Punjab-Haryana High Court
Puran Singh vs State Ofhy. on 29 July, 2026
CRA-S-1781-SB-2004 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-1781-SB-2004 (O&M)
Reserved on: 26.05.2026
Pronounced on: 29.07.2026
Uploaded on: 29.07.2026
Whether only operative part of the judgment is Pronounced : No
Whether full judgment is pronounced: Yes
Puran Singh
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MS. JUSTICE RUPINDERJIT CHAHAL
Present: Mr. KPS Virk, Advocate, for the appellant.
Mr. Mohit Chaudhary, AAG, Haryana.
***
RUPINDERJIT CHAHAL, J.
1. The present appeal has been directed against the judgment of
conviction dated 08.09.2004 and order of sentence dated 10.09.2004,
passed by the Learned Special Judge, Panipat whereby the appellant was
held guilty and convicted under Section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short ‘NDPS Act) and sentenced to
undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 Lac,
in default of payment of fine, to further undergo rigorous imprisonment for
a period of two years and six months.
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2. The facts, in brief, are that on 23.04.2001, a police party headed
by PW-4 Inspector Dhian Singh was present at the General Bus Stand,
Panipat, in connection with patrolling and crime detection. During the
course of patrolling, one person was seen approaching the outer gate of the
bus stand carrying a bag in his right hand. On noticing the police party, he
immediately turned back and started walking briskly, which aroused
suspicion. Consequently, he was apprehended by the police party. Upon
enquiry, he disclosed his identity. Suspecting that he was carrying some
contraband, the Investigating Officer served upon him a notice (Exhibit PD)
under Section 50 of the Narcotic Drugs and Psychotropic Substances Act,
1985. In response thereto, vide reply (Exhibit PD-1), he opted to be
searched in the presence of a Magistrate. In pursuance of the option
exercised by him, PW-3 Shri K.Κ. Amrohi, District Revenue Officer,
Panipat, reached the spot. Thereafter, the search of the bag being carried by
the appellant was conducted in his presence. The bag was found to contain
2 kilograms of opium wrapped in wax paper. Out of the recovered
contraband, a representative sample weighing 50 grams was separated,
whereas the remaining opium constituted the bulk parcel. Both the sample
parcel and the bulk parcel were converted into separate parcels, sealed with
the seals bearing impressions ‘DS’ and ‘KK’, and taken into possession vide
recovery memo (Exhibit PC). Thereafter, ruqa (Exhibit PE) was sent to the
police station, on the basis whereof the formal First Information Report was
registered against the appellant. During the course of investigation, a rough
site plan of the place of recovery was prepared and the statements of the
witnesses were recorded. The case property, along with the accused and the
witnesses, was thereafter produced before PW-1 Inspector Badan Singh,
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Station House Officer, Police Station City, Panipat, who verified the
investigation and affixed his seal bearing impression ‘BS’ on both the
sample parcel and the bulk parcel. Thereafter, the case property was
deposited with the Malkhana Moharrir for safe custody. On receipt of the
report of the Forensic Science Laboratory (Exhibit PX), the sample was
found to be that of opium. Upon completion of the investigation and after
finding sufficient material against the accused, the final report under
Section 173 of the Code of Criminal Procedure was presented before the
competent Court.
3. Upon consideration of the material available on record, the
learned Special Judge, Panipat, vide order dated 08.08.2001, found a prima
facie case against the accused and accordingly framed charge against him
under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,
1985. The charge was read over and explained to the accused, to which he
pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined five witnesses,
namely: PW-1, Inspector Badan Singh, Station House Officer (SHO); PW-
2, Brij Pal Singh, Malkhana Moharrir Head Constable (MMHC); PW-3, Sh.
K.K. Amrohi, District Revenue Officer (DRO); PW-4, Inspector Dhian
Singh, the Investigating Officer; and PW-5, Constable Chamela Ram. Upon
completion of the oral evidence, the learned Additional Public Prosecutor
tendered in evidence the report of the Chemical Examiner, exhibited as Ex.
PX, whereafter the prosecution evidence was closed.
5. Upon the conclusion of the prosecution evidence, the statement
of the appellant was recorded under Section 313 of the Code of Criminal
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Procedure, wherein all the incriminating circumstances appearing in the
prosecution evidence were put to him. The appellant denied the prosecution
case in toto, asserted that no recovery had been effected from his
possession, and pleaded false implication. Although adequate and repeated
opportunities were afforded to him to lead evidence in defence, the
appellant chose not to examine any witness, and the defence evidence was
accordingly closed.
6. Upon appreciation and evaluation of the oral as well as
documentary evidence adduced by the prosecution, the learned trial Court
came to the conclusion that the prosecution had succeeded in proving its
case beyond reasonable doubt. Consequently, the appellant was held guilty
and convicted for the offence punishable under Section 18 of the Narcotic
Drugs and Psychotropic Substances Act, 1985.
7. Learned counsel appearing on behalf of the appellant has
assailed the impugned judgment of conviction and the order of sentence on
several grounds. It has been contended that the prosecution has failed to
establish its case beyond reasonable doubt and that the mandatory
procedural safeguards envisaged under the Narcotic Drugs and
Psychotropic Substances Act, 1985, have not been complied with, thereby
vitiating the prosecution case.
8. At the outset, learned counsel has argued that the alleged
recovery was effected from the General Bus Stand, Panipat, which is
admittedly a busy public place frequented by numerous persons.
Notwithstanding the availability of independent witnesses at the spot, no
effort was made by the Investigating Officer to associate any such person
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with the search and seizure proceedings. The unexplained failure to join
independent witnesses, it is contended, casts a serious doubt on the fairness,
transparency and credibility of the prosecution version.
9. Learned counsel has further questioned the sanctity of the
handling and preservation of the alleged contraband by submitting that the
prosecution has failed to establish unimpeachable link evidence. It has been
argued that no CFSL Form was prepared at the spot and the specimen seal
has not been brought on record. It has further been contended that there was
an unexplained delay of fifteen days in forwarding the sample parcel to the
Forensic Science Laboratory. According to the learned counsel, this delay,
coupled with the admitted fact that the Investigating Officer had retrieved
his seal after one week, creates a reasonable possibility of tampering with
the case property.
10. Learned counsel has further contended that the prosecution case
is rendered doubtful by the fact that the recovery memo is stated to have
been prepared prior to the dispatch of the ruqa (Ex. PE); however, the said
document conspicuously bears the FIR number, the date of registration, and
the relevant penal provisions. It has been argued that these particulars could
not have legitimately found mention in the recovery memo as the FIR was
not registered yet, thereby creating a serious doubt that either the
documents were prepared subsequently or the FIR had been recorded prior
to the alleged recovery.
11. It has also been argued that the complainant himself acted as
the investigating officer in the present case. According to the learned
counsel, the same is contrary to the settled legal position governing fair
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investigation and has caused serious prejudice to the appellant, thereby
vitiating the entire prosecution.
12. Learned counsel has further submitted that the mandatory
provisions of Section 50 of NDPS Act are not complied with in the present
case.
13. He further submits that the reply (Exhibit PD/1) to the notice
unmistakably shows that the appellant had exercised his option to be
searched in the presence of a Magistrate. However, instead of summoning a
Magistrate, the Investigating Officer called PW3 K.K. Amrohi DRO. It is,
therefore, argued that the choice exercised by the appellant was rendered
wholly illusory and meaningless, thereby vitiating the search proceedings.
14. Learned counsel has also assailed the prosecution case on the
ground of alleged non-compliance with the mandatory provisions of Section
52A of the Narcotic Drugs and Psychotropic Substances Act, 1985. It has
been contended that neither any inventory of the seized contraband was
prepared nor any application was moved before the competent Magistrate
for certification of the inventory or for drawing representative samples in
the presence of the Magistrate, as envisaged under the said provision.
According to the learned counsel, the failure to adhere to the statutory
procedure prescribed under Section 52A of the Act casts a serious doubt on
the authenticity and integrity of the seized contraband and, consequently,
renders the prosecution case unreliable.
15. In the alternative, learned counsel has contended that, even if
the prosecution case is accepted in its entirety, the alleged recovery of two
kilograms of opium does not fall within the ambit of “commercial quantity”
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as defined under the Narcotic Drugs and Psychotropic Substances Act,
1985. It has been submitted that the learned trial Court proceeded on an
erroneous premise in treating the recovered contraband as a commercial
quantity and, on that basis, imposed the maximum sentence prescribed
under the Act. According to the learned counsel, the sentence awarded is
legally unsustainable and warrants interference by this Court.
16. On the strength of the aforesaid submissions, learned counsel
for the appellant has prayed that the impugned judgment of conviction and
the consequent order of sentence be set aside and that the appellant be
acquitted by extending to him the benefit of doubt.
17. Per contra, learned State counsel has supported the impugned
judgment of conviction and order of sentence, contending that the
prosecution has proved its case beyond reasonable doubt by leading cogent,
reliable and trustworthy evidence. It is submitted that the recovery of two
kilograms of opium from the conscious possession of the appellant stands
duly established through the consistent testimony of the prosecution
witnesses, which finds complete corroboration from the documentary
evidence as well as the report of the Forensic Science Laboratory. Learned
State counsel has further argued that there is nothing on record to suggest
any ulterior motive on the part of the police officials to falsely implicate the
appellant in a case involving a serious offence under the NDPS Act. In the
absence of any such motive, the testimony of the official witnesses cannot
be discarded merely because no independent witness was associated with
the investigation. Learned State counsel has argued that the testimony of
the official witnesses is natural, consistent and inspires confidence. It is
submitted that no material contradiction or discrepancy has emerged from
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their cross-examination so as to discredit the prosecution case. The minor
inconsistencies, if any, are stated to be natural and inconsequential,
particularly when the statements of the recovery witnesses came to be
recorded nearly one and a half years after the occurrence. Such trivial
variations, it is argued, do not affect the core of the prosecution case.
Learned State counsel has also contended that the provisions of Section 50
of the NDPS Act are wholly inapplicable to the facts of the present case.
According to him, the recovery was not effected from the person of the
appellant but from a bag being carried by him, and it is now well settled
that the protection envisaged under Section 50 is confined only to cases
involving the personal search of an accused and does not extend to the
search of a bag or other article carried by him. It is further submitted that,
in any event, the search was conducted in the presence of PW3 K.K.
Amrohi, District Revenue Officer, who is a Gazetted Officer duly
empowered by the State of Haryana to exercise powers of Executive
Magistrate. Learned State counsel contends that the appellant suffered no
prejudice whatsoever on account of the search having been conducted in the
presence of the said officer and, therefore, the challenge to the search
proceedings is wholly misconceived. Lastly, it has been submitted that the
report of the Forensic Science Laboratory (Exhibit PX) conclusively
establishes that the substance recovered from the appellant was opium.
Once the recovery stands proved, the statutory presumptions under Sections
35 and 54 of the NDPS Act come into operation, and the appellant having
failed to rebut the said presumptions, the learned trial Court has rightly
recorded the order of conviction and imposed the sentence in accordance
with law. Hence he prayed that the present appeal be dismissed.
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18. Heard learned counsels appearing for both sides at considerable
length and with their able assistance carefully gone through the entire
evidence available on record, the impugned judgment, the documentary
evidence, the depositions of the witnesses as well as the relevant record.
19. So far as the contention of the learned counsel for the appellant
regarding non joining of independent witness is concerned, it is observed
that people are often hesitant in joining police investigation for variety of
reasons. PW-4 Inspector Dhian Singh has clearly stated that he tried to join
independent witness but all expressed their helplessness. It is now well
settled that evidence of a witness cannot be rejected merely because he
happens to be an official witness. In the present case, nothing could be
elucidated from the cross-examinations of PW’s Dhian Singh or PW3 K.K.
Amrohi DRO, so as to raise any dispute with regard to recovery of
contraband from the possession of the appellant or that their statements are
partisan in nature or that they had any motive to plant a false recovery upon
the appellant. In these circumstances, this Court is of considered opinion,
that testimonies of official witnesses inspire confidence and the same are
held to be reliable. In Karamjit Singh v. State (Delhi Administration), AIR
2003 SC 1311, the Hon’ble Supreme Court has held as under:
“The testimony of police personnel should be treated in the
same manner as testimony of any other witness and there is no
principle of law that without corroboration by independent
witnesses their testimony cannot be relied upon. The
presumption that a person acts honestly applies as much in
favour of police personnel as of other persons and it is not a
proper judicial approach to distrust and suspect them without
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CRA-S-1781-SB-2004 (O&M)good grounds. It will all depends upon the facts and
circumstances of each case and no principle of general
application can be laid down.”
19.1. In State of Punjab Vs. Balbir Singh, 1994(1) Recent Criminal
Reports 736 the Hon’ble Supreme Court has held that, “there is no bar in
recording the conviction by relying upon the statements of police officers
and that testimony of a witness is not to be doubted or discarded merely on
the ground that he happens to be an official witness.”
19.2. In Ram Sarup Vs. State (Govt. of NCR Delhi) 2013(3) RCR
(Criminal) 946, it has been held by the Hon’ble Apex Court that, “there is no
absolute rule that police officers cannot be cited as a witness and their
depositions should be treated with suspect. Court cannot start with the
presumption that police records are untrustworthy.”
19.3. A Division Bench of this Court in Ramesh Kumar v. State of
Punjab, (2013)(4) RCR (Criminal) 320, has observed that the testimony of
official witnesses cannot be discarded until it is proved that they have any
animus or hostility against the accused for his false implication. While
discussing the question of non-joining of the independent witnesses, it was
observed that they are averse to join the police and depose in favour of
prosecution as they are afraid of the fact that joining the police and deposing
in favour of the prosecution may expose them to serious consequences.
19.4. In Krishan Kumar v. State of Punjab, 2016 (2) RCR
(Criminal) 707, it was observed that testimonies of the official witnesses
carry the same evidentiary value as that of any other witness and their
statements cannot be discarded simply on account of their official
designation.
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20. The next limb of argument raised by learned counsel for the
appellant is with regard to alleged discrepancies in the prosecution’s case
qua the mentioning of FIR particulars upon the recovery memo Ex. PC.
According to the appellant, this circumstance indicates that either the
documents were prepared subsequently or the FIR had been recorded prior to
the alleged recovery. The contention, however, does not merit acceptance. In
Jauni Ram v. State of H.P., 2004(3) CLJ (HP) 484; a two-judge bench of
Himachal Pradesh High Court has held that mere mention of the FIR number
on documents is not fatal to the case of prosecution. A coordinate bench of
this Court has also expressed a similar view in Parkash Singh v. State of
Punjab, 2023 (1) Law Heral 409. Thus, unless it is shown that the FIR was
ante-timed or ante-dated or that prejudice has been caused to the accused, the
mere presence of the FIR number on the recovery memo cannot be treated as
a circumstance sufficient to vitiate the entire prosecution.
21. In the present case, Investigating Officer has not been cross-
examined on this point. The only question put to him was as to whether it
was recorded before or after the departure of DRO. In such circumstances,
the mere mention of the FIR particulars on Ex. PC, without anything more,
cannot be elevated to a ground for discarding an otherwise trustworthy
prosecution case.
22. Now, adverting to the alleged discrepancies pointed out by the
learned counsel for the appellant, firstly, that no CFSL form is shown to
have been prepared at the spot. Merely because the evidence does not reflect
that the said form was prepared at the place of recovery, the prosecution case
cannot be doubted. The purpose of the FSL/CFSL form is to enable the
Forensic Science Laboratory to verify the specimen seal and examine the
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seized samples. There is no statutory requirement under the applicable law
that such form must necessarily be prepared at the spot of recovery. What is
material is that the prosecution must establish the safe handling and
preservation of the samples and that the seals remained intact and tallied
with the specimen seal at the time of examination by the Laboratory. In the
present case, the FSL report confirms the intactness and correctness of the
seals, and no prejudice has been demonstrated to have been caused to the
accused on account of the form having been prepared subsequently. The
mere fact that the form was not prepared at the spot, by itself, does not create
any doubt regarding the genuineness of the recovery or the integrity of the
seized contraband. The investigation cannot be invalidated merely on
account of non-observance of a procedure which is not mandated by law.
Reliance in this regard is placed upon Wazir Singh v. State of Haryana,
2010 (1) RCR (Criminal) 480; wherein it was held that CFSL form can be
prepared by the Investigating Officer later on and it is not the requirement of
law that the entire investigation must be completed at the spot or that no part
of writing can be done by such agency later on in the Police Station.
22.1. The second discrepancy as pointed out by the learned counsel
for the appellant that the specimen seal has not been produced before the
Court, also lacks merit. A two Judge bench in Hira Giri alias Hardev Giri v.
State of Himachal Pradesh, 2005 (1) 231; held that Production of the seals
and its specimen impressions at the trial is not the requirement of law but
only a circumstance to reinforce the prosecution evidence and in case there
is other cogent and reliable evidence like contemporaneous records
supported by confidence inspiring evidence of witnesses, such non-
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production will be rendered inconsequential. The relevant paragraphs are
reproduced below:
“36. The seals used for sealing the case property, specimen
thereof and second sample retained by the investigating agency,
has admittedly not been produced in the trial Court. However, in
view of the evidence led by the prosecution, as already discussed
hereinabove, such non-production is not fatal to the case of the
prosecution. Production of the seals and its specimen
impressions at the trial is not the requirement of law but only a
circumstance to reinforce the prosecution evidence and in case
there is other cogent and reliable evidence like contemporaneous
records supported by confidence inspiring evidence of witnesses,
such non-production will be rendered inconsequential.
37. In Fredrick George v. State of H.P., 2002 Cr.L.J. 4600, a
Division Bench of this Court, while examining the effect of non-
production of seal used for sealing the case property and the
relevant witnesses, held as under :-
“62. It is a fact that the seals used for sealing and re-sealing
the bulk case property and the samples have not been
produced at the trial. In Manjit Singh‘s case (supra) while
dealing with the effect of non-production of the seal, this
Court held as under :
‘In the absence of any mandatory provision in the law/Rules
of procedure relating to sealing of the case property, that
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CRA-S-1781-SB-2004 (O&M)at the trial, it cannot be said that failure to produce such
seal at the trial will be fatal to the case of the prosecution. It
will depend on the facts and circumstances of each case
whether by non-production of the seal at the trial any doubt
is raised about the safe custody of the case property or not.’
63. In view of the above position in law and the conclusion
we have already arrived at hereinabove that there is
unchallenged and trustworthy evidence that the case
property was not tampered with at any stage, the non-
production of the seals used for sealing and re-sealing of
the bulk case property of the samples is also of no help to
the accused.”
38. The above view was subsequently reiterated by the Division
Benches of this Court in Manjit Singh v. State of H.P., 2001(2)
Cr.L.J. (HP) 106, Soni v. State of H.P., Cr.A. No. 182 of 2001,
(decided on 11.6.2003) and Rajesh Kumar v. State of H.P.,
Cr.A. No. 547 of 2001, (decided on 10.7.2003). In view of this
position in law and the findings hereinabove recorded, the non-
production of the seals or the specimen impressions thereof in
this case is inconsequential and of no help to the accused.”
22.2. In the facts of the present case, the mere non-production of the
specimen seal before the Court cannot be treated as fatal to the prosecution
case. The evidence on record, including the testimony of the relevant
witnesses and contemporaneous documents, satisfactorily establishes that
the case property remained intact and was not tampered with at any stage.
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Therefore, applying the principles laid down in Hira Giri alias Hardev Giri
(supra), the said omission is merely procedural and does not cause any
prejudice to the accused.
23. The next submission advanced by the learned counsel for the
appellant is with regard to the delay in sending the sample parcel to the
Forensic Science Laboratory, which, according to him, creates a serious
doubt regarding the prosecution case. This Court has considered the said
contention; however, the same does not merit acceptance. In the present
case, the recovery of the contraband was effected on 23.04.2001 and
thereafter the case property was duly deposited with Brij Pal Singh,
Malkhana Moharrir Head Constable (MMHC) PW-2, who kept the same in
the police malkhana in safe custody. Subsequently, on 08.05.2001, the
sample parcel was submitted to the FSL, Madhuban, without any tampering.
23.1 The statement of PW-2 Brij Pal Singh, establishes that during the
period the sample remained in their custody, the same was neither tampered
with nor any opportunity was afforded to anyone to interfere with the
sanctity of the parcel. The said witness was not cross-examined by the
defence on this issue. The FSL report Ex. PX further establishes that upon
receipt of the sample parcel, the seals affixed thereon were found intact and
tallied with the specimen seal impression. Thus, the prosecution has
successfully established the safe custody of the sample.
23.2 In view of the aforesaid circumstances, the mere delay of 15
days in forwarding the sample to the forensic science laboratory, in the
absence of any evidence of tampering or prejudice caused to the accused,
cannot be held to be fatal to the prosecution case. The Hon’ble Supreme
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Court in Hardip Singh v. State of Punjab, 2008 (4) RCR (Criminal) 97, has
held that when there is no evidence that samples were tampered with or any
prejudice was caused to the accused then even 40 days delay in sending the
sample to chemical examiner was held not fatal to the prosecution case. The
aspect of delay in sending the sample to the office of Chemical Examiner
was also discussed in Sucha Singh v. State of Punjab 2015 (4) RCR
(Criminal) 25, wherein it was held that when the samples were not sent to
the office of Chemical Examiner within 72 hours, the prosecution and
conviction cannot be vitiated on that ground since there was no specific
provision in the Act in that regard and the instructions/standing orders in that
respect were only the guidelines to regulate and control their internal
working of Narcotic Control Bureau. Therefore, the delay of few days in
sending the sample to the office of Chemical Examiner, Punjab, Chandigarh
was immaterial and no prejudice is going to be caused to the
appellant/accused.
24. As regards to the contention of the learned counsel for the
appellant that ASI Sant Raj being complainant was not competent to
investigate the case is concerned, the same cannot be accepted in view of the
settled legal position. The Constitution Bench of the Hon’ble Supreme
Court in Mukesh Singh v. State (Narcotic Branch of Delhi) 2020(10) SCC
120, has held as under:
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25. So far as the contention of the learned counsel for the appellant
that the provision of Section 50 of NDPS Act has not been complied with by
the prosecution is concerned, the law is well settled. The Hon’ble Supreme
Court in Ajmer Singh v. State of Haryana, (2010) 3 Supreme Court Cases
746, has held that for search of bag, briefcase, container, etc. carried by
accused person, compliance with Section 50 of the NDPS Act is not
required. Their Lordships have held as under :-
“15. The learned counsel for the appellant contended that the
provision of Section 50 of the Act would also apply, while
searching the bag, brief case etc., carried by the person and its
noncompliance would be fatal to the proceedings initiated
under the Act. We find no merit in the contention of the
learned counsel. It requires to be noticed that the question of
compliance or non-compliance of Section 50 of the NDPS. Act
is relevant only where search of a person is involved and the
said Section is not applicable nor attracted where no search of
a person is involved. Search and recovery from a bag, brief
case, container, etc., does not come within the ambit of
Section 50 of the NDPS Act, because firstly, Section 50
expressly speaks of search of person only. Secondly, the
Section speaks of taking of the person to be searched by the
Gazetted Officer or Magistrate for the purpose of search.
Thirdly, this issue in our considered opinion is no more res-
integra in view of the observations made by this court in the
case of Madan Lal v. State of Himachal Pradesh (2003) 7
SCC 465. The Court has observed:
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“16. A bare reading of Section 50 shows that it only
applies in case of personal search of a person. It does not
extend to search of a vehicle or a container or a bag or
premises (see Kalema Tumba v. State of Maharashtra
and Anr. (1999) 8 SCC 257, State of Punjab v. Baldev
Singh (1999) 6 SCC 172 and Gurbax Singh v. State of
Haryana (2001) 3 SCC 28). The language of section is
implicitly clear that the search has to be in relation to a
person as contrast to search of premises, vehicles, or
articles. This position was settled beyond doubt by the
Constitution Bench in Baldev Singh‘s case. Above being
the position, the contention regarding noncompliance of
Section 50 of the Act is also without any substance.”
16. x x x
17. x x x
18. It appears from the evidence on record that the accused
was confronted by ASI Maya Ram and other police officials on
24.1.1996 and he was informed that he has the right to either
be searched before the gazetted officer or before a Magistrate
and the accused chose the later (sic former). Thereafter, the
accused was taken to the DSP, Pehowa, Shri Paramjit Singh
Ahalawat and as directed by him, the bag carried by accused
on his shoulder was searched and the charas was found in that
bag. Thus, applying the interpretation of the word “search of
person” as laid down by this Court in the decision mentioned
above, to facts of present case, it is clear that the compliance
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of Section 50 of the Act is not required. Therefore, the search
conducted by the investigation officer and the evidence
collected thereby, is not illegal. Consequently, we do not find
any merit in the contention of the learned counsel of the
appellant as regards the noncompliance of Section 50 of the
Act.”
25.1. More recently, in the matter of Mehboob Shah v. State of
Madhya Pradesh, Criminal Appeal No(s). 3305-3306 of 2026
D/d.21.07.2026; the Hon’ble Supreme Court has held as under:-
“12. The next contention of the appellant pertains to the
alleged non-compliance of Section 50 of the NDPS Act. We
find the same to be devoid of merit. Section 50 of the NDPS
Act confers upon an accused a valuable right to have his
personal search conducted before a Gazetted Officer or a
Magistrate, if he so requires. Such right is sacrosanct and
indefeasible which cannot be disregarded by the prosecution
except at its own peril. [See: State of Punjab v. Baldev Singh,
(1999) 6 SCC 172] The protection under Section 50 is
confined to cases where the recovery is sought to be effected
through the personal search of the accused. It has no
application where the search is of an article, such as a bag,
container, suitcase or any other object, which the accused may
be carrying. [See: State of H.P. v. Pawan Kumar, (2005) 4
SCC 350 and Ranjan Kumar Chadha v. State of H.P., 2023
SCC Online SC 1262].”
…..emphasis supplied
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25.2. Since the recovery of opium was effected from the bag which
the appellant was carrying on his shoulder, so Section 50 of the NDPS Act
was not applicable in the present case. Even otherwise, in the present case,
the prosecution has gone a step further by serving a written notice under
Section 50 NDPS Act (Ex. PD), despite the fact that the recovery was from a
bag. The appellant exercised his option to be searched before a Magistrate
and, accordingly, he was searched before PW3 K.K. Amrohi, DRO who as
per prosecution was exercising the powers of Executive Magistrate on that
day. Though Section 50 of the NDPS Act is not applicable in the present
case but still the same has been complied with. Thus, in view of the settled
law as discussed above, the submissions made by learned counsel for the
appellant with regard to non-compliance of Section 50 of the NDPS Act are
without any substance. Accordingly, this Court is of the considered opinion
that the submissions advanced on behalf of the appellant regarding the
alleged non-compliance of Section 50 of the NDPS Act are devoid of merit
and deserve to be rejected.
26. Learned counsel has next argued that Section 52-A of the
NDPS Act has not been complied with as samples were not drawn before the
Magistrate. The contention cannot be accepted. This Court is conscious that
the law on the consequence of such non-compliance has since been
authoritatively settled by the Hon’ble Supreme Court in Bharat Aambale v.
State of Chhattisgarh, 2025 INSC 78, wherein the Supreme Court had held
that non-compliance or delayed compliance with Section 52A of the NDPS
Act will not automatically vitiate the trial or entitle the accused to acquittal
unless it leads to significant discrepancies in the physical evidence that cast
doubt on the prosecution’s case. It was further held that the Courts ought to
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consider entire evidence and assess if procedural lapses affect credibility and
the non-compliance may lead to adverse inference under Section 114(g)
Indian Evidence Act depending on facts but Substantial compliance is
sufficient. The relevant part of the order is reproduced below:
“50. We summarize our final conclusion as under: –
(I) Although Section 52A is primarily for the disposal and
destruction of seized contraband in a safe manner yet it extends
beyond the immediate context of drug disposal, as it serves a
broader purpose of also introducing procedural safeguards in
the treatment of narcotics substance after seizure inasmuch as it
provides for the preparation of inventories, taking of
photographs of the seized substances and drawing samples
therefrom in the presence and with the certification of a
magistrate. Mere drawing of samples in presence of a gazetted
officer would not constitute sufficient compliance of the mandate
under Section 52A sub-section (2) of the NDPS Act.(II) Although, there is no mandate that the drawing of samples
from the seized substance must take place at the time of seizure
as held in Mohanlal (supra), yet we are of the opinion that the
process of inventorying, photographing and drawing samples of
the seized substance shall as far as possible, take place in the
presence of the accused, though the same may not be done at the
very spot of seizure.
(III) Any inventory, photographs or samples of seized substance
prepared in substantial compliance of the procedure prescribed
under Section 52A of the NDPS Act and the Rules/Standing
Order(s) thereunder would have to be mandatorily treated as
primary evidence as per Section 52A subsection (4) of the NDPS
Act, irrespective of whether the substance in original is actually
produced before the court or not.
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(IV) The procedure prescribed by the Standing Order(s)/Rules in
terms of Section 52A of the NDPS Act is only intended to guide
the officers and to see that a fair procedure is adopted by the
officer in-charge of the investigation, and as such what is
required is substantial compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under Section 52A or
the Standing Order(s)/Rules thereunder will not be fatal to the
trial unless there are discrepancies in the physical evidence
rendering the prosecution’s case doubtful, which may not have
been there had such compliance been done. Courts should take a
holistic and cumulative view of the discrepancies that may exist
in the evidence adduced by the prosecution and appreciate the
same more carefully keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the prosecution,
oral or documentary inspires confidence and satisfies the court
as regards the recovery as-well as conscious possession of the
contraband from the accused persons, then even in such cases,
the courts can without hesitation proceed to hold the accused
guilty notwithstanding any procedural defect in terms of Section
52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the said
provision or rules thereunder may lead the court to drawing an
adverse inference against the prosecution, however no hard and
fast rule can be laid down as to when such inference may be
drawn, and it would all depend on the peculiar facts and
circumstances of each case.
(VIII) Where there has been lapse on the part of the police in
either following the procedure laid down in Section 52A of the
NDPS Act or the prosecution in proving the same, it will not be
appropriate for the court to resort to the statutory presumption of
commission of an offence from the possession of illicit material
under Section 54 of the NDPS Act, unless the court is otherwise
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satisfied as regards the seizure or recovery of such material from
the accused persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the
foundational facts to show that there was non-compliance of
Section 52A, either by leading evidence of its own or by relying
upon the evidence of the prosecution, and the standard required
would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of
Section 52A of the NDPS Act, the onus would thereafter be on the
prosecution to prove by cogent evidence that either (i) there was
substantial compliance with the mandate of Section 52A of the
NDPS Act OR (ii) satisfy the court that such non-compliance
does not affect its case against the accused, and the standard of
proof required would be beyond a reasonable doubt.”
26.2. In the present case, the prosecution witnesses i.e. the
Investigating Officer PW-4 Inspector Dhian Singh and the PW-2
MMHC Brij Pal Singh and also the report of the Forensic Science
Laboratory (Ex.PX), consistently establishes that the sample analysed by
the laboratory was the sample drawn from the contraband recovered
from the appellant. There is no material on record to indicate that the
identity of the seized substance was ever lost or that the sample
examined by the Forensic Science Laboratory was different from the
one allegedly recovered from the appellant. Thus, in the facts and
circumstances of the present case, the alleged non-compliance with
Section 52A of NDPS Act, even if assumed, constitutes at best a
procedural irregularity and not an illegality going to the root of the
prosecution case. In the absence of any demonstrated prejudice or any
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discrepancy affecting the credibility of the physical evidence, the
conviction cannot be vitiated on this ground alone.
27. On a comprehensive appreciation of the entire evidence
on record, this Court finds that the prosecution has proved each
circumstance beyond reasonable doubt. The evidence of the official
witnesses is trustworthy, consistent and inspires confidence. Their
testimony is duly corroborated by the documentary evidence and the
report of the Forensic Science Laboratory. No material contradiction,
omission or discrepancy has been pointed out which goes to the root of
the prosecution case or is sufficient to discredit the otherwise reliable
evidence led by the prosecution.
28. Thus, this Court concludes that the findings recorded by
the learned Special Judge are based upon proper appreciation of oral as
well as documentary evidence and do not suffer from any illegality,
perversity or misreading of evidence warranting interference by this
Court. The prosecution has successfully established that the appellant
was found in conscious possession of 2 Kgs. of opium in contravention
of the provisions of the NDPS Act.
29. This Court has also considered the argument of the
learned counsel for the appellant that the sentence awarded by the
learned trial Court is on higher side.
30. In Deo Narain Mandal v. State of U.P. (2004) 7 SCC
257, the Supreme Court (Three-Judge Bench) underscored that
sentencing is not a mere formality in criminal proceedings. Where a
statute prescribes both minimum and maximum terms, the court must
exercise the discretion conferred upon it judiciously-not whimsically or
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arbitrarily. Factors such as the gravity of the offence, manner of
commission, and the accused’s age are imperative in determining an
appropriate sentence. The sentencing court must operate within the
principle of proportionality, ensuring the sentence is neither unduly
harsh nor inappropriately lenient.
31. In Ravada Sasikala v. State of Andhra Pradesh AIR
2017 SC 1166, the Court reaffirmed that sentencing serves a broader
social purpose a deterrent effect that compels the offender to
acknowledge the harm caused both to the victim and to society. The
Court held that opportunities for reformation must be afforded, and
sentencing discretion must be exercised by weighing all attendant
circumstances, including the nature and manner of the offence and the
conduct of the accused, to strike a balance between legal efficacy and
prospects of rehabilitation.
32. The contraband recovered in the present FIR falls under
non-commercial quantity and the trial court has awarded the maximum
sentence to the appellant. With regard to the alternate prayer of the
learned counsel for the appellant, this Court has considered all the
aggravated and mitigating circumstances. The present case was
registered in the year 2001. The appellant-accused had faced agony of
trial for almost about 25 years and at the time of arrest he was 31 years
of age. Now he is more than 55 years of age. The custody certificate
produced on record by the learned State counsel reveals that he has
undergone actual sentence of 01 year 04 months and 19 days and the
custody certificate further shows that he is not involved in any other
case. The sentence of the appellant was suspended by this Court way
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back on 14.01.2005. Thereafter, the appellant has not misused the
concession of bail granted to him.
33. Accordingly, this Court is of the opinion that considering
the facts and circumstances of the case, it would be appropriate to
sentence the appellant for rigorous imprisonment for 05 years for offence
punishable under Section 18 of the NDPS Act.
34. Therefore, in view of the discussion above, the present
appeal is disposed of in the following terms:-
(i) The judgment dated 08.09.2004 passed by the Learned Special Judge,
Panipat is upheld.
(ii) The order of sentence dated 10.09.2004 is modified to the extent that
the sentence of imprisonment for 10 years awarded to the appellant is
reduced to rigorous imprisonment for 05 years.
(iii) The order of sentence qua fine imposed is upheld and punishment in
default is of payment of fine is modified to rigorous imprisonment for 06
months.
35. The appellant, shall surrender before the learned trial
Court forthwith to undergo the remaining part of the sentence. The trial
Court shall take appropriate steps to secure his custody in accordance
with law.
36. Pending miscellaneous application(s), if any, shall also
stand disposed of.
(RUPINDERJIT CHAHAL)
29.07.2026 JUDGE
Mohit Bishnoi
Whether speaking/reasoned : Yes
MOHIT
Whether reportable : Yes
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