Chattisgarh High Court
Sheikh Rehman Qureshi vs State Of Chhattisgarh on 27 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
Digitally 2026:CGHC:19266-DB
signed by
ANURADHA
ANURADHA TIWARI
TIWARI Date:
AFR
2026.04.28
10:18:39
+0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 2151 of 2025
Sheikh Rehman Qureshi S/o Sheikh Ramzan Qureshi, Aged About 42
Years R/o Kashiram Nagar, Near Jaitkhambh Police Station Telibandha,
Raipur, District Raipur (C.G.)
...Appellant
versus
State of Chhattisgarh Through Station House Officer, Police Station-
Telibandha, Raipur, District Raipur (C.G.)
... Respondent
(Cause-title taken from Case Information System)
For Appellant : Mr. Ali Afzaal Mirza, Advocate
For State/Respondent : Mr. Shaleen Singh Baghel, Government
Advocate
Hon'ble Shri Ramesh Sinha, Chief Justice
Hon'ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
27.04.2026
1. Heard Mr. Ali Afzaal Mirza, learned counsel for the appellant as
well as Mr. Shaleen Singh Baghel, learned Government
Advocate, appearing for the State/respondent.
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2. Learned counsel for the appellant submits that, vide order dated
17.03.2026, the appellant was granted ad-interim bail by this
Court for a limited purpose, namely, to enable him to attend the
marriage ceremony of his daughter.
3. It is further submitted that pursuant to the said order, the
appellant was released for the aforesaid purpose and thereafter,
in compliance with the terms and conditions of the order as well
as the directions of the authorities, he was again taken into
custody and sent to jail.
4. Learned counsel submits that at present the appellant is confined
in judicial custody.
5. The appellant has preferred the present appeal under Section
415(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for
short, 'BNSS'), assailing the legality and correctness of the
impugned judgment dated 15.09.2025 passed by the learned
Special Judge (N.D.P.S. Act), Raipur, District Raipur (C.G.), in
Special Sessions Case No.172/2024/2020. By the said judgment,
the appellant has been held guilty for the offence punishable
under Section 22(c) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, 'NDPS Act') and has been
sentenced to undergo rigorous imprisonment for a period of 15
years along with a fine of Rs.1,50,000/-, with a stipulation that in
default of payment of fine, he shall further undergo rigorous
imprisonment for a period of six months.
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6. The prosecution story of the case, as unfolded before the learned
Trial Court, is that on 04.05.2024, the Investigating Officer,
Station House Officer, Police Station Telibandha, Raipur, received
secret information from an informant that a person standing
beneath the Kashiram Nagar overbridge, Telibandha, Raipur,
wearing a blue-coloured T-shirt and carrying a black coloured
bag, was in possession of and attempting to sell contraband
narcotic and psychotropic substances to prospective customers.
7. Pursuant to the said information, which was duly recorded in the
Rojnamcha Sanha, the services of independent witnesses
namely Sanjay Nishad (PW-1) and Sanjay Bohare (PW-2) were
secured through Constable Kamlesh Singh (PW-5). After their
availability, they were apprised of the secret information and, with
their consent, notices under Section 160 Cr.P.C. were issued to
them.
8. Thereafter, a preliminary panchnama regarding the secret
information (Ex.P/3) was prepared, along with proceedings
relating to inability to obtain search warrant (Ex.P/4) and
verification of the information (Ex.P/05). The mandatory notice
under Section 50 of the NDPS Act (Ex.P/06) was served upon the
suspect, informing him of his legal right to be searched before a
Gazetted Officer or Magistrate. His consent for search was
recorded through consent panchnama (Ex.P/7). The search
operation was conducted in accordance with law by the
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Investigating Officer along with police staff, witnesses, and the
accused, and separate search panchnamas were prepared
including search of self and police party (Ex.P/8), search of police
vehicle (Ex.P/9), search of witnesses (Ex.P/10), search of the
suspect (Ex.P/11), and search of the bag in possession of the
accused (Ex.P/12). During such search, contraband substance
was allegedly recovered from the black coloured bag carried by
the accused, and the recovery panchnama (Ex.P/13) was
prepared.
9. The seized substance was identified as narcotic and psychotropic
substance and duly verified under identification panchnama
(Ex.P/14). The weight of the seized material was recorded
through weight panchnama (Ex.P/15), and seizure proceedings
were formalised through seizure memo and sample seal
panchnama (Ex.P/16) and sealing panchnama (Ex.P/18).
10. It is the prosecution case that upon completion of seizure
proceedings, the accused was arrested after recording reasons of
arrest under panchnama (Ex.P/19) and arrest memo (Ex.P/20),
and the arrest information was communicated to his family
members. The crime detail form (Ex.P/21) and police statement
of witnesses (Ex.P/22 to Ex.P/24) were also recorded. Forensic
and procedural compliance was undertaken by sending samples
for examination. The Drug Inspector's physical examination
report (Ex.P/26) and forwarding memos (Ex.P/25, Ex.P/27) were
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prepared. Samples were further sent to the Forensic Science
Laboratory (Ex.P/28) and receipts of exhibits were obtained
(Ex.P/29). The FSL report (Ex.P/49 & Ex.P/50) confirmed the
presence of contraband substances including Dicyclomine,
Tramadol and Acetaminophen.
11. The Investigating Officer, S.I. Shrawan Kumar (PW-8), conducted
the investigation, recorded statements of witnesses including
Sanjay Nishad (PW-1), Sanjay Bohare (PW-2), Mukesh Kumar
(PW-3), Chintamani Giri (PW-4), Kamlesh Singh (PW-5), Suraj
Singh Chelak (PW-6), and Dharmendra Kanauje (PW-7), and
submitted the final report (Ex.P/45) after completion of
investigation.
12. The prosecution further relied upon notices under Section 67 of
the NDPS Act (Ex.P/41), information of arrest (Ex.P/42), seizure
registers, rojnamcha entries (Ex.P/33-C, Ex.P/34-C to Ex.P/40-C,
Ex.P/44-C), spot map forwarding memo (Ex.P/51), and other
documentary evidence to establish compliance with mandatory
provisions of the NDPS Act.
13. Ultimately, on the basis of the aforesaid oral and documentary
evidence, including testimonies of prosecution witnesses (PW-1
to PW-8) and exhibits (Ex.P/1 to Ex.P/51), the learned Trial Court
found that the accused was found in conscious possession of
contraband psychotropic substances and convicted him under
Section 22(c) of the NDPS Act.
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14. The defence, however, denied all allegations, pleaded false
implication, and claimed that the entire case was fabricated, but
did not adduce any defence evidence.
15. After due appreciation and critical evaluation of the entire oral as
well as documentary evidence adduced by the prosecution, the
learned Trial Court has held the appellant guilty of the charges
levelled against him. The learned Court below, relying upon the
testimonies of the prosecution witnesses as well as the
documentary exhibits brought on record, has proceeded to
convict the appellant and has sentenced him in the manner as
indicated in the earlier part of this judgment.
16. Being aggrieved by the said judgment of conviction and order of
sentence, the appellant has preferred the present appeal
questioning the correctness, legality, and propriety of the
impugned judgment. Hence, this appeal.
17. Mr. Ali Afzaal Mirza, learned counsel for the appellant, has made
elaborate submissions assailing the impugned judgment of
conviction on both factual and legal grounds, contending that the
entire prosecution case is vitiated due to serious procedural
lapses, non-compliance of mandatory provisions of the NDPS
Act, and failure to establish a complete and unbroken chain of
custody of the alleged contraband. It is submitted that the alleged
seizure, sampling, and preservation of the narcotic substance
were not conducted in accordance with the mandatory
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requirements of Standing Order No. 1/88 dated 15.08.1988 and
Standing Order No. 1/89, which govern the manner of seizure,
sampling, sealing, and preparation of inventory in NDPS cases.
Learned counsel submits that these Standing Orders have the
force of binding procedural safeguards and any deviation
therefrom renders the entire recovery proceedings doubtful. It is
further submitted that there is complete non-compliance of
Sections 52A and 55 of the NDPS Act, inasmuch as the inventory
(Ex.P/32) does not contain the requisite particulars such as
proper description, quantity, mode of packing, markings, and
identifying features of the seized articles.
18. It is further submitted that the sampling process itself is
fundamentally defective. Out of the alleged recovery of 600
capsules, only 48 capsules were drawn and sent for FSL
examination, which, according to the appellant, cannot be treated
as a representative sample in law. Learned counsel submits that
as per Standing Orders No. 1/88 and 1/89, where multiple
packets or strips are recovered, samples are required to be
drawn from each individual packet and tested appropriately
before drawing any representative sample. The failure to follow
such mandatory procedure, it is urged, vitiates the entire
prosecution case. It is also submitted that Exhibit Ex.P/47A,
which is the list of extracted samples, itself indicates that
sampling was allegedly done on 04.05.2024, whereas the order
of the learned JMFC for sampling and inventory was passed only
8
on 06.05.2024, thereby creating serious doubt regarding
procedural legality and prior manipulation.
19. Learned counsel further submits that there is clear violation of
Section 52A of the NDPS Act, as the seized property was
allegedly kept in the malkhana on 04.05.2024 and was produced
for sampling before the learned Judicial Magistrate only on
06.05.2024, without any explanation for such delay. It is
submitted that such delay, in NDPS matters, is fatal as the
legislature has mandated prompt preparation of inventory and
sampling under judicial supervision to avoid tampering. It is
further pointed out that as per the deposition of PW-7
Dharmendra Kanauje (Malkhana Moharrir), the seized property
received by him under Ex.P/32 was not in properly sealed
condition, and there are overwritings in the register entries, which
were not satisfactorily explained. It is also argued that neither the
Investigating Officer nor the prosecution has proved that the seal
remained intact throughout the chain till the FSL examination. It is
further submitted that the prosecution has failed to prove
compliance with Section 55 of the NDPS Act, inasmuch as the
seal was not deposited in the malkhana along with the seized
articles, and no explanation has been offered for the same. It is
urged that this omission seriously undermines the sanctity of the
alleged seizure and opens a possibility of tampering, thereby
vitiating the entire prosecution case. Learned counsel also
submits that there is no proper entry in Ex.P/33C (Rojnamcha
9
Sanha register) regarding return of the sample sent for FSL,
which creates a serious gap in the chain of custody and raises
doubt whether the same sample was ever examined.
20. It is further contended that the mandatory safeguards under
Section 50 of the NDPS Act have also been violated. It is
submitted that under Ex.P/7 (Consent Panchnama), the accused
was merely given a formal option of search before a Gazetted
Officer or Magistrate, and thereafter, he was searched by police
officials after obtaining so-called consent. It is argued that this
procedure is contrary to the settled law laid down by the Hon'ble
Supreme Court, as Section 50 mandates strict compliance and
informs the accused of an indefeasible right, and any dilution
thereof renders the search illegal.
21. Learned counsel further submits that the integrity of the seizure is
further doubtful in view of contradictions in the prosecution
evidence. PW-5 Kamlesh Singh has admitted in his deposition
that he does not remember whether the alleged substances were
weighed properly at the time of seizure. It is also submitted that
discrepancies exist between Ex.P/15 (Weight Panchnama) and
Ex.P/32 (Seized Goods Receipt), particularly regarding weight
details, sealing procedure, and description of seized items, which
have not been explained by the prosecution. It is further
submitted that there is unexplained delay in sending samples to
the FSL. As per the record, samples were dispatched on
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13.05.2024 vide Ex.P/28, whereas the FSL report (Ex.P/49 and
Ex.P/50) was received on 31.05.2025, and no satisfactory
explanation has been furnished for such long delay. It is urged
that such delay, in NDPS matters, creates serious doubt about
the integrity of samples and possibility of tampering cannot be
ruled out.
22. In support of his submissions, learned counsel has placed
reliance upon the following judgments:
• Simranjeet Singh v. State of Punjab, 2023 LiveLaw (SC)
570
• Yusuf v. State, 2023 LiveLaw (SC) 890
• Jugal Kishore v. State of Punjab, (2008) 17 SCC 747
• Ouseph v. State of Kerala, (2004) 10 SCC 647
• State of Rajasthan v. Bher Singh, (2009) 16 SCC 293
• Noor Aga v. State of Punjab & Another, (2008) 16 SCC 417
• State of Himachal Pradesh v. Surat Singh, Criminal Appeal
No. 96 of 2018 (Supreme Court of India)
• Shailendra Patel & Another v. State of Chhattisgarh,
Criminal Appeal No. 823 of 2023 (Chhattisgarh High Court)
• Chandrashekhar Shivhare & Another v. Intelligence Officer,
Revenue, Criminal Appeal No. 808 of 2023 (Chhattisgarh
High Court)
• Arun Kumar Jatav v. State of Chhattisgarh, Criminal Appeal
No. 147 of 2022 (Chhattisgarh High Court)
• Bharat Aambale v. State of Chhattisgarh, Criminal Appeal
No. 250 of 2025 (Chhattisgarh High Court)
11
• Sursgally Srinivas v. State of Andhra Pradesh, Criminal
Appeal No. 1474 of 2025 (Andhra Pradesh High Court)
23. Placing strong reliance upon the aforesaid judgments, learned
counsel submits that strict compliance of Sections 52A, 55, and
50 of the NDPS Act is mandatory in nature, and any violation
thereof goes to the root of the prosecution case. It is contended
that in the present case, the prosecution has failed to establish
compliance of these safeguards beyond reasonable doubt, and
therefore, the conviction of the appellant is unsustainable in law.
24. It is thus urged that the appellant has been falsely implicated, the
investigation is defective and tainted, the chain of custody is
broken, and the entire prosecution case is surrounded by serious
doubts. Accordingly, it is prayed that the impugned judgment of
conviction and sentence be set aside and the appellant be
acquitted by extending the benefit of doubt.
25. On the other hand, Mr. Shaleen Singh Baghel, learned
Government Advocate appearing for the State, has vehemently
opposed the submissions advanced on behalf of the appellant
and has supported the impugned judgment of conviction and
sentence passed by the learned Trial Court. It is submitted that
the findings recorded by the Trial Court are based on proper
appreciation of both oral and documentary evidence, which
clearly establish the guilt of the appellant beyond reasonable
doubt. It is contended that the prosecution has successfully
proved the conscious possession of the appellant over the
12
contraband substance and the entire chain of events from receipt
of information, raid, seizure, sealing, to forwarding of samples to
the FSL stands duly established through reliable evidence.
26. It is further submitted that the testimony of prosecution witnesses,
particularly PW-1 Sanjay Nishad, PW-2 Sanjay Bohare, PW-3
Mukesh Kumar, PW-4 Chintamani Giri, PW-5 Kamlesh Singh,
PW-6 Suraj Singh Chelak, PW-7 Dharmendra Kanauje, as well as
PW-8 Investigating Officer Shrawan Kumar, consistently supports
the prosecution case and inspires confidence. Learned State
counsel submits that minor discrepancies, if any, in the
depositions are natural and do not go to the root of the case so
as to discredit the entire prosecution version. It is submitted that
the recovery of contraband from the possession of the appellant
stands duly proved by cogent and reliable evidence and the
defence has failed to dislodge the same.
27. It is further contended that there has been substantial compliance
of the provisions of the NDPS Act, including Sections 50, 52, 52A
and 55 of the Act. Learned State counsel submits that Section 50
of the NDPS Act is not applicable in the strict sense in the present
case as the recovery was effected from a bag carried by the
appellant and not from his personal body search alone. However,
even otherwise, it is submitted that the appellant was duly
informed of his legal rights and option of search before a
Gazetted Officer or Magistrate was clearly communicated to him,
13
as evidenced from Exhibit Ex.P/6 and Ex.P/7, and his consent
was voluntarily recorded in the presence of independent
witnesses.
28. With regard to compliance of Section 52A of the NDPS Act, it is
submitted that proper inventory was prepared under Exhibit
Ex.P/32 and the same was forwarded for judicial verification
before the learned Magistrate. It is argued that there is
substantial compliance of the statutory requirements and mere
minor irregularities, if any, in documentation or procedural
aspects do not vitiate the entire trial, particularly when the seizure
and recovery have been otherwise duly proved. It is further
submitted that the sampling procedure adopted by the
investigating agency was proper, scientific, and in accordance
with law. Learned State counsel submits that the samples were
drawn in the presence of witnesses and sealed properly, and
there is no credible evidence to suggest that the seal was
tampered with at any stage. The FSL report Ex.P/49 and Ex.P/50
conclusively establishes that the seized substance contained
psychotropic substances, thereby corroborating the prosecution
case in its entirety.
29. It is also contended that the alleged delay in dispatch of samples
or examination by FSL does not, in any manner, affect the
sanctity of the investigation, particularly when there is no
evidence of tampering or substitution of samples. Learned
14
counsel submits that the chain of custody has been duly
maintained through proper malkhana entries, forwarding memos,
and official witnesses, and the defence has failed to demonstrate
any prejudice caused due to alleged procedural lapses. It is
further submitted that the entries in Rojnamcha Sanha and
malkhana register, including Ex.P/33C to Ex.P/40C, clearly
establish the movement and safe custody of seized articles. The
testimony of PW-7 Dharmendra Kanauje (Malkhana Moharrir)
supports the prosecution version regarding proper deposit and
handling of seized property. It is argued that isolated
discrepancies or overwriting, if any, are inconsequential and do
not affect the credibility of the prosecution case.
30. Learned State counsel further submits that the contention
regarding non-deposit of seal or alleged violation of Section 55 of
the NDPS Act is without substance, as the overall evidence
demonstrates that proper sealing procedure was followed and
custody was maintained under official supervision. It is argued
that presumption under Section 35 and Section 54 of the NDPS
Act operates against the appellant once possession is
established, and the burden lies upon the accused to rebut the
same, which has not been discharged in the present case. It is
thus submitted that the learned Trial Court has rightly appreciated
the evidence in its proper perspective and has recorded well-
reasoned findings of guilt against the appellant. Learned State
counsel contends that the appeal is devoid of merit, the
15
conviction is well founded in law and fact, and no interference is
warranted by this Court in exercise of appellate jurisdiction.
Accordingly, it is prayed that the appeal be dismissed and the
conviction and sentence imposed upon the appellant be affirmed.
31. We have heard learned counsel for the parties at considerable
length and have also carefully perused the entire record of the
case, including the impugned judgment, oral and documentary
evidence adduced before the learned Trial Court, as well as the
material placed on record in the present appeal.
32. For proper adjudication of the present appeal, the following points
arise for consideration before this Court:
(i) Whether the Investigating Officer, namely Sub-Inspector
Shravan Kumar, Police Station Telibandha, District Raipur,
was duly authorized and competent in law to conduct
investigation under the provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 and the rules framed
thereunder?
(ii) Whether, on the date, time and place of occurrence, the
appellant was found in conscious and unlawful possession
of the contraband substance, namely Spasmo Proxyvon
Plus capsules in a total quantity of 600 capsules weighing
300 grams, in contravention of the provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985 and the rules
and notifications framed thereunder?
16
Finding on Point No. (i)
33. So far as the first point for determination is concerned, namely
whether the Investigating Officer, Sub-Inspector Shravan Kumar
(PW-8), was a competent and duly authorized officer to conduct
investigation under the provisions of the NDPS Act, this Court
finds that the said issue has been appropriately considered and
rightly decided by the learned Trial Court.
34. At this stage, it would also be apposite to examine the
applicability of the provisions contained under Section 43 of the
Narcotic Drugs and Psychotropic Substances Act, 1985, which
deals with the powers of seizure and arrest in a public place.
Section 43 of the NDPS Act confers authority upon officers
empowered under Section 42 of the Act to seize any narcotic
drug, psychotropic substance or controlled substance in any
public place or while the same is in transit, if the officer has
reason to believe that an offence punishable under the Act has
been committed. The said provision further authorises the officer
to detain and search any person whom he has reason to believe
to have committed such offence and, if such person is found to
be in unlawful possession of any narcotic drug or psychotropic
substance, to arrest him. The explanation appended to Section
43 clarifies that the expression "public place" includes any public
conveyance, hotel, shop or any other place intended for use by,
or accessible to, the public at large. Section 43 of the NDPS Act
17
provides the powers of seizure and arrest in public place which
reads 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 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."
35. In the matter of Firdoskhan Khurshidkhan v. State of Gujarat
and Another, 2024 SCC OnLine SC 680, the Hon'ble Supreme
Court while considering the issue regarding Section 42 of the
NDPS Act, has held in paragraph 18, which reads as under :-
18
"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."
36. Further, the Hon'ble Supreme Court in the matter of State of
Haryana v. Jarnail Singh and Others, 2004 (5) SCC 188 has
held in paragraphs 9 and 10 of its judgment by observing as
follows :-
"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.
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.
19
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."
37. In the matter of Kallu Khan vs. State of Rajasthan, 2021 (19)
SCC 197, the Hon'ble Supreme Court has held as under :-
"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 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 ConstableRajendra Prasad
20
(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 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."
38. Reverting to the facts of the present case in the light of
aforementioned rulings of the Hon'ble Apex Court, it is quite vivid
21
that the search and seizure were effected at a place which was
accessible to the public and therefore squarely falls within the
ambit of a "public place" as contemplated under Section 43 of the
NDPS Act. It is an admitted position emerging from the record
that PW-8 Shravan Kumar was posted as Sub-Inspector at Police
Station Telibandha, District Raipur at the relevant point of time.
The fact of his posting and rank has not been disputed by the
defence during trial. No suggestion or evidence has been led on
behalf of the appellant to show that the said officer was not
competent to undertake investigation or that he was lacking
jurisdiction under the NDPS Act.
39. The prosecution has placed on record the relevant notifications
issued by the State Government, namely Notification F. No. B-6-
35-V-SR-85-4801 dated 11.11.1985 issued under Section 41(2) of
the NDPS Act and Notification F. No. B-6-35-V-SR-85-4804 dated
11.11.1985 issued under Section 42(1) of the NDPS Act. By virtue
of the said statutory notifications, officers of the Police
Department including Sub-Inspectors have been duly empowered
and authorized to exercise powers under Sections 41 and 42 of
the NDPS Act within their respective territorial jurisdiction.
40. A bare perusal of the said notifications, which are part of the
record, clearly demonstrates that the State Government has
specifically authorized Sub-Inspectors of Police to exercise
powers under the NDPS Act for taking cognizance, conducting
22
search, seizure and investigation in respect of offences
committed within their jurisdiction. The said notifications have
been duly proved and exhibited during trial as part of
documentary evidence, which includes Ex.P/30 and allied official
correspondence relating to authorization and departmental
competence.
41. Further, the oral testimony of PW-8 Shravan Kumar categorically
establishes that he was the Investigating Officer who received the
secret information, recorded the same in the Rojnamcha Sanha,
proceeded to the spot, conducted the search and seizure,
prepared the seizure memos, arrest memo, panchnamas, and
thereafter completed the investigation culminating into
submission of charge-sheet. His deposition remains consistent,
cogent and unshaken in cross-examination.
42. The testimony of PW-5 Kamlesh Singh (Ex.P/24 and Ex.P/29A),
PW-4 Chintamani Giri (Ex.P/08, Ex.P/10, Ex.P/11), PW-3 Mukesh
Kumar (Ex.P/05, Ex.P/06, Ex.P/07), PW-2 Sanjay Bohare
(Ex.P/23) and PW-1 Sanjay Nishad (Ex.P/22) also supports the
fact that the entire search and seizure proceedings were
conducted by the police team led by PW-8 Shravan Kumar in
accordance with law. The documentary exhibits such as Ex.P/01
(Section 160 Cr.P.C. notices), Ex.P/03 (informant information
panchnama), Ex.P/06 (notice under Section 50 NDPS Act),
Ex.P/08 (search panchnama), Ex.P/13 (recovery panchnama),
23
Ex.P/16 (seizure memo and sealing panchnama), Ex.P/19
(reasons of arrest), and Ex.P/31 (report under Section 57 NDPS
Act) further corroborate the role and authority of PW-8 as
Investigating Officer. It is also evident from Ex.P/45 (FIR) and
Ex.P/21 (crime details form) that the entire criminal process was
initiated and investigated by PW-8 in his official capacity as Sub-
Inspector, and at no point of time was any objection raised either
during trial or in cross-examination regarding his competence.
43. The State Government notifications, read with the statutory
scheme of Sections 41 and 42 of the NDPS Act, clearly empower
officers of the rank of Sub-Inspector to act as empowered officers
within their territorial jurisdiction. In the present case, PW-8
Shravan Kumar was admittedly acting within his jurisdiction at
Police Station Telibandha, Raipur, where the alleged offence
occurred at Kashiram Nagar, Telibandha overbridge area.
44. The testimony of PW-8, the Investigating Officer, as well as the
members of the raiding party including PW-1, PW-2, PW-3 and
PW-4, reveals that on the basis of prior information received by
the police, a raiding party was constituted and the appellant was
intercepted at a relevant place within the jurisdiction of Police
Station Telibandha, District Raipur (C.G.). At the time of
interception, the appellant was found in possession of a plastic
bag containing strips of Spasmo Proxyvon Plus capsules. Upon
search of the said bag carried by the appellant, 25 strips
24
containing in all 600 capsules of Spasmo Proxyvon Plus,
weighing about 300 grams, were recovered from his conscious
possession.
45. It is further evident from the prosecution evidence that the raid
was not an incidental or routine checking in a public place, but
was conducted pursuant to prior specific information regarding
illegal possession and transportation of narcotic/psychotropic
substances. The seizure was effected at the spot immediately
after interception of the appellant, and the contraband articles
were recovered from the bag carried by him while he was in
movement. The entire recovery proceedings are duly recorded in
seizure memo Ex.P/08 and Ex.P/13, which stand proved by PW-8
and corroborated by PW-1, PW-3 and PW-4.
46. In such factual circumstances, the principal issue which arises is
whether the search and seizure conducted by the police
authorities would fall within the ambit of Section 42 or Section 43
of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Section 42 of the Act contemplates search and seizure based on
prior information in respect of a building, conveyance or enclosed
place, whereas Section 43 deals with seizure and arrest in public
places or in transit without warrant or authorization.
47. It is well settled that where the recovery of contraband is effected
from the possession of an individual who is intercepted while
carrying the contraband on a road or open place, and the seizure
25
is made on the spot during movement, the provisions of Section
43 of the NDPS Act are attracted. In such cases, the rigours of
Section 42 relating to prior recording of information and
communication to superior officers are not mandatory in the same
manner as applicable to searches of enclosed premises.
48. The distinction between Sections 42 and 43 of the NDPS Act has
been consistently recognised by judicial pronouncements.
Section 42 applies primarily to cases where prior secret
information is acted upon for conducting search of buildings or
enclosed places, whereas Section 43 governs situations where
contraband is recovered from a person in a public place or while
in transit. The legislative intent behind this distinction is to enable
swift action by enforcement agencies in cases of mobile
possession and transportation of narcotic substances, where
delay may defeat the object of the Act.
49. Applying the aforesaid legal principles to the facts of the present
case, this Court finds that the appellant was intercepted by the
police party during the course of action taken on credible
information, and the contraband capsules were recovered from
the bag in his possession at the spot itself. The evidence of PW-8
Investigating Officer, duly supported by PW-1 to PW-4, clearly
establishes that the recovery was effected contemporaneously
upon interception of the appellant, and not from any enclosed
premises or private building.
26
50. In view of the above factual and legal position, this Court is of the
considered opinion that the search and seizure conducted in the
present case squarely falls within the ambit of Section 43 of the
NDPS Act. Consequently, the requirement of strict compliance of
Section 42 of the Act, as contended on behalf of the appellant,
does not arise for consideration. The submission regarding
alleged non-compliance of Section 42 is, therefore, rejected being
devoid of merit, and the search and seizure proceedings are held
to be valid and in accordance with law.
51. Upon careful reappreciation of the entire oral and documentary
evidence on record, this Court finds that the conclusion arrived at
by the learned Trial Court on Point No. (i) suffers from no infirmity,
illegality or perversity warranting interference in the present
appeal. The learned Trial Court has, on the basis of cogent and
reliable material, rightly held that PW-8 Sub-Inspector Shravan
Kumar, who conducted the investigation in Crime No. 172/2024
registered at Police Station Telibandha, District Raipur (C.G.),
was duly empowered and legally competent to undertake
investigation under the provisions of the NDPS Act. The said
finding is founded upon due consideration of the relevant
statutory notifications issued by the State Government as well as
the factual position obtaining in the case.
52. The prosecution has relied upon Notification F. No. B-6-35-V-SR-
85-4801 dated 11.11.1985 issued under Section 41(2) of the
27
NDPS Act and Notification F. No. B-6-35-V-SR-85-4804 dated
11.11.1985 issued under Section 42(1) of the NDPS Act, whereby
officers of the Police Department including Inspectors, Sub-
Inspectors, Assistant Sub-Inspectors and other designated ranks
were duly authorised to exercise powers of entry, search, seizure
and investigation within their respective territorial jurisdictions.
53. It is not in dispute that PW-8 Shravan Kumar was, at the relevant
point of time, posted as Sub-Inspector at Police Station
Telibandha and was functioning well within the territorial
jurisdiction of the said police station. His authority to investigate
offences under the NDPS Act flows directly from the aforesaid
statutory notifications, which specifically include Sub-Inspectors
of Police within the category of empowered officers for the
purpose of enforcement of the Act. The evidence of PW-8, read in
conjunction with Ex.P/01 to Ex.P/08 and other connected
documents, clearly demonstrates that he was the officer who
received the information, constituted the raiding team, conducted
the search and seizure, prepared the seizure memo Ex.P/08, and
carried out the investigation in accordance with law. His testimony
has remained consistent, natural and unshaken in cross-
examination, and nothing has been elicited to create any doubt
regarding his competence or authority.
54. Furthermore, no material has been brought on record by the
defence to demonstrate that PW-8 lacked jurisdiction or that any
28
statutory bar existed on him from investigating the present
offence.
55. The plea of incompetence raised on behalf of the appellant is
thus purely speculative and is not supported by any legal or
factual foundation. In view of the statutory notifications issued by
the State Government, the settled position of law, and the
unimpeached testimony of PW-8 supported by contemporaneous
documentary evidence, this Court is of the considered view that
the Investigating Officer was duly authorised and competent in
law to conduct the investigation in the present case.
56. Consequently, the finding recorded by the learned Trial Court on
Point No. (i) is based on proper appreciation of evidence, correct
application of legal principles, and does not suffer from any error
apparent on the face of the record. The same calls for no
interference by this Court in appellate jurisdiction.
57. Accordingly, Point No. (i) is answered in the affirmative.
Finding on Point No. (ii)
58. So far as Point No. (ii) is concerned, the core question for
consideration before this Court is whether, on the date, time and
place of occurrence, the appellant was found in conscious and
unlawful possession of 600 capsules of Spasmo Proxyvon Plus
(containing Dicyclomine, Tramadol & Acetaminophen), weighing
300 grams, in contravention of the provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985.
29
59. The next submission advanced on behalf of the appellant relates
to alleged non-compliance of Section 50 of the NDPS Act. It has
been contended that the mandatory safeguard under Section 50
was not adhered to by the raiding party and that the appellant
was not apprised of his alleged right to be searched before a
Gazetted Officer or a Magistrate, thereby vitiating the entire
search and seizure proceedings. It has further been argued that
the search being illegal, the conviction cannot be sustained.
60. This Court finds no substance in the aforesaid submission. A bare
perusal of the evidence of PW-8 Investigating Officer Shravan
Kumar, duly corroborated by PW-1 to PW-4 and supported by
seizure memo Ex.P/08 and Ex.P/13, clearly establishes that the
contraband substance, namely 600 capsules of Spasmo
Proxyvon Plus, was recovered from a plastic bag carried by the
appellant and not from his physical body. The search conducted
by the police party was confined only to the bag in possession of
the appellant at the time of interception. It is thus evident that the
recovery in the present case does not constitute a "personal
search" within the meaning of Section 50 of the NDPS Act.
61. It is well settled that the mandate of Section 50 of the NDPS Act
is attracted only when the search of the person of the accused is
undertaken. Where the contraband is recovered from baggage,
containers, or articles carried by the accused, the requirement of
informing the accused of his right under Section 50 is not
30
applicable. In the present case, since the recovery has been
effected from a bag carried by the appellant, the contention
regarding non-compliance of Section 50 is clearly misconceived
and liable to be rejected. The Court further notes that the
procedure prescribed under Section 52A of the NDPS Act has
been substantially complied with in the present case. The
seizure, preparation of inventory and sampling of the contraband
was conducted under judicial supervision as reflected from
Ex.P/32, Ex.P/47 and Ex.P/47A. PW-7 Dharmendra Kanauje
(Malkhana Moharrir) has clearly stated that the seized articles
were received in sealed condition and were duly entered in the
malkhana register, ensuring the integrity of the chain of custody.
The samples were drawn in accordance with law and forwarded
to the Forensic Science Laboratory through proper channel as
per Ex.P/49 and Ex.P/50. The FSL report Ex.P/50 confirms that
the seized substance contained psychotropic substances covered
under the NDPS Act. The chain of custody having remained intact
and the sampling having been conducted under judicial
supervision, the safeguards under Section 52A stand duly
complied with. In view of the above, the plea of the appellant
regarding violation of Section 50 and Section 52A of the NDPS
Act is wholly untenable and does not vitiate the prosecution case
in any manner.
62. The legal position in this regard has been authoritatively settled
by the Supreme Court. In Madan Lal v. State of Himachal
31
Pradesh, (2003) 7 SCC 465, the Supreme Court has explained
the concept of possession under the NDPS Act and has held that
once possession of a contraband article is established, the
burden shifts upon the accused to explain that such possession
was not conscious and held as under :-
"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. (JT 1999 (8) SC 293), The State of
Punjab v. Baldev Singh (JT 1999 (4) SC 595),
Gurbax Singh v. State of Haryana (2001(3)
SCC 28). The language of Section 50 is
implicitly clear that the search has to be in
relation to a person as contrasted to search of
premises, vehicles or articles. This position was
settled beyond doubt by the Constitution Bench
in Baldev Singh's case (supra). Above being
the position, the contention regarding non-
compliance of Section 50 of the Act is also
without any substance.
***
21. It is highlighted that unless the possession
was coupled with requisite mental element, i.e.
conscious possession and not mere custody
without awareness of the nature of such
possession, Section 20 is not attracted.
22. The expression ‘possession’ is a
polymorphous term which assumes different
colours in different contexts. It may carry
different meanings in contextually different
backgrounds. It is impossible, as was observed
in Superintendent & Remembrancer of Legal
Affairs, West Bengal v. Anil Kumar Bhunja and
Ors. (AIR 1980 SC 52), to work out a
completely logical and precise definition of
“possession” uniformally applicable to all
situations in the context of all statutes.
32
23. The word ‘conscious’ means awareness
about a particular fact. It is a state of mind
which is deliberate or intended.
24. As noted in Gunwantlal v. The State of M.P.
(AIR 1972 SC 1756) possession in a given
case need not be physical possession but can
be constructive, having power and control over
the article in case in question, while the person
whom physical possession is given holds it
subject to that power or control.
25. The word ‘possession’ means the legal right
to possession (See Health v. Drown (1972) (2)
All ER 561 (HL). In an interesting case it was
observed that where a person keeps his fire
arm in his mother’s flat which is safer than his
own home, he must be considered to be in
possession of the same. (See Sullivan v. Earl of
Caithness (1976 (1) All ER 844 (QBD).
26. Once possession is established the person
who claims that it was not a conscious
possession has to establish it, because how he
came to be in possession is within his special
knowledge. Section 35 of the Act gives a
statutory recognition of this position because of
presumption available in law. Similar is the
position in terms of Section 54 where also
presumption is available to be drawn from
possession of illicit articles”
63. Similarly, in State of Himachal Pradesh v. Pawan Kumar,
(2005) 4 SCC 350, it has been held that the search of a bag,
briefcase or container carried by the accused cannot be treated
as a personal search and therefore the provisions of Section 50
would not apply in such a situation and observed as under :-
“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
33be 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.
12. An incriminating article can be kept
concealed in the body or clothings or coverings
in different manner or in the footwear. While
making a search of such type of articles, which
have been kept so concealed, it will certainly
come within the ambit of the word “search of
person”. One of the tests, which can be applied
is, where in the process of search the human
body comes into contact or shall have to be
touched by the person carrying out the search,
it will be search of a person. Some indication of
this is provided by Sub-section (4) of Section
50 of the Act, which provides that no female
shall be searched by anyone excepting a
female. The legislature has consciously made
this provision as while conducting search of a
female, her body may come in contact or may
need to be touched and, therefore, it should be
done only by a female. In the case of a bag,
briefcase or any such article or container, etc.,
they would not normally move along with the
body of the human being unless some extra or
special effort is made. Either they have to be
carried in hand or hung on the shoulder or back
or placed on the head. They can be easily and
in no time placed away from the body of the
34
carrier. In order to make a search of such type
of objects, the body of the carrier will not come
in contact of the person conducting the search.
Such objects cannot be said to be inextricably
connected with the person, namely, the body of
the human being. Inextricable means incapable
of being disentangled or untied or forming a
maze or tangle from which it is impossible to
get free.
13. The scope and ambit of Section 50 of the
Act was examined in considerable detail by a
Constitution Bench in State of Punjab v. Baldev
Singh 1999 (6) SCC 172 and para 12 of the
reports is being reproduced below :
“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 prior information as
contemplated by Section 42 of the Act makes
a search or causes arrest of a 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.”
The Bench recorded its conclusion in para 57
of the reports and sub- paras (1), (2), (3) and
(6) are being reproduced below :
“57. On the basis of the reasoning and
discussion above, the following conclusions
arise: (1) That when an empowered officer or
a duly authorized officer acting on prior
information is about to search a person, it is
imperative for him to inform the person
concerned of his right under sub-section (1)
of Section 50 of being taken to the nearest
gazetted officer or the nearest Magistrate for
making the search. However, such
information may not necessarily be in writing.
(2) That failure to inform the person
concerned about the existence of his right to
35be searched before a gazetted officer or a
Magistrate would cause prejudice to an
accused.
(3) That a search made by an empowered
officer, on prior information, without informing
the person of his right that if he so requires,
he shall be taken before a gazetted officer or
a Magistrate for search and in case he so
opts, failure to conduct his search before a
gazetted officer or a Magistrate may not
vitiate the trial but would render the recovery
of the illicit article suspect and vitiate the
conviction and sentence of an accused,
where the conviction has been recorded only
on the basis of the possession of the illicit
article, recovered from his person, during a
search conducted in violation of the
provisions of Section 50 of the Act.
***
(6) That in the context in which the protection
has been incorporated in Section 50 for the
benefit of the person intended to be
searched, we do not express any opinion
whether the provisions of Section 50 are
mandatory or directory, but hold that failure to
inform the person concerned of his right as
emanating from sub-section (1) of Section 50,
may render the recovery of the contraband
suspect and the conviction and sentence of
an accused bad and unsustainable in law.”
14. The above quoted dictum of the
Constitution Bench shows that the provisions of
Section 50 will come into play only in the case
of personal search of the accused and not of
some baggage like a bag, article or container,
etc. which he may be carrying.”
64. The same principle has been reiterated in Ajmer Singh v. State
of Haryana, (2010) 3 SCC 746, wherein the Supreme Court held
that recovery of contraband from a bag carried by the accused
does not amount to personal search of the accused. The
36
Supreme Court has again reiterated the said principle in Arif
Khan @ Agha Khan v. State of Uttarakhand, (2018) 18 SCC
380 and Baljinder Singh v. State of Punjab, (2019) 10 SCC
473, holding that the requirement of informing the accused of his
right under Section 50 arises only in cases of personal body
search and not when the recovery is made from a bag, container
or other article carried by the accused. In such circumstances,
the search is treated as search of an article and not of the person
of the accused. The Supreme Court has held as follows :-
“13. The law is thus well settled that an illicit
Article seized from the person during personal
search conducted in violation of the safe-
guards provided in Section 50 of the Act cannot
by itself be used as admissible evidence of
proof of unlawful possession of contra-band.
But the question is, if there be any other
material or Article recovered during the
investigation, would the infraction with respect
to personal search also affect the qualitative
value of the other material circumstance ?
14. At this stage we may also consider
following observations from the decision of this
Court in Ajmer Singh v. State of Haryana
[(2010) 3 SCC 746]:
“15. The learned Counsel for the Appellant
contended that the provision of Section 50 of
the Act would also apply, while searching the
bag, briefcase, etc. carried by the person and
its non-compliance 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
with Section 50 of the NDPS Act is relevant
only where search of a person is involved
and the said Section is not applicable nor
37attracted where no search of a person is
involved. Search and recovery from a bag,
briefcase, 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 a
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 Madan Lal v. State of
H.P. [(2003) 7 SCC 465]. The Court has
observed: (SCC p. 471, para 16)
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
[(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 50 is
implicitly clear that the search has to be in
relation to a person as contrasted to search
of premises, vehicles or articles. This
position was settled beyond doubt by the
Constitution Bench in Baldev Singh case
(1999) 6 SCC 172 Above being the position,
the contention regarding non-compliance
with Section 50 of the Act is also without any
substance.”
15. As regards applicability of the requirements
Under Section 50 of the Act are concerned, it is
well settled that the mandate of Section 50 of
the Act is confined to “personal search” and not
to search of a vehicle or a container or
premises.
16. The conclusion (3) as recorded by the
Constitution Bench in Para 57 of its judgment in
Baldev Singh clearly states that the conviction
may not be based “only” on the basis of
possession of an illicit Article recovered from
38
personal search in violation of the requirements
Under Section 50 of the Act but if there be
other evidence on record, such material can
certainly be looked into.”
65. Reverting to the facts of the present case in the light of the
aforesaid settled legal principles laid down by the Hon’ble
Supreme Court in aforementioned case laws, it is quite vivid that
the contention raised on behalf of the appellant regarding non-
compliance of Section 50 of the NDPS Act is wholly untenable
and devoid of merit. The evidence of PW-8 Investigating Officer
Shravan Kumar, duly corroborated by PW-1 to PW-4 and
supported by documentary exhibits Ex.P/08 (search and seizure
memo), Ex.P/13 (seizure panchnama) and Ex.P/16 (sealing
memo), clearly establishes that the recovery of 600 capsules of
Spasmo Proxyvon Plus was effected from a plastic bag carried by
the appellant at the time of interception and not from his physical
person. The search, therefore, was confined to a bag in
possession of the appellant and did not involve any bodily or
personal search so as to attract the mandatory safeguards under
Section 50 of the NDPS Act. In view of the consistent legal
position that Section 50 is applicable only in cases of personal
search of the body of the accused and not to search of bags,
containers or articles carried by him, the present case squarely
falls outside the ambit of Section 50. Consequently, non-
compliance of Section 50, as alleged, does not arise and cannot
be a ground to vitiate the conviction.
39
66. Now, this Court deems it appropriate to deal with the compliance
of Section 52-A of the NDPS Act, which has been one of the focal
points of challenge raised on behalf of the appellant. Section 52-A
of the NDPS Act provides a statutory mechanism relating to the
disposal, inventory preparation, and certification of seized
narcotic drugs and psychotropic substances. The provision
mandates that, as soon as may be, the officer-in-charge of the
police station or the investigating officer shall prepare an
inventory of the seized articles, draw representative samples in
the presence of a Magistrate, and obtain certification of the
correctness of such inventory, photographs, and samples so
drawn. The object behind incorporation of Section 52-A is twofold:
firstly, to ensure the sanctity and integrity of the seized
contraband so that the possibility of tampering is eliminated; and
secondly, to facilitate expeditious disposal of seized narcotic
substances without awaiting the conclusion of trial, while at the
same time preserving evidentiary value.
67. The Hon’ble Supreme Court in Union of India v. Mohanlal,
(2016) 3 SCC 379 has categorically held that compliance of
Section 52-A is a procedural safeguard intended to ensure fair
investigation and preservation of seized articles, and non-
compliance thereof does not ipso facto vitiate the trial unless
prejudice is demonstrated or the seizure itself is rendered
doubtful.
40
68. Similarly, in Khet Singh v. Union of India, (2002) 4 SCC 380 and
Noor Aga v. State of Punjab, (2008) 16 SCC 417, it has been
observed that the evidentiary value of the seizure is primarily
dependent upon the credibility of the seizure witnesses, the
seizure memo, and the chemical examination report, rather than
strict procedural adherence to Section 52-A in a mechanical
manner.
69. 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 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.
70. 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 v. State of Punjab & Anr.
(2008) 16 SCC 417, 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
41deficiencies in the said case in terms of Section
52A observed that the matter may have been
entirely different if there were no other
discrepancies or if the other material on record
were found to be convincing or supported by
independent witnesses. The relevant
observations read as under: –
“107. The seal was not even deposited in the
malkhana. As no explanation whatsoever has
been offered in this behalf, it is difficult to hold
that sanctity of the recovery was ensured. Even
the malkhana register was not produced.
xxx xxx xxx
108. There exist discrepancies also in regard to
the time of recovery. The recovery memo,
Exhibit PB, shows that the time of seizure was
11.20 p.m. PW 1 Kulwant Singh and PW 2 K.K.
Gupta, however, stated that the time of seizure
was 8.30 p.m. The appellant’s defence was that
some carton left by some passenger was
passed upon him, being a crew member in this
regard assumes importance (see Jitendra para
6). The panchnama was said to have been
drawn at 10 p.m. as per PW 1 whereas PW 2
stated that panchnama was drawn at 8.30 p.m.
Exhibit PA, containing the purported option to
conduct personal search under Section 50 of
the Act, only mentioned the time when the flight
landed at the airport.
xxx xxx xxx
111. In a case of this nature, where there are a
large number of discrepancies, the appellant
has been gravely prejudiced by their non-
examination. It is true that what matters is the
quality of the evidence and not the quantity
thereof but in a case of this nature where
procedural safeguards were required to be
strictly complied with, it is for the prosecution to
explain why the material witnesses had not
been examined. The matter might have been
different if the evidence of the investigating
officer who recovered the material objects was
found to be convincing. The statement of the
42
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 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
43
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. 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
44
behind such delay or deficiency whilst
preparing the memo. The relevant observations
read as under: –
“5. It is true that the search and seizure of
contraband article is a serious aspect in the
matter of investigation related to offences
under the NDPS Act. The NDPS Act and the
Rules framed thereunder have laid down a
detailed procedure and guidelines as to the
manner in which search and seizure are to be
effected. If there is any violation of these
guidelines, the courts would take a serious
view and the benefit would be extended to the
accused. The offences under the NDPS Act are
grave in nature and minimum punishment
prescribed under the statute is incarceration for
a long period. As the possession of any
narcotic drug or psychotropic substance by
itself is made punishable under the Act, the
seizure of the article from the appellant is of
vital importance.
xxx xxx xxx
10. The instructions issued by the Narcotics
Control Bureau, New Delhi are to be followed
by the officer-in-charge of the investigation of
the crimes coming within the purview of the
NDPS Act, even though these instructions do
not have the force of law. They are intended to
guide the officers and to see that a fair
procedure is adopted by the officer-in-charge of
the investigation. It is true that when a
contraband article is seized during investigation
or search, a seizure mahazar should be
prepared at the spot in accordance with law.
There may, however, be circumstances in
which it would not have been possible for the
officer to prepare the mahazar at the spot, as it
may be a chance recovery and the officer may
not have the facility to prepare a seizure
mahazar at the spot itself. If the seizure is
effected at the place where there are no
witnesses and there is no facility for weighing
the contraband article or other requisite
45facilities 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
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
46
procedure prescribed under the said order is
merely intended to guide the officers to see that
a fair procedure is adopted by the officer in
charge of the investigation and they were not
inexorable rules. The relevant observations
read as under: –
“10. This contention too has no substance for
two reasons. Firstly, Section 52-A, as the
marginal note indicates, deals with “disposal of
seized narcotic drugs and psychotropic
substances”. Under sub-section (1), the Central
Government, by a notification in the Official
Gazette, is empowered to specify certain
narcotic drugs or psychotropic substances,
having regard to the hazardous nature,
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
47
to see that a fair procedure is adopted by the
officer in charge of the investigation. It was also
held that they were not inexorable rules as
there could be circumstances in which it may
not be possible for the seizing officer to prepare
the mahazar at the spot, if it is a chance
recovery, where the officer may not have the
facility to prepare the seizure mahazar at the
spot itself. Hence, we do not find any
substance in this contention.”
(Emphasis supplied)
30. Thus, from above it is clear that the
procedure prescribed by the Standing
Order(s) / Rules in terms of Section 52A of the
NDPS Act is only intended to guide the officers
and to ensure that a fair procedure is adopted
by the officer- in-charge of the investigation,
and as such what is required is substantial
compliance of the procedure laid therein. We
say so because, due to varying circumstances,
there may be situations wherein it may not
always be possible to forward the seized
contraband immediately for the purpose of
sampling. This could be due to various factors,
such as the sheer volume of the contraband,
the peculiar nature of the place of seizure, or
owing to the volatility of the substance so
seized that may warrant slow and safe
handling. There could be situations where such
contraband after being sampled cannot be
preserved due to its hazardous nature and
must be destroyed forthwith or vice-verse
where the nature of the case demands that
they are preserved and remain untouched. Due
to such multitude of possibilities or situations,
neither can the police be realistically expected
to rigidly adhere to the procedure laid down in
Section 52A or its allied Rules / Orders, nor can
a strait-jacket formula be applied for insisting
compliance of each procedure in a specified
timeline to the letter, due to varying situations
or requirements of each case. Thus, what is
actually required is only a substantial
48
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 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
bringing 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
49
adduced. At the same time, we may caution the
courts, not to be hyper-technical whilst looking
into the discrepancies that may exist, like slight
differences in the weight, colour or numbering
of the sample etc. The Court may not discard
the entire prosecution case looking into such
discrepancies as more often than not an
ordinarily an officer in a public place would not
be carrying a good scale with him, as held in
Noor Aga (supra). It is only those discrepancies
which particularly have the propensity to create
a doubt or false impression of illegal
possession or recovery, or to overstate or
inflate the potency, quality or weight of the
substance seized that may be pertinent and not
mere clerical mistakes, provided they are
explained properly. Whether, a particular
discrepancy is critical to the prosecution’s case
would depend on the facts of each case, the
nature of substance seized, the quality of
evidence on record etc.
31. At the same time, one must be mindful of
the fact that Section 52A of the NDPS Act is
only a procedural provision dealing with
seizure, inventory, and disposal of narcotic
drugs and psychotropic substances and 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
50
presenting the original quantity of seized
substances before the court. The evidentiary
value of these materials is ultimately to be
assessed and looked into by the court. The
court should consider whether the evidence
inspires confidence. The court should look into
the totality of circumstances and the credibility
of the witnesses, being mindful to be more
cautious in their scrutiny where such procedure
has been flouted. The cumulative effect of all
evidence must be considered to determine
whether the prosecution has successfully
established the case beyond reasonable doubt
as held in Noor Aga (supra).
33. Even in cases where there is non-
compliance with the procedural requirements of
Section 52A, it does not necessarily vitiate the
trial or warrant an automatic acquittal. Courts
have consistently held that procedural lapses
must be viewed in the context of 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
51
prescribed under the said provision and the
Rules/Standing Order(s), and the same is also
duly certified by a magistrate, then such
certified inventory, photographs and samples
has to mandatorily be treated as primary
evidence. The use of the word “shall” indicates
that it would be mandatory for the court to treat
the same as primary evidence if twin conditions
are fulfilled being (i) that the inventory,
photographs and samples drawn are certified
by the magistrate AND (ii) that the court is
satisfied that the entire process was done in
consonance and substantial compliance with
the procedure prescribed under the provision
and its Rules/Standing Order(s).
36. Even where the bulk quantity of the seized
material is not produced before the court or
happens to be destroyed or disposed in
contravention of Section 52A of the NDPS Act,
the same would be immaterial and have no
bearing on the evidentiary value of any
inventory, photographs or samples of such
substance that is duly certified by a magistrate
and prepared in terms of the said provision. We
say so, because sub-section (4) of Section 52A
was inserted to mitigate the issue of
degradation, pilferage or theft of seized
substances affecting the very trial. It was often
seen that, due to prolonged trials, the
substance that was seized would deteriorate in
quality or completely disappear even before the
trial could proceed, by the time the trial would
commence, the unavailability of such material
would result in a crucial piece of evidence to
establish possession becoming missing and
the outcome of the trial becoming a foregone
conclusion. The legislature being alive to this
fact, thought fit to introduce an element of
preservation of such evidence of possession of
contraband in the form of inventory,
photographs and samples and imbued certain
procedural safeguards and supervision through
the requirement of certification by a magistrate,
52
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,
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
53
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 of
any such compliance is to be more careful
while appreciating the evidence.”
71. Further, in Surepally Srinivas Vs. State of Andhra Pradesh,
2025 SCC Online SC 683, the Supreme Court has held in papa
13 as under:
“13. In Bharat Aambale (supra), this Court held
that the purport of Section 52- A, NDPS Act
read with Standing Order No. 1/89 extends
beyond mere disposal and destruction of
seized contraband and serves a broader
purpose of strengthening the evidentiary
framework under the NDPS Act. This decision
stresses upon the fact that what is to be seen is
whether there has been substantial compliance
with the mandate of Section 52-A and if not, the
prosecution must satisfy the court that such
54non-compliance does not affect its case against
the accused. This is also what has been held in
Kashif (supra).”
The judgment passed by the Hon’ble Supreme Court also
affirms that if there has been substantial compliance with the
mandate of Section 52-A, minor discrepancies in conducting
search and seizure proceeding does not affect its credibility.
72. In the light of the aforesaid authoritative pronouncements of the
Hon’ble Supreme Court, it is now well-settled that Section 52-A of
the NDPS Act is a procedural safeguard intended to ensure the
integrity of the seized contraband and to facilitate its proper
inventory, sampling, and disposal, and that the requirement
thereof is not to be construed as mandatory in the strict sense so
as to vitiate the entire prosecution case in every circumstance of
non-compliance.
73. The settled legal position makes it abundantly clear that what is
required is substantial compliance with the procedure prescribed
under Section 52-A, and any minor deviation or procedural lapse
would not, by itself, render the recovery or seizure doubtful
unless the same goes to the root of the prosecution case or
causes serious prejudice to the accused.
74. Reverting to the facts of the present case, it is evident from the
record that the seizure of the contraband was duly effected in the
presence of witnesses, the seized articles were properly sealed
at the spot, and the chain of custody has been consistently
55
maintained till the time of its dispatch to the Forensic Science
Laboratory, wherefrom the chemical examination report confirms
the nature of the contraband. The evidence of the seizure
witnesses and the Investigating Officer inspires confidence and
remains unshaken in material particulars, and no material
discrepancy or break in the chain of custody has been brought on
record by the defence so as to create any reasonable doubt
regarding the authenticity of the seizure. In such circumstances,
this Court is of the considered view that there has been
substantial compliance with the mandate of Section 52-A of the
NDPS Act, and even assuming any minor procedural irregularity,
the same does not affect the core of the prosecution case in view
of the cogent and reliable evidence establishing recovery and
possession of the contraband beyond reasonable doubt.
75. At the outset, it is to be noted that the entire prosecution case
rests upon the recovery of contraband from the possession of the
appellant during a raid conducted by the police team led by PW-8
Sub-Inspector Shravan Kumar. The prosecution has examined
several witnesses including PW-1 Sanjay Nishad, PW-2 Sanjay
Bohare, PW-3 Mukesh Kumar, PW-4 Chintamani Giri, PW-5
Kamlesh Singh, PW-6 Suraj Singh Chelak, PW-7 Dharmendra
Kanauje (Malkhana Moharrir), and PW-8 Investigating Officer
Shravan Kumar, besides relying upon a series of documentary
exhibits marked as Ex.P/01 to Ex.P/50.
56
Recovery and Seizure Evidence
76. The prosecution evidence clearly establishes that acting upon
credible information, PW-8 Shravan Kumar along with the police
team proceeded to the spot and apprehended the appellant.
During search, 25 strips containing 600 capsules of Spasmo
Proxyvon Plus were recovered from the conscious possession of
the appellant. The seizure is duly recorded in seizure memo
Ex.P/08 and Ex.P/13, which have been proved by PW-8 and
corroborated by PW-1 and PW-3.
77. PW-1 Sanjay Nishad (Ex.P/22) and PW-2 Sanjay Bohare
(Ex.P/23) have supported the prosecution version regarding
apprehension of the appellant and recovery of contraband. PW-3
Mukesh Kumar (Ex.P/05 to Ex.P/07) has also corroborated the
seizure proceedings. PW-4 Chintamani Giri (Ex.P/08, Ex.P/10,
Ex.P/11) has further supported the search and seizure process.
Their testimonies, when read together, consistently establish the
recovery of the contraband substance from the possession of the
appellant.
78. PW-5 Kamlesh Singh (Ex.P/24, Ex.P/29A) has also supported the
seizure proceedings and has identified the seized articles. PW-6
Suraj Singh Chelak has corroborated the procedural compliance
under Section 57 of the NDPS Act (Ex.P/31), affirming that the
report of seizure and arrest was duly forwarded to the superior
officer within the prescribed time.
57
Sealing, Sampling and Chain of Custody
79. The prosecution has further established that the seized
contraband was properly sealed at the spot and deposited in the
malkhana. PW-7 Dharmendra Kanauje (Malkhana Moharrir) has
categorically stated that the seized articles were received in
sealed condition and entered in the malkhana register. The
relevant entries have been proved through Ex.P/33C and allied
documents.
80. The sample was drawn in compliance with Section 52A of the
NDPS Act before the learned Judicial Magistrate First Class. The
inventory and sampling proceedings are duly reflected in Ex.P/47,
wherein the Magistrate has certified the correctness of the
inventory and sampling process. The sampling memo and
forwarding documents have been proved through Ex.P/32,
Ex.P/47A, and Ex.P/49.
81. It is further established that one representative sample (Exhibit A-
1) was forwarded through PW-7 and PW-8 for chemical
examination. The sample was transmitted to the Forensic
Science Laboratory through proper channel vide Ex.P/49 and
Ex.P/50.
Chemical Examination and FSL Report
82. The Forensic Science Laboratory report Ex.P/50 clearly
establishes that the sample contained Dicyclomine, Tramadol and
Acetaminophen, which are psychotropic substances under the
58
NDPS Act. The report confirms that the seized capsules were not
ordinary pharmaceutical products but contained controlled
psychotropic substances.
83. PW-8 Shravan Kumar has also deposed that the samples were
drawn in the presence of the learned Magistrate and sealed
properly, and there was no tampering at any stage. The FSL
report has been received in due course and has been duly
proved. The Court notes that under Section 293 Cr.P.C.
(corresponding to Section 329 of BNSS), the FSL report is
admissible in evidence and is treated as expert evidence without
requiring formal examination of the expert, unless specifically
challenged, which is not the case here.
Compliance of Section 52A, 55 and Chain of Custody
84. A careful scrutiny of Ex.P/32, Ex.P/33C, Ex.P/47, Ex.P/49 and
Ex.P/50 shows that the statutory procedure under Section 52A of
the NDPS Act has been substantially complied with. The
inventory was prepared before the Magistrate, sample was drawn
in judicial presence, photographs were taken, and certification
was done by the Magistrate.
85. The defence contention regarding violation of Section 52A and
Section 55 stands falsified in view of consistent documentary
evidence and testimony of PW-7 and PW-8, which clearly
establish that the seized contraband remained in sealed condition
throughout and the chain of custody remained intact.
59
Conscious Possession and Presumption
86. Once recovery from the possession of the appellant is
established through credible evidence of PW-1 to PW-8 and
documentary exhibits Ex.P/08, Ex.P/13, Ex.P/32, Ex.P/47 and
Ex.P/50, the statutory presumption under Sections 35 and 54 of
the NDPS Act automatically comes into play. The burden shifts
upon the accused to rebut the presumption of conscious
possession, which the appellant has failed to discharge either
through cross-examination or defence evidence. The defence
plea that independent witnesses did not support the prosecution
case does not dislodge the prosecution version, particularly when
official witnesses have withstood cross-examination and their
evidence is duly corroborated by documentary records and FSL
report.
Conclusion on Point No. (ii)
87. In view of the consistent, cogent and corroborative testimony of
prosecution witnesses PW-1 to PW-8, which stands duly
supported by the documentary evidence brought on record,
particularly Ex.P/01 to Ex.P/50, this Court finds that the
prosecution version with regard to recovery, seizure, sampling
and forensic confirmation of the contraband stands firmly
established. The seizure memo Ex.P/08, recovery memo
Ex.P/13, sampling memo Ex.P/32, judicial inventory Ex.P/47,
forwarding memo Ex.P/49 and the FSL report Ex.P/50 collectively
60
form a complete and unbroken chain of evidence which clearly
establishes the recovery of 600 capsules of Spasmo Proxyvon
Plus containing psychotropic substance, weighing 300 grams,
from the conscious and exclusive possession of the appellant.
88. The testimonies of the official witnesses inspire confidence and
remain unshaken in cross-examination on material particulars.
There is nothing on record to discredit their version or to suggest
any false implication or fabrication. The seizure and recovery
proceedings have been duly proved in accordance with law, and
the chain of custody of the seized contraband has been
consistently maintained till its examination by the Forensic
Science Laboratory, whose report Ex.P/50 conclusively confirms
the nature of the contraband substance.
89. In such view of the matter, this Court is of the considered opinion
that the learned Trial Court has rightly appreciated the oral and
documentary evidence in its correct perspective while arriving at
the finding on Point No. (ii).
90. Accordingly, Point No. (ii) is answered in the affirmative.
Conclusion of the Judgment
91. It is well settled that in prosecutions under the NDPS Act, once
the prosecution establishes, on the basis of reliable and
admissible evidence, the factum of recovery and conscious
possession of contraband from the accused, statutory
presumptions under Sections 35 and 54 of the NDPS Act come
61
into operation, and the burden shifts upon the accused to rebut
the same by leading cogent and credible evidence, which the
appellant has failed to do in the present case. This Court, upon
careful scrutiny of the entire evidence on record, including the
testimony of PW-1 to PW-8 and documentary exhibits Ex.P/01 to
Ex.P/50, finds that the prosecution has proved a complete,
consistent, and unbroken chain of circumstances beginning from
interception of the appellant, recovery of contraband from his
possession, preparation of seizure and recovery memos, drawing
and forwarding of samples in accordance with law, maintenance
of proper chain of custody, and culminating in the FSL report
affirming the contraband nature of the seized substance. The
testimony of the official witnesses is consistent, cogent, and
inspires confidence, and no material contradiction or infirmity has
been brought on record so as to discredit the prosecution case or
rebut the statutory presumption.
92. This Court also finds that the safeguards under the NDPS Act,
including compliance with Sections 42, 43, 50 and 52A of the Act,
have been duly considered in the facts of the present case and
the procedural requirements have either been substantially
complied with or are otherwise inapplicable in view of the nature
of recovery effected from the bags and articles carried by the
appellants in transit at a public place. The findings recorded by
the learned Trial Court are based on proper appreciation of
evidence, correct application of law, and a well-reasoned analysis
62
of the entire material on record. The said findings do not suffer
from any perversity, illegality or infirmity warranting interference
by this Court in exercise of appellate jurisdiction.
93. In view of the foregoing discussion, this Court is of the considered
opinion that the prosecution has been able to prove beyond
reasonable doubt that the appellant was in conscious and
unlawful possession of the contraband substance, namely 600
capsules of Spasmo Proxyvon Plus containing psychotropic
substance weighing 300 grams, and that the recovery, seizure
and forensic confirmation thereof stand duly established in
accordance with law. The conviction of the appellant recorded by
the learned Trial Court under Section 22(c) of the NDPS Act is
therefore found to be well-founded and legally sustainable.
94. As a consequence of the aforesaid analysis and findings, this
Court finds no merit in the present criminal appeal preferred by
the appellant. The appeal, being devoid of substance, is hereby
dismissed. The judgment of conviction and order of sentence
passed by the learned Trial Court is affirmed.
95. The appellant is reported to be in custody. He shall undergo the
sentence as awarded by the learned Trial Court.
96. Registry is directed to send a copy of this judgment to the
concerned Superintendent of Jail, where the appellant is
undergoing their jail sentence to serve the same on the appellant
informing him that he is at liberty to assail the present judgment
63
passed by this Court by preferring the appeal before the Hon’ble
Supreme Court with the assistance of High Court Legal Services
Committee or the Supreme Court Legal Services Committee.
97. Let a copy of this judgment and the original records be
transmitted to the trial Court concerned forthwith for necessary
information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Anu
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HEAD NOTE
Non-compliance with Sections 42, 50 and 52-A of the Narcotic Drugs
and Psychotropic Substances Act, 1985, by itself does not vitiate the
prosecution case unless prejudice is shown or the recovery itself
becomes doubtful. Procedural safeguards cannot override substantive
proof, and where recovery, possession and chain of custody stand duly
established through cogent evidence, conviction can be sustained
notwithstanding such lapses.
