Chattisgarh High Court
Pushpendra Nirmalkar vs State Of Chhattisgarh on 11 March, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
Digitally
signed by
2026:CGHC:11759-DB
ANURADHA
ANURADHA TIWARI
TIWARI Date:
AFR
2026.03.12
18:27:22
+0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 559 of 2025
Smt. Sneha Goyal W/o Ram Goyal Aged About 33 Years R/o Hemu
Nagar Shobha Vihar, P.S. - Torwa District - Bilaspur Chhattisgarh
--- Appellant
Versus
State of Chhattisgarh Through The Station House Officer, Police
Station - Torwa, District - Bilaspur Chhattisgarh
--- Respondent
CRA No. 460 of 2025
1 - Pushpendra Nirmalkar S/o Omprakash Nirmalkar Aged About 29
Years R/o Village- Jarwe, Police Station- Nagarda, District- Sakti (C.G.)
2 - Amar Jangde S/o Santosh Jangde Aged About 27 Years R/o -
Village - Jarwe, Police Station- Nagarda, District- Sakti (C.G.)
--- Appellants
Versus
State of Chhattisgarh Through- Station House Officer, Police Station,
Torva, District- Bilaspur (C.G.)
--- Respondent
CRA No. 829 of 2025
Deva Rajak S/o Dharamlal Rajak Aged About 28 Years R/o Torva
Daubabu Mandir Ke Paas, Thana Torva, District Bilaspur (C.G.)
--- Appellant
Versus
State of Chhattisgarh Through - Police Station Torva, District Bilaspur
(C.G.)
... Respondent
(Cause-title taken from Case Information System)
2
For Appellant : Mr. Akash Singh and Mr. Swapnil Keshari,
(In CRA No.559/2025) Advocates
For Appellants : Mr. Goutam Khetrapal, Advocate
(In CRA No.460/2025)
For Appellant : Mr. Vikas Kumar Pandey, Advocate
(In CRA No.829/2025)
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
11.03.2026
1. Heard Mr. Akash Singh and Mr. Swapnil Keshari, learned counsel
for the appellant in CRA No.559/2025, Mr. Goutam Khetrapal,
learned counsel for the appellants in CRA No.460/2025, Mr. Vikas
Kumar Pandey, learned counsel for the appellant in CRA
No.829/2025 as well as Mr. Shaleen Singh Baghel, learned
Government Advocate, appearing for the State/respondent.
2. Since all the criminal appeals arise out of the same judgment
dated 30.01.2025 passed by the learned Special Judge (NDPS
Act), Bilaspur, Chhattisgarh in Special Sessions (NDPS) Case
No. 124/2023, they were clubbed together for the purpose of
hearing. As the facts, evidence on record and the issues involved
in these appeals are substantially common and arise out of the
same impugned judgment, the appeals were heard analogously
3
with the consent of the parties and are being disposed of by this
common judgment.
3. For the sake of convenience and to avoid repetition of facts and
evidence, the matters have been considered together, and the
submissions advanced on behalf of the respective appellants as
well as the State have been examined in the backdrop of the
material available on record of the trial Court. Accordingly, all the
connected criminal appeals are being decided together by this
common judgment.
4. All the three criminal appeals have been preferred by the
respective appellants under Section 374(2) of the Code of
Criminal Procedure, 1973 (for short, "Cr.P.C.") against the
impugned judgment of conviction and order of sentence dated
30.01.2025, passed by the learned Special Judge (NDPS Act),
District-Bilaspur (C.G.) in Special Sessions (NDPS) Case
No.124/2023.
5. By the said judgment, the learned Special Judge has held the
appellants guilty for the offence punishable under Section 21(c) of
the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as "the NDPS Act") and has sentenced
each of them to undergo rigorous imprisonment for 15 years
along with a fine of Rs.1,50,000/-. In default of payment of fine,
each of the appellants has further been directed to undergo
additional rigorous imprisonment for six months.
4
6. The case of the prosecution, in brief, is as follows:
• According to the prosecution, on 13.09.2023 at about 18:40
hours, PW-10 Sub-Inspector Bharat Lal Rathore, posted at
Police Station Torwa, District Bilaspur, allegedly received
secret information from an informer that a woman wearing a
black kurti and red leggings along with three other persons
was present near the Cultural Stage and Yoga Centre at
Shobha Vihar, Hemunagar, Bilaspur, and that they were
carrying intoxicating cough syrup for the purpose of illegal
sale. The said information was recorded and an Informer
Information Panchnama (Ex.P/64) was prepared.
• Thereafter, as per the prosecution case, the said information
was entered in the Rojnamcha Sanha (Ex.P/2) and further
proceedings were initiated. A panchnama regarding non-
obtaining of search warrant (Ex.P/1) was prepared stating
that there was likelihood of delay in obtaining a search
warrant and that the accused persons might escape or
destroy the contraband substance. The prosecution further
states that intimation regarding the information received from
the informer and the proposed search proceedings was sent
to the superior officer through a memo addressed to the City
Superintendent of Police (Ex.P/65).
• Thereafter, PW-10 SI Bharat Lal Rathore constituted a raiding
party consisting of police personnel including PW-6 Laxmi
5
Kashyap, Pramod Chauhan, Ashok Chandrakar and PW-9
Woman Constable Ifrani Pandey, and also called two
independent witnesses namely PW-1 Tikeshwar Singh and
PW-2 Atul Gautam. In their presence, a verification
panchnama of informer information (Ex.P/67C / Ex.P/72A and
connected documents) was prepared and the police party
proceeded towards the alleged place of occurrence.
• It is the prosecution case that at about 20:35 to 20:45 hours,
after reaching near Shobha Vihar Cultural Stage and Yoga
Centre, the police party surrounded the area and allegedly
found four persons, one woman and three men, present
there. On being questioned, they disclosed their names as
Smt. Sneha Goyal, Pushpendra, Amar Jangde and Deva
Rajak.
• According to the prosecution, prior to conducting the search,
notices were served upon the accused persons informing
them about their legal rights. In this regard, notices to
suspects regarding search were prepared (Ex.P/3 to Ex.P/6).
The prosecution further claims that the accused persons
expressed their consent for search, for which consent
panchnamas were prepared (Ex.P/7 to Ex.P/10).
• Before conducting the search of the accused persons, the
police officials and witnesses also conducted their own
search to rule out any possibility of planting of contraband. In
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this regard, search panchnama of police personnel (Ex.P/11),
search panchnama of witnesses (Ex.P/12) and search
panchnama of the police vehicle (Ex.P/13) were prepared.
• Thereafter, the personal search of the accused persons was
carried out between 21:10 to 21:20 hours, and the search
panchnamas of the accused persons were prepared (Ex.P/14
to Ex.P/17). During the said search, the police allegedly
recovered plastic bags and sacks from the possession of the
accused persons. A search panchnama of the polythene
bags allegedly recovered from the possession of the accused
persons was prepared (Ex.P/18 to Ex.P/21) and a search
panchnama of the car was also prepared (Ex.P/22).
• As per the prosecution case, the following contraband articles
were allegedly recovered:
• From the possession of Smt. Sneha Goyal, a plastic sack
containing 100 bottles of "KOP Free" cough syrup of 100
ml each, totaling 10,000 ml.
• From the possession of Pushpendra, a plastic sack
containing 25 bottles of "KOP Free" cough syrup of 100
ml each, totaling 2,500 ml, along with a Maruti Ertiga
vehicle bearing registration No. CG-13-UC-3789.
• From the possession of Amar Jangde, a bag containing
30 bottles of "Maxcoff" cough syrup of 100 ml each,
totaling 3,000 ml.
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• From the possession of Varaj Rajak, a plastic sack
containing 20 bottles of "KOP Free" cough syrup of 100
ml each, totaling 2,000 ml.
• Thus, according to the prosecution, a total of 145 bottles of
KOP Free cough syrup and 30 bottles of Maxcoff cough
syrup were recovered from the possession of the accused
persons.
• After the alleged recovery, a recovery panchnama was
prepared (Ex.P/23 to Ex.P/26). Thereafter, the seized
narcotic substances were identified before the witnesses and
an identification panchnama was prepared (Ex.P/27 to
Ex.P/30). Subsequently, the seized bottles were counted and
a counting panchnama was prepared (Ex.P/31 to Ex.P/34).
• The prosecution further claims that samples were drawn
from the seized articles and sample seal panchnamas were
prepared (Ex.P/35 to Ex.P/38), followed by sealing
panchnamas (Ex.P/39 to Ex.P/42). A list of seized articles
was also prepared (Ex.P/56) and the property seizure
memos were prepared (Ex.P/43 to Ex.P/46).
• Thereafter, notices under Section 67 of the NDPS Act were
issued to the accused persons (Ex.P/82 to Ex.P/85) and it
was recorded that the accused persons could not produce
any valid license or authorization for possessing the said
cough syrup.
8
• Subsequently, the accused persons were arrested and
panchnamas stating the reasons for arrest were prepared
(Ex.P/47 to Ex.P/50). Their arrest memos were prepared
between 00:05 to 00:20 hours on 14.09.2023 (Ex.P/51 to
Ex.P/54) and intimation of their arrest was sent to their
relatives through information of arrest (Ex.P/86).
• Thereafter, a Dehati Nalishi (Ex.P/87) was recorded and on
its basis First Information Report (Ex.P/93) was registered at
Police Station Torwa as Crime No. 478/2023 for offences
punishable under Sections 21 and 22 of the NDPS Act.
• The prosecution further states that the seized contraband
articles were deposited in the Malkhana, and the Malkhana
In-charge PW-11 Sher Singh Pendro received the seized
property and made entries in the seized articles register
(Ex.P/112C).
• During the course of investigation, a spot map was prepared
(Ex.P/104) on the basis of the memo issued to the Tahsildar
(Ex.P/104). Photographs of the seized articles were also
taken (Ex.P/57).
• On 20.09.2023, the Investigating Officer moved an
application before the Judicial Magistrate First Class,
Bilaspur for physical verification of the seized narcotic
substances (Ex.P/101). In compliance thereof, the learned
Magistrate conducted verification and issued a certificate
9
under Section 52A(3) of the NDPS Act (Ex.P/103) and Form-
5 (Ex.P/102) was also prepared.
• Subsequently, the samples were sent to the Drug Inspector
for examination through memo (Ex.P/61). The Drug
Inspector PW-8 Dushyant Kumar Patel examined the
samples and submitted his examination report (Ex.P/62)
along with a panchnama prepared by the Drug Inspector
(Ex.P/63).
• Thereafter, the samples were forwarded to the Regional
Forensic Science Laboratory, Bilaspur, and the FSL report
(Ex.P/110) was received, which confirmed the presence of
Codeine and Chlorpheniramine in the seized cough syrup
samples.
• During the course of investigation, statements of witnesses
including PW-1 Tikeshwar Singh, PW-2 Atul Gautam, and
other police personnel were recorded. After completion of
investigation, PW-10 SI Bharat Lal Rathore, who is both the
complainant and the Investigating Officer, submitted the
charge-sheet (Ex.P/111) before the competent Court on
07.11.2023 against the accused persons for offences
punishable under Sections 21 and 22 of the NDPS Act.
• On the basis of the material placed before it, the learned trial
Court framed charges against the accused persons for the
offence punishable under Section 21(c) of the NDPS Act.
10
The charges were read over and explained to the accused
persons; however, they denied the allegations and pleaded
false implication, and claimed to be tried. The accused
persons did not adduce any evidence in their defence.
7. After appreciating the oral as well as documentary evidence
adduced by the prosecution and after hearing the submissions
advanced on behalf of the prosecution as well as the defence, the
learned trial Court came to the conclusion that the prosecution
had been able to establish the guilt of the accused persons
beyond reasonable doubt. The learned trial Court placed reliance
upon the testimonies of the prosecution witnesses, particularly
the evidence of the Investigating Officer and other members of
the raiding party, along with the documentary evidence such as
the seizure memos, panchnamas, and the reports of the Drug
Inspector and the Forensic Science Laboratory indicating the
presence of codeine in the seized cough syrup.
8. On the basis of the aforesaid appreciation of evidence, the
learned Special Judge recorded a finding that the accused
persons were found to be in conscious possession of the seized
contraband cough syrup containing narcotic substance and that
the prosecution had succeeded in proving the essential
ingredients of the offence under the provisions of the NDPS Act.
Accordingly, the learned trial Court held the appellants guilty of
the offence punishable under Section 21(c) of the NDPS Act.
11
9. Consequently, by the impugned judgment dated 30.01.2025,
passed in Special Sessions (NDPS) Case No.124/2023, the
learned Special Judge (NDPS Act), Bilaspur, convicted the
appellants and sentenced each of them to undergo rigorous
imprisonment for a period of 15 years along with a fine of
Rs.1,50,000/-, and in default of payment of fine, to further
undergo additional rigorous imprisonment for six months, as
detailed in the earlier part of this judgment.
10. Being aggrieved by the aforesaid judgment of conviction and
order of sentence passed by the learned trial Court, the
appellants have preferred the present criminal appeals before this
Court seeking setting aside of the impugned judgment and their
acquittal from the charges levelled against them.
11. Mr. Akash Singh and Mr. Swapnil Keshari, learned counsel
appearing for the appellant in CRA No. 559/2025 would submit
that in pursuance of the order dated 03.03.2026 passed by this
Court, the appellant has already surrendered before the
competent authority and is presently in custody. He would submit
that the appellant is innocent person and has been falsely
implicated in the present case. According to them, the entire
prosecution story is fabricated and the alleged recovery has been
planted by the police personnel and no contraband substance
was recovered from the conscious possession of the appellant. It
is contended that the learned trial Court has committed a grave
12
error of law as well as fact in holding the appellant guilty for the
offence punishable under Section 21(c) of the NDPS Act. The
findings recorded by the learned Special Judge are stated to be
contrary to the evidence available on record and have been
arrived at without proper appreciation of the material placed
before the Court.
12. Mr. Sahu and Mr. Keshari would argue that the independent
witnesses cited by the prosecution, namely PW-1 Tikeshwar
Singh and PW-2 Atul Gautam, have not supported the case of the
prosecution in material particulars and have failed to corroborate
the alleged search and seizure proceedings. According to them,
once the independent witnesses have not supported the
prosecution case, the alleged recovery becomes highly doubtful.
It is further submitted that the seizure witnesses themselves have
not supported the prosecution version regarding the alleged
recovery of cough syrup bottles from the possession of the
appellant. The learned trial Court, however, failed to properly
consider this aspect and erroneously relied mainly upon the
testimony of police witnesses. He would also contend that the
investigation conducted in the present case suffers from several
serious discrepancies, omissions and irregularities. According to
them, the mandatory safeguards provided under the NDPS Act,
which require strict compliance, have not been followed by the
Investigating Agency, thereby rendering the entire prosecution
case doubtful.
13
13. Placing reliance upon the judgment of the Hon'ble Supreme Court
in Criminal Appeal No. 808 of 2023, Chandrashekhar
Shivhare & Another vs. Intelligence Officer, learned counsel
would submit that the Hon'ble Supreme Court has elaborately
dealt with the procedure to be followed for drawing, sealing and
marking of samples before the Judicial Magistrate. It is submitted
that the said judgment, particularly paragraphs 44 and 45, lays
down the requirement of proper sampling and marking in the
presence of the Magistrate to maintain the sanctity of the seized
material. According to learned counsel, the procedure prescribed
therein has not been followed in the present case, which casts a
serious doubt on the authenticity of the seized samples and the
chain of custody. It is also submitted that the evidence of the
prosecution witnesses is replete with material omissions and
contradictions, which go to the root of the prosecution case. The
learned trial Court, however, has failed to consider these
contradictions in their proper perspective while recording the
finding of guilt against the appellant. They would further contend
that there is no reliable or cogent material on record to connect
the appellants with the alleged offence. The prosecution has
failed to establish conscious possession of the contraband
substance beyond reasonable doubt, which is a sine qua non for
conviction under the NDPS Act. It is lastly contended that the
essential ingredients required for constituting an offence under
Section 21(c) of the NDPS Act have not been proved by the
14
prosecution. In absence of strict compliance with the statutory
safeguards and in view of the doubtful recovery and defective
investigation, the conviction of the appellant cannot be sustained.
14. Mr. Singh and Mr. Keshari would also submit that one of the
accused persons is a woman, however, the mandatory provisions
contained in Section 50(4) of the NDPS Act, which require that
the personal search of a female shall be conducted only by
another female, have not been complied with by the police
personnel. According to the appellant, non-compliance of the said
statutory requirement vitiates the entire search and seizure
proceedings. As such, they would pray that the impugned
judgment of conviction and order of sentence passed by the
learned trial Court deserves to be set aside, and the appellant is
entitled to be acquitted of the charges levelled against her.
15. Mr. Goutam Khetrapal, learned counsel for the appellants in CRA
No.460/2025, would submit that the impugned judgment of
conviction and sentence passed by the learned Special Judge
(NDPS Act) suffers from serious legal infirmities and has been
rendered without proper appreciation of the mandatory
procedural safeguards prescribed under the NDPS Act. It is
contended that the prosecution has failed to establish the case
against the appellants beyond reasonable doubt and that the
learned trial Court has erred in recording conviction despite
glaring lapses in the investigation and material contradictions in
15
the evidence adduced by the prosecution. He would further
submit that there has been a clear violation of the mandatory
provisions contained under Section 52A of the NDPS Act read
with Rule 13 of the NDPS (Seizure, Storage, Sampling and
Disposal) Rules, 2022. It is argued that representative samples of
the seized contraband are required to be drawn before the
Magistrate and thereafter sent directly to the jurisdictional
Forensic Science Laboratory without any delay. However, in the
present case, the samples were first forwarded to the Drug
Inspector, Food and Drug Administration, Bilaspur and only
thereafter sent to the Regional Forensic Science Laboratory,
Bilaspur where they were received on 04.10.2023. According to
learned counsel, such deviation from the prescribed procedure
creates serious doubt regarding the sanctity of the samples and
the integrity of the seized material, thereby vitiating the
prosecution case.
16. Mr. Khetrapal would submit that similar issues relating to delay in
sending samples and failure to maintain proper link evidence
have been considered by various Courts. In Bocoum Ibrahim
Malienne Naigerian National v. Neerajrai, 2005 SCC OnLine
Bom 579, the Bombay High Court observed that unexplained
delay in forwarding the samples to the Chemical Analyzer creates
serious doubt regarding the safe custody of the contraband and
weakens the evidentiary value of the chemical analysis report.
Likewise, in Sovraj v. State (NCT of Delhi), 2024 SCC OnLine
16
Del 4732, the Delhi High Court held that delay in conducting
proceedings under Section 52A of the NDPS Act and delay in
forwarding samples to the FSL may prove fatal to the prosecution
case, particularly when the prosecution fails to explain the delay
satisfactorily.
17. Placing further reliance upon the judgment of the Hon'ble
Supreme Court in Mohd. Khalid v. State of Telangana, (2024) 5
SCC 393, learned counsel would contend that the Supreme Court
has emphasized the necessity of strict compliance with the
sampling procedure and the requirement of establishing complete
link evidence from the time of seizure till the receipt of samples
by the forensic laboratory. It has been held that where the
prosecution fails to establish the safe custody of the seized
samples and there exists a delay or discrepancy in the
transmission of the samples to the FSL, the prosecution case
becomes doubtful and the benefit of such doubt must necessarily
go to the accused. He would further place reliance upon the
judgment of the Hon'ble Supreme Court in Union of India v.
Mohanlal, (2016) 3 SCC 379, wherein it has been observed that
the process of sampling and certification under Section 52A of the
NDPS Act must be carried out without undue delay and cannot be
left to the whims of the investigating officers. The Supreme Court
has categorically held that the statutory scheme does not brook
any delay in making an application before the Magistrate for
drawing samples and certification of the seized contraband.
17
18. It is also submitted by Mr. Khetrapal that the prosecution has
failed to establish compliance with Section 55 of the NDPS Act
relating to safe custody of the seized articles. Learned counsel
would argue that the prosecution has not produced any reliable
evidence to demonstrate that the seized contraband was properly
sealed and deposited in the Malkhana under the supervision of
the officer-in-charge of the police station. In support of this
contention, reliance has been placed upon Gurbax Singh v.
State of Haryana, (2001) 3 SCC 28, wherein the Hon'ble
Supreme Court held that failure to follow the procedure
prescribed under Sections 52, 55 and 57 of the NDPS Act and
absence of evidence regarding proper sealing and safe custody
of the seized contraband creates serious doubt regarding the
authenticity of the prosecution case. He would also place reliance
upon the judgment of the Hon'ble Supreme Court in Ouseph v.
State of Kerala, (2004) 10 SCC 647, wherein it has been held
that if the seized contraband is not kept in a properly sealed
condition and there exists a possibility of tampering, the
prosecution case becomes doubtful and the accused is entitled to
benefit of doubt.
19. Mr. Khetrapal would further submit that in the present case the
informant, the raiding officer and the investigating officer are the
same person, namely PW-10 SI Bharat Lal Rathore, which casts
doubt on the fairness of the investigation. Though the
Constitution Bench of the Hon'ble Supreme Court in Mukesh
18
Singh v. State (NCT of Delhi), (2020) 10 SCC 120 has held that
merely because the informant and investigating officer are the
same person, the trial would not automatically stand vitiated, it
has also been observed that the issue of fairness and absence of
bias in the investigation must be examined on the facts of each
case. In this regard, reliance has also been placed upon
Simarnjit Singh v. State of Punjab, 2022 SCC OnLine P&H
4235 and Office of the Odisha Lokayukta v. Pradeep Kumar
Panigrahi, 2023 SCC OnLine SC 175, wherein the Courts have
reiterated that although such investigation is not per se illegal, the
evidence in such cases must be scrutinized with greater caution
to rule out any prejudice or bias.
20. On the strength of the aforesaid judgments and the settled legal
principles laid down therein, Mr. Khetrapal would submit that the
prosecution has failed to prove the essential ingredients of the
offence beyond reasonable doubt and the conviction recorded by
the learned trial Court is unsustainable in law. It is therefore
prayed that the impugned judgment of conviction and sentence
be set aside and the appellants be acquitted of the charges.
21. Mr. Vikas Kumar Pandey, learned counsel for the appellant in
CRA No.829/2025, would submit that the impugned judgment
dated 30.01.2025 passed by the learned Special Judge (NDPS
Act), Bilaspur is contrary to the facts of the case, the evidence
available on record and the settled principles governing
19
prosecution under the NDPS Act. It is contended that the learned
trial Court has committed a grave error in law in convicting the
appellant without properly appreciating the mandatory provisions
contained in the NDPS Act. According to learned counsel, strict
compliance with the statutory safeguards under the NDPS Act is
a sine qua non for sustaining a conviction, and failure to adhere
to such mandatory provisions vitiates the entire prosecution case.
Therefore, it is argued that the conviction and sentence imposed
upon the appellant deserve to be set aside.
22. Mr. Pandey would further submit that the star independent
witness examined by the prosecution has turned hostile before
the learned trial Court and has not supported the prosecution
story. Despite the fact that the independent witness did not
corroborate the version of the prosecution, the learned trial Court
has failed to properly appreciate the effect of such testimony
while recording the conviction of the appellant. It is contended
that when the independent witness does not support the
prosecution case and the prosecution version remains
uncorroborated by any reliable independent evidence, the benefit
of doubt ought to have been extended to the appellant. It is
further submitted that there has been non-compliance of the
mandatory provisions contained under Sections 42, 50 and 52 of
the NDPS Act. Learned counsel would argue that these
provisions are intended to safeguard the rights of the accused
and ensure fairness in the investigation process. In the absence
20
of strict compliance with the said provisions, the prosecution case
becomes doubtful and the conviction recorded on the basis of
such defective investigation cannot be sustained in the eyes of
law.
23. Mr. Pandey also contended that the entire judgment of the
learned trial Court is primarily based upon the testimony of the
Investigating Officer and other police witnesses, whereas the
independent witnesses as well as seizure witnesses have not
supported the prosecution case. It is submitted that reliance
solely on the testimony of official witnesses, particularly when
independent witnesses have turned hostile and there exist
material contradictions in the prosecution evidence, renders the
prosecution case unreliable. It is further argued that the alleged
Codeine-containing "Cop Free" cough syrup has not been seized
from the conscious possession of the present appellant.
According to learned counsel, the implication of the appellant in
the present case is primarily based upon the memorandum
statement of a co-accused person, which by itself cannot form the
sole basis for conviction in the absence of any corroborative
evidence. Learned counsel would submit that there is no
substantive material on record connecting the appellant with the
alleged contraband.
24. Lastly, Mr. Pandey would submit that the testimony of the
prosecution witnesses suffers from various contradictions,
21
omissions and inconsistencies; however, the learned trial Court
has failed to properly consider these material discrepancies while
passing the impugned judgment of conviction. It is contended that
the evidence on record does not establish the guilt of the
appellant beyond reasonable doubt. The appellant has been in
judicial custody since 14.09.2023 and has already undergone a
substantial period of incarceration. In these circumstances,
learned counsel submits that the impugned judgment of
conviction and the sentence imposed upon the appellant is liable
to be set aside and the appellant deserves to be acquitted of the
charges levelled against him.
25. Per contra, Mr. Shaleen Singh Baghel, learned Government
Advocate appearing for the State/respondent, would vehemently
oppose the submissions advanced by learned counsel for the
respective appellants and would submit that the impugned
judgment of conviction and order of sentence passed by the
learned Special Judge (NDPS Act), Bilaspur is strictly in
accordance with law and is based upon proper appreciation of
the oral as well as documentary evidence available on record.
According to him, the learned trial Court has meticulously
examined the entire evidence led by the prosecution and has
recorded well-reasoned findings holding the appellants guilty for
the offence punishable under Section 21(c) of the NDPS Act. It is
contended that no illegality, perversity or infirmity can be said to
have been committed by the learned trial Court.
22
26. Mr. Baghel would further submit that the prosecution has
successfully proved the seizure of the contraband substance from
the possession of the appellants through reliable and cogent
evidence. The evidence of the Investigating Officer and other
police witnesses clearly establishes the manner in which the
search and seizure proceedings were conducted and the
contraband substance was recovered. It is argued that merely
because some of the independent witnesses have not fully
supported the prosecution case would not by itself render the
entire prosecution case doubtful. According to him, it is well
settled that the testimony of official witnesses cannot be
discarded merely on the ground that they belong to the police
force, particularly when their evidence is found to be reliable,
consistent and trustworthy. He would also submit that the
prosecution witnesses have clearly proved the recovery, seizure
and sealing of the contraband substance and there is no material
contradiction or discrepancy in their testimony which goes to the
root of the case. The minor inconsistencies or omissions pointed
out by the learned counsel for the appellants are natural and do
not affect the core of the prosecution case. It is contended that
the learned trial Court has rightly appreciated the evidence on
record and has correctly held that the prosecution has succeeded
in establishing guilt of the appellants beyond reasonable doubt.
27. With regard to the submission relating to non-compliance of the
provisions contained under Sections 42, 50, 52A and 55 of the
23
NDPS Act, Mr. Baghel would submit that the prosecution has duly
complied with the statutory requirements prescribed under the
NDPS Act. According to him, the evidence on record clearly
demonstrates that the search and seizure proceedings were
conducted in accordance with law and the seized contraband was
properly sealed and deposited in the Malkhana. He would further
submit that the samples were duly forwarded for chemical
examination and the report of the Forensic Science Laboratory
conclusively establishes that the seized substance contained
Codeine, which falls within the ambit of the NDPS Act.
28. Mr. Baghel contends that the arguments raised by the appellants
regarding alleged delay in sending the samples to the forensic
laboratory or alleged irregularities in the sampling procedure are
not of such a nature so as to vitiate the entire prosecution case.
According to him, the prosecution has satisfactorily established
the link evidence and the chain of custody of the seized material.
The FSL report forms a vital piece of evidence which
corroborates the prosecution case and clearly establishes that
the seized articles were narcotic substances prohibited under the
NDPS Act.
29. With regard to the contention that the informant and the
Investigating Officer are the same person, learned Government
Advocate would submit that such a circumstance by itself does
not vitiate the investigation or the trial. Placing reliance upon the
24
Constitution Bench judgment of the Hon'ble Supreme Court in
Mukesh Singh (supra), it is argued that merely because the
informant and the Investigating Officer are the same person
would not automatically lead to an inference of bias or unfair
investigation. According to him, unless it is demonstrated that any
prejudice has been caused to the accused on account of such
investigation, the conviction cannot be set aside on that ground
alone. He would also submit that the appellants have failed to
produce any material to establish that the alleged recovery was
planted or that they have been falsely implicated in the present
case. On the contrary, the prosecution evidence clearly
establishes the conscious possession of the contraband
substance by the appellants. It is argued that the learned trial
Court has carefully scrutinized the entire evidence and has rightly
concluded that the prosecution has proved the ingredients of the
offence under Section 21(c) of the NDPS Act beyond reasonable
doubt.
30. Lastly, Mr. Baghel, learned Government Advocate would submit
that the offence under the NDPS Act is a serious offence affecting
the society at large and the legislature has prescribed stringent
punishment for such offences. According to him, once the
prosecution has succeeded in proving the recovery of narcotic
substance and the involvement of the appellants, the learned trial
Court was fully justified in recording the conviction and imposing
the sentence as provided under law. Therefore, it is prayed that
25
the present criminal appeals being devoid of merit deserve to be
dismissed and the impugned judgment of conviction and
sentence passed by the learned trial Court be affirmed.
31. We have heard learned counsel for the parties at length and have
perused the entire record of the learned trial Court with utmost
circumspection. We have also carefully examined the impugned
judgment of conviction and order of sentence dated 30.01.2025
passed by the learned Special Judge (NDPS Act), Bilaspur in
Special Sessions (NDPS) Case No.124/2023, along with the oral
and documentary evidence adduced by the prosecution and the
defence during the course of trial.
32. While considering the rival submissions advanced by learned
counsel appearing for the respective parties, this Court has also
undertaken a meticulous scrutiny of the depositions of the
prosecution witnesses, the documents exhibited during trial, the
seizure proceedings, and the report of the Forensic Science
Laboratory forming part of the record. The Court has further taken
into account the statutory scheme and safeguards contained in
the NDPS Act, which require strict compliance in cases relating to
alleged possession and recovery of narcotic substances.
33. Since the conviction of the appellants has been recorded for the
offence punishable under Section 21(c) of the NDPS Act, it is
incumbent upon the prosecution to establish the foundational
facts, including the legality of the search and seizure, proper
26
sampling and sealing of the contraband, safe custody of the
seized material, and the unbroken chain of custody till the
samples reach the forensic laboratory for chemical examination.
In view of the stringent provisions and the reverse burden of proof
contemplated under the NDPS Act, the Courts are required to
examine the prosecution case with great caution to ensure that
the mandatory procedural safeguards have been strictly adhered
to.
34. This Court has also examined the contentions raised on behalf of
the appellants regarding the alleged non-compliance of the
statutory provisions contained under Sections 42, 50, 52A and 55
of the NDPS Act, the alleged discrepancies in the investigation,
the effect of independent witnesses not supporting the
prosecution case, and the alleged contradictions and omissions
in the testimony of the prosecution witnesses. The submissions
made on behalf of the State in support of the impugned judgment
have also been duly considered.
35. In the light of the aforesaid submissions and upon careful re-
appreciation of the entire evidence available on record, this Court
now proceeds to examine the merits of the case and the
correctness of the findings recorded by the learned trial Court in
the impugned judgment.
36. The first and foremost question that arises for consideration
before this Court is whether the prosecution has been able to
27
establish beyond reasonable doubt that the appellants were
found to be in conscious and joint possession of the contraband
substance, namely Codeine-containing cough syrup, in
commercial quantity and whether the search, seizure, sampling
and subsequent investigation were conducted strictly in
accordance with the mandatory provisions of the NDPS Act.
37. The determination of this issue necessarily requires a careful
scrutiny of the entire prosecution evidence, both oral as well as
documentary, and the manner in which the statutory safeguards
contemplated under the NDPS Act have been adhered to by the
investigating agency.
38. In order to answer the aforesaid question, this Court has minutely
examined the entire evidence available on record with utmost
circumspection, including the depositions of the prosecution
witnesses, the documentary evidence exhibited during the course
of trial, the seizure proceedings, the forwarding memos and the
reports of the competent authorities. From the record it clearly
emerges that after the seizure of the contraband articles, the
Investigating Officer had forwarded the samples under a proper
memorandum to the Office of the Deputy Director, Food and Drug
Administration, Bilaspur. The evidence of the Drug Inspector, who
was examined as a prosecution witness, establishes that sealed
packets marked as A-1, B-1, C-1 and D-1 were received in the
office of the Food and Drug Administration along with the relevant
28
documents including the First Information Report, seizure memo,
forwarding memo and specimen seal. The said witness has
categorically stated that the seals affixed on the packets were
found intact and tallied with the specimen seal forwarded by the
Investigating Officer.
39. Upon opening the sealed packets for the purpose of examination,
the Drug Inspector found that packet A-1 contained five bottles of
"KOP Free" cough syrup, packet B-1 contained two bottles of
"KOP Free" cough syrup, packet C-1 contained three bottles of
"Max Coff" cough syrup and packet D-1 contained two bottles of
"KOP Free" cough syrup, each bottle containing 100 ml of liquid.
On the basis of the labels affixed on the bottles and the chemical
analysis conducted by him, it was found that the said cough
syrups contained Codeine Phosphate and Chlorpheniramine
Maleate. After conducting the preliminary examination, the Drug
Inspector resealed the samples with the official seal of the Drug
Inspector, CGFDA, and prepared a test report recommending
further chemical examination by the forensic laboratory. The
resealed samples along with the report were thereafter handed
over to the Investigating Officer for being sent to the Regional
Forensic Science Laboratory.
40. The record further reveals that the Investigating Officer thereafter
forwarded the said sealed samples to the Regional Forensic
Science Laboratory, Bilaspur through a police constable along
29
with the requisite forwarding memo and duty certificate. The
evidence of the constable who carried the samples to the forensic
laboratory establishes that the samples were delivered in sealed
condition and a receipt acknowledging the deposit of the samples
was duly obtained from the laboratory authorities. The report of
the Regional Forensic Science Laboratory, Bilaspur, which forms
part of the record, clearly demonstrates that the seals found on
the packets were intact and tallied with the specimen seal sent
along with the forwarding memo. Upon conducting physical as
well as chemical examination, including Thin Layer
Chromatography (TLC) tests, the forensic laboratory confirmed
the presence of Codeine and Chlorpheniramine in the samples
examined. The said report therefore conclusively corroborates
the earlier findings of the Drug Inspector and establishes that the
seized cough syrup bottles indeed contained Codeine-based
narcotic substance.
41. In order to further appreciate the correctness of the prosecution
case, it is also necessary to examine the testimony of PW-10
Sub-Inspector Bharat Lal Rathore, who was not only the
informant but also a member of the raiding party and the
Investigating Officer in the present case. PW-10 has deposed that
on the basis of a secret information received by him regarding
transportation of a large quantity of Codeine-based cough syrup,
he reduced the said information into writing and informed the
superior officer as required under law. Thereafter, a raiding party
30
was constituted and necessary arrangements were made for
conducting search and seizure proceedings. According to this
witness, after reaching the spot the appellants were found
carrying certain bags and a ladies purse, which aroused
suspicion. The accused persons were therefore intercepted and
the bags as well as the purse carried by them were searched in
accordance with law.
42. PW-10 has further deposed that during the course of search a
large number of bottles of Codeine-containing cough syrup were
recovered from the bags and the ladies purse carried by the
accused persons. The bottles were counted and thereafter sealed
and seized in presence of witnesses. A detailed seizure memo
was prepared at the spot describing the recovered articles.
Samples were drawn from the seized bottles, sealed with the seal
of the police station and specimen seal was also prepared.
Thereafter, the seized articles were deposited in the Malkhana
and the samples were forwarded to the concerned authorities for
chemical examination. The testimony of PW-10 thus establishes
the entire chain of events relating to receipt of information,
constitution of the raiding party, interception of the accused
persons, recovery of the contraband substance and subsequent
handling of the seized articles.
43. In his cross-examination, SI Bharat Lal Rathore PW-10 was
subjected to lengthy and searching questions by the defence with
31
regard to the manner in which the search and seizure were
conducted, the preparation of the seizure memo, the presence of
independent witnesses and the forwarding of the samples for
examination. However, nothing substantial could be elicited from
his cross-examination which could cast any doubt on the
authenticity of the prosecution case. The witness has consistently
maintained that the search and seizure were conducted strictly in
accordance with law and that the contraband articles were
recovered from the bags and the purse carried by the accused
persons. He has also denied the suggestion that the contraband
articles were planted by the police personnel or that the
appellants were falsely implicated in the present case. Though
the defence has attempted to point out certain minor
discrepancies in the testimony of this witness, such discrepancies
are trivial in nature and do not go to the root of the prosecution
case.
44. 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
32
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.
45. 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. 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."
46. 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 :-
33
"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.
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
34
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."
47. 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
35
(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
36
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."
48. Reverting to the facts of the present case in the light of
aforementioned rulings of the Hon'ble Apex Court, it is quite vivid
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. The testimony of the Investigating Officer as well as
the members of the raiding party reveals that the appellants were
intercepted at a public road while they were carrying certain bags
and a ladies purse. Upon suspicion, the police personnel stopped
them and conducted a search of the articles being carried by
them. During the course of the said search, a large number of
bottles of Codeine-containing cough syrup were recovered from
the bags and the purse which were in their possession. Thus, the
recovery of the contraband substance was made at a place which
was accessible to the public and at a time when the accused
persons were in transit.
49. It is also significant to note that the prosecution evidence
indicates that the police officials had intercepted the appellants
during routine checking on the road and the recovery was
37
effected on the spot. The contraband substance was therefore
seized while being carried by the accused persons in transit.
50. In such circumstances, the powers exercised by the police
officials would clearly fall within the scope and ambit of Section
43 of the NDPS Act, which specifically empowers the authorised
officer to seize narcotic drugs or psychotropic substances in any
public place or while they are in transit.
51. Once the recovery is effected in a public place or while the
contraband substance is in transit, the rigours of Section 42 of the
NDPS Act would not be attracted. Section 42 primarily deals with
the power of entry, search, seizure and arrest in respect of
buildings, conveyances or enclosed places based upon prior
information.
52. The requirement of reducing the information into writing and
sending it to the superior officer arises only in cases where the
search is to be conducted in a private building or enclosed
premises on the basis of prior secret information. However, where
the recovery is made in a public place or during transit, the
provisions of Section 43 would govern the situation and the
procedural requirements contemplated under Section 42 would
not be applicable.
53. The distinction between Sections 42 and 43 of the NDPS Act has
been consistently recognised by the courts. Where the seizure is
effected from a public place or from a person in transit, the officer
38
exercising the power is not required to comply with the
requirements of Section 42 regarding recording of prior
information in writing or forwarding the same to the superior
officer. The reason behind this distinction is that the element of
urgency and spontaneity is inherent in searches conducted in
public places or during transit, where delay in complying with the
formalities under Section 42 may result in the offender escaping
or the contraband being removed.
54. Applying the aforesaid legal principles to the facts of the present
case, this Court finds that the recovery of the Codeine-containing
cough syrup bottles was made from the bags and the ladies
purse carried by the appellants at a public place while they were
moving in transit. The evidence of the Investigating Officer clearly
establishes that the appellants were intercepted on a public road
and the contraband articles were recovered from the articles
being carried by them. Therefore, the seizure in the present case
squarely falls within the scope of Section 43(a) of the NDPS Act,
which authorises the seizure of narcotic drugs in any public place
or while in transit.
55. In view of the explanation appended to Section 43 of the NDPS
Act and the factual matrix of the present case, this Court is of the
considered opinion that the provisions of Section 42 of the NDPS
Act have no application to the facts of the present case. The
search and seizure having been conducted in a public place and
39
during transit, the police authorities were well within their
jurisdiction to act under Section 43 of the NDPS Act.
Consequently, the contention raised on behalf of the appellants
regarding alleged non-compliance of Section 42 of the NDPS Act
is misconceived and does not vitiate the search and seizure
proceedings carried out by the investigating agency.
56. The next submission advanced by the learned counsel for the
appellants relates to the alleged non-compliance of the provisions
contained under Section 50 of the NDPS Act. It has been
contended that the mandatory safeguard provided under Section
50 of the NDPS Act was not followed by the police authorities and
that the appellants were not informed of their right to be searched
before a Gazetted Officer or a Magistrate. According to the
learned counsel, such non-compliance vitiates the entire search
and seizure proceedings.
57. In order to examine the aforesaid contention, it is necessary to
briefly advert to the scope and applicability of Section 50 of the
NDPS Act. Section 50 provides that when an authorised officer is
about to search any person under the provisions of the Act, he
shall inform such person of his right to be searched in the
presence of a Gazetted Officer or a Magistrate. The object behind
the said provision is to provide a safeguard against arbitrary or
false implication and to ensure fairness and transparency in
cases where the personal search of an accused is conducted.
40
However, it is equally well settled that the requirement
contemplated under Section 50 becomes applicable only when
the search conducted by the authorities amounts to a personal
search of the body of the accused.
58. In the present case, the evidence available on record clearly
demonstrates that the contraband substance was not recovered
from the physical body of the appellants. The prosecution
witnesses, particularly PW-10 Sub-Inspector Bharat Lal Rathore
and the members of the raiding party, have consistently deposed
that the Codeine-containing cough syrup bottles were recovered
from the bags and the ladies purse which were being carried by
the appellants at the time of interception. The search was
therefore confined to the articles and baggage in the possession
of the accused persons and not to their physical person. The
seizure memo prepared at the spot also reflects that the
contraband bottles were recovered from the bags and the purse
and thereafter sealed and seized in accordance with law.
59. In such circumstances, the search conducted by the police
authorities cannot be characterised as a "personal search" within
the meaning of Section 50 of the NDPS Act. The distinction
between a personal search and the search of baggage or articles
carried by the accused has been consistently recognised in
judicial pronouncements. The provisions of Section 50 are
attracted only when the body of the accused is searched, and the
41
said requirement does not extend to the search of bags,
containers, vehicles or other articles carried by the accused.
60. The Supreme Court has repeatedly clarified this legal position in
several decisions. It has been held that where the recovery of
contraband is made from a bag, briefcase, container or any other
article carried by the accused, such recovery cannot be treated
as a personal search of the accused and therefore the
safeguards under Section 50 are not attracted. The rationale
behind this principle is that the legislative intent underlying
Section 50 is to protect the dignity and privacy of a person during
bodily search, and the same does not extend to articles or
baggage carried by such person.
61. Applying the aforesaid legal principles to the facts of the present
case, this Court finds that the recovery of the contraband
Codeine-containing cough syrup bottles was effected from the
bags and the ladies purse carried by the appellants and not from
their physical body. The purse carried by the female accused was
taken from her possession and opened for the purpose of search,
and the contraband bottles were recovered therefrom. Such
search of a purse or bag cannot be equated with a personal
search so as to attract the mandatory requirements of Section 50
of the NDPS Act.
62. Therefore, the contention raised by the learned counsel for the
appellants that the provisions of Section 50 of the NDPS Act were
42
not complied with is devoid of merit. Since the recovery in the
present case was made from the baggage and articles carried by
the accused persons and not from their person, the requirement
of informing them of their right under Section 50 of the NDPS Act
did not arise. Consequently, the search and seizure proceedings
conducted by the investigating agency cannot be said to be
vitiated on the ground of alleged non-compliance of Section 50 of
the NDPS Act.
63. At this stage it would also be appropriate to deal with the
contention raised by the appellants regarding alleged non-
compliance of Section 50 of the NDPS Act. Section 50 of the Act
provides certain safeguards to an accused person when a
personal search is to be conducted by the authorised officer. Sub-
section (1) of Section 50 requires that when an authorised officer
intends to search any person, he shall inform such person of his
right to be searched before a Gazetted Officer or a Magistrate.
Sub-section (4) of Section 50 further stipulates that no female
shall be searched by anyone excepting a female. The object
behind the said provision is to protect the dignity and privacy of
individuals during personal search. However, the applicability of
Section 50 arises only in cases where the search in question is a
personal search of the body of the accused. In the present case,
the evidence on record clearly demonstrates that the contraband
articles were recovered from the bags and the ladies purse
carried by the accused persons and not from their physical body.
43
The search conducted by the police personnel was therefore
essentially a search of baggage or articles carried by the accused
and not a personal body search.
64. The legal position in this regard has been authoritatively settled
by the Supreme Court. In Madan Lal v. State of Himachal
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.
***
44
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.
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
45
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”
65. 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
be part of the body of a human being.
Depending upon the physical capacity of a
person, he may carry any number of items like
a bag, a briefcase, a suitcase, a tin box, a
thaila, a jhola, a gathri, a holdall, a carton, etc.
of varying size, dimension or weight. However,
while carrying or moving along with them, some
46extra 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
47
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
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
48
(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
be 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.
49
***
(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.”
66. 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.
67. The 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
50
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
attracted where no search of a person is
51involved. 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
52
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
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.”
68. Applying the aforesaid settled legal principles to the facts of the
present case, it becomes manifest that the recovery of the
contraband Codeine-containing cough syrup bottles was not
effected from the physical body of the accused persons but from
the bags and the ladies purse which were being carried by them
at the time of interception. The prosecution witnesses have
consistently deposed that the raiding party, upon intercepting the
appellants, conducted a search of the bags and the purse in their
possession and during such search the contraband bottles were
recovered. The recovery memo prepared at the spot also clearly
indicates that the seized articles were taken out from the
baggage and purse carried by the accused persons and
thereafter sealed and seized in accordance with the prescribed
procedure.
53
69. In view of the authoritative pronouncements of the Supreme
Court, the search of a bag, briefcase, purse or any other
container carried by an accused cannot be equated with a
personal search of the accused. Such articles are separate and
independent from the human body and merely because they are
carried by a person would not bring them within the ambit of the
expression “person” used in Section 50 of the NDPS Act. The
legislative safeguard contemplated under Section 50 is intended
to protect the dignity and privacy of an individual in cases where
the search involves the body of the accused, and the said
protection does not extend to the search of baggage, containers
or other articles which can easily be detached from the person
carrying them.
70. In the present case, the purse carried by the female accused was
taken from her possession and opened for the purpose of search,
and the contraband bottles were recovered from the said purse.
Such search of a purse or bag does not involve touching or
searching the body of the accused and therefore cannot be
construed as a personal search so as to attract the mandatory
requirement under Section 50 of the NDPS Act. Consequently,
the contention raised on behalf of the appellants that the
provisions of Section 50(4) of the NDPS Act were violated, on the
ground that the purse of the female accused was searched
without complying with the said provision, is wholly misconceived
and devoid of merit.
54
71. Thus, in the light of the settled position of law and the evidence
available on record, this Court is of the considered opinion that
the recovery in the present case having been effected from the
bags and purse carried by the accused persons and not from
their physical body, the provisions of Section 50 of the NDPS Act
were not attracted. Accordingly, the alleged non-compliance of
Section 50(4) of the NDPS Act cannot be made a ground to
vitiate the search, seizure or the prosecution case.
72. The next aspect which requires consideration is whether the
prosecution has been able to establish conscious possession of
the contraband substance by the appellants. In this regard, the
learned trial Court has relied upon the testimony of the
investigating officer as well as other members of the raiding party
who have consistently deposed regarding the recovery of the
cough syrup bottles from the possession of the appellants. The
contraband was recovered from the bags and plastic sacks which
were under the control and possession of the appellants at the
spot. Once such possession is established, the statutory
presumptions contained under Sections 35 and 54 of the NDPS
Act come into operation, shifting the burden upon the accused to
explain the circumstances under which the contraband came to
be found in their possession.
73. In the present case, apart from making a bald denial during their
examination under Section 313 Cr.P.C., the appellants have not
55
adduced any evidence whatsoever to rebut the statutory
presumption of conscious possession. The plea of false
implication raised by them remains a mere assertion unsupported
by any material evidence. The defence has also attempted to rely
upon the fact that some independent witnesses have not
supported the prosecution case. However, it is well settled that
merely because independent witnesses have turned hostile, the
testimony of official witnesses cannot be discarded if it is
otherwise reliable and trustworthy.
74. The Supreme Court in Rajesh Dhiman v. State of Himachal
Pradesh, (2020) 10 SCC 740 has clearly held that minor
deficiencies or lapses in investigation cannot be made a ground
to discard otherwise credible prosecution evidence unless such
lapses cause serious prejudice to the accused and observed as
follows :-
“10. The primary issue debated by both sides
concerns the effect of the complainant in the
present case, PW8, also being the investigating
officer. The appellants sought to contend that a
long line of cases, ending with Mohan Lal v.
State of Punjab, (2018) 17 SCC 627 has laid
down the legal proposition that investigation by
the complainant himself would be contrary to
the scheme of the NDPS Act, thus jeopardizing
the entire trial.
11. Suffice to say that the law on this point is no
longer res integra and the controversy, if any,
56has been set at rest by the Constitutional
Bench of this Court in Mukesh Singh (supra).
The earlier position of law which allowed the
solitary ground of the complainant also being
the investigating officer, to become a spring
board for an accused to be catapulted to
acquittal, has been reversed. Instead, it is now
necessary to demonstrate that there has either
been actual bias or there is real likelihood of
bias, with no sweeping presumption being
permissible. It would be worthwhile to extract
the following conclusions drawn in the afore-
cited judgment:
“102. From the above discussion and for the
reasons stated above, we conclude and
answer the reference as under:
I. That the observations of this Court in the
cases of Bhagwan Singh v. State of
Rajasthan, (1976) 1 SCC 15; Megha Singh v.
State of Haryana, (1996) 11 SCC 709; and
State by Inspector of Police, NIB, Tamil Nadu
v. Rajangam, (2010) 15 SCC 369 and the
acquittal of the accused by this Court on the
ground that as the informant and the
investigator was the same, it has vitiated the
trial and the accused is entitled to acquittal
are to be treated to be confined to their own
facts. It cannot be said that in the aforesaid
decisions, this Court laid down any general
proposition of law that in each and every
case where the informant is the investigator
there is a bias caused to the accused and
57the entire prosecution case is to be
disbelieved and the accused is entitled to
acquittal;
II. In a case where the informant himself is
the investigator, by that itself cannot be said
that the investigation is vitiated on the ground
of bias or the like factor. The question of bias
or prejudice would depend upon the facts
and circumstances of each case. Therefore,
merely because the informant is the
investigator, by that itself the investigation
would not suffer the vice of unfairness or bias
and therefore on the sole ground that
informant is the investigator, the accused is
not entitled to acquittal. The matter has to be
decided on a case to case basis. A contrary
decision of this Court in the case of Mohan
Lal v. State of Punjab, (2018) 17 SCC 627
and any other decision taking a contrary view
that the informant cannot be the investigator
and in such a case the accused is entitled to
acquittal are not good law and they are
specifically overruled.” [emphasis supplied]
12. We, therefore, see no reason to draw any
adverse inference against PW8 himself
investigating his complaint. The appellants’
claim of bias stems from the purported delays,
noncompliance of statutory mandates and non-
examination of independent witness. In effect,
the appellants are seeking to circuitously use
the very same arguments which have
individually been held by the High Court to be
58factually incorrect or legally irrelevant. Although
in some cases, certain actions (or lack thereof)
by the Investigating Officer might indicate bias;
but mere deficiencies in investigation or chinks
in the prosecution case can’t be the sole basis
for concluding bias. The appellants have at no
stage claimed that there existed any enmity or
other motive for the police to falsely implicate
them and let the real culprits walk free. Further,
such a huge quantity of charas could not have
been planted against the appellants by the
police on its own.
13. The appellants have creatively sought to
argue that failure of the police to investigate the
alternate theory proffered at the stage of
Section 313 CrPC, has caused serious
prejudice to them and that reason alone is
sufficient not to hold them guilty ‘beyond
reasonable doubt’. They have explicitly relied
upon Paras 3.19 and 3.20 of Mukesh Singh
(supra), which we deem appropriate to extract
as follows:-
“3.19. If the defence of the accused is not
properly investigated to rule out all other
possibilities, it cannot ever be said that the
prosecution has established the guilt “beyond
reasonable doubt”. A tainted investigation by
a complaint who is a “witness” himself to a
substantial ingredient of an offence, would in
fact give rise to a “doubt” and it is impossible
that the case can be established on the
parameter of “beyond reasonable doubt”;
59
3.20. A person accused of criminal offence
punishable with a peril to his life or liberty,
enjoys certain rights under the Constitution
or through long standing development of
criminal jurisprudence. Any action which
impinges or affects those rights would be
said to cause “prejudice to an accused”. That
in the case of Rafiq Ahmad v. State of U.P.,
(2011) 8 SCC 300, it is observed and held
that prejudice to an accused or failure of
justice has to be examined with reference to
(i) right to fair trial (ii) presumption of
innocence until pronouncement of guilt and
(iii) the standards of proof. It is observed in
the said decision that whenever a plea of
prejudice is raised by the accused, it must be
examined with reference to the above rights
and safeguards, as it is the violation of these
rights alone that may result in the weakening
of the case of the prosecution and benefit to
the accused in accordance with law;”
14. At the outset, we may clarify that the
observations relied upon by the appellants, are
not findings, conclusion or resolution by this
Court in Mukesh Singh (supra). Instead, a
perusal of the judgment shows that it was a
contention put forth by one of the parties which
the Bench eventually disagreed with. Further,
not only the alternative version projected by the
appellants is vague and improbable, but it
escapes our comprehension how non
investigation of a defence theory disclosed only
at an advanced stage of trial, could indicate
60
bias on part of the police.”
75. Reverting to the facts of the present case in the light of the
aforesaid ruling rendered by the Hon’ble Supreme Court, it
becomes evident that the defence has failed to demonstrate that
any alleged irregularity or deficiency in the investigation has
caused prejudice to the appellants or has in any manner affected
the fairness of the trial. The appellants have not been able to
point out any material circumstance indicating that the
investigation was conducted in a biased or unfair manner or that
the investigating officer had any motive to falsely implicate them
in the present case. Mere bald allegations regarding procedural
lapses, without substantiating the same with cogent material,
cannot be made a ground to discard the otherwise reliable and
consistent evidence adduced by the prosecution.
76. In the case at hand, the prosecution witnesses, particularly the
members of the raiding party and the investigating officer, have
consistently and cogently deposed regarding the manner in which
the appellants were intercepted and the contraband cough syrup
bottles were recovered from the bags and plastic sacks in their
possession. Their testimonies remain unshaken on material
particulars and nothing substantial has been elicited during cross-
examination so as to discredit their version. The seizure of the
contraband articles has also been duly supported by the
contemporaneous documentary evidence, including the seizure
memo and the sealing procedure adopted at the spot. The
61
samples drawn from the seized bottles were subsequently sent to
the Forensic Science Laboratory and the report received
therefrom confirms that the seized articles contained Codeine in
commercial quantity.
77. Furthermore, once the possession of the contraband substance
by the appellants stands established from the evidence on
record, the statutory presumptions contained under Sections 35
and 54 of the NDPS Act automatically come into operation. These
provisions cast a burden upon the accused to satisfactorily
explain the circumstances under which the contraband came to
be found in their possession. However, in the present case, the
appellants have not produced any material evidence to rebut the
said presumption. Their defence is confined merely to a denial of
the prosecution allegations, which by itself is insufficient to
dislodge the presumption of conscious possession arising under
the statute.
78. It is also noteworthy that the appellants have not set up any
plausible alternative version of events nor have they suggested
any circumstance which would probabilise the theory of false
implication. In the absence of any such explanation, and having
regard to the consistent testimony of the prosecution witnesses
coupled with the documentary evidence on record, this Court
finds no reason to disbelieve the prosecution case. Consequently,
the contention of the appellants that the alleged irregularities in
62
investigation have vitiated the prosecution case is liable to be
rejected.
79. Accordingly, this Court is of the considered opinion that the
prosecution has been able to establish beyond reasonable doubt
that the appellants were in conscious possession of the
contraband cough syrup bottles recovered from the bags and
sacks in their possession, and the statutory presumptions under
Sections 35 and 54 of the NDPS Act remain unrebutted. The
findings recorded by the learned trial Court in this regard,
therefore, do not warrant any interference.
80. Having considered the entire evidence available on record in its
proper perspective and after carefully scrutinizing the depositions
of the prosecution witnesses along with the documentary
evidence adduced during the course of trial, this Court is of the
considered opinion that the prosecution has been able to
successfully establish that the appellants were found to be in joint
as well as conscious possession of Codeine-containing cough
syrup bottles. The record clearly demonstrates that a total of 175
bottles of cough syrup were recovered from the possession of the
appellants, each bottle containing 100 ml of liquid, thereby
making the total quantity 17,500 ml. The evidence of the
prosecution witnesses, particularly the members of the raiding
party including PW-10 Sub-Inspector Bharat Lal Rathore, coupled
with the seizure memo prepared at the spot, clearly establishes
63
that the contraband bottles were recovered from the bags and the
ladies purse carried by the appellants. The seized articles were
duly sealed at the spot, samples were drawn in accordance with
the procedure and the same were forwarded for examination
through proper channel. The report of the Drug Inspector as well
as the chemical analysis report of the Regional Forensic Science
Laboratory conclusively confirms that the seized bottles
contained Codeine Phosphate and Chlorpheniramine Maleate,
thereby establishing the presence of narcotic substance. When
the quantity so recovered is taken into consideration, it clearly
falls within the category of “commercial quantity” as defined under
the NDPS Act. Thus, the oral evidence of the prosecution
witnesses, the seizure proceedings and the scientific reports
placed on record collectively establish the prosecution case
beyond reasonable doubt.
81. It is also necessary to address the submission raised on behalf of
the appellants regarding the alleged irregularity in forwarding the
seized samples for chemical examination. The defence has
attempted to suggest that the prosecution has not satisfactorily
explained the dispatch of the sealed samples to the Forensic
Science Laboratory and therefore the possibility of tampering
cannot be ruled out. However, upon a careful examination of the
record, this Court finds that the said contention is devoid of
substance.
64
82. A perusal of the cross-examination of PW-10 Sub-Inspector
Bharat Lal Rathore clearly reveals that no specific question has
been put to him by the defence with regard to the exact timing of
dispatch of the sealed samples to the Forensic Science
Laboratory or regarding any alleged delay in sending the same.
The defence has also not confronted the witness with any
suggestion that the sealed packets were tampered with at any
stage or that the seals were not intact when the samples reached
the laboratory. In the absence of any such specific challenge
during cross-examination, the prosecution version regarding the
proper handling and forwarding of the seized samples remains
unshaken.
83. In this context, it would be appropriate to refer to Rule 13 of the
Narcotic Drugs and Psychotropic Substances (Seizure, Storage,
Sampling and Disposal) Rules, 2022, which governs the
procedure relating to dispatch of samples for testing. Rule 13(1)
specifically provides that the samples, after being certified by the
Magistrate, shall be sent directly to any one of the jurisdictional
laboratories of the Central Revenue Control Laboratory, the
Central Forensic Science Laboratory or the State Forensic
Science Laboratory, as the case may be, for chemical analysis
without any delay. The legislative intent behind the said provision
is to ensure that the integrity of the seized samples is preserved
and that the possibility of tampering is eliminated. The rule
emphasises prompt dispatch of the samples to the designated
65
laboratory so that the chemical analysis may be carried out
expeditiously.
84. In the present case, the material available on record clearly
demonstrates that the seized samples were duly sealed and
forwarded through proper channel to the competent authorities
for examination. Initially, the samples were forwarded to the
Office of the Drug Inspector, Food and Drug Administration,
Bilaspur, where they were examined and thereafter resealed.
Subsequently, the sealed samples were sent to the Regional
Forensic Science Laboratory, Bilaspur for detailed chemical
examination. The report of the Forensic Science Laboratory,
which forms part of the record, clearly records that the seals
found on the sample packets were intact and that the same tallied
with the specimen seal forwarded along with the samples. This
clearly indicates that the chain of custody of the seized articles
remained intact and there was no tampering with the sealed
samples at any stage.
85. Significantly, during the course of trial, the defence did not
specifically question PW-10 Sub-Inspector Bharat Lal Rathore or
any other prosecution witness regarding alleged non-compliance
of Rule 13 of the NDPS Rules, 2022 or regarding any delay in
dispatching the samples to the forensic laboratory. No suggestion
was put to the witnesses that the samples were not sent promptly
or that the statutory procedure governing the dispatch of samples
66
was violated. In criminal trials, cross-examination is the most
effective method available to the defence to challenge the
credibility of prosecution witnesses and to expose any irregularity
in the investigation. When the defence has not chosen to confront
the witnesses on such crucial aspects during cross-examination,
it cannot subsequently be permitted to raise such a contention at
the appellate stage merely by way of argument.
86. It is well settled that unless a specific challenge is put to the
prosecution witnesses during cross-examination, the defence
cannot later contend that the evidence regarding a particular fact
should be disbelieved. In the present case, the defence having
failed to question the investigating officer regarding the timing of
dispatch of the sealed packets or the alleged violation of Rule 13
of the NDPS Rules, the appellants cannot now derive any benefit
from such an argument. The record rather indicates that the
seized samples were properly sealed, preserved and forwarded
to the competent laboratory where the seals were found intact
and the samples were duly analysed.
87. In view of the foregoing discussion and the material available on
record, this Court does not find any infirmity, illegality or
perversity in the findings recorded by the learned Special Judge
(NDPS Act), Bilaspur in the impugned judgment. The learned trial
Court has meticulously appreciated the oral as well as
documentary evidence available on record and has rightly arrived
67
at the conclusion that the appellants were found to be in
conscious possession of the contraband substance in violation of
the provisions of the NDPS Act. The learned trial Court has also
correctly invoked the statutory presumptions available under
Sections 35 and 54 of the NDPS Act. Once the possession of the
contraband substance was established, the burden shifted upon
the appellants to explain that such possession was not
conscious. However, the appellants have failed to discharge the
said burden and have not adduced any evidence whatsoever to
rebut the statutory presumption.
88. Consequently, upon an overall appreciation of the entire evidence
available on record, this Court is of the considered opinion that
the prosecution has been able to prove its case against the
appellants beyond reasonable doubt. The evidence led by the
prosecution, both oral as well as documentary, clearly establishes
that the appellants were found to be in conscious and joint
possession of Codeine-containing cough syrup bottles in a
quantity which falls within the category of commercial quantity
under the provisions of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
89. The seizure proceedings conducted at the spot, the testimony of
the members of the raiding party, the deposition of the
Investigating Officer, the report of the Drug Inspector as well as
the chemical analysis report of the Regional Forensic Science
68
Laboratory collectively form a complete chain of evidence which
conclusively proves the recovery and nature of the contraband
substance. Once such possession was established, the statutory
presumptions contained under Sections 35 and 54 of the NDPS
Act came into operation, shifting the burden upon the appellants
to rebut the presumption of conscious possession. However, the
appellants have failed to discharge the said burden and have not
placed any material on record to probabilise their defence or to
create any dent in the prosecution case.
90. The submissions advanced on behalf of the appellants, including
the alleged procedural irregularities in search, seizure and
investigation, have been carefully examined by this Court, but the
same do not create any reasonable doubt regarding the
authenticity or credibility of the prosecution case. The evidence
on record clearly establishes the guilt of the appellants and
inspires full confidence of this Court.
91. Minor discrepancies or omissions pointed out by the defence are
not of such nature as to affect the core of the prosecution case or
to discredit the otherwise cogent and reliable testimony of the
prosecution witnesses. On the contrary, the learned trial Court
has meticulously analysed the entire evidence placed before it
and has recorded well-reasoned findings after proper
appreciation of the material available on record and correct
application of the relevant provisions of law.
69
92. This Court, therefore, finds that the conclusions arrived at by the
learned Special Judge (NDPS Act), Bilaspur are fully supported
by the evidence on record and do not suffer from any illegality,
perversity or material irregularity warranting interference in
appellate jurisdiction. The conviction of the appellants for the
offence punishable under Section 21(C) of the Narcotic Drugs
and Psychotropic Substances Act, 1985 and the sentence
imposed upon them are thus found to be justified and in
accordance with law. Accordingly, no ground is made out for
interference with the impugned judgment of conviction and order
of sentence passed by the learned trial Court in the present
criminal appeals.
93. As a result, this Court does not find any merit in the present
criminal appeals. The impugned judgment of conviction and order
of sentence dated 30.01.2025 passed by the learned Special
Judge (NDPS Act), Bilaspur in Special Sessions (NDPS) Case
No.124/2023 is hereby affirmed. Consequently, all the criminal
appeals being CRA No.559/2025, CRA No.460/2025 and CRA
No.829/2025, stand dismissed.
94. It has been brought to the notice of this Court that the appellant in
CRA No.559/2025 has already surrendered before the competent
authority and is presently lodged in jail. It is further reported that
the appellants in CRA No.460/2025 have been in judicial custody
since 13.09.2023, whereas the appellant in CRA No.829/2025
70
has been in custody since 14.09.2023 in connection with the
present case.
95. In view of the dismissal of the present criminal appeals and
affirmation of the impugned judgment of conviction and order of
sentence passed by the learned Special Judge (NDPS Act),
Bilaspur, the appellants shall continue to remain in custody and
shall serve out the remaining part of the sentence as awarded to
them by the learned trial Court.
96. The Registry is directed to forthwith transmit a copy of this
judgment to the concerned Superintendent of Jail where the
appellants are presently lodged and undergoing their jail
sentence. Upon receipt of the same, the Superintendent of Jail
shall ensure that a copy of this judgment is duly served upon
each of the appellants and its contents are properly explained to
them in a language known to them. The appellants shall also be
informed that they are at liberty to challenge the present
judgment before the Hon’ble Supreme Court of India by preferring
an appeal in accordance with law, and that in case they are
unable to engage a private counsel, they may avail free legal
assistance through the High Court Legal Services Committee or
the Supreme Court Legal Services Committee for the purpose of
filing such appeal. The Superintendent of Jail shall extend
necessary assistance to the appellants in this regard, if so
required.
71
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
72
Head Note
Section 50 of the NDPS Act applies only to the personal search of a
person and not to the search of a vehicle, bag, container or premises;
therefore, plea of non-compliance with Section 50 would be untenable.
Likewise, mere delay in forwarding samples to the Forensic Science
Laboratory or their routing through another authority, even with
reference to the procedure contemplated under Section 52A of the
NDPS Act read with Rule 13 of the NDPS (Seizure, Storage, Sampling
and Disposal) Rules, 2022, does not by itself vitiate the prosecution
case when safe custody of the seized contraband and link evidence are
duly established, and thus it cannot be a ground for acquittal.