Yashwant Kumar Vapche vs State Of Chhattisgarh on 27 July, 2026

    0
    5
    ADVERTISEMENT

    Chattisgarh High Court

    Yashwant Kumar Vapche vs State Of Chhattisgarh on 27 July, 2026

    Author: Ramesh Sinha

    Bench: Ramesh Sinha

                                                                  1
    
    
    
    
                       CGHC010489232025                                              2026:CGHC:31937-DB
    
                                                                                                     NAFR
    
                                      HIGH COURT OF CHHATTISGARH AT BILASPUR
    
                                                      CRA No. 2443 of 2025
    
                       1 - Yashwant Kumar Vapche S/o Indraram Vapche Aged About 53 Years R/o
                       Village Gohra Ps Baihar Distt. Balaghat ( Madhya Pradesh )
    
    
                       2 - Bharat Kumar Dhiwar S/o Shri Raghunath Dhiwar Aged About 27 Years
                       Village Dindayal Colony House No. 310 Mangla Ps Civil Line Distt. Bilaspur
                       (C.G.)
                                                                                              ... Appellants
    
                                                               versus
    
                       State Of Chhattisgarh Through Station House Officer, P.S. Singhoda, Distt.
                       Mahasamund (Chhattisgarh)
                                                                                              ... Respondent

    (Cause title taken from Case Information System)

    For Appellants : Mr. Dheerendra Pandey, Advocate.

    SPONSORED

    For Respondent/State : Mr. Jitendra Shrivastava, Govt. Advocate

    Hon’ble Shri Ramesh Sinha, Chief Justice
    Hon’ble Shri Ravindra Kumar Agrawal, Judge
    Judgment on Board
    Per Ramesh Sinha, Chief Justice
    27/07/2026

    1. The present appeal has been listed for consideration of I.A. No. 1 of
    VED
    PRAKASH
    DEWANGAN
    2025, which is the application for suspension of sentence and grant of
    Digitally signed
    by VED
    PRAKASH
    DEWANGAN
    bail, however considering the fact that the appellants are in jail since
    Date: 2026.07.30
    10:51:00 +0530
    2

    02.10.2019, with the consent of the parties, the appeal itself is being

    heard finally. Accordingly, I.A. No. 1 of 2025 is disposed of.

    2. The present appeal has been filed by the appellants under Section

    415(2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 against the

    impugned judgment of conviction and sentence dated 06.11.2025,

    passed by learned Special Judge (NDPS), Saraipali, District

    Mahasamund (C.G.), in Special Criminal Case No. 3 of 2020, whereby

    the appellants are convicted for the offence under Section 20(b)(ii)(C)

    and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985

    (hereinafter referred to as “the NDPS Act“) and sentenced him for R.I.

    for 15-15 years with fine of Rs. 1,00,000-1,00,000/-, in default of

    payment of fine additional R.I. for 1-1 year to each of the appellants.

    3. Brief facts of the case are that, on 02.10.2019, for suspected vehicle

    checking, the police party of police station Singhoda proceeded

    towards main road near Riyaz Dhaba. While vehicle checking, they

    stopped Hyundai Accent Car bearing No. CG 04 HA 7921. the driver

    disclosed his name as Yashwant Kumar Vapche and the co-passenger

    as Bharat Kumar Dhiwar. On being interrogation, they disclosed that

    they are transporting ganja from Bargadh to Bilaspur. On being

    checking, from the dickey of said car, total 102 packets wrapped with

    plastic tape was recovered in which ganja like substance were found.

    The recovery of ganja was informed to the SDOP Saraipali and

    panchnama (exhibit P-6) was prepared. Notice under Section 50 of the

    NDPS Act (exhibit P-7 and P-8) was given to the accused persons and

    then they gave their consent to be searched by the police officials and
    3

    panchnama (exhibit P-9) was prepared. The police and the

    independent witnesses gave their own search to the accused persons

    and relevant panchnama (exhibit P-10 and P-11) were prepared.

    Recovery panchnama (exhibit P-12) was prepared. Notice under

    Section 91 of CRPC (exhibit P-30 and P-31) was also given to the

    accused persons, but they could not produce any document of its valid

    possession. The contents of the packets were physically identified by

    rubbing, smelling and taste and physical identification panchnama

    (exhibit P-14). The said ganja was seized vide seizure memo (exhibit

    P-13).

    4. The seized ganja was homogenized on the spot and homogenization

    panchnama (exhibit P-15) was prepared. Two samples of 100 gram

    each was separated and the samples were marked as A-1 and A-2 and

    it was sealed. On being weighed, the total quantity of ganja was found

    to be 102 KG and weighment panchnama (exhibit P-4) was prepared.

    Seizure memo (exhibit P-18) was prepared, the accused persons were

    arrested and their arrest have been informed to their family members.

    The police party, seized ganja and other articles along with the

    accused persons came to police station, where the FIR (exhibit P-37)

    was registered against the accused persons for the offence under

    Section 20(b) of NDPS Act. the seized ganja and other articles were

    kept in safe custody of malkhana of police station and obtained

    acknowledgment (exhibit P-26). The details of the proceedings have

    been recorded in rojnamcha (exhibit P-36). The details of the

    proceedings were also forwarded to the SDOP Saraipali through the
    4

    document (exhibit P-22). The sample packets of seized ganja along

    with the memo of Superintendent of Police, Mahasamund were sent for

    its chemical examination to the State FSL Raipur and obtained

    acknowledgment (exhibit P-24A) from where the report (exhibit P-38)

    was received and ganja contents were found in the sent articles. Spot

    map (exhibit P-1) and panchnama (exhibit P-2) were prepared by the

    patwari. The ownership details of the seized car No. CG 04 HA 7921

    was also obtained from RTO Raipur, which is exhibit P-41 and the

    accused Yashwant Vapche was found to be owner of the said vehicle.

    The inventory was also conducted by the Executive Magistrate and

    physical verification panchnama (exhibit P-23A) and contraband

    identification panchnama (exhibit P-44) and inventory (exhibit P-45)

    were prepared. The verification report of the Executive Magistrate is

    exhibit P-24 and the photographs are exhibit P-25. A memo (exhibit P-

    43) was also sent to the Superintendent of Police for initiation of

    confiscation proceedings of the seized car. Statement of the witnesses

    have been recorded and after completion of usual investigation, charge

    sheet was filed against the accused persons before the learned trial

    Court for the offence under Section 20(b) of NDPS Act.

    5. The learned trial Court has framed charge against the accused persons

    for the offence under Sections 20(b)(ii)(C) and 29 of the NDPS Act. The

    accused persons abjured their guilt and claimed trial.

    6. In order to establish the charge against the accused persons, the

    prosecution has examined as many as 13 witnesses. Statements of the

    accused persons under Section 313 of the CRPC have also been
    5

    recorded, in which they denied the circumstance appears against

    them, pleaded innocence and have submitted that they have been

    falsely implicated in the offence.

    7. After appreciation of oral as well as documentary evidence led by the

    prosecution the learned trial Court has convicted the accused persons

    and sentenced them as mentioned in the earlier part of this judgment.

    Hence this appeal.

    8. Learned counsel for the appellants would submit that, the prosecution

    has failed to prove its case beyond reasonable doubt. There are

    material omissions and contradictions in the evidence of prosecution

    witnesses which cannot be made basis to convict the appellants for the

    alleged offence. There are non-compliance of the mandatory provisions

    of Section 42, 50, 52, 52-A, 55 and 57 of the NDPS Act. There is

    absolutely non-compliance of the Standing Order of 1/89 issued by the

    Central Government with respect to the procedure for drawing of the

    samples and in absence of any proper procedure for drawing the

    samples, the entire procedure vitiates. Therefore, the appellants cannot

    be convicted for the alleged offence. The independent witnesses have

    not supported the prosecution case. There are material irregularity in

    the search and seizure proceedings and there are major discrepancy in

    the evidence of the investigating officer. There is no evidence, as to

    when the sample packets were taken out from the malkhana for

    sending it to FSL and when the sample packets were received back.

    There is no relevant entries made in the register for the same. He

    would also submit that the inventory was conducted by the Executive
    6

    Magistrate and not by the Judicial Magistrate. No specimen seal was

    sent along with the sample packets of ganja to the FSL and the

    prosecution has failed to prove that the sample packets of ganja were

    intact from the date of its seizure till reaching to the FSL. The evidence

    produced by the prosecution are inconsistent on the material point of

    allegation and are not sufficient to hold them guilty for the alleged

    offence under the NDPS Act. Therefore, the impugned judgment of

    conviction and sentence may be set aside and the appellants may be

    acquitted from the alleged offences.

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

    submitted that the entire procedure as prescribed under the NDPS Act

    has been followed in its letter and spirit and after considering the

    evidence available on record, the learned trial Court has rightly

    convicted and sentenced the appellants for the alleged offence. The

    appellants were found in possession of the vehicle, in which the huge

    quantity of Ganja i.e. 102 KG of cannabis (Ganja) was being found

    transported by the appellants and there has been no explanation

    offered by the appellants, as to how they came into the possession of

    such a huge quantity of cannabis (Ganja) in their vehicle. All the

    mandatory provisions have been duly complied with, therefore, there is

    no irregularity or infirmity in the impugned judgment passed by learned

    trial Court and the appeal of the appellants is liable to be dismissed.

    10. We have heard learned counsel for the parties and perused the record

    of the trial Court with utmost circumspection.
    7

    11. PW-12 Ashok Yadav, the then Station House Officer of Police Station

    Singhoda, deposed that on 02.10.2019 he, along with the police party,

    proceeded for vehicle checking near Riyaz Dhaba after making the

    requisite rojnamcha entry (exhibit P-29). During checking, a Hyundai

    Accent Car bearing registration No. CG-04-HA-7921 was intercepted.

    The driver identified himself as Yashwant Kumar Vapche and the co-

    passenger as Bharat Kumar Dhiwar, who, upon interrogation, disclosed

    that they were transporting ganja from Bargarh to Bilaspur. On

    searching the dickey of the vehicle, 102 packets wrapped with plastic

    tape containing ganja-like substance were recovered. He informed the

    SDOP, Saraipali through written intimation (exhibit P-21A), prepared

    the vehicle checking panchnama (exhibit P-6), served notices under

    Section 50 of the NDPS Act (exhibit P-7 and P-8), obtained the

    accused persons’ consent for search (exhibit P-9), conducted the

    personal search of the police personnel and witnesses (exhibit P-10

    and P-11), prepared the search panchnama (exhibit P-12) recording

    the recovery, and also served notices under Section 91 CrPC (exhibit

    P-30 and P-31). He further stated that the seized contraband was

    identified and seized under panchnamas (exhibit P-13 and P-14).

    Thereafter, all 102 packets were homogenized, two representative

    samples of 100 grams each were drawn, marked A-1 and A-2, sealed,

    and the relevant panchnamas (exhibit P-16 and P-17) were prepared.

    On weighment, the total quantity, including the sample packets, was

    found to be 102 kilograms (exhibit P-4), following which the contraband

    was seized vide exhibit P-18 and both accused persons were arrested.

    After returning to the police station, the seized property was deposited
    8

    in the malkhana (exhibit P-26), the proceedings were entered in the

    rojnamcha, and FIR No. 122/2019 (exhibit P-37) was registered. The

    sealed samples were subsequently sent to the State FSL, Raipur,

    where the FSL Report (exhibit P-38) confirmed the presence of ganja.

    He also stated that he obtained the ownership details of the vehicle,

    initiated proceedings under Section 52-A of the NDPS Act for inventory

    and certification of the seized contraband, and completed the

    investigation by recording the statements of the prosecution witnesses.

    ******* In his cross-examination, he admitted that the departure and

    return of the police party were duly recorded in the rojnamcha and that

    the police party had left the police station at about 2:30 p.m. and

    returned after completion of the proceedings. He stated that the place

    of occurrence was situated near Riyaz Dhaba on a busy National

    Highway and explained that independent witnesses were summoned

    through a police constable. Although he admitted that no separate

    document was available regarding the mode of travel of the constables

    deputed to inform the SDOP and summon the witnesses, he

    consistently maintained that the information regarding the recovery of

    contraband was promptly communicated to the SDOP through exhibit

    P-21A and that all proceedings were conducted at the spot. He further

    clarified that the vehicle checking panchnama (exhibit P-6) was

    prepared during the course of vehicle checking itself and denied the

    suggestion that the proceedings were fabricated or conducted at the

    police station. He further admitted that the accused persons were not

    physically taken before a Magistrate or a Gazetted Officer; however, he
    9

    categorically stated that prior to the search they were informed of their

    legal right under Section 50 of the NDPS Act and, after being apprised

    of such right, they voluntarily consented to be searched by him,

    whereupon the requisite notices and consent panchnama were

    prepared. He also admitted certain omissions in the panchnamas and

    other documents regarding the description of the vehicle, the seal

    sample and certain procedural details. Nevertheless, he consistently

    asserted that 102 packets containing ganja were recovered from the

    dickey of the Hyundai Accent car, the contraband was duly seized,

    homogenized, sampled and sealed in accordance with the procedure

    followed during investigation, and the sealed samples were forwarded

    to the FSL, which confirmed the presence of ganja. Despite detailed

    cross-examination, no material contradiction or inconsistency could be

    elicited so as to discredit the core prosecution case regarding the

    recovery of the contraband from the possession of the accused

    persons, and he firmly denied the defence suggestion of false

    implication.

    12. Section 43 of the NDPS Act provides the powers of seizure and arrest

    in public place which towards as under:

    “43. Power of seizure and arrest in public
    place- Any officer of any of the departments
    mentioned in section 42 may:-

    (a) seize in any public place or in transit,
    any narcotic drug or psychotropic
    substance or controlled substance in
    respect of which he has reason to believe
    10

    an offence punishable under this Act has
    been committed, and, along with such drug
    or substance, any animal or conveyance or
    article liable to confiscation under this Act,
    any document or other article which he has
    reason to believe may furnish evidence of
    the commission of an offence punishable
    under this Act or any document or other
    article which may furnish evidence of
    holding any illegally acquired property
    which is liable for seizure or freezing or
    forfeiture under Chapter VA of this Act;

    (b) detain and search any person whom he
    has reason to believe to have committed an
    offence punishable under this Act, and if
    such person has any narcotic drug or
    psychotropic substance or controlled
    substance in his possession and such
    possession appears to him to be unlawful,
    arrest him and any other person in his
    company.

    Explanation- For the purposes of this section, the
    expression public place” includes any public
    conveyance, hotel, shop, or other place intended
    for use by, or accessible to, the public.

    13. From the evidence available on record, it is evident that the accused

    persons were intercepted while travelling in a Hyundai Accent Car near

    Riyaz Dhaba on the National Highway during routine vehicle checking.

    The contraband, namely 102 kilograms of cannabis (ganja), was

    recovered from the dickey of the vehicle at a public place while it was
    11

    in transit. The prosecution case does not disclose that the police party

    had any prior secret information regarding the transportation of the

    contraband; rather, the recovery was effected during a chance

    interception in the course of routine vehicle checking. In such

    circumstances, the search and seizure are governed by the provisions

    of Section 43 of the NDPS Act, which deals with seizure and arrest

    made in a public place, and not by Section 42 of the NDPS Act. In view

    of the Explanation appended to Section 43, the requirement of

    compliance with Section 42 has no application to the facts of the

    present case. Accordingly, the contention of the appellants regarding

    non-compliance of Section 42 of the NDPS Act is devoid of merit and

    deserves to be rejected.

    14. The contraband was recovered and seized while it was being

    transported in a Hyundai Accent Car on a public road. The recovery

    was thus effected from a vehicle in transit at a public place during

    routine vehicle checking. Such a search and seizure squarely falls

    within the ambit of Section 43(a) of the NDPS Act, which empowers the

    authorized officer to seize any narcotic drug or psychotropic substance

    found in any public place or in transit. Consequently, the provisions of

    Section 43 of the NDPS Act govern the present case, and not Section

    42. Therefore, the statutory requirement under Section 42 regarding

    recording the reasons for belief and reducing into writing any prior

    information received before conducting the search and seizure is

    inapplicable to the facts of the present case.

    15. In the matter of Firdoskhan Khurshidkhan vs. State of Gujarat and
    12

    Another dated 30.04.2024 reported in 2024 SCC OnLine SC 680 has

    held in para 18 as under:

    “18. Section 42 of the NDPS Act deals with search
    and seizure from a building, conveyance or
    enclosed place. When the search and seizure is
    effected from a public place, the provisions of
    Section 43 of the NDPS Act would apply and
    hence, there is no merit in the contention of
    learned counsel for the appellants that non-
    compliance of the requirement of Section 42(2)
    vitiates the search and seizure. Hence, the said
    contention is noted to be rejected.”

    16. In the matter of State of Haryana vs. Jarnail Singh and Others

    reported in 2004 (5) SCC 188 in Para 9 and 10 of its judgment the

    Hon’ble Supreme Court has held that:

    “9. Sections 42 and 43, therefore, contemplate
    two different situations. Section 42 contemplates
    entry into and search of any building, conveyance
    or enclosed place, while Section 43 contemplates
    a seizure made in any public place or in transit. If
    seizure is made under Section 42 between sunset
    and sunrise, the requirement of the proviso
    thereto has to be complied with. There is no such
    proviso in Section 43 of the Act and, therefore, it
    is obvious that if a public conveyance is searched
    in a public place, the officer making the search is
    not required to record his satisfaction as
    contemplated by the proviso to Section 42 of the
    NDPS Act for searching the vehicle between
    sunset and the sunrise.

    13

    10. In the instant case there is no dispute that the
    tanker was moving on the public highway when it
    was stopped and searched. Section 43 therefore
    clearly applied to the facts of this case. Such
    being the factual position there was no
    requirement of the officer conducting the search to
    record the grounds of his belief as contemplated
    by the proviso to Section 42. Moreover it cannot
    be lost sight of that the Superintendent of Police
    was also a member of the searching party. It has
    been held by this Court in M. Prabhulal vs.
    Assistant Director, Directorate of Revenue
    Intelligence
    : (2003) 8 SCC 449 that where a
    search is conducted by a gazetted officer himself
    acting under Section 41 of the NDPS Act, it was
    not necessary to comply with the requirement of
    Section 42. For this reason also, in the facts of
    this case, it was not necessary to comply with the
    requirement of the proviso to Section 42 of the
    NDPS Act.”

    17. In the matter of Kallu Khan vs. State of Rajasthan reported in 2021

    (19) SCC 197 in Para 12, 13 and 16 of its judgment the Hon’ble

    Supreme Court has held that:

    “12. After hearing and on perusal of record and
    the evidence brought, it is apparent that on
    apprehending the accused, while making search
    of the motor cycle, 900 gm of smack was seized
    to which seizure and sample memos were
    prepared, as proved by the departmental
    witnesses. In the facts of the case at hand, where
    the search and seizure was made from the
    vehicle used, by way of chance recovery from
    14

    public road, the provisions of Section 43 of the
    NDPS Act would apply. In this regard, the
    guidance may be taken from the judgments of this
    Court in S. K. Raju (supra) and S.K. Sakkar
    (supra). However, the recovery made by Pranveer
    Singh (PW6) cannot be doubted in the facts of
    this case.

    13. Now reverting to the contention that the motor
    cycle seized in commission of offence does not
    belong to accused, however seizure of the
    contraband from the motor cycle cannot be
    connected to prove the guilt of accused. The Trial
    Court on appraisal of the testimony of witnesses,
    Constable Preetam Singh (PW1), Constable
    Sardar Singh (PW2), S.I. Pranveer Singh (PW6)
    and Constable Rajendra Prasad (PW8), who were
    members of the patrolling team and the witnesses
    of the seizure, proved beyond reasonable doubt,
    when they were on patrolling, the appellant came
    driving the seized vehicle from opposite side. On
    seeing the police vehicle, he had taken back the
    motor cycle which he was riding. However, the
    police team apprehended and intercepted the
    accused and made the search of vehicle, in which
    the seized contraband smack was found beneath
    the seat of the vehicle. However, while making
    search at public place, the contraband was seized
    from the motor cycle driven by the accused. Thus,
    recovery of the contraband from the motor cycle
    of the appellant was a chance recovery on a
    public road. As per Section 43 of NDPS Act, any
    officer of any of the departments, specified in
    Section 42, is having power of seizure and arrest
    of the accused from a public place, or in transit of
    15

    any narcotic drug or psychotropic substance or
    controlled substance. The said officer may detain
    in search any person whom he has reason to
    believe that he has committed an offence
    punishable under the provisions of the NDPS Act,
    in case the possession of the narcotic drug or
    psychotropic substance appears to be unlawful.

    Learned senior counsel representing the appellant
    is unable to show any deficiency in following the
    procedure or perversity to the findings recorded
    by the Trial Court, affirmed by the High Court. The
    seizure of the motor cycle from him is proved
    beyond reasonable doubt, therefore, the question
    of ownership of vehicle is not relevant. In the
    similar set of facts, in the case of Rizwan Khan
    (supra), this Court observed the ownership of the
    vehicle is immaterial. Therefore, the argument as
    advanced by learned senior counsel is of no
    substance and meritless.”

    18. The next submission of the learned counsel for the appellants that

    Section 50 of NDPS Act has also not been complied with as the right to

    the appellants about their search have not been informed by the police

    authority as provided under Section 50 of the NDPS Act. The

    provisions of Section 50 is applicable to the personal search of the

    accused persons, whereas in the present case the cannabis (Ganja)

    was recovered from the vehicle belongs to the accused persons, which

    cannot said to be their personal search. The search of a vehicle does

    not comes under the requirement of Section 50 of the NDPS Act and

    search of a person is distinguished from search of any vehicle etc.
    16

    19. In the matter of Kallu Khan (supra) the Hon’ble Supreme Court has

    also considered the applicability of Section 50 of NDPS Act in search of

    the vehicle. In Para 16, the Hon’ble Supreme Court has held that:

    “16. Simultaneously, the arguments advanced by
    the appellant regarding non−compliance of
    Section 50 of NDPS Act is bereft of any merit
    because no recovery of contraband from the
    person of the accused has been made to which
    compliance of the provision of Section 50 NDPS
    Act has to follow mandatorily. In the present case,
    in the search of motor cycle at public place, the
    seizure of contraband was made, as revealed.
    Therefore, compliance of Section 50 does not
    attract in the present case. It is settled in the case
    of Vijaysinh (supra) that in the case of personal
    search only, the provisions of Section 50 of the
    Act is required to be complied with but not in the
    case of vehicle as in the present case, following
    the judgments of Surinder Kumar (supra) and
    Baljinder Singh (supra). Considering the facts of
    this Court, the argument of non−compliance of
    Section 50 of NDPS Act advanced by the counsel
    is hereby repelled.”

    20. In the matter of State of Punjab vs. Baldev Singh reported in 1999 (6)

    SCC 172 in Para 12 of its judgment the Hon’ble Supreme Court has

    held:

    “12. On its plain reading, Section 50 would come
    into play only in the case of a search of a person
    as distinguished from search of any premises etc.
    However, if the empowered officer, without any
    17

    prior information as contemplated by Section 42
    of the Act makes a search or causes arrest of
    person during the normal course of investigation
    into an offence or suspected offence and on
    completion of that search, a contraband under the
    NDPS Act is also recovered, the requirements of
    Section 50 of the Act are not attracted.”

    21. In the matter of Kulwinder Singh and Another vs. State of Punjab

    reported in 2015 (6) SCC 674 in Para 18 and 21 of its judgment the

    Hon’ble Supreme Court has held that:

    “18. In Dharampal Singh v. State of Punjab, it has
    been ruled that the expression “possession” is not
    capable of precise and complete logical definition
    of universal application in the context of all the
    statutes.
    Recently, in Mohan Lal v. State of
    Rajasthan11
    , after referring to certain authorities,
    this Court has held as follows:-

    “21. From the aforesaid exposition of law it
    is quite vivid that the term “possession” for
    the purpose of Section 18 of the NDPS Act
    could mean physical possession with
    animus, custody or dominion over the
    prohibited substance with animus or even
    exercise of dominion and control as a result
    of concealment. The animus and the mental
    intent which is the primary and significant
    element to show and establish possession.
    Further, personal knowledge as to the
    existence of the “chattel” i.e. the illegal
    substance at a particular location or site, at
    a relevant time and the intention based
    18

    upon the knowledge, would constitute the
    unique relationship and manifest
    possession. In such a situation, presence
    and existence of possession could be
    justified, for the intention is to exercise right
    over the substance or the chattel and to act
    as the owner to the exclusion of others.

    22. In the case at hand, the appellant, we
    hold, had the requisite degree of control
    when, even if the said narcotic substance
    was not within his physical control at that
    moment. To give an example, a person can
    conceal prohibited narcotic substance in a
    property and move out thereafter. The said
    person because of necessary animus would
    be in possession of the said substance
    even if he is not, at the moment, in physical
    control. The situation cannot be viewed
    differently when a person conceals and
    hides the prohibited narcotic substance in a
    public space. In the second category of
    cases, the person would be in possession
    because he has the necessary animus and
    the intention to retain control and
    dominion.”

    21. In State of H.P. v. Pawan Kumar, it has been
    held that:

    “10. We are not concerned here with the
    wide definition of the word “person”, which in
    the legal world includes corporations,
    associations or body of individuals as
    factually in these type of cases search of
    19

    their premises can be done and not of their
    person. Having regard to the scheme of the
    Act and the context in which it has been
    used in the section it naturally means a
    human being or a living individual unit and
    not an artificial person. The word has to be
    understood in a broad common-sense
    manner and, therefore, not a naked or nude
    body of a human being but the manner in
    which a normal human being will move
    about in a civilised society. Therefore, the
    most appropriate meaning of the word
    “person” appears to be — “the body of a
    human being as presented to public view
    usually with its appropriate coverings and
    clothing”. In a civilised society appropriate
    coverings and clothings are considered
    absolutely essential and no sane human
    being comes in the gaze of others without
    appropriate coverings and clothings. The
    appropriate coverings will include footwear
    also as normally it is considered an essential
    article to be worn while moving outside one’s
    home. Such appropriate coverings or
    clothings or footwear, after being worn,
    move along with the human body without
    any appreciable or extra effort. Once worn,
    they would not normally get detached from
    the body of the human being unless some
    specific effort in that direction is made. For
    interpreting the provision, rare cases of
    some religious monks and sages, who,
    according to the tenets of their religious
    belief do not cover their body with clothings,
    20

    are not to be taken notice of. Therefore, the
    work ‘person’ would mean a human being
    with appropriate coverings and clothings and
    also footwear.

    11. A bag, briefcase or any such article or
    container, etc. can, under no circumstances,
    be treated as body of a human being. They
    are given a separate name and are
    identifiable as such. They cannot even
    remotely be treated to be part of the body of
    a human being. Depending upon the
    physical capacity of a person, he may carry
    any number of items like a bag, a briefcase,
    a suitcase, a tin box, a thaila, a jhola, a
    gathri, a holdall, a carton, etc. of varying
    size, dimension or weight. However, while
    carrying or moving along with them, some
    extra effort or energy would be required.
    They would have to be carried either by the
    hand or hung on the shoulder or back or
    placed on the head. In common parlance it
    would be said that a person is carrying a
    particular article, specifying the manner in
    which it was carried like hand, shoulder,
    back or head, etc. Therefore, it is not
    possible to include these articles within the
    ambit of the word “person” occurring in
    Section 50 of the Act.”

    22. The next submission made by learned counsel for the appellants is the

    Sections 52 and 52A of the NDPS Act as well as Circular of 1/89

    issued by Central Government have not been complied with in the

    case for drawing of the samples from the seized articles. Therefore,
    21

    there is substantial non-compliance of the mandatory provisions of the

    NDPS Act and the appellants are entitled for acquittal.

    23. From the evidence of PW-12 Ashok Yadav, the investigating officer, it

    comes on record that he issued a request letter (exhibit P-42) to the

    SDOP Saraipali for inventory and verification of the seized cannabis

    (Ganja). On being served the notice upon the Nayab Tahsildar (PW-6)

    Indram Chandrawanshi conducted the inventory and prepared the

    physical verivication panchnama of the contraband ganja (exhibit P-

    23), a verification panchnama under Section 52A(3) of the NDPS Act

    (exhibit P-24). The ganja was weighed and photographs were also

    taken, which is exhibit P-25.

    ******* In cross-examination, he admitted that the panchnama has not

    been prepared in his own handwriting, but he admitted his signature

    put on the panchnama, while conducting the inventory. Though he also

    admitted that in another panchnama attached with exhibit P-23, the

    seal or signature is not there, but the relevant part of panchnama is

    exhibit P-23, in which his signature is there. Nothing substantial could

    be extracted from his cross-examination to disbelieve his evidence

    regarding the inventory proceedings.

    24. PW-1, Meghnath Bariha is the patwari who prepared the spot map

    (exhibit P-1) and panchnama (exhibit P-2) and duly supported the

    prosecution case. PW-2, Narendra Kumar Miri is the witness to the

    weighment panchnama (exhibit P-4). Though he has not supported the

    prosecution case, but he admitted his signature on the weighment
    22

    panchnama (exhibit P-4) and also proved the vehicle checking by the

    police on the spot. PW-3, Reshamlal and PW-4 Jitendra Mehar are

    also the independent witnesses of search and seizure proceedings,

    however they have not supported the prosecution case, but they

    admitted their signature in the documents (exhibit P-1 to P-20).

    25. PW-5, Ajay Kumar Bhoi is the Head Constable posted at the office of

    SDOP, Saraipali. He proved the information received from Singhoda

    police station through constable Ramakant Tripthi and issued

    acknowledgment (exhibit P-21 and P-22). Nothing could be extracted

    from his evidence that he has not received the information from police

    station Singhoda.

    26. PW-7, Anand Kumar Thakur is the Head Constable posted at police

    station Singhoda. He stated in his evidence that on 02.10.2019, the

    SHO Ashok Kumar Yadav handed over the seized ganja in four bags,

    its sample packets A-1 and A-2, cash of Rs. 1800/-, two mobile phones

    and one Hyundai Car No. CG 04 HA 7921 to kept in safe custody and

    he issued acknowledged (exhibit P-26). He brought the malkhana

    register (exhibit P-27), in which there is entries relating to sending the

    samples to the FSL Raipur on 03.10.2019 and the attested copy is

    already annexed in the case.

    ******* In cross-examination he admitted that, the contents of the

    document (exhibit P-26) has been returned by the investigating officer.

    He admitted that in the document (exhibit P-26), the time has not been

    mentioned. The deposition of specimen seal has also not been
    23

    mentioned in the document (exhibit P-26 and P-27), however he

    admitted that he kept the articles in safe custody of malkhana in the

    same condition under which it was handed over to him by the

    investigating officer.

    27. PW-8, Chitranjan Pradhan is the member of search party and he duly

    proved his part of the investigation, which they conducted on the spot

    and he being the procedural witness duly supported the prosecution

    case.

    28. PW-9, Ramakant Tripathi is the constable posted at police station

    Singhoda. He stated in his evidence that on 02.10.2019, he has taken

    the written information to the office of SDOP Saraipali and obtained

    acknowledgment (exhibit P-21). He also taken the details of the

    proceedings information and obtained acknowledged (exhibit P-22). He

    too has remained firm in saying that, he has taken the relevant

    document to the office of SDOP Saraipali and admitted that he had

    gone there on his own motorcycle.

    29. PW-10, Santosh Kumar Sanwra has taken the sample packets of ganja

    A-1 and A-2 to the State FSL Raipur along with the memo of

    Superintendent of Police, Mahasamund on 03.10.2019 and after

    depositing the samples at FSL Raipur, obtained acknowledged (exhibit

    P-24).

    30. From the cross-examination of these witnesses, the defence could not

    be able to elicit any material regarding tempering of the samples of the

    seized ganja or to disbelieve his evidence that he has not taken the
    24

    sample packets to FSL, Raipur.

    31. PW-11, Prasant Sagar is also a Head Constable and member of search

    party, who has called the independent witness during the search party

    and proved the same. He called the independent witnesses from the

    village of the witnesses, which were at the distance of about 1-2

    kilometer from Riyaz Dhaba, where they were checking the vehicles.

    32. PW-13, Shivdayal Baghel was the Station House Officer at police

    station Singhoda. In the offence of Crime No. 122/2019 under Section

    20(b) of NDPS Act, he appeared before the Executive Magistrate,

    Saraipali for inventory proceeding under Section 52A of the NDPS Act.

    The physical verification panchnama was prepared in his presence,

    which is exhibit P-23. The ganja was found to be 100.270 KG and

    photograph was also done. The relevant panchnama is exhibit P-44.

    The inventory prepared under Section 52A of NDPS Act is exhibit P-45

    and verification of the Executive Magistrate is exhibit P-24 and the

    photographs are exhibit P-25. After completion of investigation, he filed

    the charge sheet which is exhibit P-46. In cross-examination, he

    admitted that before the inventory proceeding under Section 52A of the

    NDPS Act, he inspected the relevant malkhana register. The physical

    verification panchnama (exhibit P-23) is prepared in his own

    handwriting. He admitted that the name of the person, who weighed

    the seized ganja and sample is not mentioned in the inventory

    proceeding. The photographer has not been made as a witness and

    the place where the photographs have been taken are not shown in the

    photographs. Though he further admitted that the samples drawn
    25

    during the inventory under Section 52A of the NDPS Act have not been

    sent for its chemical examination to FSL, but he denied that the

    inventory proceedings have been drawn arbitrarily. Although he

    admitted certain procedural discrepancies in making endorsement in

    the malkhana register after the inventory proceeding, however he

    denied that he prepared a false case against the appellants.

    33. From the evidence adduced by the prosecution, particularly the

    testimony of the investigating officer duly corroborated by the seizure

    documents, the evidence regarding deposit of the seized articles in the

    malkhana, the safe transmission of the samples to the FSL, and the

    FSL report confirming that the seized substance was cannabis (ganja),

    this Court is satisfied that the prosecution has successfully established

    beyond reasonable doubt that the appellants were found in conscious

    possession of 102 kilograms of ganja, which they were transporting in

    the Hyundai Accent car intercepted during routine vehicle checking.

    The recovery of the contraband from the dickey of the vehicle, the

    quantity recovered, and the surrounding circumstances clearly

    establish the appellants’ dominion and control over the contraband,

    thereby attracting the presumption of conscious possession under the

    NDPS Act. It is true that certain procedural deficiencies and omissions

    have surfaced in the course of the search and seizure proceedings;

    however, such lapses are of a technical nature and do not go to the

    root of the prosecution case so as to discredit the substantive evidence

    regarding recovery and possession of the contraband. The core

    prosecution version relating to the seizure of 102 kilograms of ganja
    26

    from the vehicle occupied by the appellants has remained intact

    despite lengthy cross-examination, and no material contradiction has

    been elicited to render the recovery doubtful. Consequently, this Court

    has no hesitation in holding that the substantive allegation regarding

    conscious possession and transportation of commercial quantity of

    ganja by the appellants stands duly proved by reliable and cogent

    evidence, notwithstanding the minor procedural irregularities noticed

    during the search and seizure process.

    34. In the matter of Bharat Aambale vs. The State of Chhattisgarh in

    CRA No. 250 of 2025, order dated 06.01.2025, the Hon’ble Supreme

    Court has held that irrespective of any failure to follow the procedure

    laid under Section 52-A of the NDPS Act if the other material on record

    adduced by the prosecution inspires confidence and satisfies the Court

    regarding both recovery and possession of the contraband and from

    the accused, then even in such cases the Courts can without hesitation

    proceed for conviction notwithstanding any procedural difficulty in

    terms of Section 52-A of the NDPS Act.

    35. In the matter of Bharat Aambale (supra) the Hon’ble Supreme Court in

    Para 25 to 37 has held as under:

    “25. In Noor Aga (supra) the order of conviction
    had been set-aside not just on the ground of
    violation of Section 52A but due to several other
    discrepancies in the physical evidence as to the
    colour and weight, and due to the lack of any
    independent witnesses. In fact, this Court despite
    being conscious of the procedural deficiencies in
    27

    the said case in terms of Section 52A observed
    that the matter may have been entirely different if
    there were no other discrepancies or if the other
    material on record were found to be convincing or
    supported by independent witnesses. The
    relevant observations read as under: –

    “107. The seal was not even deposited in
    the malkhana. As no explanation
    whatsoever has been offered in this behalf,
    it is difficult to hold that sanctity of the
    recovery was ensured. Even the malkhana
    register was not produced.

    xxx xxx xxx

    108. There exist discrepancies also in
    regard to the time of recovery. The recovery
    memo, Exhibit PB, shows that the time of
    seizure was 11.20 p.m. PW 1 Kulwant
    Singh and PW 2 K.K. Gupta, however,
    stated that the time of seizure was 8.30
    p.m. The appellant’s defence was that some
    carton left by some passenger was passed
    upon him, being a crew member in this
    regard assumes importance (see Jitendra
    para 6). The panchnama was said to have
    been drawn at 10 p.m. as per PW 1
    whereas PW 2 stated that panchnama was
    drawn at 8.30 p.m. Exhibit PA, containing
    the purported option to conduct personal
    search under Section 50 of the Act, only
    mentioned the time when the flight landed
    at the airport.

    xxx xxx xxx
    28

    111. In a case of this nature, where there
    are a large number of discrepancies, the
    appellant has been gravely prejudiced by
    their non-examination. It is true that what
    matters is the quality of the evidence and
    not the quantity thereof but in a case of this
    nature where procedural safeguards were
    required to be strictly complied with, it is for
    the prosecution to explain why the material
    witnesses had not been examined. The
    matter might have been different if the
    evidence of the investigating officer who
    recovered the material objects was found to
    be convincing. The statement of the
    investigating officer is wholly
    unsubstantiated. There is nothing on record
    to show that the said witnesses had turned
    hostile. Examination of the independent
    witnesses was all the more necessary
    inasmuch as there exist a large number of
    discrepancies in the statement of official
    witnesses in regard to search and seizure
    of which we may now take note.”

    (Emphasis supplied)

    26. Non-compliance or delayed compliance with
    the procedure prescribed under Section 52A of
    the NDPS Act or the Rules / Standing Order(s)
    thereunder may lead the court to draw an adverse
    inference against the prosecution. However, no
    hard and fast rule can be laid down as to when
    such inference may be drawn, and it would all
    depend on the peculiar facts and circumstances
    of each case. Such delay or deviation from
    29

    Section 52A of the NDPS Act or the Standing
    Order(s) / Rules thereunder will not, by itself, be
    fatal to the case of the prosecution, unless there
    are discrepancies in the physical evidence which
    may not have been there had such compliance
    been done. What is required is that the courts
    take a holistic and cumulative view of the
    discrepancies that exist in the physical evidence
    adduced by the prosecution and correlate or link
    the same with any procedural lapses or
    deviations. Thus, whenever, there is any deviation
    or non-compliance of the procedure envisaged
    under Section 52A, the courts are required to
    appreciate the same keeping in mind the
    discrepancies that exist in the prosecution’s case.

    In such instances of procedural error or
    deficiency, the courts ought to be extra-careful
    and must not overlook or brush aside the
    discrepancies lightly and rather should scrutinize
    the material on record even more stringently to
    satisfy itself of the aspects of possession, seizure
    or recovery of such material in the first place.

    27. In such circumstances, particularly where
    there has been lapse on the part of the police in
    either following the procedure laid down in
    Section 52A of the NDPS Act or the prosecution in
    adequately proving compliance of the same, it
    would not be appropriate for the courts to resort to
    the statutory presumption of commission of an
    offence from the possession of illicit material
    under Section 54 of the NDPS Act, unless the
    court is otherwise satisfied as regards the seizure
    or recovery of such material from the accused
    persons from the other material on record.

    30

    Similarly, irrespective of any failure to follow the
    procedure laid under Section 52A of the NDPS
    Act, if the other material on record adduced by the
    prosecution inspires confidence and satisfies the
    court regarding both the recovery and possession
    of the contraband from the accused, then even in
    such cases, the courts can without hesitation
    proceed for conviction notwithstanding any
    procedural defect in terms of Section 52A of the
    NDPS Act.

    28. In Khet Singh v. Union of India reported in
    (2002) 4 SCC 380 this Court held that the
    Standing Order(s) issued by the NCB and the
    procedure envisaged therein is only intended to
    guide the officers and to see that a fair procedure
    is adopted by the officer-in-charge of the
    investigation. It further observed that there may,
    however, be circumstances in which it would not
    be possible to follow these guidelines to the letter,
    particularly in cases of chance recovery or lack of
    proper facility being available at the spot. In such
    circumstances of procedural illegality, the
    evidence collected thereby will not become
    inadmissible and rather the courts would only be
    required to consider all the circumstances and
    find out whether any serious prejudice had been
    caused to the accused or not. Further it directed,
    that in such cases of procedural lapses or delays,
    the officer would be duty bound to indicate and
    explain the reason behind such delay or
    deficiency whilst preparing the memo. The
    relevant observations read as under: –

    “5. It is true that the search and seizure of
    31

    contraband article is a serious aspect in the
    matter of investigation related to offences
    under the NDPS Act. The NDPS Act and
    the Rules framed thereunder have laid
    down a detailed procedure and guidelines
    as to the manner in which search and
    seizure are to be effected. If there is any
    violation of these guidelines, the courts
    would take a serious view and the benefit
    would be extended to the accused. The
    offences under the NDPS Act are grave in
    nature and minimum punishment prescribed
    under the statute is incarceration for a long
    period. As the possession of any narcotic
    drug or psychotropic substance by itself is
    made punishable under the Act, the seizure
    of the article from the appellant is of vital
    importance.

    xxx xxx xxx

    10. The instructions issued by the Narcotics
    Control Bureau, New Delhi are to be
    followed by the officer-in-charge of the
    investigation of the crimes coming within
    the purview of the NDPS Act, even though
    these instructions do not have the force of
    law. They are intended to guide the officers
    and to see that a fair procedure is adopted
    by the officer-in-charge of the investigation.
    It is true that when a contraband article is
    seized during investigation or search, a
    seizure mahazar should be prepared at the
    spot in accordance with law. There may,
    however, be circumstances in which it
    32

    would not have been possible for the officer
    to prepare the mahazar at the spot, as it
    may be a chance recovery and the officer
    may not have the facility to prepare a
    seizure mahazar at the spot itself. If the
    seizure is effected at the place where there
    are no witnesses and there is no facility for
    weighing the contraband article or other
    requisite facilities are lacking, the officer
    can prepare the seizure mahazar at a later
    stage as and when the facilities are
    available, provided there are justifiable and
    reasonable grounds to do so. In that event,
    where the seizure mahazar is prepared at a
    later stage, the officer should indicate his
    reasons as to why he had not prepared the
    mahazar at the spot of recovery. If there is
    any inordinate delay in preparing the
    seizure mahazar, that may give an
    opportunity to tamper with the contraband
    article allegedly seized from the accused.
    There may also be allegations that the
    article seized was by itself substituted and
    some other items were planted to falsely
    implicate the accused. To avoid these
    suspicious circumstances and to have a fair
    procedure in respect of search and seizure,
    it is always desirable to prepare the seizure
    mahazar at the spot itself from where the
    contraband articles were taken into custody.

    xxx xxx xxx

    16. Law on the point is very clear that even
    if there is any sort of procedural illegality in
    33

    conducting the search and seizure, the
    evidence collected thereby will not become
    inadmissible and the court would consider
    all the circumstances and find out whether
    any serious prejudice had been caused to
    the accused. If the search and seizure was
    in complete defiance of the law and
    procedure and there was any possibility of
    the evidence collected likely to have been
    tampered with or interpolated during the
    course of such search or seizure, then, it
    could be said that the evidence is not liable
    to be admissible in evidence.”

    (Emphasis supplied)

    29. A similar view as above was reiterated in the
    decision of State of Punjab v. Makhan Chand
    reported in (2004) 3 SCC 453 wherein this Court
    after examining the purport of Section 52A of the
    NDPS Act and the Standing Order(s) issued
    thereunder, held that the procedure prescribed
    under the said order is merely intended to guide
    the officers to see that a fair procedure is adopted
    by the officer in charge of the investigation and
    they were not inexorable rules. The relevant
    observations read as under: –

    “10. This contention too has no substance
    for two reasons. Firstly, Section 52-A, as
    the marginal note indicates, deals with
    “disposal of seized narcotic drugs and
    psychotropic substances”. Under sub-
    section (1), the Central Government, by a
    notification in the Official Gazette, is
    34

    empowered to specify certain narcotic
    drugs or psychotropic substances, having
    regard to the hazardous nature,
    vulnerability to theft, substitution,
    constraints of proper storage space and
    such other relevant considerations, so that
    even if they are material objects seized in a
    criminal case, they could be disposed of
    after following the procedure prescribed in
    sub-sections (2) and (3). If the procedure
    prescribed in sub-sections (2) and (3) of
    Section 52-A is complied with and upon an
    application, the Magistrate issues the
    certificate contemplated by sub-section (2),
    then sub-section (4) provides that,
    notwithstanding anything to the contrary
    contained in the Indian Evidence Act, 1872
    or the Code of Criminal Procedure, 1973,
    such inventory, photographs of narcotic
    drugs or substances and any list of samples
    drawn under sub-section (2) of Section 52-A
    as certified by the Magistrate, would be
    treated as primary evidence in respect of
    the offence. Therefore, Section 52-A(1)
    does not empower the Central Government
    to lay down the procedure for search of an
    accused, but only deals with the disposal of
    seized narcotic drugs and psychotropic
    substances. 11. Secondly, when the very
    same Standing Orders came up for
    consideration in Khet Singh v. Union of
    India
    this Court took the view that they are
    merely intended to guide the officers to see
    that a fair procedure is adopted by the
    35

    officer in charge of the investigation. It was
    also held that they were not inexorable
    rules as there could be circumstances in
    which it may not be possible for the seizing
    officer to prepare the mahazar at the spot, if
    it is a chance recovery, where the officer
    may not have the facility to prepare the
    seizure mahazar at the spot itself. Hence,
    we do not find any substance in this
    contention.”

    (Emphasis supplied)

    30. Thus, from above it is clear that the procedure
    prescribed by the Standing Order(s) / Rules in
    terms of Section 52A of the NDPS Act is only
    intended to guide the officers and to ensure that a
    fair procedure is adopted by the officer- in-charge
    of the investigation, and as such what is required
    is substantial compliance of the procedure laid
    therein. We say so because, due to varying
    circumstances, there may be situations wherein it
    may not always be possible to forward the seized
    contraband immediately for the purpose of
    sampling. This could be due to various factors,
    such as the sheer volume of the contraband, the
    peculiar nature of the place of seizure, or owing to
    the volatility of the substance so seized that may
    warrant slow and safe handling. There could be
    situations where such contraband after being
    sampled cannot be preserved due to its
    hazardous nature and must be destroyed
    forthwith or vice-verse where the nature of the
    case demands that they are preserved and
    remain untouched. Due to such multitude of
    36

    possibilities or situations, neither can the police be
    realistically expected to rigidly adhere to the
    procedure laid down in Section 52A or its allied
    Rules / Orders, nor can a strait-jacket formula be
    applied for insisting compliance of each procedure
    in a specified timeline to the letter, due to varying
    situations or requirements of each case. Thus,
    what is actually required is only a substantial
    compliance of the procedure laid down under
    Section 52A of the NDPS Act and the Standing
    Order(s) / Rules framed thereunder, and any
    discrepancy or deviation in the same may lead the
    court to draw an adverse inference against the
    police as per the facts of each and every case.
    When it comes to the outcome of trial, it is only
    after taking a cumulative view of the entire
    material on record including such discrepancies,
    that the court should proceed either to convict or
    acquit the accused. Non- compliance of the
    procedure envisaged under Section 52A may be
    fatal only in cases where such non-compliance
    goes to the heart or root of the matter. In other
    words, the discrepancy should be such that it
    renders the entire case of the prosecution
    doubtful, such as instances where there are
    significant discrepancies in the colour or
    description of the substance seized from that
    indicated in the FSL report as was the case in
    Noor Aga (supra), or where the contraband was
    mixed in and stored with some other commodity
    like vegetables and there is no credible indication
    of whether the narcotic substance was separated
    and then weighed as required under the Standing
    Order(s) or Rules, thereby raising doubts over the
    37

    actual quantity seized as was the case in
    Mohammed Khalid (supra), or where the recovery
    itself is suspicious and uncorroborated by any
    witnesses such as in Mangilal (supra), or where
    the bulk material seized in contravention of
    Section 52A was not produced before the court
    despite being directed to be preserved etc. These
    illustrations are only for the purposes of brining
    clarity on what may constitute as a significant
    discrepancy in a given case, and by no means is
    either exhaustive in nature or supposed to be
    applied mechanically in any proceeding under the
    NDPS Act. It is for the courts to see what
    constitutes as a significant discrepancy, keeping
    in mind the peculiar facts, the materials on record
    and the evidence adduced. At the same time, we
    may caution the courts, not to be hyper-technical
    whilst looking into the discrepancies that may
    exist, like slight differences in the weight, colour or
    numbering of the sample etc. The Court may not
    discard the entire prosecution case looking into
    such discrepancies as more often than not an
    ordinarily an officer in a public place would not be
    carrying a good scale with him, as held in Noor
    Aga (supra). It is only those discrepancies which
    particularly have the propensity to create a doubt
    or false impression of illegal possession or
    recovery, or to overstate or inflate the potency,
    quality or weight of the substance seized that may
    be pertinent and not mere clerical mistakes,
    provided they are explained properly. Whether, a
    particular discrepancy is critical to the
    prosecution’s case would depend on the facts of
    each case, the nature of substance seized, the
    38

    quality of evidence on record etc.

    31. At the same time, one must be mindful of the
    fact that Section 52A of the NDPS Act is only a
    procedural provision dealing with seizure,
    inventory, and disposal of narcotic drugs and
    psychotropic substances and does not
    exhaustively lay down the evidentiary rules for
    proving seizure or recovery, nor does it dictate the
    manner in which evidence is to be led during trial.
    It in no manner prescribes how the seizure or
    recovery of narcotic substances is to be proved or
    what can be led as evidence to prove the same.

    Rather, it is the general principles of evidence, as
    enshrined in the Evidence Act that governs how
    seizure or recovery may be proved.

    32. Thus, the prosecution sans the compliance of
    the procedure under Section 52A of the NDPS Act
    will not render itself helpless but can still prove the
    seizure or recovery of contraband by leading
    cogent evidence in this regard such as by
    examining the seizing officer, producing
    independent witnesses to the recovery, or
    presenting the original quantity of seized
    substances before the court. The evidentiary
    value of these materials is ultimately to be
    assessed and looked into by the court. The court
    should consider whether the evidence inspires
    confidence. The court should look into the totality
    of circumstances and the credibility of the
    witnesses, being mindful to be more cautious in
    their scrutiny where such procedure has been
    flouted. The cumulative effect of all evidence must
    be considered to determine whether the
    39

    prosecution has successfully established the case
    beyond reasonable doubt as held in Noor Aga
    (supra).

    33. Even in cases where there is non-compliance
    with the procedural requirements of Section 52A,
    it does not necessarily vitiate the trial or warrant
    an automatic acquittal. Courts have consistently
    held that procedural lapses must be viewed in the
    context of the overall evidence. If the prosecution
    can otherwise establish the chain of custody,
    corroborate the seizure with credible testimony,
    and prove its case beyond reasonable doubt, the
    mere non-compliance with Section 52A may not
    be fatal. The emphasis must be on substantive
    justice rather than procedural technicalities, and
    keeping in mind that the salutary objective of the
    NDPS Act is to curb the menace of drug
    trafficking.

    34. At this stage we may clarify the scope and
    purport of Section 52A sub-section (4) with a view
    to obviate any confusion. Sub-section (4) of
    Section 52A provides that every court trying an
    offence under the NDPS Act, shall treat the
    inventory, photographs and samples of the seized
    substance that have been certified by the
    magistrate as primary evidence.

    35. What this provision entails is that, where the
    seized substance after being forwarded to the
    officer empowered is inventoried, photographed
    and thereafter samples are drawn therefrom as
    per the procedure prescribed under the said
    provision and the Rules / Standing Order(s), and
    40

    the same is also duly certified by a magistrate,
    then such certified inventory, photographs and
    samples has to mandatorily be treated as primary
    evidence. The use of the word “shall” indicates
    that it would be mandatory for the court to treat
    the same as primary evidence if twin conditions
    are fulfilled being (i) that the inventory,
    photographs and samples drawn are certified by
    the magistrate AND (ii) that the court is satisfied
    that the entire process was done in consonance
    and substantial compliance with the procedure
    prescribed under the provision and its Rules /
    Standing Order(s).

    36. Even where the bulk quantity of the seized
    material is not produced before the court or
    happens to be destroyed or disposed in
    contravention of Section 52A of the NDPS Act, the
    same would be immaterial and have no bearing
    on the evidentiary value of any inventory,
    photographs or samples of such substance that is
    duly certified by a magistrate and prepared in
    terms of the said provision. We say so, because
    sub-section (4) of Section 52A was inserted to
    mitigate the issue of degradation, pilferage or theft
    of seized substances affecting the very trial. It was
    often seen that, due to prolonged trials, the
    substance that was seized would deteriorate in
    quality or completely disappear even before the
    trial could proceed, by the time the trial would
    commence, the unavailability of such material
    would result in a crucial piece of evidence to
    establish possession becoming missing and the
    outcome of the trial becoming a foregone
    conclusion. The legislature being alive to this fact,
    41

    thought fit to introduce an element of preservation
    of such evidence of possession of contraband in
    the form of inventory, photographs and samples
    and imbued certain procedural safeguards and
    supervision through the requirement of
    certification by a magistrate, which is now
    contained in sub-section (4) of Section 52A. In
    other words, any inventory, photographs or
    samples of seized substance that was prepared in
    substantial compliance of the procedure under
    Section 52A of the NDPS Act and the Rules /
    Standing Order(s) thereunder would have to
    mandatorily be treated as primary evidence,
    irrespective of the fact that the bulk quantity has
    not been produced and allegedly destroyed
    without any lawful order.

    37. Section 52A sub-section (4) should not be
    conflated as a rule of evidence in the traditional
    sense, i.e., it should not be construed to have laid
    down that only the certified inventory, photographs
    and samples of seized substance will be primary
    evidence and nothing else. The rule of ‘Primary
    Evidence’ or ‘Best Evidence’ is now well settled. In
    order to prove a fact, only the best evidence to
    establish such fact must be led and adduced
    which often happens to be the original evidence
    itself. The primary evidence for proving
    possession will always be the seized substance
    itself. However, in order to mitigate the challenges
    in preservation of such substance till the duration
    of trial, due to pilferage, theft, degradation or any
    other related circumstances, the legislature
    consciously incorporated sub-section (4) in
    Section 52A to bring even the inventory,
    42

    photographs or samples of such seized substance
    on the same pedestal as the original substance,
    and by a deeming fiction has provided that the
    same be treated as primary evidence, provided
    they have been certified by a magistrate in
    substantial compliance of the procedure
    prescribed. This, however, does not mean that
    where Section 52A has not been complied, the
    prosecution would be helpless, and cannot prove
    the factum of possession by adducing other
    primary evidence in this regard such as by either
    producing the bulk quantity itself, or examining the
    witnesses to the recovery etc. What Section 52A
    sub-section (4) of the NDPS Act does is it creates
    a new form of primary evidence by way of a
    deeming fiction which would be on par with the
    original seized substance as long as the same
    was done in substantial compliance of the
    procedure prescribed thereunder, however, the
    said provision by no means renders the other
    evidence in original to be excluded as primary
    evidence, it neither confines nor restricts the
    manner of proving possession to only one mode
    i.e., through such certified inventory, photographs
    or samples such that all other material are said to
    be excluded from the ambit of ‘evidence’, rather it
    can be said that the provision instead provides
    one additional limb of evidentiary rule in proving
    such possession. Thus, even in the absence of
    compliance of Section 52A of the NDPS Act, the
    courts cannot simply overlook the other cogent
    evidence in the form of the seized substance itself
    or the testimony of the witnesses examined, all
    that the courts would be required in the absence
    43

    of any such compliance is to be more careful
    while appreciating the evidence.”

    36. In the present case the entire search and seizure proceedings have

    found genuine and the correct procedure have been drawn by the

    police persons. The seizure of cannabis (Ganja) and its weight and

    sampling were proved by the Executive Magistrate and nothing

    adverse could be found to disbelieve their evidences which further

    proves that the appellants were found in possession of such a huge

    quantity of cannabis (Ganja) in their vehicle. The appellants did not

    able to impute any palpable to make good their case that there has

    been non-compliance of any mandatory provisions of the NDPS Act.

    37. There is no material available on record so as to arrived at finding that

    the accused persons have been falsely implicated in this case. Section

    20 of the NDPS Act provides that whoever, in contravention of any

    provisions of the NDPS Act or any rule made therein possess cannabis

    (Ganja), shall be punished in accordance with the said provisions.

    Section 20(b) uses the “possesses”. In the present case the appellants

    were found in possession of 102 KG of cannabis (Ganja) in their

    Hyundai Accent Car, which they were carrying at the relevant time. The

    judgment passed by learned trial Court is quite detailed judgment

    which has dealt with every aspect of the matter and the analysis made

    therein clearly proves the appellants have committed the offence in

    question and were transporting cannabis (Ganja) weighing 102 KG

    They could not given any suggestion as to how that huge quantity of

    cannabis (Ganja) came to be found in the vehicle in which they were
    44

    travelling.

    38. The FSL report (exhibit P-38) further proves that the sample packets of

    cannabis (Ganja) which were drawn from the total quantity of cannabis

    (Ganja) were found to be contained with cannabis (Ganja) contents

    and further corroborates the allegation against the appellants.

    39. In view of the above discussion, this Court is of the considered opinion

    that the judgment passed by learned trial Court is based on proper

    appreciation of evidence which is neither perverse nor contrary to the

    record as well as law laid down by the Hon’ble Supreme Court and the

    same needs no interference as such the judgment of conviction and

    order of sentence awarded to the appellants is hereby affirmed.

    40. In the result, the appeal filed by the appellants is hereby dismissed.

    The appellants are reported to be in jail since 02.10.2019. They shall

    serve the remaining period of jail sentence as has been awarded to

    them by the learned trial Court.

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

    Superintendent of Jail where the appellants are undergoing their jail

    sentence to serve the same on the appellants informing them that they

    are at liberty to assail the present judgment passed by this Court by

    preferring an appeal before the Hon’ble Supreme Court with the

    assistance of High Court Legal Services Committee or the Supreme

    Court Legal Services Committee.

    42. Let a copy of this judgment and the original records be transmitted to
    45

    the trial Court concerned forthwith for necessary information and

    compliance.

                    Sd/-                                     Sd/-
          (Ravindra Kumar Agrawal)                      (Ramesh Sinha)
                   Judge                                  Chief Justice
    
    
    
    ved
     



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here