1

2026:CGHC:2419-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

CRA No. 2072 of 2024

1 - Shivam Pratap Singh S/o Udaybhan Singh Aged About 19 Years R/o

66 R.K. Puram Colony Fatherpur Abunagar, P.S. Kotwali Fathepur,

District Pathepur, Uttar Pradesh.

2 - Shivam Patel S/o Rajesh Kumar Aged About 23 Years R/o I.T.I. Civil

Line In Front Of Mahila College Fathepur, P.S. Kotwali Fathepur, District

Pathepur, Uttar Pradesh.

... Appellants

versus

State Of Chhattisgarh Through Station House Officer, Police Station -

Kukdur, District Kabirdham, Chattisgarh.

... Respondent

For Appellant(s) :Ms Anjali Pradhan, Advocate.

For Respondent(s) :Mr. S.S.Baghel, Government Advocate

Hon'ble Shri Ramesh Sinha, Chief Justice

Hon'ble Shri Ravindra Kumar Agrawal, Judge

Judgment on Board

Per Ramesh Sinha, Chief Justice

15.01.2026

1.The present appeal has been filed by the appellant under Section

374(2) of the Code of Criminal Procedure 1973, (for short the,

Cr.P.C.) against the impugned judgment of conviction and

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sentence dated 24.10.2024, passed by learned Special Judge

(NDPS Act) District-Kawardha, District Kabirdham (C.G.) in

Special Criminal Case under the NDPS Act No.288/2023, whereby

the learned Special Judge has convicted the appellants for the

offence under Section 20(b)(ii)(C) of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as “the

NDPS Act”) and sentenced him for 12 years rigorous

imprisonment with fine of Rs.1,00,000/- in default of payment of

fine, additional R.I. for one year.

2.The prosecution case in brief is that on 24/05/2023, Sub-Inspector

Sushil Verma (P.W.-13), posted at Police Station Kukdoor,

received information from an informant that two persons were

transporting illegal narcotic substance (ganja) in a four-wheeler

bearing registration number OD-05 BG-4937, and that two other

persons were conducting police surveillance in a white Swift Dzire

car bearing registration number UP-30 MU-7306. The said

information was entered in the police station daily diary Sanha No.

22 (Ex.P-41). Thereafter, Constable No. 811 Vijay Sharma was

issued a duty certificate (Ex. P-43) and sent to Kukdoor town to

serve notices upon witnesses. His departure was recorded in daily

diary Sanha No. 23. Constable Vijay Sharma brought two

witnesses, namely Chandra Kumar Sakat (P.W.-1) and Hari

Prasad Khunte (P.W.-2), after serving notices Ex. P-01 and Ex. P-

23. The witnesses were informed about the secret information,

and a Secret Information Panchanama (Ex.P-2) and a

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Panchanama regarding non-availability of search warrant

(Ex.P-3) were prepared. Information under Section 42 of the

NDPS Act was forwarded to the Sub-Divisional Police Officer,

Pandariya, for which Constable No. 182 Pancham Baghel was

issued a duty certificate (Ex.P-45).

3.Investigating Officer Sub-Inspector Sushil Verma (P.W.-13), along

with accompanying staff and investigation materials, reached the

spot for verification of the information. After some time, a white

Swift Dzire vehicle bearing registration number UP-30 MU-7306

was seen coming from the Pandariya side. On noticing the police,

the occupants sped away toward Bajag, upon which police staff

were sent in pursuit and Police Station Bajag was informed via

mobile phone. Shortly thereafter, a Honda Amaze vehicle bearing

registration number OD-05 BG-4937 was seen approaching.

When signaled to stop, the vehicle did not stop immediately and

was finally stopped in front of the house of Dhannu Shrivas, Awas

Para. On inquiry, the driver disclosed his name as Shivam Pratap

Singh, son of Udaybhan Singh, aged 19 years, resident of 66

K.R.K. Colony, Abu Nagar, Fatehpur (Uttar Pradesh), and the

other person disclosed his name as Shivam Patel, son of Rajesh

Kumar, aged 23 years, resident of ITI Civil Line, in front of Mahila

College, Fatehpur (Uttar Pradesh). As there was no electricity at

the spot, consent was obtained from Dhannu Shrivas to provide

electricity connection for operating electronic equipment, as per

Ex.P-34. In the presence of witnesses, accused Shivam Pratap

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and Shivam Patel were informed about the secret information, and

a Secret Information Panchanama (Ex.P-4) was prepared. They

were also informed of their constitutional rights regarding search,

and upon their consent to be searched by the police officer

himself, a Consent Panchanama (Ex.P-7) was prepared. Before

conducting the search, the accused were offered the opportunity

to search the police party and witnesses, as per Ex.P-8, during

which no objectionable article was found. However, upon

searching the vehicle as per Ex.P-9, 10 packets were recovered

from the rear seat and 9 packets from the trunk, all wrapped in

khaki-colored tape, emitting an odor similar to narcotic

substances.

4.The recovered substance was seized and a Seizure Panchanama

(Ex.P-10) was prepared. A small quantity was taken out and

identified as ganja by rubbing, smelling, and crushing, and an

Identification Panchanama (Ex.P-11) was prepared. Upon issuing

notice under Section 91 of CrPC (Ex.P-49) to produce valid

documents for possession of the narcotic substance, the accused

stated that they had no such documents.

5.For weighing the seized 19 packets, weighman Durgesh Lanjhi

(P.W.-8) was called with an electronic weighing scale through

Constable No. 566 Ramhau, who was issued a duty certificate

(Ex. P-50). After verification of the weighing scale in the presence

of witnesses (Ex. P-12), the packets were weighed separately.

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Including the packaging, the total weight of ganja was found to be

196.170 kgs. The packets were marked C-1 to C-19, and a

Weighment Panchanama (Ex. P-13) was prepared. An application

(Ex. D-1) was submitted to the Tehsildar, Kukdoor for

homogenization of the seized substance. The Tehsildar arrived at

the spot and all 19 packets were opened and mixed together as

per Homogenization Panchanama (Ex. P-14). Upon weighing

separately, the net weight of ganja was 192 kilograms, and the

empty packaging weighed 4.170 kilograms. The homogenized

ganja was filled into 10 white plastic bags, marked B-1 to B-10,

and the tape was kept in a separate bag marked B-11. Weighment

Panchanama (Ex. P-15) and Sealing Panchanama (Ex. P-16)

were prepared. The RC book and insurance documents of vehicle

OD-05 BG-4937, along with the mobile phones of the accused,

were seized under Ex. P-17, and a spot map (Ex. P-18) was

prepared.

6.The accused were arrested, and information of arrest was given to

their relatives Akhilesh and Rajesh. A Dehati Nalishi (Ex. P-52)

was registered on the spot, and thereafter Crime No. 0/2023 under

Section 20(b) NDPS Act was registered. After completion of

proceedings, the seized property and accused were brought to the

police station and deposited in the Malkhana. Statements of

witnesses under Section 161 CrPC were recorded.

7.On producing the seized ganja, accused persons, and vehicle at

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the police station, FIR No. 45/2023 (Ex. P-58) was registered.

During investigation, memorandum statements of accused

Raunak Patel and Vivek Singh were recorded. On the basis of

Raunak Patel’s statement, his original driving license and mobile

phone were seized. From the possession of accused Vivek Singh,

in the presence of witnesses Ratan Kumar and Mahesh Kumar, a

Swift Dzire car UP-32 MU-7306, a Samsung mobile phone, and a

stepney of vehicle OD-05 BG-4937 bearing registration UP-32 M-

7306 were seized and a seizure memo Ex. P-29 was prepared.

8.On 25/03/2023 at 18:30 and 18:40 hours, accused Vivek Singh

and Raunak Patel were arrested under Section 20(b) NDPS Act

vide arrest memos Ex. P-31 and P-32. On 03/06/2023, mobile

phones of all accused were seized, and requests were sent for

CDR and Section 65-B certificates for the period 01/05/2023 to

25/05/2023 to the Superintendent of Police, Kabirdham. On

07/06/2023, a request for Patwari map was sent to the Tehsildar,

Kukdoor. On 02/06/2023, an application was submitted before the

Judicial Magistrate, Pandariya for drawing samples, and on

03/06/2023, an application for inventory preparation was

submitted. On 06/06/2023, the seized samples were sent to FSL

Raipur through the Superintendent of Police. The FSL report (Ex.

P-64) was received and attached to the case file. On 02/06/2023,

witness Subhash Chand Behra produced the National Insurance

certificate and lease agreement (11 pages) of vehicle OD-05 BG-

4937, which were seized under Ex. P-65.

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9.After completion of investigation, a charge-sheet was filed against

Shivam Pratap, Shivam Patel, Vivek Singh, and Raunak Patel

under Section 20(b) NDPS Act before the Court.

10.Charges under Section 20(b)(ii)(C) of the NDPS Act were framed

against the accused, who denied the charges. After completion of

prosecution evidence, statements under Section 313 CrPC were

recorded. Accused Shivam Pratap and Shivam Patel claimed false

implication and innocence and did not lead any defence evidence.

Accused Vivek Singh, however, examined himself and defense

witness Premchand Soni in support of his case.

11.In order to bring home the offence, the prosecution examined as

many as 18 witnesses and exhibited 33 documents Exs.P-1 to P-

53.

12.After appreciation of oral as well as documentary evidence led by

the prosecution the learned trial Court has convicted the

appellants and sentenced them as mentioned in the earlier part of

this judgment. Hence this appeal.

13.Learned counsel for the appellants would submit that the learned

trial Court failed to appreciate that the independent witnesses

Chandrakumar Saket (P.W.-1), Hariprasad Khunte (P.W.-2) and

Ratan Kumar Dhurve (P.W.-3) have not supported the case of the

prosecution and they turned hostile. She would further submit that

learned trial Court has failed to observe that the prosecution has

completely failed to prove its case beyond all reasonable doubt,

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hence, the impugned judgment is liable to be set aside. She would

also submit that learned trial Court has failed to consider that there

is no any reliable evidence to convict the appellants for the alleged

offence. Learned trial Court has not properly considered with the

fact that the prosecution has failed to prove the case for convicting

the appellants for the alleged offence. Looking to the entire

evidence produce by the prosecution the alleged offence is not

made out against the present appellants and they have been

falsely implicated in the present. 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 appellants cannot be convicted for the

alleged offence. There are material irregularity in the search and

seizure proceedings and there are major discrepancy in the

evidence of the I.O. Therefore, the appellants may be acquitted

from the alleged offence.

14.On the other hand, learned counsel for the State opposes and

have 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 convicted and sentenced the appellants for the

alleged offence. The appellants were found in possession of the

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vehicle in which 192 kg of cannabis (Ganja) was being transported

by the appellants and there has been no explanation offered by

the appellants as to how they came into the possession of such a

huge quantity of cannabis (Ganja) in their vehicle. 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.

15.We have heard learned counsel for the parties and perused the

record of the trial Court with utmost circumspection.

16.Investigating officer Sushil Verma (P.W.-13) has stated in his

statement before the trial Court that on 24.05.2023, he received

information from an informer that two persons were transporting

illegal narcotic substance (ganja) in a four-wheeler bearing

registration number OD-05 BG-4937, and that two persons in a

white Swift Dzire car bearing registration number UP-30 NU-7306

were conducting reconnaissance of the police. He entered this

information in the police station’s daily diary (Rojnamcha Sanha)

at serial number 22, dated 24.05.2023. The daily diary entry No.

22 is Ex.P-41, and its certified copy is Ex.P-41-C. Thereafter,

Constable No. 811 was sent to the town of Kui Kukdoor to serve

notices upon two witnesses and bring them to the police station.

His departure was recorded in daily diary entry No. 23. Daily diary

entry No. 23 is Ex.P-42, and its certified copy is Ex.P-42-C. He

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has further stated that Constable No. 811 served notices upon two

witnesses, namely Chandra Kumar Sakat and Hari Prasad Khute,

and brought them to the police station. The notices are Exs.P-1

and P-23, on which his signature appears on the respective

marked portions. For this duty, Constable No. 811 Vijay Sharma

was issued a duty certificate, Ex.P-43, bearing his signature on the

marked portion. The return of Constable No. 811 was recorded in

daily diary entry No. 24. The said entry is Ex.P-44, and its certified

copy is Ex.P-44-C. After informing the witnesses about the

informer’s information, he prepared the informer information

panchnama (Ex.P-2), bearing his signature on the marked portion.

In the presence of the witnesses, he also prepared a panchnama

regarding the inability to obtain a search warrant, Ex.P-3, bearing

his signature. Information under Section 42 of the NDPS Act was

sent to the Sub-Divisional Police Officer, Pandariya,

acknowledgment of which is Ex.P-39, bearing his signature. For

this purpose, he issued a duty certificate to Constable No. 182,

Pancham Baghel, Ex.P-45, bearing his signature. His departure

was recorded in daily diary entry No. 25 (Ex.P-46, certified copy P-

46-C), and his return was recorded in daily diary entry No. 27

(Ex.P-47, certified copy P-47-C). For verification of the informer’s

information, he departed for the spot along with the staff and

investigation materials. His departure was recorded in daily diary

entry No. 26 (Ex.P-48, certified copy P-48-C). Upon reaching the

spot, he remained present there with the accompanying staff. After

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some time, a white Swift Dzire vehicle bearing registration number

UP-30 MU-7306 was seen coming from Pandariya side with two

persons inside. On seeing the police, they fled at high speed

towards Bajag. The accompanying staff was sent to chase the

vehicle, and Police Station Bajag was informed by mobile phone.

Shortly thereafter, a Honda Amaze vehicle bearing registration

number OD-05 BG-4937 was seen approaching. When signaled to

stop, it did not stop. The vehicle was stopped in front of the house

of Dhannu Shrivas, located at Awas Para. On enquiring, the driver

disclosed his name as Shivam Pratap Singh, son of Udaybhan

Singh, aged 19 years, resident of 66, KRK Colony, Abu Nagar,

Fatehpur, Uttar Pradesh, and the other occupant disclosed his

name as Shivam Patel, son of Rajesh Kumar, aged 23 years,

resident of ITI Civil Line, in front of Mahila College, Fatehpur. As

there was no electricity at the spot, consent was obtained from

resident Dhannu Shrivas to provide an electric connection for

operating electronic equipment. The consent notice issued to him

is Ex.P-34, bearing his signature. In the presence of witnesses, he

informed the accused persons about the informer’s information

and prepared an informer information intimation panchnama

(Ex.P-4), bearing his signature and the signatures of both

accused.

17.He stated that he served notices under Section 50 of the NDPS

Act to the accused, informing them of their right to be searched

before a Gazetted Officer or a Magistrate. The notices are

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Ex.P-5, bearing his signature and the signatures of both accused.

The accused gave written consent to be searched, which is

Ex.P-6, bearing their signatures. In the presence of witnesses, he

prepared a consent panchnama regarding search (Ex.P-7). Prior

to searching the accused, the accused were asked to search him,

the police party, and the witnesses, and a panchnama to that

effect was prepared (Ex.P-8). No objectionable article was found.

Thereafter, he conducted the search of the accused and the

vehicle in their possession in the presence of witnesses. From the

rear seat (10 packets) and the boot (9 packets) of the vehicle, a

total of 19 packets wrapped with khaki-colored tape were

recovered, emitting an odor resembling a narcotic substance. A

search panchnama (Ex.P-9) was prepared accordingly. The 19

packets recovered from the vehicle were seized, and a seizure

panchnama (Ex.P-10) was prepared. On opening a small portion

of the substance, rubbing and smelling it, the substance was

identified as ganja, and a narcotic identification panchnama

(Exhibit P-11) was prepared. Notices were issued to the accused

to produce documents authorizing possession of the narcotic

substance (Exhibit P-49). The accused stated that they had no

such documents.

18.He stated that for weighing the seized packets, he issued a duty

certificate (Ex.P-50) to Constable No. 566, Ramhu Dhurve, to

bring weigher Durgesh Lanjhi along with an electronic weighing

scale to the spot. Constable No. 566 served notice (Ex.P-35) upon

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the weigher and brought him to the spot with the electronic scale.

After checking the weighing scale, a panchnama regarding

physical verification of the weighing scale (Ex.P-12) was prepared.

The weigher weighed all the packets separately. The total weight

of the ganja along with packaging was found to be 196.170 kgs.

The packets were marked C-1 to C-19, and a weighing

panchnama (Ex.P-13) was prepared. Subsequently, an application

(Ex.D-1) was submitted for the presence of the Tahsildar for

sampling proceedings. After some time, the Tahsildar arrived at

the spot and, after opening all 19 packets, mixed the contents

together and prepared a homogenization panchnama (Ex.P-14).

After homogenization, the pure weight of ganja was found to be

192 kgs., and the weight of the packaging material was 4.170 kgs.

The ganja was filled into 10 white plastic bags, marked B-1 to B-

10, and the empty tape was filled into one white bag marked B-11.

A panchnama regarding the weighing of the empty tape (Ex.P-15)

was prepared. The bags were sealed in the presence of

witnesses, and a sealing panchnama (Ex.P-16) was prepared. I

seized 11 bags (B-1 to B-11), one white Honda Amaze vehicle

bearing registration number OD-05 BG-4937, the original RC book

and insurance documents of the vehicle, and one mobile phone

each belonging to accused Shivam Pratap Singh and Shivam

Patel. A seizure memo (Ex.P-17) was prepared. He also prepared

the spot map (Ex. P-18). Accused Shivam Pratap Singh and

Shivam Patel were arrested, and arrest memos (Exs.P-20 and P-

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21) were prepared. Information of arrest was given to Akhilesh and

Rajesh, and acknowledgment thereof is Exs.P-51. At the spot, he

registered a Dehati Nalishi (Ex.P-52) and registered Crime No.

0/2023 under Section 20(b) of the NDPS Act. He also prepared a

comprehensive proceedings panchnama (Ex.P-53). After

completing the proceedings, he returned to the police station with

the seized property and the accused. His return was recorded in

daily diary entry No. 39 (Ex.P-54, certified copy P-54-C). The

seized property was deposited in the Malkhana for safe custody

and handed over to the Malkhana in-charge, as per receipt (Ex.P-

55). Entry regarding deposit of the property was made in daily

diary entry No. 40 (Ex.P-56, certified copy P-56-C). He recorded

the statements of witnesses Chandra Kumar Sakat and Hari

Prasad Khute under Section 161 CrPC. After returning to the

police station, he handed over the case diary to the Station House

Officer for formal registration of the offence and further

investigation.

19.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

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conviction notwithstanding any procedural difficulty in terms of

Section 52-A of the NDPS Act.

20.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

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regard assumes importance (see Jitendra para

6). The panchnama was said to have been

drawn at 10 p.m. as per PW 1 whereas PW 2

stated that panchnama was drawn at 8.30 p.m.

Exhibit PA, containing the purported option to

conduct personal search under Section 50 of

the Act, only mentioned the time when the flight

landed at the airport.

xxx xxx xxx

111. In a case of this nature, where there are a

large number of discrepancies, the appellant

has been gravely prejudiced by their non-

examination. It is true that what matters is the

quality of the evidence and not the quantity

thereof but in a case of this nature where

procedural safeguards were required to be

strictly complied with, it is for the prosecution to

explain why the material witnesses had not

been examined. The matter might have been

different if the evidence of the investigating

officer who recovered the material objects was

found to be convincing. The statement of the

investigating officer is 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)

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26. Non-compliance or delayed compliance with the

procedure prescribed under Section 52A of the NDPS

Act or the Rules / Standing Order(s) thereunder may

lead the court to draw an adverse inference against

the prosecution. However, no hard and fast rule can

be laid down as to when such inference may be

drawn, and it would all depend on the peculiar facts

and circumstances of each case. Such delay or

deviation from Section 52A of the NDPS Act or the

Standing Order(s) / Rules thereunder will not, by itself,

be fatal to the case of the prosecution, unless there

are discrepancies in the physical evidence which may

not have been there had such compliance been done.

What is required is that the courts take a holistic and

cumulative view of the discrepancies that exist in the

physical evidence adduced by the prosecution and

correlate or link the same with any procedural lapses

or deviations. Thus, whenever, there is any deviation

or non-compliance of the procedure envisaged under

Section 52A, the courts are required to appreciate the

same keeping in mind the discrepancies that exist in

the 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

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appropriate for the courts to resort to the statutory

presumption of commission of an offence from the

possession of illicit material under Section 54 of the

NDPS Act, unless the court is otherwise satisfied as

regards the seizure or recovery of such material from

the accused persons from the other material on

record. Similarly, irrespective of any failure to follow

the procedure laid under Section 52A of the NDPS

Act, if the other material on record adduced by the

prosecution inspires confidence and satisfies the court

regarding both the recovery and possession of the

contraband from the accused, then even in such

cases, the courts can without hesitation proceed for

conviction notwithstanding any procedural defect in

terms of Section 52A of the NDPS Act.

28. In Khet Singh v. Union of India reported in

(2002) 4 SCC 380 this Court held that the Standing

Order(s) issued by the NCB and the procedure

envisaged therein is only intended to guide the

officers and to see that a fair procedure is adopted by

the officer-in-charge of the investigation. It further

observed that there may, however, be circumstances

in which it would not be possible to follow these

guidelines to the letter, particularly in cases of chance

recovery or lack of proper 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

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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 prepared at the spot

20

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.

xxx xxx xxx

16. Law on the point is very clear that even if

there is any sort of procedural illegality in

21

conducting the search and seizure, the

evidence collected thereby will not become

inadmissible and the court would consider all

the circumstances and find out whether any

serious prejudice had been caused to the

accused. If the search and seizure was in

complete defiance of the law and procedure

and there was any possibility of the evidence

collected likely to have been tampered with or

interpolated during the course of such search or

seizure, then, it could be said that the evidence

is not liable to be admissible in evidence.”

(Emphasis supplied)

29. A similar view as above was reiterated in the

decision of State of Punjab v. Makhan Chand

reported in (2004) 3 SCC 453 wherein this Court after

examining the purport of Section 52A of the NDPS Act

and the Standing Order(s) issued thereunder, held

that the procedure prescribed under the said order is

merely intended to guide the officers to see that a fair

procedure is adopted by the officer in charge of the

investigation and they were not inexorable rules. The

relevant observations read as under: -

“10. This contention too has no substance for

two reasons. Firstly, Section 52-A, as the

marginal note indicates, deals with “disposal of

seized narcotic drugs and psychotropic

substances”. Under sub-section (1), the Central

Government, by a notification in the Official

Gazette, is empowered to specify certain

narcotic drugs or psychotropic substances,

having regard to the hazardous nature,

22

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 Bharat Aambale vs The State Of Chhattisgarh

on 6 January, 2025 Indian Kanoon -

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Section 52-A is complied with and upon an

application, the Magistrate issues the certificate

contemplated by sub-section (2), then sub-

section (4) provides that, notwithstanding

anything to the contrary contained in the Indian

Evidence Act, 1872 or the Code of Criminal

Procedure, 1973, such inventory, photographs of

narcotic drugs or substances and any list of

samples drawn under sub-section (2) of Section

52-A as certified by the Magistrate, would be

treated as primary evidence in respect of the

offence. Therefore, Section 52-A(1) does not

empower the Central Government to lay down

the procedure for search of an accused, but only

deals with the disposal of seized narcotic drugs

and psychotropic substances. 11. Secondly,

when the very same Standing Orders came up

for consideration in Khet Singh v. Union of India

this Court took the view that they are merely

intended to guide the officers to see that a fair

procedure is adopted by the officer in charge of

the investigation. It was also held that they were

not inexorable rules as there could be

23

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 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

24

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 Bharat Aambale vs The State Of

Chhattisgarh on 6 January, 2025 Indian Kanoon -

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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

25

contravention of Section 52A was not produced before

the court despite being directed to be preserved etc.

These illustrations are only for the purposes of brining

clarity on what may constitute as a significant

discrepancy in a given case, and by no means is

either exhaustive in nature or supposed to be applied

mechanically in any proceeding under the NDPS Act.

It is for the courts to see what constitutes as a

significant discrepancy, keeping in mind the peculiar

facts, the materials on record and the evidence

adduced. At the same time, we may caution the

courts, not to be hyper-technical whilst looking into the

discrepancies that may exist, like slight differences in

the weight, colour or numbering of the sample etc.

The 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

26

does not exhaustively lay down the evidentiary rules

for proving seizure or recovery, nor does it dictate the

manner in which evidence is to be led during trial. It in

no manner prescribes how the seizure or recovery of

narcotic substances is to be proved or what can be

led as evidence to prove the same. Rather, it is the

general principles of evidence, as enshrined in the

Evidence Act that governs how seizure or recovery

may be proved.

32. Thus, the prosecution sans the compliance of the

procedure under Section 52A of the NDPS Act will not

render itself helpless but can still prove the seizure or

recovery of contraband by leading cogent evidence in

this regard such as by examining the seizing officer,

producing independent witnesses to the recovery, or

presenting the original quantity of seized substances

before the court. The evidentiary value of these

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

27

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 Bharat Aambale vs

The State Of Chhattisgarh on 6 January, 2025 Indian

Kanoon - http://indiankanoon.org/doc/94312390/ 29

emphasis must be on substantive justice rather than

procedural technicalities, and keeping in mind that the

salutary objective of the NDPS Act is to curb the

menace of drug trafficking.

34. At this stage we may clarify the scope and purport

of Section 52A sub-section (4) with a view to obviate

any confusion. Sub-section (4) of Section 52A

provides that every court trying an offence under the

NDPS Act, shall treat the inventory, photographs and

samples of the seized substance that have been

certified by the magistrate as primary evidence.

35. What this provision entails is that, where the

seized substance after being forwarded to the officer

empowered is inventoried, photographed and

thereafter samples are drawn therefrom as per the

procedure prescribed under the said provision and the

Rules / Standing Order(s), and the same is also duly

certified by a magistrate, then such certified inventory,

photographs and samples has to mandatorily be

treated as primary evidence. The use of the word

“shall” indicates that it would be mandatory for the

court to treat the same as primary 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

28

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, 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)

29

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

30

the NDPS Act does is it creates a new form of primary

evidence by way of a deeming fiction which would be

on par with the original seized substance as long as

the same was done in substantial compliance of the

procedure prescribed thereunder, however, the said

provision by no means renders the other evidence in

original to be excluded as primary evidence, it neither

confines nor restricts the manner of proving

possession to only one mode i.e., through such

certified inventory, photographs or samples such that

all other material are said to be excluded from the

ambit of ‘evidence’, rather it can be said that the

provision instead provides one additional limb of

evidentiary rule in proving such possession. Thus,

even in the absence of compliance of Section 52A of

the NDPS Act, the courts cannot simply overlook the

other cogent evidence in the form of the seized

substance itself or the testimony of the witnesses

examined, all that the courts would be required in the

absence of any such compliance is to be more careful

while appreciating the evidence.

21.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

31

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

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.”

22.Having considered the evidence on record, particularly the detailed

and cogent testimony of the Investigating Officer, Sushil Verma

32

(P.W.-13), this Court finds that the prosecution has successfully

established the factum of recovery and conscious possession of

the contraband ganja from the accused beyond reasonable doubt.

23.The evidence of P.W.-13 inspires full confidence. His testimony is

consistent, coherent, and duly corroborated by contemporaneous

documentary evidence in the form of daily diary entries,

panchnamas, seizure memos, arrest memos, and

acknowledgments, all of which have been duly exhibited. The

sequence of events commencing from receipt of secret

information, its recording in the Rojnamcha, compliance with

Section 42 of the NDPS Act, association of independent

witnesses, service of notice under Section 50 of the NDPS Act,

conduct of search and seizure, weighing, sealing, and deposit of

seized articles in the Malkhana has been clearly and satisfactorily

proved. The recovery of 19 packets of ganja weighing 192

kilograms (net weight) from the vehicle in possession of the

accused has been specifically proved through the unimpeached

testimony of the Investigating Officer, supported by independent

witnesses and documentary evidence. The accused were

apprehended at the spot while travelling in the vehicle from which

the contraband was recovered, and no plausible explanation was

offered by them regarding lawful possession of the seized

substance. Their conscious possession is thus clearly established.

24.So far as the alleged procedural irregularities with regard to

33

Section 52-A of the NDPS Act are concerned, this Court is guided

by the authoritative pronouncement of the Hon’ble Supreme Court

in Bharat Aambale (supra). The Supreme Court has categorically

held that non-compliance or deviation from the procedure under

Section 52-A of the NDPS Act is not ipso facto fatal to the

prosecution case, and that conviction can be safely recorded if the

other evidence on record inspires confidence and satisfactorily

proves recovery and possession of the contraband.

25.In the present case, there are no material discrepancies in the

prosecution evidence regarding the nature, quantity, or recovery of

the seized ganja. The evidence does not suggest any possibility of

tampering, substitution, or false implication. The chain of custody

has been duly established, and the testimony of the Investigating

Officer remains unshaken despite cross-examination.

26.In view of the settled legal position as reiterated in Bharat

Aambale (supra), this Court holds that once possession and

recovery of contraband from the accused stand proved by reliable

and trustworthy evidence, it is not necessary for the prosecution to

further prove each ancillary procedural act in a hyper-technical

manner. The substantive evidence on record is sufficient to bring

home the guilt of the accused.

27.Accordingly, this Court records a clear finding that the accused

were found in conscious and unlawful possession of commercial

quantity of ganja, and the prosecution has proved its case beyond

34

reasonable doubt.

28.For the foregoing reasons, the appeal being devoid of merit is

liable to be and is hereby dismissed.

29.It is stated at the Bar that the the appellants are in jail, they shall

serve out the sentence as ordered by the learned trial Court.

30.The trial court record along with a copy of this judgment be sent

back immediately to the trial Court concerned for compliance and

necessary action forthwith.

31.Registry is directed to send a copy of this judgment to the

concerned Superintendent of Jail where the appellant is

undergoing his jail term, to serve the same on the appellant

informing him that he is at liberty to assail the present judgment

passed by this Court by preferring an appeal before the Hon’ble

Supreme Court with the assistance of the High Court Legal

Services Committee or the Supreme Court Legal Services

Committee.

Sd/- Sd/-

(Ravindra Kumar Agrawal) (Ramesh Sinha)

Judge Chief Justice

Bablu