IN THE HIGH COURT OF MADHYA PRADESH

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AT JABALPUR

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BEFORE

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HON'BLE SHRI JUSTICE VIVEK AGARWAL

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&

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HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH

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ON THE 26

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th

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OF FEBRUARY, 2026

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CRIMINAL APPEAL No. 6303 of 2023

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VEER SINGH AND OTHERS

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Versus

THE STATE OF MADHYA PRADESH

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Appearance:

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Shri Surendra Verma, learned counsel for the applicants.

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Shri Veer Vikrant Singh, learned Dy. Advocate General for the respondent State.

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ORDER

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Per

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: Justice Avanindra Kumar Singh

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This Criminal Appeal has been filed being aggrieved of the judgment dated

20.3.2023 passed by the learned Special Judge (NDPS Act) District Rewa in SC

No. NDPS/20/2019 (State of M.P. Through Police Station Chorhata, District Rewa

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v. Veer Singh and others)

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in Crime No. 46/2019, convicting the

appellants/accused as below:

No.

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Name of Accused

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Offence for which

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convicted

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Imprisonment

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Fine

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In

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Default

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of

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paying

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fine

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1.Veer Singh S/o Late

Sohan Singh

Section 8, 20 (b)

(ii-C) read with

Section 29 NDPS

12 years RI1,20,000/-One

year RI

2.Mukesh Prasad

Vishwakarma S/o late

Bhagwandas

Vishwakarma

Section 8, 20 (b)

(ii-C) read with

Section 29 NDPS

12 years RI1,20,000/-One

year RI

1 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

2.

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At the time of final arguments learned counsel for appellants Shri Surendra

Verma submitted that the appeal has been filed on the grounds that the trial Court

has erred in law as well as on facts while convicting the appellants for the offence

punishable under the provisions of N.D.P.S Act as aforesaid. The trial Court has

failed to consider the fact that the appellants are innocent and they have been

falsely implicated in the offcence. Learned trial Court has also failed to appreciate

that appellant No. 1 (Veer Singh) did not have information regarding contents of

the packets which were to be sent to the place of Ramlal Jaiswal. Learned trial

Court has failed to appreciate testimony of Anil Kumar Vishwakarma (D.W.-1)

who has categorically stated that the appellant was having tea at Dhaba, when

some police officials came. It is pertinent to mention here that aforesaid witness

was running the tea stall and his testimony should have been considered by the

learned trial Court. The learned trial Court has failed to appreciate that in the

present case there is grave violation of Section 50 of NDPS Act, compliance of

which is necessary. In this regard it is pertinent to mention here that consent

memorandum (Ex. P-7) which has been prepared in the present case is joint and

the same is not sufficient to fulfil requirements provided under Section 50 of

NDPS Act

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as it is a joint Panchnama Even the report of F.S.L was sought and

given on the basis of joint recovery, whereas only appellants were convicted,

seizure was disbelieved for the other co-accused Manoj. learned trial Court has

failed to appreciate that in the present case, there is grave violation of Section 57

of NDPS Act, compliance of which is necessary. The trial court has failed to

consider the fact that there are grave infirmities in the testimonies of the

prosecution witnesses. The prosecution has not been able to prove its case beyond

reasonable doubt as to arrived at the conclusion that the appellants are liable under

2 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

the alleged offences and that learned trial Court has failed to appreciate the

established principle of criminal law that benefit of doubt in a case should always

be given to the accused.

3.

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Investigating Officer Animesh Dwivedi (PW-8) admitted that he was given

case for investigation on 22

nd

January 2019, he kept the file with him till 27

th

January, 2019 for which no reasons were assigned. Prosecution Witnesses P.W.-5

Santosh Shukla and P.W-6 Santosh Kushwaha have not supported the prosecution

story and P.W-5 Santosh Shukla has deposed that he had signed plain papers.

There is no evidence of conscious possession. Before proving conscious

possession, presumption under Section 35 of NDPS Act cannot be attracted.

Contraband articles were made homogeneous (

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समरस

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) contrary to law. There is

total non-compliance of Section 52-A of NDPS Act, inasmuch as; (i) Samples are

made twice; (ii) Sample made before the Magistrate was not sent to the F.S.L for

testing (iii) It is admitted by the I.O Animesh Dwivedi (PW-8) that Karyvahi

Rojnamcha Sanha of Section 52-A of NDPS Act was not made part of the challan.

It is also admitted by him that necessary particulars were not recorded.

Photographs of exercise under Section 52 – A of NDPS Act was not made part of

the challan conducted after lapse of 5 months on 27

th

June, 2019; (v) It is also an

admitted fact that neither the full contraband article was produced before the Court

nor the same has been produced before the Magistrate. (vi) There is no

photograph or videography recorded of the exercise conducted under Section 52-A

of NDPS Act; and (vii) the Magistrate had conducted an exercise mechanically in

total careless manner and certificate was issued undated

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without verifying the

contents and the duty cast on him. Therefore, prayer is made to allow the appeal

and acquit the accused persons.

3 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

4.

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On the other hand learned Counsel for the State Shri Vikrant Singh

supported the impugned judgment and prayed for dismissal of the appeal. Stating

that minor inconsequential discrepancies cannot be a ground for acquittal over all

evidence and prosecution case has to be seen.

5.

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The prosecution story in short is that on 21/01/2019 in Police Station

Chorhata, an information was received by Sub Inspector Virendra Singh Parihar

(P.W.-9) posted in Police Station Chorhata at about 10:23 PM that a truck bearing

No. MP 20 HB/3344 is carrying ganja in large quantity illegally and is coming

towards Rewa from Maihar and will reach Rewa between 12 O’clock in the night

and 04:00 AM in the morning, This information was noted in Rojnamcha Sanha

No.53 Ex. P-31 dated 21.1.2019 at 10:23 PM. Thereafter, Constable No.566

Pankaj Mishra P.W.-3 was sent to call two independent witnesses and electronic

weighing machine from the Chorhata was called and his departure was recorded in

Rojnamcha Sanha No.54 Ex. P-32 dated 21.1.2019 at 10.28 p.m. At about 11:12

PM Pankaj Mishra (P.W.-3) came back with two independent witnesses Santosh

Shukla (P.W.-5) and Santosh Kushwaha (P.W. 6) along with electronic weighing

machine with 01 quintal capacity and this was entered in Rojnamcha Sanha No.56

(Ex. P-34) dated 21.1.2019 at 11:12 p.m, work certificate is Ex.P-33 dated

21.1.2019. Witnesses were informed about the information received through the

informant and a panchnama of the same was made and report Rojnamcha Sanha

No.57 (Ex. P-35) dated 21.1.2019 was registered at 11:27 PM. Since, the In-

charge of police station was outside the headquarter therefore for conducting raid,

a memo was prepared and along with panchnama Constable Pankaj Mishra (P.W.-

3) was sent to CSP Headquarter. His departure was registered in Rojnamcha Sanha

58 (Ex. P-36) dated 21.1.2019 at 11:34 PM. It is further the prosecution story that

4 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

since the residence of the CSP was locked, therefore the information and

panchnama was handed over to the reader of the CSP (Police) and obtained an

acknowledgment for the same and returned to the police station and return entry

was made in Rojnamcha Sanha No.59 (Ex. P-37) dated 21.1.2019 time 11:53 PM.

Since the information from the informant was reliable and looking to the

possibility of delay, if the search warrant was to be obtained under Section 41 of

NDPS Act therefore, a

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panchnama under Section 42 of NDPS Act was made and

looking to the possibility of accused absconding or possibility of the concealment

of the contraband therefore the search warrant was not obtained. The witnesses

accompanied the police staff with the investigation material, they departed for the

spot where the truck was expected to arrive at 00:23 AM and this fact was noted

in Rojnamcha Sanha No.60 (Ex. P-38) dated 22.1.2019, detailed report of

proceeding by T.I. Chorhata to C.S.P, Rewa dated 22.1.2019 is Ex. P-39, Ex. P-40

dated 24.1.2019 is regarding sending sealed packet of 25 grams Ganja Article A-1

to F.S.L Sagar, F.S.L report is Ex. P-41, F.I.R dated 22.1.2019 is Ex. P-42.

Rojnamcha Sanha Ex. P-43 dated 22.1.2019 at 9:16 AM was recorded on return

from the spot, Ex P-44 is photocopy of the certificate of the drug by the Drug

Disposal Committee, Ex. P-45 is photocopy of auction of the truck bearing No.

MP 20 HB 3344 dated 23.11.2019 by the concerned committee of the officers, Ex.

P-46 is list of Narcotic Substance in proceedings under Section 52-A of the NDPS

Act, which is undated

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and mentioning about proceeding on 22.1.2019

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and Ex. P-

47 is again a undated

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letter written by T.I. Chorhata, P.S., Rewa to Tahsildar who

has certified the same but it is undated.

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6.

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While Sub Inspector Virendra Singh (P.W-9) was waiting for the truck and

the suspects then from the Bela side before the truck No. MP 20 HB 3344, a

Scorpio car bearing No.MP 17 CA 5835 came at about 00:50 AM. Police staff

5 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

stopped the vehicle in which driver Manoj Pandey and Ramlal Jaiswal were found

and in truck, driver Veer Singh, cleaner Gurvinder Singh and Mukesh Prasad

Vishwakarma were found. All persons were questioned by the Sub Inspector

Virendra Singh (P.W.-9), then they informed the police officers that in truck about

10 quintals Ganja was kept in sacks and truck was going to the place of Ramlal

Jaiswal at Rewa.

7.

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It is further the case of the prosecution that on the spot, a memorandum of

Veer Singh (Ex. P-15) and of Mukesh Prasad Vishwakarma (Ex.P-17)

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under

Section 27 of Evidence Act was made. Under section 50 of NDPS Act, the accused

persons were given notice (Ex. P-7) to the effect that information has been

received about carrying of illegal narcotic substance ganja and police wants to

search the vehicle i.e. truck and Scorpio. They were also informed that they have a

right for getting vehicles checked by the Magistrate or Police Officer Virendra

Singh Parihar or gazetted officer. Accused consented to the search by Sub

Inspector Virendra Singh Parihar, a panchnama of consent to the above effect was

made thereafter Police Officer and witnesses got themselves searched by the

suspects. A panchnama was made at 02:15 AM.

8.

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It is further the case of prosecution that at about 02:30 AM when truck and

Scorpio was searched then in the truck bearing No.MP 20 HB 3344 narcotic

substance ‘ganja’ was found between cartons of dalda and in 50 sacks, 500 packets

were found, a panchnama (Ex. P-9) in this regard was made at 02:40 AM. When

the material was smelled, seen and touched, then it was found that it was the

‘ganja’, thereafter, panchnama was made in this regard which is Ex. P-10.

Thereafter, electronic weighing machine brought by Santosh Shukla was used. The

contraband ‘ganja’ was kept in packets of 22 kg each and in 50 sacks 500 packets

6 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

were found. The physical verification panchnama (Ex. P-11) of electronic

weighing machine was prepared at 02:50 AM.

9.

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Further the case of prosecution is that the contraband which was seized from

the possession of the accused was mixed by putting the material on a big

polythene sheet and all packets were cut and material was mixed and on weighing

the same, the contraband weight was 10 quintals 50 grams ganja Panchnama is Ex.

P-12, worth Rs.1 crore. From the mixed ‘ganja’ for investigation, samples of two

packets weighing 25 grams each was prepared which was marked as Annexure A/1

& A/2, remaining ‘ganja’ was filled in 25 sacks each sack weighing 40 kg and

sacks were numbered from 1 to 25 and they were marked as ‘A’. Out of the 50

sacks in which 37 sacks were of jute and 13 sacks were of plastic. These were kept

in two sacks equally and sample packets A/1 & A/2 and 25 sacks of ‘ganja’ were

marked as ‘A’ and packets were packed with polythene paper and tied with rope in

equal portion.

10.

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It is further the case of prosecution that at about 06:30 a.m. sealed sample

panchnama (Ex. P-13) was prepared, at 06:55 a.m, chit panchnama (Ex. P-14)

was made, at 07:00 AM, the ‘ganja’ seized from the truck, Scorpio bilty, papers

and mobile etc. were seized as per seizure memo (Ex. P-20).

11.

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A copy of seizure memo was given to the accused. As per Section 52 of

NDPS Act., accused were informed that from their (accused persons) possession

narcotic substance ‘ganja’ has been recovered and seized. Since an offence under

Section 8, 20, 25 & 25-A was committed, accused persons namely Veer Singh,

Mukesh Prasad, were arrested and arrest memo is Ex.P-22 & Ex. P-24 were

prepared separately respectively. Seized contraband was handed over to the Head

Constable (Malkhana) and crime was registered and matter was taken for

7 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

investigation. After completing the investigation, charge-sheet No.92/2019 was

prepared and on 22/04/2019 the charge-sheet was filed before the trial Court.

12.

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The learned trial court on 08.05.2019 framed the charges against the

appellant/accused under Section 8 r/w Section 20(B)(II-C) and Section 25 r/w

Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The

accused denied the charges and demanded a trial.

13.

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During the course of the trial, the prosecution examined the following

witnesses PW/1- Mahendra Singh Sub Inspector, PW/2- Mrigendra Singh Baghel

Sub Inspector, PW/3- Pankaj Mishra Constable, PW/4- the then Head Constable

Ramvichar Tiwari, PW/5- independent witness Santosh Shukla, PW/6-

independent witness Santosh Kushwaha, PW/7- Umesh Kumar Tripathi Assistant

Sub Inspector, PW/8- Animesh Dwivedi Inspector, PW/9- the then Inspector

Virendra Singh Parihar, PW/10- Yateesh Shukla.

14.

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The prosecution exhibited the following documents: Ex.P/1- Duty

Certificate dated 21.1.2019, Ex.P/2- Acknowledgment receipt (undated),

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Ex.P/3-

Verified Photocopy of seizure register dated 22.1.2019, Ex.P/4-Verified

photocopy of the register of seized goods dated 22.1.2019, Ex.P/5-informant

information panchnama Section 42 of NDPS Act dated 21.1.2019 at 23:20 PM,

Ex.P/6-Panchanama informant (undated)

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Section 42 (2) of NDPS Act, Ex.P/7

Consent Panchanma dated 22.1.2019 at 2:00 AM, Ex.P/8 Search Panchnama of

witnesses and police officers dated 22.1.2019 at 2:15 AM, Ex. P/9 Search

Panchnama of suspects dated 22.1.2019 at 2:30 AM, Ex.P/10- Panchnama of

identification of drugs dated 22.1.2019 at 2:40 AM, Ex. P/11- Panchnama of Scale

Physical Verification dated 22.1.2019 at 2:50 AM, Ex.P/12-Samaras and weighing

scale Panchnama dated 22.1.2019 at 6:00 AM, Ex.P/13 Panchnama Seal Sample

8 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

dated 22.1.2019 at 6:30 AM, Ex.P/14- Chit Panchnama dated 22.1.2019 at 6:55

AM, Ex.P/15 Memorandum under Section 27 of Evidence Act of Veer Singh dated

22.1.2019 at 1:00 AM, Ex.P/17 Memorandum under Section 27 of Evidence Act

of Mukesh Prasad dated 22.1.2019 at 1:25 AM, Ex.P/20-Property Seizure Memo

dated 22.1.2019 at 7:00 AM, Ex.P/21- Information and fard Panchnama of arrest

dated 22.1.2019 between 7:00 to 7:40 AM, Ex.P/22 Arrest Memo of Veer Singh

dated 22.1.2019 at 7:50 AM, Ex.P/24-Arrest memo of Mukesh Prasad

Vishwakarma dated 22.1.2019 at 8:00 AM, Ex.P/27 Police Statement under

Section 161 of Cr.P.C of Santosh Shukla dated 27.1.2019, Ex.P/28- Information

regarding action taken to the City Superintendent of Police Chorhata dated

21.1.2019 (there is overwriting in date and time in letter of Police Station

Chorhata), Ex.P/29-Spot Map dated 27.1.2019, Ex.P/30- Pre-trial Disposal

Schedule Under Section 52-A of NDPS Act dated 27.6.2019 was prepared,

Ex.P/31, Ex.P/32, Ex.P/34 to Ex.P/38, Ex.P/43 are the Rojnamcha Sanhas, Ex.

P/33 Work certificate Form, Ex.P/39 Detailed report of proceedings, Ex.P/40 letter

for sending drug sample to director State Forensic Lab, Sagar for testing purpose,

Ex.P/41 Drug Examination Report received from FSL Sagar, Ex.P/42- First

Information Report, Ex.P/44- Photocopy of the certificate of destruction of the

drug, Ex.P/45 Photocopy of the auction certificate of the vehicle truck bearing No.

MP 20 HB 3344, Ex.P/46 list of narcotic substances prepared under Section 52-A,

Ex.P/47- Index No.02 signed by TI Chorhata and Executive Magistrate (undated)

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.

15.

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In addition thereto, the prosecution has exhibited the following articles

during the course of the trial

1. Article CJA-1 (Sample A1 drawn by the Tehsildar during proceeding under

Section 52A),

9 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

2. Article CJA-2 (Sample A2 drawn by the Tehsildar during proceeding under

Section 52A),

3. Article CJA-3 (Sample A2 of the drug taken during the seizure proceeding

A-2)

4. Article CJA-4 (Sealed sample packet A-1 received from FSL Sagar),

5. From Article CJA-5 to CJA-9 (seized Five Mobile phones in sealed

condition),

6. Article CJA-1(450 CC bag of narcotic substance, from which 02 CC

samples have been separated).

7. One Scorpio four wheeler seized on spot bearing Registration No. MP 17

CA 5835.

8. Truck bearing No. MP 20 HB 3344 – (Narcotics Substance seized from the

truck).

16.

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When examined under Section 313 of the Code of Criminal Procedure,

wherein all 86 questions were put to the accused persons, they generally answered

that they are unaware of the facts (

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पता नह2ं) or denied the allegations as incorrect

(गलत है). However, the accused Veer Singh also stated that when he was drinking

tea at Dhaba situated at Katni, at that time in a Bolero vehicle 7 to 8 police

personnel in civil dress came and they made him to accompany them in Bolero

and seized the documents of the vehicle and a person from the police party took the

truck to Chorhata Police Station. They took away the truck at 9:00 p.m. whereas

the truck reached at about 3:00 – 4:00 a.m. in the morning.

17.

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The co-accused, Mukesh Prasad Vishwakarma, in his examination under

Section 313 of the Code of Criminal Procedure, similarly responded to the

10 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

questions by stating that he is unaware of the allegations and that the same were

incorrect. He further stated that he was not travelling in the truck, that he has been

falsely implicated in the present case, and that he is a labourer by occupation.

Police apprehended him at Katni and took him to Police Station Chorhata in a

Bolero vehicle. In defence appellants have produced defence witness Anil Kumar

Vishwakarma (D.W-1).

18

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. It is further evident that, in addition to the present appellants Veer Singh

and Mukesh Prasad Vishwakarma, the learned trial court, by order dated

08.05.2019, also framed charges against co-accused Manoj Pandey, Gurvinder

Singh, and Ramlal Jaiswal in the same trial under Section 8 read with Section

20(B)(II-C) and Section 25 read with Section 29 of the Narcotic Drugs and

Psychotropic Substances Act, 1985.

19.

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As reflected from the record and the judgment of the learned trial court,

the accused Ramlal Jaiswal expired during the pendency of the trial, as a result of

which the proceedings qua him stood abated. During the course of trial, the co-

accused Gurvinder Singh absconded, and accordingly, his trial was separated by

the learned trial court vide order dated 23.01.2022. Subsequently, on 31.01.2023, a

perpetual arrest warrant was issued against the accused Gurvinder after he was

declared absconding. As per the judgment dated 20.03.2023, the learned trial court

has acquitted co-accused Manoj Pandey.

20

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. Perused the record of the trial court.

The first ground of objection is that there was violation of Sections 50 & 52-

A of NDPS Act. The above relevant provisions are as under :-

"50. Conditions under which search of persons shall be conducted :-

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11 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

(1) When any officer duly authorised under section 42 is about to search

any person under the provisions of section 41, section 42 or section 43,

he shall, if such person so requires, take such person without

unnecessary delay to the nearest Gazetted Officer of any of the

departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he

can bring him before the Gazetted Officer or the Magistrate referred to in

subsection (1).

(3) The Gazetted Officer or the Magistrate before whom any such person

is brought shall, if he sees no reasonable ground for search, forthwith

discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to

believe that it is not possible to take the person to be searched to the

nearest Gazetted Officer or Magistrate without the possibility of the

person to be searched parting with possession of any narcotic drug or

psychotropic substance, or controlled substance or article or document,

he may, instead of taking such person to the nearest Gazetted Officer or

Magistrate, proceed to search the person as provided under section 100

of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall

record the reasons for such belief which necessitated such search and

within seventy-two hours send a copy thereof to his immediate official

superior.

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Section 52A in The Narcotic Drugs And Psychotropic Substances Act, 1985

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as enforceable on 29.05.1989:

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" 52A. Disposal of seized narcotic drugs and psychotropic substances.-

- (1) The Central Government may, having regard to the hazardous

nature, vulnerability to theft, substitution, constraint of proper storage

space or any other relevant consideration, in respect of any narcotic

drugs, psychotropic substances, controlled substances or conveyances,

by notification in the Official Gazette, specify such narcotic drugs,

psychotropic substances, controlled substances or conveyance or class

of narcotic drugs, class of psychotropic substances, class of controlled

substances or conveyances, which shall, as soon as may be after their

seizure, be disposed of by such officer and in such manner as that

Government may, from time to time, determine after following the

procedure hereinafter specified.

(2) Where any narcotic drugs, psychotropic substances, controlled

substances or conveyances has been seized and forwarded to the

officer-in-charge of the nearest police station or to the officer

empowered under section 53, the officer referred to in sub-section (1)

shall prepare an inventory of such narcotic drugs, psychotropic

substances, controlled substances or conveyances containing such

details relating to their description, quality, quantity, mode of packing,

marks, numbers or such other identifying particulars of the narcotic

drugs, psychotropic substances, controlled substances or conveyances

or the packing in which they are packed, country of origin and other

particulars as the officer referred to in sub-section (1) may consider

13 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

relevant to the identity of the narcotic drugs, psychotropic substances,

controlled substances or conveyances in any proceedings under this

Act and make an application, to any Magistrate for the purpose of--

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such magistrate, photographs of such

drugs, substances or conveyances] and certifying such photographs as

true; or

(c) allowing to draw representative samples of such drugs or

substances, in the presence of such magistrate and certifying the

correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the Magistrate

shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act,

1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974),

every court trying an offence under this Act, shall treat the inventory,

the photographs of narcotic drugs, psychotropic substances, controlled

substances or conveyances] and any list of samples drawn under sub-

section (2) and certified by the Magistrate, as primary evidence in

respect of such offence."

21

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.

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It is submitted by learned counsel for the appellants that a joint consent

Panchanama was made which is illegal. Now it is to be seen whether questions

were asked to the witnesses during trial about violation of Section 50 of NDPS Act

which is regarding search of a person and consent panchnama for the same

purpose. On this aspect, regarding joint panchnama neither it has been stated as a

ground of appeal nor argued at the time of final hearing of this appeal and not

14 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

raised before the trial Court as to what was the prejudice to the accused in their

defence, if instead of separate consent panchnama, joint panchnama Ex.P-7 was

made for search of vehicle truck from which Ganja was recovered.

22.

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In this regard, on perusal of the statement of prosecution witnesses S.I.

Mahendra Singh (PW-1) cross-examination in Para-11, S.I. Mrigendra Singh

Baghel (PW-2), Constable Pankaj Mishra (PW-3), Ram Vichar Tiwari (PW-4), S.I.

Umesh Kumar Tripathi (PW-7), Animesh Dwivedi (PW-8), Virendra Singh

Parihar (PW-9), it is seen that no question have been asked from these persons

about violation of section 50 NDPS Act. Even in the statement under Section 313

of Cr.P.C. it has not been stated that on account of joint panchnama Ex.P7 any

prejudice was caused.

23.

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Learned trial Court has dealt with all these aspects and in Para-57 rightly

has referred to the judgment of Navdeep Singh Vs. State of Haryana, 2013 (2)

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SCC 584,

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wherein the Hon'ble Supreme Court has held that in Section 50 of NDPS

Act regarding information there is no definite form. Similarly, trial court rightly

referred in Para-55 the case of State of MP vs. Dhirendra, AIR 1997 SC 318,

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according to which if the independent witnesses admits their signature on

panchnama and did not complaint that they were forced to sign on the documents

and if they turned hostile during trial, prosecution case would not vitiate. Even

otherwise, the truck belong to Veer Singh from which Ganja was recovered and

provision of Section 50 of NDPS Act applies only in those cases where there is

personal search but in this case, contraband Ganja has been recovered from the

body of the truck under possession of appellants Veer Singh and Mukesh. Hence,

objection regarding non-compliance of Section 50 of NDPS Act is not

maintainable and is hereby rejected needless to say that at the time of final hearing

15 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

an objection is made by way of ground of appeal that in this case there is no

document on the basis of which it can be held that the appellant was driving the

truck and learned trial court in Para 57 has wrongly held that truck bearing No.

MP20-HB-3344 from which Narcotics substance ganja was in the possession of

the Veer Singh but the learned trial court in Para 63 has correctly mentioned that

there is no explanation by appellant Veer Singh and Mukesh Prasad Vishwakarma

that at the time truck was seized by the police they were not in possession of the

truck, in fact what has been stated in examination under section 313 Cr.P.C. that

police wrongly arrested them from a tea stall that defence was never taken during

the cross-examination of witnesses as mentioned above in cross examination of

PW1 Mahindra Singh, PW 2 Migendra Singh, PW3 Pankaj Mishra, PW4 Ram

Vichar Tiwari, PW5 Santosh Shukla, PW 6 Santosh Kushwaha (whose statement

was recorded on 23.9.2022 and cross examination was made on 01.11.2022). PW

7 Umesh Kuma Tripathi ,PW 8 Anumesh Dwivedi.

24

<>

. PW-9 Virendra Singh Parihar in cross-examination Para 20 was asked

that accused Veer Singh, Gurvinder Singh and Mukesh Prasad Vishwakarma are

driver and cleaner, who were directed by the owner that material has to be taken to

Rewa but they were apprehended in the way to which this witness (PW 9) has

answered that Veer Singh is the truck owner and he was carrying Narcotics

Substance.

25.

<>

In his statement under Section 313 Cr.P.C. Veer Singh has not stated he

is not the owner of the truck but has stated that he is a truck driver. If he was not

the owner of the truck it was very easy for the Veer Singh to file the relevant

document that on 21.1.2019 when the truck was apprehended by the police any

other person was the truck owner. Therefore, the plea of being only the truck

16 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

driver or of not being in conscious possession of the truck or material kept in the

truck is not sustainable, in fact, on appreciation of evidence it is seen that at the

time of seizure of truck it was Veer Singh, owner of the truck who was driving of

the truck. It is further seen that as per order sheet dated 17.12.2019, an application

was filed by the accused/appellant Veer Singh that he is owner of the truck bearing

No. MP 20 HB 3334 (correct number is 3344) may be released on interim custody.

Therefore, during the course of argument, this argument that the truck did not

belong to the applicant Veer Singh is incorrect. Application of the Veer Singh is

on record therefore, finding of the Trial Court in Paras 57 & 63 cannot be assailed

that contraband Ganja was recovered from the truck driver (owner) Veer Singh and

cleaner Mukesh Prasad from their conscious possession from truck bearing no.

MP20 HB 3344.

26.

<>

Now, the sole objection remains regarding Section 52-A of NDPS Act,

the procedure prescribed under Section 52-A is to prepare an inventory of drug

containing details of description, quality, quantity, mode of packing, marks,

numbers or such other particulars of the Narcotic Substances or Conveyance or the

Packing in which they are packed or origin of country and other particulars as the

officer may thinks fit for identification of substance and make an application to

any Magistrate for the purposes of certifying the correctness of the inventory so

prepared or taking, in the presence of such Magistrate, photographs of such drugs,

substances or conveyances and certifying such photographs as true; or allowing to

draw representative samples of such drugs or substances, in the presence of such

Magistrate and certifying the correctness of any list of samples so drawn.

27

<>

. PW-1 Mahendra Singh Sub Inspector in Paras 1 & 6, stated about

mixing of the Ganja from the sacks and making 50-50 gram two packets.

17 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

28.

<>

PW-2 Mrigendra Singh Baghel Sub Inspector in Para 3 has stated that

the ganja was mixed and 25-25 gram of two sample packets were made. In cross-

examination Para 6 he has stated that on the spot no form was prepared but

packets were sealed by the seal of Police Station.

29

<>

. PW-3 Pankaj Mishra Constable No. 966 has also stated about the

drawing of samples in Para 2 of the statements, in cross-examination Para 4 this

witness has stated that he cannot tell who drew the samples and whose seal was

affixed.

30

<>

. PW-4 Ramvichar Tiwari the then Head Constable, Malkhana in para- 2

has stated about keeping the sample and other sacks of Ganja in the Malkhana on

22.1.2019 and entry was made in Malkhana Register and he stated that he had

given a receipt of the same which is Ex.P/2. Thereafter, Packet ‘A 1’ on 24-01-

2019 was handed over to Constable Narendra Tiwari for sending the same to FSL,

Sagar and on 25-01-2019 material was deposited and he (Narendra Tiwari) filed

the receipt after depositing of the packet. On 27-01-2019 entry was made in

Rojnamcha Sanha 48. Copy of the Malkhana Register is Ex.P/3. Constable No.

1128 Vivek Singh brought the FSL Report from F.S.L. Sagar and entry was made

in Rojnamcha Sanha No. 35/11, true copy is Ex.P/4. In Para-5 of cross-

examination he admitted that he did not open the sacks to verify what is kept

therein, he had received the sacks of Ganja in sealed condition.

31.

<>

PW-5 Santosh Shukla, independent witness has been declared hostile

but he has admitted his signature on multiple documents like Ex.P/5-Informant

Information Panchnama Section 42 of NDPS Act, Ex.P/6-Panchanama informant

Section 42(2) NDPS Act, Ex.P/7 Consent Panchanma, Ex.P/8 Search Panchnama

of witnesses and police officers, Ex.P/9 Search Panchnama of suspects, Ex.P/10-

18 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

Panchnama of identification of drugs, Ex.P/11- Panchnama of Electronic Scale

Physical Verification, Ex.P/12-Samaras (mixing) and weighing Panchnama,

Ex.P/13 Panchnama Seal Sample, Ex./14- Chit Panchnama, Ex./15 Memorandum

under Section 27 Evidence Act of Veer Singh, Ex./17 Memorandum under Section

27 Evidence Act of Mukesh Prasad, Ex.P/20-Property Seizure memo, Ex.P/21-

Information and fard Panchnama of Arrest, Ex.P/22 Arrest memo of Veer Singh,

Ex.P/24 Arrest memo of Mukesh Prasad Vishwakarma on which on A-A part there

are his signature. In cross examination Para 6 he stated that when he had signed,

Ex.P/5 to Ex.P/26 nothing was written on them. PW/6 Santosh Kushwaha

independent witness is also hostile but he has accepted his signature on Ex.P/20,

22, 24, on part B-B and in para-2 in examination-in-chief. In para- 3 he has stated

that from truck about 10 quintals of Ganja was seized in 50 sacks in para-4 stated

about verification of Scale and Samras Panchnama proceedings Ex. P-11 and Ex.

P-12, in cross-examination in para-5 he stated that when he signed them, some

documents were written and some were not written.

32.

<>

P.W.-7 Umesh Kumar Tripathi A.S.I has stated that on 21.1.2019 he

was Reader to C.S.P. and on that day, Constable Pankaj Mishra brought a Tahrir

regarding police information panchnama from P.S. Chorhata and since C.S.P was

not available, therefore, he had received the same and gave receipt Ex. P-28

wherein ‘A to A’ his signature and ‘B to B’ noting is in his hand-writing. In

paragraph-3 he admitted that there is overwriting in Ex. P-28 in date on ‘A to A’

part.

33.

<>

PW-8 Animesh Dwivedi Inspector in para-2 has stated that he proceeded

for investigation on 27.1.2019. In para-4 of examination-in-chief he has stated that

on 27-06-2019, a letter was written about proceedings under Section 52-A of

19 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

NDPS Act and a pre-trial disposal chart was made which is Ex.P/30 on part ‘A to

A’ there is his signature. In cross-examination paragraph 6 he stated that between

22.1.2019 to 27.1.2019 he did not investigate as he was busy in other work. In

Para-10 he has stated that proceeding under section 52-A of NDPS Act was done

as per procedure before the Tehsildar. Photographs were taken but he admitted

that “यह कहना सह2 है Yक जो फोटोLाफ' माननीय तहसीलदार के सम& ली गई थी वह चालानी

काय,वाह2 म0 पेश नह2ं क' गई है.” In paragraph-11 he admitted that Rojnamcha Sanha

regarding proceedings under Section 52-A of NDPS Act are not attached in the

case.

34.

<>

PW-9 Virendra Singh Parihar, the then Inspector, in para-4 of

examination-in-chief has stated that in the truck in jute and plastic sacks there was

Ganja in 2-2 kg packets total packets 500 in number were kept in 50 sacks and

Panchnama Ex. P/9 was made wherein ‘C to C’ part carries his signature and in

panchnama there are signature of suspects. In para-5 of examination-in-chief he

mentioned that packets were cut and they were mixed together for making them

Samras and that Panchnama is Ex.P/12 was made, and from them two samples of

25 grams each were taken out and packets were made which were marked as

Annexure A/1 and A/2. The remaining Ganja was kept in 25 sacks which they had

taken with them to the spot and in each sack there were 40 kg of Ganja and they

were sealed and numbered from 1 to 25 and all these sacks were marked as ‘A’

and the 50 sacks which were seized from the truck containing 37 sacks of Jute and

13 sacks of plastic in which Ganja packets were found were sealed separately in

two sacks in equal number which are B-2 and B-3 and remaining packets of

polythene, paper, tape and rope were also filled in two sacks equally and were

marked as B and B-1.

20 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

35.

<>

Virendra Singh (PW-9) in para- 6 of his examination-in-chief, has

stated that he had shown the accused person the brass seal by which the material

was sealed, along with truck, Scorpio vehicle, Bilty papers, papers of the truck

Panchnama Ex. P-20 was made wherein his signatures are on ‘C to C’ part. In

paragraph-7 he has stated that under Section 57 of NDPS Act he had sent a detailed

report to Senior Officers which is Ex. P-39. Seized material was kept in police

station Malkhana. Sample packets were sent to FSL by letter no. Ex.P/40 for

chemical examination and from there report Ex.P/41 was received and the seized

material was found to be ganja. In Para 8 he has stated that remaining material 9

quintal 99 kg 900gm on 21.8.19 before Truck And Drug Disposal Committees and

I.G. Police Rewa zone drugs were destroyed in Prism Cement factory and disposal

certificate is Ex.P/44. Similarly, a seized truck was auctioned through DSP Police

and Drug Committees on 23.11.19 and truck bearing No. MP20-HD-3344

(typographical error, correct no. is MP20-HB 3344) was sold to purchaser

Manohar Lal Ahuja for Rs.4,02,000/- (Rupees Four Lakh Two Thousand). Auction

certificate is Ex.P/45. In Para 9 he stated that proceeding under section 52-A was

done by Naib Tehsildar Huzure, District Rewa, 2 samples A1 and A2 were

drawn out, samples were sealed which are Articles CJA-1 and CJA-2. On sample

A2 accused, witnesses and Police Officer signed. The Packet A1 received from

FSL Sagar is Article CJA-4.

36.

<>

Virendra Singh (PW-9) in para-15 of his cross-examination admitted

that no objectional material was found from the vehicle Scorpio. He further

admitted that on the basis of memorandum of accused Veer Singh nothing

incriminating was found from accused Manoj Pandey which would connect him

with other co-accused. He further admitted that between Scorpio and truck there

21 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

was a distance of 200 meter. In cross examination in Para 19, this witness admitted

that after drawing of samples 10 quintals Ganja remained.

37.

<>

PW-10 Naib Tehsildar Yatish Shukla has verified the proceeding under

Section 52-A of the NDPS Act wherein he stated that he drew 50-50 grams of

Ganja each and made 2 sample packets A1 and A2. The concerned document is

Ex.P/46 and Photo verification is Ex.P/47 both documents have his signature on

part A to A. In Para 2 of cross examination this witness has stated that the narcotic

drug was kept in the police station.

Conclusion

<>

38.

<>

On total consideration of prosecution evidence in this case, it is seen

that the panchnama photographs taken at the time of disposal of the property ganja

before Executive Magistrate has not been exhibited and attached in charge-sheet

neither concerning Rojnamcha Sanha have been annexed in charge-sheet as

admitted by PW-8 Animesh Dwivedi, Inspector. Similarly, on perusal of the

panchnama application Ex.P/47, it is seen that it is undated and this raises a

suspicion. Similarly, disposal chart Ex.P/46 is also undated. In Ex.P/46 it is

mentioned that out of the 25 sacks of 10 quintal 50 grams ganja seized and sealed

by the seizure officer Sub Inspector Virendra Singh Parihar each carrying 40 kg

ganja, from sack No.1 Naib Tahsildar Huzur Rewa, Yatish Shukla took sample of

50 grams each two packets were made and sack and packet were resealed and in

remark column it is mentioned that sample was taken only from sack No.1 because

all other sacks contained the same ganja, now this remark

<>

in Ex.P/46 is totally

illegal as even without opening other 24 sacks how this presumption was drawn

that other 24 sacks contained the same quality, quantity of narcotic substance ganja

and as stated above even photograph is not filed in charge-sheet.

22 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

39.

<>

The above procedure fails in the light of the principle of law laid

down by the Hon’ble Supreme Court in following cases :-

(i) Simarnjit Singh vs. State of Punjab, 2023, LiveLaw (SC) 570

<>

,

wherein relevant paragraphs 8 , 16 and 17 reads as under :-

8. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's

case1, it was held thus: “15. It is manifest from Section 52-A(2)include

(supra) that upon seizure of the contraband the same has to be

forwarded either to the officerin-charge of the nearest police station or

to the officer empowered under Section 53 who shall prepare an

inventory as stipulated in the said provision and make an application to

the Magistrate for purposes of (a) certifying the correctness of the

inventory, (b) certifying photographs of such drugs or substances taken

before the Magistrate as true, and (c) to draw representative samples in

the presence of the Magistrate and certifying the correctness of the list

of samples so drawn.

16. Sub-section (3) of Section 52-A requires that the Magistrate shall as

soon as may be allow the application. This implies that no sooner the

seizure is effected and the contraband forwarded to the officer-in-

charge of the police station or the officer empowered, the officer

concerned is in law duty-bound to approach the Magistrate for the

purposes mentioned above including grant of permission to draw

representative samples in his presence, which samples will then be

enlisted and the correctness of the list of samples so drawn certified by

the Magistrate. In other words, the process of drawing of samples has to

be in the presence and under the supervision of the Magistrate and the

entire exercise has to be certified by him to be correct.

17. The question of drawing of samples at the time of seizure which,

more often than not, takes place in the absence of the Magistrate does

not in the above scheme of things arise. This is so especially when

according to Section 52-A(4) of the Act, samples drawn and certified by

the Magistrate in compliance with subsections (2) and (3) of Section 52-

A above constitute primary evidence for the purpose of the trial. Suffice

23 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

it to say that there is no provision in the Act that mandates taking of

samples at the time of seizure. That is perhaps why none of the States

claim to be taking samples at the time of seizure.”

(ii) Mohammed Khalid & Another Versus The State Of Telangana

<>

(Crl

appeal no. 1610 of 2023 judgment dated 01.03.2024 relevant paragraph 22 held as

under :-

22. Admittedly, no proceedings under Section 52A of the NDPS Act

were undertaken by the Investigating Officer PW-5 for preparing an

inventory and obtaining samples in presence of the jurisdictional

Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is

nothing but a waste paper and cannot be read in evidence. The accused

A-3 and A-4 were not arrested at the spot. The offence under Section

20(b)(ii)(c) deals with 17 production, manufacture, possession, sale,

purchase, transport, import or export of cannabis. It is not the case of

the prosecution that the accused A-3 and A-4 were found in possession

of ganja. The highest case of the prosecution which too is not

substantiated by any admissible or tangible evidence is that these two

accused had conspired sale/purchase of ganja with A-1 and A-2. The

entire case of the prosecution as against these two accused is based on

the interrogation notes of A-1 and A-2.

(iii). Bharat Aambale Versus State Of Chhatisgarh

<>

( Crl appeal no. 250 of 2025)

relevant paragraphs 40, 44, 46, 47, 49, 50(v) 50 (vi) judgment dated 6.01.2025

40.Having gone through the materials on record, we are in complete

agreement with the reasoning of the High Court. Although, from the

testimony of PW-15 i.e., the officer-in-charge of the police station

where the seized substance was forwarded it may appear that the seized

substances were simplicter mixed together without following the

procedure of segregating similar packets of same quality and nature into

lots and thereafter taking representative samples therefrom, yet a closer

24 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

reading of the Trial Court’s judgment would reveal that the police

officers herein had duly followed the procedure prescribed to the letter

and spirit.

44. The Trial Court in para 34 has clearly observed that all 73 packets

that were seized were opened and the contents inside each packet were

matched and an identification memo was prepared in that regard.

Thereafter, two samples of 100 gm each were prepared by drawing

representative samples / mixed samples and thereafter the remaining

packets were sealed. The relevant observations read as under: - “All the

73 packets were opened and the contents inside them were matched and

an identification panchnama was also prepared. Two sample packets of

100 grams each were prepared from the mixed ganja, after which two

sample packets of 100 grams each and the remaining ganja were filled

in 6 plastic bags and sealed and seizure proceedings were carried out.

46 Even otherwise, if the contention of the appellants was to be

accepted in toto such procedural lapse has absolutely no bearing on the

overall case of the prosecution and by extension the conviction of the

appellant inasmuch as the entire material on record clearly establishes

the recovery and seizure of the ganja at the instance of the accused.

47. Before we close this judgment, we may address one another aspect

as regards Section 52A of the NDPS Act. Wherever any non-

compliance or contravention of either the provision or the Rules /

Standing Order(s) thereunder is alleged, the same must be something

tangible and not a mere bald assertion or superficial claim. The accused

must impute something palpable to make good its case that there has

25 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

been non-compliance of the mandate of the said provision.

49. However, a close reading of the aforesaid decision reveals that this

onus on the prosecution will only encumber once such an issue of non-

compliance arises for consideration. Although, we are in complete

agreement with the aforesaid observations inasmuch as it would be for

the prosecution to establish and prove compliance of Section 52A of the

NDPS Act, yet at the same time, we are of the considered opinion, that

mere assertion by the accused that there has been non-compliance of the

said provision may not be sufficient. The initial burden will always be

on the accused to lay down the foundational facts for establishing that

there has been a non-compliance of Section 52A of the NDPS Act,

either by leading evidence of their own or by relying upon the evidence

of the prosecution itself such as by putting direct and specific questions

to the police officers and key witnesses. Such burden on the accused to

establish contravention of Section 52A of the NDPS Act will only be on

the mere preponderance of probabilities, whereas once the foundational

facts are established that raises an issue as regards the non-compliance

of Section 52A of the NDPS Act, the onus will entirely 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.

50. We summarize our final conclusion as under: -

(V) Mere non-compliance of the procedure under Section 52A or the

26 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

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.

(iv). Surepallly Srinivas Versus The State Of Andhra Pradesh (Now State Of

<>

Telangana)

<>

(Crl appeal no. 1474 of 2025) judgment dated 25.03.2025 relevant

paragraphs 14 and 15:

14. In the present case, from the evidence on record, it can be seen and

it is clear that the seized contraband was not properly sealed. Coupled

with this is the fact of the seized contraband not being produced before

the trial court prior to 3rd July, 2010. It is difficult to accept the

prosecution case that though there may not have been strict compliance

27 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

of Standing Order No.1/89, the seized contraband was not tampered at

all. Keeping of the seized contraband by PW-3 in a separate room in his

office for fifteen days could give rise to an allegation that the seized

contraband was by itself substituted and some other items planted to

falsely implicate the accused. To avoid suspicious circumstances and to

ensure fair procedure in respect of search and seizure, it is always

desirable to follow the standing order which provides suitable guidance

for the officers investigating crimes under the NDPS Act. Should there

be any departure, the same must be based on justifiable and reasonable

grounds. We are, satisfied, on appreciation of the evidence on record,

that the possibility of tampering during this fifteen-day period cannot be

totally ruled out and that not only has there been no substantial

compliance of the standing order, the departure has also not been

justified.

15. We have also found from the materials on record that there has been

clear non-compliance with the provisions contained in Section 52-A of

the NDPS Act. Either possibly due to lack of experience of the

investigating officer or his lack of knowledge of the relevant provisions

of the NDPS Act, there were lapses which were duly noted by the

Sessions Judge. Thus, we are unable to hold that there was primary and

reliable evidence before the trial court in respect of the offence

committed. The onus of proving that compliance 7 of 7 with Section 52-

A did not affect the case of the prosecution has not been duly

discharged by the prosecution.

(v) Hon’ble Bench of this court in Vishal Shahni vs State of MP.

<>

(Crl.

APPEAL NO. 4576 of 2023) judgment dated 29/02/2024 in para 10 held as

under:

10. Gazette Notification of Ministry of Finance (Department of

Revenue) dated 23.12.2022 in which in exercise of the powers

conferred by Section 76 read with Section 52-A of the Narcotic Drugs

and Psychotropic Substances Ac t, 1985 enacted the Rules. These

Rules are called Narcotic Drugs and Psychotropic Substances

28 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

(Seizure, Storage, Sampling and Disposal) Rules, 2022. Relevant

Rules for adjudication of this case are quoted as under:-

3. Classification of seized material

<>

. – (1) The narcotic drugs,

psychotropic substances and controlled substances seized under the

Act shall be classified based on physical properties and results of the

drug detection kit, if any, and shall be weighed separately.

( 2 ) If the narcotic drugs, psychotropic substances and controlled

substances are found in packages or containers, such packages and

containers shall be weighed separately and serially numbered for the

purpose of identification.

( 3 ) All narcotic drugs, psychotropic substances and controlled

substances found in loose form shall be packed in tamper proof bag or

in container, which shall be serially numbered and weighed and the

particular of drugs and the date of seizure shall also be mentioned on

such bag or container:

Provided that bulk quantities of ganja, poppy straw may be packed in

gunny bags and sealed in such way that it cannot be tempered with:

Provided further that seized concealing material such as backpack and

other seized articles shall be sealed separately.

(4) The classification, weighing, packaging and numbering referred to

in this sub-rule shall be done in the presence of search witnesses

(Panchas) and the person from whose possession the drugs and

substances was recovered and a mention to this effect shall invariably

be made in the panchnama drawn on the spot of seizure.

(5) The detailed inventory of the packages, containers, conveyances

and other seized articles shall be prepared and attached to the

panchnama.

8. Application to Magistrate. – After the seized material under the Act

is forwarded to the officer-in-charge of the nearest police station or to

the officer empowered under section 53 of the Act or if it is seized by

such an officer himself, he shall prepare an inventory of such material

in Form-4 and apply to the Magistrate, at the earliest, under sub-

29 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

section (2) of section 52A of the Act in Form-5.

9. Samples to be drawn in the presence of Magistrate

<>

. – After

application to the Magistrate under sub-section (2) of section 52A of

the Act is made, the Investigating Officer shall ensure that samples of

the seized material are drawn in the presence of the Magistrate and the

same is certified by the magistrate in accordance with the provisions

of the said-sub-section.

10. Drawing the samples.

<>

– (1) One sample, in duplicate, shall be

drawn from each package and container seized.

(2) When the packages and containers seized together are of identical

size and weight bearing identical marking and the contents of each

package give identical results on colour test by the drugs identification

kit, conclusively indicating that the packages are identical in all

respects, the packages and 9 containers may carefully be bunched in

lots of not more than ten packages or containers, and for each such lot

of packages and containers, one sample, in duplicate, shall be drawn:

Provided that in the case of ganja, poppy straw and hashish (charas) it

may be bunched in lots of not more than fourty packages or

containers.

(3) In case of drawing sample from a particular lot, it shall be ensured

that representative sample in equal quantity is taken from each

package or container of that lot and mixed together to make a

composite whole from which the samples are drawn for that lot.

11. Quantity to be drawn for sampling

<>

. – (1) Except in cases of

opium, ganja and charas (hashish), where a quantity of not less than

twenty-four grams shall be drawn for each sample, in all other cases

not less than five grams shall be drawn for each sample and the same

quantity shall be taken for the duplicate sample.

(2) The seized substances in the packages or containers shall be well

mixed to make it homogeneous and representative before the sample,

in duplicate, is drawn.

(3) In case where seized quantities is less than that required for

30 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

sampling, the whole of the seized quantity may be sent.

13. Despatch of sample for testing.

<>

– (1) The samples after being

certified by the Magistrate shall be sent directly to any one of the

jurisdictional laboratories of Central Revenue Control Laboratory,

Central Forensic Science Laboratory or State Forensic Science

Laboratory, as the case may be, for chemical analysis without any

delay.

the 10 jurisdictional laboratories under the cover of the Test Memo,

which shall be prepared in triplicate, in Form-6.

(3) The original and duplicate of the Test Memo shall be sent to the

jurisdictional laboratory alongwith the samples and the triplicate shall

be retained in the case file of the seizing officer.

40.

<>

Therefore, for non-compliance of procedure as prescribed in Section 52-A of

NDPS Act wherein PW-1 Sub Inspector Mahendra Singh stated that two samples

of 50 grams each were taken which is contrary to the prosecution case. Samples at

the time of seizure on spot on 22/01/2019 were not taken before the Magistrate.

The entire ganja was not produced for inspection of the court at the time of trial

because it was already destroyed as per Drug Disposal Rules but their primary

evidence photographs were neither attached nor exhibited in the case. Rojnamcha

Sanha of drug disposal proceeding was also not produced even sampling procedure

was faulty. Magistrate took samples from one sack only. Many panchnama were

undated raising a serious doubt about the fairness in procedure of the investigation

and it is the settled law that harsher the punishment in cases where police is the

complainant and investigator then rules of procedure should be strictly followed

but in this case the whole procedure adopted by the police and Magistrate is faulty

and doubtful, therefore, judgment of the trial Court cannot be upheld for the

reasons mentioned in this judgment.

41.

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Accordingly, for the reasons mentioned above, this appeal is allowed and

31 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788

(VIVEK AGARWAL)

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JUDGE

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(AVANINDRA KUMAR SINGH)

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JUDGE

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judgment dated 20/03/2023 of convicting the appellants for the offence as

mentioned in Para-1 of the judgment are set aside. Accordingly, appeal is allowed

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and disposed of

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.

VKT

32 CRA-6303-2023NEUTRAL CITATION NO. 2026:MPHC-JBP:16788