was found to contain

2 kilograms of opium wrapped in wax paper. Out of the recovered

contraband, a representative sample weighing 50 grams was separated,

whereas the remaining opium constituted the bulk parcel. Both the sample

parcel and the bulk parcel were converted into separate parcels, sealed with

the seals bearing impressions 'DS' and 'KK', and taken into possession vide

recovery memo (Exhibit PC). Thereafter, ruqa (Exhibit PE) was sent to the

police station, on the basis whereof the formal First Information Report was

registered against the appellant. During the course of investigation, a rough

site plan of the place of recovery was prepared and the statements of the

witnesses were recorded. The case property, along with the accused and the

witnesses, was thereafter produced before PW-1 Inspector Badan Singh,

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Station House Officer, Police Station City, Panipat, who verified the

investigation and affixed his seal bearing impression 'BS' on both the

sample parcel and the bulk parcel. Thereafter, the case property was

deposited with the Malkhana Moharrir for safe custody. On receipt of the

report of the Forensic Science Laboratory (Exhibit PX), the sample was

found to be that of opium. Upon completion of the investigation and after

finding sufficient material against the accused, the final report under

Section 173 of the Code of Criminal Procedure was presented before the

competent Court.

3. Upon consideration of the material available on record, the

learned Special Judge, Panipat, vide order dated 08.08.2001, found a prima

facie case against the accused and accordingly framed charge against him

under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,

1985. The charge was read over and explained to the accused, to which he

pleaded not guilty and claimed trial.

4. In support of its case, the prosecution examined five witnesses,

namely: PW-1, Inspector Badan Singh, Station House Officer (SHO); PW-

2, Brij Pal Singh, Malkhana Moharrir Head Constable (MMHC); PW-3, Sh.

K.K. Amrohi, District Revenue Officer (DRO); PW-4, Inspector Dhian

Singh, the Investigating Officer; and PW-5, Constable Chamela Ram. Upon

completion of the oral evidence, the learned Additional Public Prosecutor

tendered in evidence the report of the Chemical Examiner, exhibited as Ex.

PX, whereafter the prosecution evidence was closed.

5. Upon the conclusion of the prosecution evidence, the statement

of the appellant was recorded under Section 313 of the Code of Criminal

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Procedure, wherein all the incriminating circumstances appearing in the

prosecution evidence were put to him. The appellant denied the prosecution

case in toto, asserted that no recovery had been effected from his

possession, and pleaded false implication. Although adequate and repeated

opportunities were afforded to him to lead evidence in defence, the

appellant chose not to examine any witness, and the defence evidence was

accordingly closed.

6. Upon appreciation and evaluation of the oral as well as

documentary evidence adduced by the prosecution, the learned trial Court

came to the conclusion that the prosecution had succeeded in proving its

case beyond reasonable doubt. Consequently, the appellant was held guilty

and convicted for the offence punishable under Section 18 of the Narcotic

Drugs and Psychotropic Substances Act, 1985.

7. Learned counsel appearing on behalf of the appellant has

assailed the impugned judgment of conviction and the order of sentence on

several grounds. It has been contended that the prosecution has failed to

establish its case beyond reasonable doubt and that the mandatory

procedural safeguards envisaged under the Narcotic Drugs and

Psychotropic Substances Act, 1985, have not been complied with, thereby

vitiating the prosecution case.

8. At the outset, learned counsel has argued that the alleged

recovery was effected from the General Bus Stand, Panipat, which is

admittedly a busy public place frequented by numerous persons.

Notwithstanding the availability of independent witnesses at the spot, no

effort was made by the Investigating Officer to associate any such person

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with the search and seizure proceedings. The unexplained failure to join

independent witnesses, it is contended, casts a serious doubt on the fairness,

transparency and credibility of the prosecution version.

9. Learned counsel has further questioned the sanctity of the

handling and preservation of the alleged contraband by submitting that the

prosecution has failed to establish unimpeachable link evidence. It has been

argued that no CFSL Form was prepared at the spot and the specimen seal

has not been brought on record. It has further been contended that there was

an unexplained delay of fifteen days in forwarding the sample parcel to the

Forensic Science Laboratory. According to the learned counsel, this delay,

coupled with the admitted fact that the Investigating Officer had retrieved

his seal after one week, creates a reasonable possibility of tampering with

the case property.

10. Learned counsel has further contended that the prosecution case

is rendered doubtful by the fact that the recovery memo is stated to have

been prepared prior to the dispatch of the ruqa (Ex. PE); however, the said

document conspicuously bears the FIR number, the date of registration, and

the relevant penal provisions. It has been argued that these particulars could

not have legitimately found mention in the recovery memo as the FIR was

not registered yet, thereby creating a serious doubt that either the

documents were prepared subsequently or the FIR had been recorded prior

to the alleged recovery.

11. It has also been argued that the complainant himself acted as

the investigating officer in the present case. According to the learned

counsel, the same is contrary to the settled legal position governing fair

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investigation and has caused serious prejudice to the appellant, thereby

vitiating the entire prosecution.

12. Learned counsel has further submitted that the mandatory

provisions of Section 50 of NDPS Act are not complied with in the present

case.

13. He further submits that the reply (Exhibit PD/1) to the notice

unmistakably shows that the appellant had exercised his option to be

searched in the presence of a Magistrate. However, instead of summoning a

Magistrate, the Investigating Officer called PW3 K.K. Amrohi DRO. It is,

therefore, argued that the choice exercised by the appellant was rendered

wholly illusory and meaningless, thereby vitiating the search proceedings.

14. Learned counsel has also assailed the prosecution case on the

ground of alleged non-compliance with the mandatory provisions of Section

52A of the Narcotic Drugs and Psychotropic Substances Act, 1985. It has

been contended that neither any inventory of the seized contraband was

prepared nor any application was moved before the competent Magistrate

for certification of the inventory or for drawing representative samples in

the presence of the Magistrate, as envisaged under the said provision.

According to the learned counsel, the failure to adhere to the statutory

procedure prescribed under Section 52A of the Act casts a serious doubt on

the authenticity and integrity of the seized contraband and, consequently,

renders the prosecution case unreliable.

15. In the alternative, learned counsel has contended that, even if

the prosecution case is accepted in its entirety, the alleged recovery of two

kilograms of opium does not fall within the ambit of "commercial quantity"

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as defined under the Narcotic Drugs and Psychotropic Substances Act,

1985. It has been submitted that the learned trial Court proceeded on an

erroneous premise in treating the recovered contraband as a commercial

quantity and, on that basis, imposed the maximum sentence prescribed

under the Act. According to the learned counsel, the sentence awarded is

legally unsustainable and warrants interference by this Court.

16. On the strength of the aforesaid submissions, learned counsel

for the appellant has prayed that the impugned judgment of conviction and

the consequent order of sentence be set aside and that the appellant be

acquitted by extending to him the benefit of doubt.

17. Per contra, learned State counsel has supported the impugned

judgment of conviction and order of sentence, contending that the

prosecution has proved its case beyond reasonable doubt by leading cogent,

reliable and trustworthy evidence. It is submitted that the recovery of two

kilograms of opium from the conscious possession of the appellant stands

duly established through the consistent testimony of the prosecution

witnesses, which finds complete corroboration from the documentary

evidence as well as the report of the Forensic Science Laboratory. Learned

State counsel has further argued that there is nothing on record to suggest

any ulterior motive on the part of the police officials to falsely implicate the

appellant in a case involving a serious offence under the NDPS Act. In the

absence of any such motive, the testimony of the official witnesses cannot

be discarded merely because no independent witness was associated with

the investigation. Learned State counsel has argued that the testimony of

the official witnesses is natural, consistent and inspires confidence. It is

submitted that no material contradiction or discrepancy has emerged from

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their cross-examination so as to discredit the prosecution case. The minor

inconsistencies, if any, are stated to be natural and inconsequential,

particularly when the statements of the recovery witnesses came to be

recorded nearly one and a half years after the occurrence. Such trivial

variations, it is argued, do not affect the core of the prosecution case.

Learned State counsel has also contended that the provisions of Section 50

of the NDPS Act are wholly inapplicable to the facts of the present case.

According to him, the recovery was not effected from the person of the

appellant but from a bag being carried by him, and it is now well settled

that the protection envisaged under Section 50 is confined only to cases

involving the personal search of an accused and does not extend to the

search of a bag or other article carried by him. It is further submitted that,

in any event, the search was conducted in the presence of PW3 K.K.

Amrohi, District Revenue Officer, who is a Gazetted Officer duly

empowered by the State of Haryana to exercise powers of Executive

Magistrate. Learned State counsel contends that the appellant suffered no

prejudice whatsoever on account of the search having been conducted in the

presence of the said officer and, therefore, the challenge to the search

proceedings is wholly misconceived. Lastly, it has been submitted that the

report of the Forensic Science Laboratory (Exhibit PX) conclusively

establishes that the substance recovered from the appellant was opium.

Once the recovery stands proved, the statutory presumptions under Sections

35 and 54 of the NDPS Act come into operation, and the appellant having

failed to rebut the said presumptions, the learned trial Court has rightly

recorded the order of conviction and imposed the sentence in accordance

with law. Hence he prayed that the present appeal be dismissed.

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18. Heard learned counsels appearing for both sides at considerable

length and with their able assistance carefully gone through the entire

evidence available on record, the impugned judgment, the documentary

evidence, the depositions of the witnesses as well as the relevant record.

19. So far as the contention of the learned counsel for the appellant

regarding non joining of independent witness is concerned, it is observed

that people are often hesitant in joining police investigation for variety of

reasons. PW-4 Inspector Dhian Singh has clearly stated that he tried to join

independent witness but all expressed their helplessness. It is now well

settled that evidence of a witness cannot be rejected merely because he

happens to be an official witness. In the present case, nothing could be

elucidated from the cross-examinations of PW’s Dhian Singh or PW3 K.K.

Amrohi DRO, so as to raise any dispute with regard to recovery of

contraband from the possession of the appellant or that their statements are

partisan in nature or that they had any motive to plant a false recovery upon

the appellant. In these circumstances, this Court is of considered opinion,

that testimonies of official witnesses inspire confidence and the same are

held to be reliable. In Karamjit Singh v. State (Delhi Administration), AIR

2003 SC 1311, the Hon’ble Supreme Court has held as under:

“The testimony of police personnel should be treated in the

same manner as testimony of any other witness and there is no

principle of law that without corroboration by independent

witnesses their testimony cannot be relied upon. The

presumption that a person acts honestly applies as much in

favour of police personnel as of other persons and it is not a

proper judicial approach to distrust and suspect them without

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good grounds. It will all depends upon the facts and

circumstances of each case and no principle of general

application can be laid down.”

19.1. In State of Punjab Vs. Balbir Singh, 1994(1) Recent Criminal

Reports 736 the Hon'ble Supreme Court has held that, "there is no bar in

recording the conviction by relying upon the statements of police officers

and that testimony of a witness is not to be doubted or discarded merely on

the ground that he happens to be an official witness."

19.2. In Ram Sarup Vs. State (Govt. of NCR Delhi) 2013(3) RCR

(Criminal) 946, it has been held by the Hon'ble Apex Court that, "there is no

absolute rule that police officers cannot be cited as a witness and their

depositions should be treated with suspect. Court cannot start with the

presumption that police records are untrustworthy."

19.3. A Division Bench of this Court in Ramesh Kumar v. State of

Punjab, (2013)(4) RCR (Criminal) 320, has observed that the testimony of

official witnesses cannot be discarded until it is proved that they have any

animus or hostility against the accused for his false implication. While

discussing the question of non-joining of the independent witnesses, it was

observed that they are averse to join the police and depose in favour of

prosecution as they are afraid of the fact that joining the police and deposing

in favour of the prosecution may expose them to serious consequences.

19.4. In Krishan Kumar v. State of Punjab, 2016 (2) RCR

(Criminal) 707, it was observed that testimonies of the official witnesses

carry the same evidentiary value as that of any other witness and their

statements cannot be discarded simply on account of their official

designation.

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20. The next limb of argument raised by learned counsel for the

appellant is with regard to alleged discrepancies in the prosecution’s case

qua the mentioning of FIR particulars upon the recovery memo Ex. PC.

According to the appellant, this circumstance indicates that either the

documents were prepared subsequently or the FIR had been recorded prior to

the alleged recovery. The contention, however, does not merit acceptance. In

Jauni Ram v. State of H.P., 2004(3) CLJ (HP) 484; a two-judge bench of

Himachal Pradesh High Court has held that mere mention of the FIR number

on documents is not fatal to the case of prosecution. A coordinate bench of

this Court has also expressed a similar view in Parkash Singh v. State of

Punjab, 2023 (1) Law Heral 409. Thus, unless it is shown that the FIR was

ante-timed or ante-dated or that prejudice has been caused to the accused, the

mere presence of the FIR number on the recovery memo cannot be treated as

a circumstance sufficient to vitiate the entire prosecution.

21. In the present case, Investigating Officer has not been cross-

examined on this point. The only question put to him was as to whether it

was recorded before or after the departure of DRO. In such circumstances,

the mere mention of the FIR particulars on Ex. PC, without anything more,

cannot be elevated to a ground for discarding an otherwise trustworthy

prosecution case.

22. Now, adverting to the alleged discrepancies pointed out by the

learned counsel for the appellant, firstly, that no CFSL form is shown to

have been prepared at the spot. Merely because the evidence does not reflect

that the said form was prepared at the place of recovery, the prosecution case

cannot be doubted. The purpose of the FSL/CFSL form is to enable the

Forensic Science Laboratory to verify the specimen seal and examine the

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seized samples. There is no statutory requirement under the applicable law

that such form must necessarily be prepared at the spot of recovery. What is

material is that the prosecution must establish the safe handling and

preservation of the samples and that the seals remained intact and tallied

with the specimen seal at the time of examination by the Laboratory. In the

present case, the FSL report confirms the intactness and correctness of the

seals, and no prejudice has been demonstrated to have been caused to the

accused on account of the form having been prepared subsequently. The

mere fact that the form was not prepared at the spot, by itself, does not create

any doubt regarding the genuineness of the recovery or the integrity of the

seized contraband. The investigation cannot be invalidated merely on

account of non-observance of a procedure which is not mandated by law.

Reliance in this regard is placed upon Wazir Singh v. State of Haryana,

2010 (1) RCR (Criminal) 480; wherein it was held that CFSL form can be

prepared by the Investigating Officer later on and it is not the requirement of

law that the entire investigation must be completed at the spot or that no part

of writing can be done by such agency later on in the Police Station.

22.1. The second discrepancy as pointed out by the learned counsel

for the appellant that the specimen seal has not been produced before the

Court, also lacks merit. A two Judge bench in Hira Giri alias Hardev Giri v.

State of Himachal Pradesh, 2005 (1) 231; held that Production of the seals

and its specimen impressions at the trial is not the requirement of law but

only a circumstance to reinforce the prosecution evidence and in case there

is other cogent and reliable evidence like contemporaneous records

supported by confidence inspiring evidence of witnesses, such non-

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production will be rendered inconsequential. The relevant paragraphs are

reproduced below:

“36. The seals used for sealing the case property, specimen

thereof and second sample retained by the investigating agency,

has admittedly not been produced in the trial Court. However, in

view of the evidence led by the prosecution, as already discussed

hereinabove, such non-production is not fatal to the case of the

prosecution. Production of the seals and its specimen

impressions at the trial is not the requirement of law but only a

circumstance to reinforce the prosecution evidence and in case

there is other cogent and reliable evidence like contemporaneous

records supported by confidence inspiring evidence of witnesses,

such non-production will be rendered inconsequential.

37. In Fredrick George v. State of H.P., 2002 Cr.L.J. 4600, a

Division Bench of this Court, while examining the effect of non-

production of seal used for sealing the case property and the

relevant witnesses, held as under :-

"62. It is a fact that the seals used for sealing and re-sealing

the bulk case property and the samples have not been

produced at the trial. In Manjit Singh's case (supra) while

dealing with the effect of non-production of the seal, this

Court held as under :

'In the absence of any mandatory provision in the law/Rules

of procedure relating to sealing of the case property, that

the seal used in sealing the case property must be produced

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at the trial, it cannot be said that failure to produce such

seal at the trial will be fatal to the case of the prosecution. It

will depend on the facts and circumstances of each case

whether by non-production of the seal at the trial any doubt

is raised about the safe custody of the case property or not.'

63. In view of the above position in law and the conclusion

we have already arrived at hereinabove that there is

unchallenged and trustworthy evidence that the case

property was not tampered with at any stage, the non-

production of the seals used for sealing and re-sealing of

the bulk case property of the samples is also of no help to

the accused."

38. The above view was subsequently reiterated by the Division

Benches of this Court in Manjit Singh v. State of H.P., 2001(2)

Cr.L.J. (HP) 106, Soni v. State of H.P., Cr.A. No. 182 of 2001,

(decided on 11.6.2003) and Rajesh Kumar v. State of H.P.,

Cr.A. No. 547 of 2001, (decided on 10.7.2003). In view of this

position in law and the findings hereinabove recorded, the non-

production of the seals or the specimen impressions thereof in

this case is inconsequential and of no help to the accused.”

22.2. In the facts of the present case, the mere non-production of the

specimen seal before the Court cannot be treated as fatal to the prosecution

case. The evidence on record, including the testimony of the relevant

witnesses and contemporaneous documents, satisfactorily establishes that

the case property remained intact and was not tampered with at any stage.

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Therefore, applying the principles laid down in Hira Giri alias Hardev Giri

(supra), the said omission is merely procedural and does not cause any

prejudice to the accused.

23. The next submission advanced by the learned counsel for the

appellant is with regard to the delay in sending the sample parcel to the

Forensic Science Laboratory, which, according to him, creates a serious

doubt regarding the prosecution case. This Court has considered the said

contention; however, the same does not merit acceptance. In the present

case, the recovery of the contraband was effected on 23.04.2001 and

thereafter the case property was duly deposited with Brij Pal Singh,

Malkhana Moharrir Head Constable (MMHC) PW-2, who kept the same in

the police malkhana in safe custody. Subsequently, on 08.05.2001, the

sample parcel was submitted to the FSL, Madhuban, without any tampering.

23.1 The statement of PW-2 Brij Pal Singh, establishes that during the

period the sample remained in their custody, the same was neither tampered

with nor any opportunity was afforded to anyone to interfere with the

sanctity of the parcel. The said witness was not cross-examined by the

defence on this issue. The FSL report Ex. PX further establishes that upon

receipt of the sample parcel, the seals affixed thereon were found intact and

tallied with the specimen seal impression. Thus, the prosecution has

successfully established the safe custody of the sample.

23.2 In view of the aforesaid circumstances, the mere delay of 15

days in forwarding the sample to the forensic science laboratory, in the

absence of any evidence of tampering or prejudice caused to the accused,

cannot be held to be fatal to the prosecution case. The Hon’ble Supreme

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Court in Hardip Singh v. State of Punjab, 2008 (4) RCR (Criminal) 97, has

held that when there is no evidence that samples were tampered with or any

prejudice was caused to the accused then even 40 days delay in sending the

sample to chemical examiner was held not fatal to the prosecution case. The

aspect of delay in sending the sample to the office of Chemical Examiner

was also discussed in Sucha Singh v. State of Punjab 2015 (4) RCR

(Criminal) 25, wherein it was held that when the samples were not sent to

the office of Chemical Examiner within 72 hours, the prosecution and

conviction cannot be vitiated on that ground since there was no specific

provision in the Act in that regard and the instructions/standing orders in that

respect were only the guidelines to regulate and control their internal

working of Narcotic Control Bureau. Therefore, the delay of few days in

sending the sample to the office of Chemical Examiner, Punjab, Chandigarh

was immaterial and no prejudice is going to be caused to the

appellant/accused.

24. As regards to the contention of the learned counsel for the

appellant that ASI Sant Raj being complainant was not competent to

investigate the case is concerned, the same cannot be accepted in view of the

settled legal position. The Constitution Bench of the Hon'ble Supreme

Court in Mukesh Singh v. State (Narcotic Branch of Delhi) 2020(10) SCC

120, has held as under:

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25. So far as the contention of the learned counsel for the appellant

that the provision of Section 50 of NDPS Act has not been complied with by

the prosecution is concerned, the law is well settled. The Hon'ble Supreme

Court in Ajmer Singh v. State of Haryana, (2010) 3 Supreme Court Cases

746, has held that for search of bag, briefcase, container, etc. carried by

accused person, compliance with Section 50 of the NDPS Act is not

required. Their Lordships have held as under :-

"15. The learned counsel for the appellant contended that the

provision of Section 50 of the Act would also apply, while

searching the bag, brief case etc., carried by the person and its

noncompliance would be fatal to the proceedings initiated

under the Act. We find no merit in the contention of the

learned counsel. It requires to be noticed that the question of

compliance or non-compliance of Section 50 of the NDPS. Act

is relevant only where search of a person is involved and the

said Section is not applicable nor attracted where no search of

a person is involved. Search and recovery from a bag, brief

case, container, etc., does not come within the ambit of

Section 50 of the NDPS Act, because firstly, Section 50

expressly speaks of search of person only. Secondly, the

Section speaks of taking of the person to be searched by the

Gazetted Officer or Magistrate for the purpose of search.

Thirdly, this issue in our considered opinion is no more res-

integra in view of the observations made by this court in the

case of Madan Lal v. State of Himachal Pradesh (2003) 7

SCC 465. The Court has observed:

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"16. A bare reading of Section 50 shows that it only

applies in case of personal search of a person. It does not

extend to search of a vehicle or a container or a bag or

premises (see Kalema Tumba v. State of Maharashtra

and Anr. (1999) 8 SCC 257, State of Punjab v. Baldev

Singh (1999) 6 SCC 172 and Gurbax Singh v. State of

Haryana (2001) 3 SCC 28). The language of section is

implicitly clear that the search has to be in relation to a

person as contrast to search of premises, vehicles, or

articles. This position was settled beyond doubt by the

Constitution Bench in Baldev Singh's case. Above being

the position, the contention regarding noncompliance of

Section 50 of the Act is also without any substance."

16. x x x

17. x x x

18. It appears from the evidence on record that the accused

was confronted by ASI Maya Ram and other police officials on

24.1.1996 and he was informed that he has the right to either

be searched before the gazetted officer or before a Magistrate

and the accused chose the later (sic former). Thereafter, the

accused was taken to the DSP, Pehowa, Shri Paramjit Singh

Ahalawat and as directed by him, the bag carried by accused

on his shoulder was searched and the charas was found in that

bag. Thus, applying the interpretation of the word "search of

person" as laid down by this Court in the decision mentioned

above, to facts of present case, it is clear that the compliance

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of Section 50 of the Act is not required. Therefore, the search

conducted by the investigation officer and the evidence

collected thereby, is not illegal. Consequently, we do not find

any merit in the contention of the learned counsel of the

appellant as regards the noncompliance of Section 50 of the

Act."

25.1. More recently, in the matter of Mehboob Shah v. State of

Madhya Pradesh, Criminal Appeal No(s). 3305-3306 of 2026

D/d.21.07.2026; the Hon'ble Supreme Court has held as under:-

"12. The next contention of the appellant pertains to the

alleged non-compliance of Section 50 of the NDPS Act. We

find the same to be devoid of merit. Section 50 of the NDPS

Act confers upon an accused a valuable right to have his

personal search conducted before a Gazetted Officer or a

Magistrate, if he so requires. Such right is sacrosanct and

indefeasible which cannot be disregarded by the prosecution

except at its own peril. [See: State of Punjab v. Baldev Singh,

(1999) 6 SCC 172] The protection under Section 50 is

confined to cases where the recovery is sought to be effected

through the personal search of the accused. It has no

application where the search is of an article, such as a bag,

container, suitcase or any other object, which the accused may

be carrying. [See: State of H.P. v. Pawan Kumar, (2005) 4

SCC 350 and Ranjan Kumar Chadha v. State of H.P., 2023

SCC Online SC 1262]."

…..emphasis supplied

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25.2. Since the recovery of opium was effected from the bag which

the appellant was carrying on his shoulder, so Section 50 of the NDPS Act

was not applicable in the present case. Even otherwise, in the present case,

the prosecution has gone a step further by serving a written notice under

Section 50 NDPS Act (Ex. PD), despite the fact that the recovery was from a

bag. The appellant exercised his option to be searched before a Magistrate

and, accordingly, he was searched before PW3 K.K. Amrohi, DRO who as

per prosecution was exercising the powers of Executive Magistrate on that

day. Though Section 50 of the NDPS Act is not applicable in the present

case but still the same has been complied with. Thus, in view of the settled

law as discussed above, the submissions made by learned counsel for the

appellant with regard to non-compliance of Section 50 of the NDPS Act are

without any substance. Accordingly, this Court is of the considered opinion

that the submissions advanced on behalf of the appellant regarding the

alleged non-compliance of Section 50 of the NDPS Act are devoid of merit

and deserve to be rejected.

26. Learned counsel has next argued that Section 52-A of the

NDPS Act has not been complied with as samples were not drawn before the

Magistrate. The contention cannot be accepted. This Court is conscious that

the law on the consequence of such non-compliance has since been

authoritatively settled by the Hon'ble Supreme Court in Bharat Aambale v.

State of Chhattisgarh, 2025 INSC 78, wherein the Supreme Court had held

that non-compliance or delayed compliance with Section 52A of the NDPS

Act will not automatically vitiate the trial or entitle the accused to acquittal

unless it leads to significant discrepancies in the physical evidence that cast

doubt on the prosecution's case. It was further held that the Courts ought to

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consider entire evidence and assess if procedural lapses affect credibility and

the non-compliance may lead to adverse inference under Section 114(g)

Indian Evidence Act depending on facts but Substantial compliance is

sufficient. The relevant part of the order is reproduced below:

“50. We summarize our final conclusion as under: -

(I) Although Section 52A is primarily for the disposal and

destruction of seized contraband in a safe manner yet it extends

beyond the immediate context of drug disposal, as it serves a

broader purpose of also introducing procedural safeguards in

the treatment of narcotics substance after seizure inasmuch as it

provides for the preparation of inventories, taking of

photographs of the seized substances and drawing samples

therefrom in the presence and with the certification of a

magistrate. Mere drawing of samples in presence of a gazetted

officer would not constitute sufficient compliance of the mandate

under Section 52A sub-section (2) of the NDPS Act.

(II) Although, there is no mandate that the drawing of samples

from the seized substance must take place at the time of seizure

as held in Mohanlal (supra), yet we are of the opinion that the

process of inventorying, photographing and drawing samples of

the seized substance shall as far as possible, take place in the

presence of the accused, though the same may not be done at the

very spot of seizure.

(III) Any inventory, photographs or samples of seized substance

prepared in substantial compliance of the procedure prescribed

under Section 52A of the NDPS Act and the Rules/Standing

Order(s) thereunder would have to be mandatorily treated as

primary evidence as per Section 52A subsection (4) of the NDPS

Act, irrespective of whether the substance in original is actually

produced before the court or not.

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(IV) 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 see 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.

(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.

(VI) If the other material on record adduced by the prosecution,

oral or documentary inspires confidence and satisfies the court

as regards the recovery as-well as conscious possession of the

contraband from the accused persons, then even in such cases,

the courts can without hesitation proceed to hold the accused

guilty notwithstanding any procedural defect in terms of Section

52A of the NDPS Act.

(VII) Non-compliance or delayed compliance of the said

provision or rules thereunder may lead the court to drawing 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.

(VIII) 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 proving the same, it will not be

appropriate for the court 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

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satisfied as regards the seizure or recovery of such material from

the accused persons from the other material on record.

(IX) The initial burden will lie on the accused to first lay the

foundational facts to show that there was non-compliance of

Section 52A, either by leading evidence of its own or by relying

upon the evidence of the prosecution, and the standard required

would only be preponderance of probabilities.

(X) Once the foundational facts laid indicate non-compliance of

Section 52A of the NDPS Act, the onus would thereafter be on the

prosecution to prove by cogent evidence that either (i) there was

substantial compliance with the mandate of Section 52A of the

NDPS Act OR (ii) satisfy the court that such non-compliance

does not affect its case against the accused, and the standard of

proof required would be beyond a reasonable doubt.”

26.2. In the present case, the prosecution witnesses i.e. the

Investigating Officer PW-4 Inspector Dhian Singh and the PW-2

MMHC Brij Pal Singh and also the report of the Forensic Science

Laboratory (Ex.PX), consistently establishes that the sample analysed by

the laboratory was the sample drawn from the contraband recovered

from the appellant. There is no material on record to indicate that the

identity of the seized substance was ever lost or that the sample

examined by the Forensic Science Laboratory was different from the

one allegedly recovered from the appellant. Thus, in the facts and

circumstances of the present case, the alleged non-compliance with

Section 52A of NDPS Act, even if assumed, constitutes at best a

procedural irregularity and not an illegality going to the root of the

prosecution case. In the absence of any demonstrated prejudice or any

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discrepancy affecting the credibility of the physical evidence, the

conviction cannot be vitiated on this ground alone.

27. On a comprehensive appreciation of the entire evidence

on record, this Court finds that the prosecution has proved each

circumstance beyond reasonable doubt. The evidence of the official

witnesses is trustworthy, consistent and inspires confidence. Their

testimony is duly corroborated by the documentary evidence and the

report of the Forensic Science Laboratory. No material contradiction,

omission or discrepancy has been pointed out which goes to the root of

the prosecution case or is sufficient to discredit the otherwise reliable

evidence led by the prosecution.

28. Thus, this Court concludes that the findings recorded by

the learned Special Judge are based upon proper appreciation of oral as

well as documentary evidence and do not suffer from any illegality,

perversity or misreading of evidence warranting interference by this

Court. The prosecution has successfully established that the appellant

was found in conscious possession of 2 Kgs. of opium in contravention

of the provisions of the NDPS Act.

29. This Court has also considered the argument of the

learned counsel for the appellant that the sentence awarded by the

learned trial Court is on higher side.

30. In Deo Narain Mandal v. State of U.P. (2004) 7 SCC

257, the Supreme Court (Three-Judge Bench) underscored that

sentencing is not a mere formality in criminal proceedings. Where a

statute prescribes both minimum and maximum terms, the court must

exercise the discretion conferred upon it judiciously-not whimsically or

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arbitrarily. Factors such as the gravity of the offence, manner of

commission, and the accused's age are imperative in determining an

appropriate sentence. The sentencing court must operate within the

principle of proportionality, ensuring the sentence is neither unduly

harsh nor inappropriately lenient.

31. In Ravada Sasikala v. State of Andhra Pradesh AIR

2017 SC 1166, the Court reaffirmed that sentencing serves a broader

social purpose a deterrent effect that compels the offender to

acknowledge the harm caused both to the victim and to society. The

Court held that opportunities for reformation must be afforded, and

sentencing discretion must be exercised by weighing all attendant

circumstances, including the nature and manner of the offence and the

conduct of the accused, to strike a balance between legal efficacy and

prospects of rehabilitation.

32. The contraband recovered in the present FIR falls under

non-commercial quantity and the trial court has awarded the maximum

sentence to the appellant. With regard to the alternate prayer of the

learned counsel for the appellant, this Court has considered all the

aggravated and mitigating circumstances. The present case was

registered in the year 2001. The appellant-accused had faced agony of

trial for almost about 25 years and at the time of arrest he was 31 years

of age. Now he is more than 55 years of age. The custody certificate

produced on record by the learned State counsel reveals that he has

undergone actual sentence of 01 year 04 months and 19 days and the

custody certificate further shows that he is not involved in any other

case. The sentence of the appellant was suspended by this Court way

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back on 14.01.2005. Thereafter, the appellant has not misused the

concession of bail granted to him.

33. Accordingly, this Court is of the opinion that considering

the facts and circumstances of the case, it would be appropriate to

sentence the appellant for rigorous imprisonment for 05 years for offence

punishable under Section 18 of the NDPS Act.

34. Therefore, in view of the discussion above, the present

appeal is disposed of in the following terms:-

(i) The judgment dated 08.09.2004 passed by the Learned Special Judge,

Panipat is upheld.

(ii) The order of sentence dated 10.09.2004 is modified to the extent that

the sentence of imprisonment for 10 years awarded to the appellant is

reduced to rigorous imprisonment for 05 years.

(iii) The order of sentence qua fine imposed is upheld and punishment in

default is of payment of fine is modified to rigorous imprisonment for 06

months.

35. The appellant, shall surrender before the learned trial

Court forthwith to undergo the remaining part of the sentence. The trial

Court shall take appropriate steps to secure his custody in accordance

with law.

36. Pending miscellaneous application(s), if any, shall also

stand disposed of.

(RUPINDERJIT CHAHAL)

29.07.2026 JUDGE

Mohit Bishnoi

Whether speaking/reasoned : Yes

Whether reportable : Yes

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