Chattisgarh High Court
Yashwant Kumar Vapche vs State Of Chhattisgarh on 27 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
CGHC010489232025 2026:CGHC:31937-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 2443 of 2025
1 - Yashwant Kumar Vapche S/o Indraram Vapche Aged About 53 Years R/o
Village Gohra Ps Baihar Distt. Balaghat ( Madhya Pradesh )
2 - Bharat Kumar Dhiwar S/o Shri Raghunath Dhiwar Aged About 27 Years
Village Dindayal Colony House No. 310 Mangla Ps Civil Line Distt. Bilaspur
(C.G.)
... Appellants
versus
State Of Chhattisgarh Through Station House Officer, P.S. Singhoda, Distt.
Mahasamund (Chhattisgarh)
... Respondent
(Cause title taken from Case Information System)
For Appellants : Mr. Dheerendra Pandey, Advocate.
For Respondent/State : Mr. Jitendra Shrivastava, Govt. Advocate
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
27/07/2026
1. The present appeal has been listed for consideration of I.A. No. 1 of
VED
PRAKASH
DEWANGAN
2025, which is the application for suspension of sentence and grant of
Digitally signed
by VED
PRAKASH
DEWANGAN
bail, however considering the fact that the appellants are in jail since
Date: 2026.07.30
10:51:00 +0530
2
02.10.2019, with the consent of the parties, the appeal itself is being
heard finally. Accordingly, I.A. No. 1 of 2025 is disposed of.
2. The present appeal has been filed by the appellants under Section
415(2) of the Bhartiya Nagarik Suraksha Sanhita, 2023 against the
impugned judgment of conviction and sentence dated 06.11.2025,
passed by learned Special Judge (NDPS), Saraipali, District
Mahasamund (C.G.), in Special Criminal Case No. 3 of 2020, whereby
the appellants are convicted for the offence under Section 20(b)(ii)(C)
and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(hereinafter referred to as “the NDPS Act“) and sentenced him for R.I.
for 15-15 years with fine of Rs. 1,00,000-1,00,000/-, in default of
payment of fine additional R.I. for 1-1 year to each of the appellants.
3. Brief facts of the case are that, on 02.10.2019, for suspected vehicle
checking, the police party of police station Singhoda proceeded
towards main road near Riyaz Dhaba. While vehicle checking, they
stopped Hyundai Accent Car bearing No. CG 04 HA 7921. the driver
disclosed his name as Yashwant Kumar Vapche and the co-passenger
as Bharat Kumar Dhiwar. On being interrogation, they disclosed that
they are transporting ganja from Bargadh to Bilaspur. On being
checking, from the dickey of said car, total 102 packets wrapped with
plastic tape was recovered in which ganja like substance were found.
The recovery of ganja was informed to the SDOP Saraipali and
panchnama (exhibit P-6) was prepared. Notice under Section 50 of the
NDPS Act (exhibit P-7 and P-8) was given to the accused persons and
then they gave their consent to be searched by the police officials and
3
panchnama (exhibit P-9) was prepared. The police and the
independent witnesses gave their own search to the accused persons
and relevant panchnama (exhibit P-10 and P-11) were prepared.
Recovery panchnama (exhibit P-12) was prepared. Notice under
Section 91 of CRPC (exhibit P-30 and P-31) was also given to the
accused persons, but they could not produce any document of its valid
possession. The contents of the packets were physically identified by
rubbing, smelling and taste and physical identification panchnama
(exhibit P-14). The said ganja was seized vide seizure memo (exhibit
P-13).
4. The seized ganja was homogenized on the spot and homogenization
panchnama (exhibit P-15) was prepared. Two samples of 100 gram
each was separated and the samples were marked as A-1 and A-2 and
it was sealed. On being weighed, the total quantity of ganja was found
to be 102 KG and weighment panchnama (exhibit P-4) was prepared.
Seizure memo (exhibit P-18) was prepared, the accused persons were
arrested and their arrest have been informed to their family members.
The police party, seized ganja and other articles along with the
accused persons came to police station, where the FIR (exhibit P-37)
was registered against the accused persons for the offence under
Section 20(b) of NDPS Act. the seized ganja and other articles were
kept in safe custody of malkhana of police station and obtained
acknowledgment (exhibit P-26). The details of the proceedings have
been recorded in rojnamcha (exhibit P-36). The details of the
proceedings were also forwarded to the SDOP Saraipali through the
4
document (exhibit P-22). The sample packets of seized ganja along
with the memo of Superintendent of Police, Mahasamund were sent for
its chemical examination to the State FSL Raipur and obtained
acknowledgment (exhibit P-24A) from where the report (exhibit P-38)
was received and ganja contents were found in the sent articles. Spot
map (exhibit P-1) and panchnama (exhibit P-2) were prepared by the
patwari. The ownership details of the seized car No. CG 04 HA 7921
was also obtained from RTO Raipur, which is exhibit P-41 and the
accused Yashwant Vapche was found to be owner of the said vehicle.
The inventory was also conducted by the Executive Magistrate and
physical verification panchnama (exhibit P-23A) and contraband
identification panchnama (exhibit P-44) and inventory (exhibit P-45)
were prepared. The verification report of the Executive Magistrate is
exhibit P-24 and the photographs are exhibit P-25. A memo (exhibit P-
43) was also sent to the Superintendent of Police for initiation of
confiscation proceedings of the seized car. Statement of the witnesses
have been recorded and after completion of usual investigation, charge
sheet was filed against the accused persons before the learned trial
Court for the offence under Section 20(b) of NDPS Act.
5. The learned trial Court has framed charge against the accused persons
for the offence under Sections 20(b)(ii)(C) and 29 of the NDPS Act. The
accused persons abjured their guilt and claimed trial.
6. In order to establish the charge against the accused persons, the
prosecution has examined as many as 13 witnesses. Statements of the
accused persons under Section 313 of the CRPC have also been
5
recorded, in which they denied the circumstance appears against
them, pleaded innocence and have submitted that they have been
falsely implicated in the offence.
7. After appreciation of oral as well as documentary evidence led by the
prosecution the learned trial Court has convicted the accused persons
and sentenced them as mentioned in the earlier part of this judgment.
Hence this appeal.
8. Learned counsel for the appellants would submit that, the prosecution
has failed to prove its case beyond reasonable doubt. There are
material omissions and contradictions in the evidence of prosecution
witnesses which cannot be made basis to convict the appellants for the
alleged offence. There are non-compliance of the mandatory provisions
of Section 42, 50, 52, 52-A, 55 and 57 of the NDPS Act. There is
absolutely non-compliance of the Standing Order of 1/89 issued by the
Central Government with respect to the procedure for drawing of the
samples and in absence of any proper procedure for drawing the
samples, the entire procedure vitiates. Therefore, the appellants cannot
be convicted for the alleged offence. The independent witnesses have
not supported the prosecution case. There are material irregularity in
the search and seizure proceedings and there are major discrepancy in
the evidence of the investigating officer. There is no evidence, as to
when the sample packets were taken out from the malkhana for
sending it to FSL and when the sample packets were received back.
There is no relevant entries made in the register for the same. He
would also submit that the inventory was conducted by the Executive
6
Magistrate and not by the Judicial Magistrate. No specimen seal was
sent along with the sample packets of ganja to the FSL and the
prosecution has failed to prove that the sample packets of ganja were
intact from the date of its seizure till reaching to the FSL. The evidence
produced by the prosecution are inconsistent on the material point of
allegation and are not sufficient to hold them guilty for the alleged
offence under the NDPS Act. Therefore, the impugned judgment of
conviction and sentence may be set aside and the appellants may be
acquitted from the alleged offences.
9. On the other hand, learned counsel for the State opposes and have
submitted that the entire procedure as prescribed under the NDPS Act
has been followed in its letter and spirit and after considering the
evidence available on record, the learned trial Court has rightly
convicted and sentenced the appellants for the alleged offence. The
appellants were found in possession of the vehicle, in which the huge
quantity of Ganja i.e. 102 KG of cannabis (Ganja) was being found
transported by the appellants and there has been no explanation
offered by the appellants, as to how they came into the possession of
such a huge quantity of cannabis (Ganja) in their vehicle. All the
mandatory provisions have been duly complied with, therefore, there is
no irregularity or infirmity in the impugned judgment passed by learned
trial Court and the appeal of the appellants is liable to be dismissed.
10. We have heard learned counsel for the parties and perused the record
of the trial Court with utmost circumspection.
7
11. PW-12 Ashok Yadav, the then Station House Officer of Police Station
Singhoda, deposed that on 02.10.2019 he, along with the police party,
proceeded for vehicle checking near Riyaz Dhaba after making the
requisite rojnamcha entry (exhibit P-29). During checking, a Hyundai
Accent Car bearing registration No. CG-04-HA-7921 was intercepted.
The driver identified himself as Yashwant Kumar Vapche and the co-
passenger as Bharat Kumar Dhiwar, who, upon interrogation, disclosed
that they were transporting ganja from Bargarh to Bilaspur. On
searching the dickey of the vehicle, 102 packets wrapped with plastic
tape containing ganja-like substance were recovered. He informed the
SDOP, Saraipali through written intimation (exhibit P-21A), prepared
the vehicle checking panchnama (exhibit P-6), served notices under
Section 50 of the NDPS Act (exhibit P-7 and P-8), obtained the
accused persons’ consent for search (exhibit P-9), conducted the
personal search of the police personnel and witnesses (exhibit P-10
and P-11), prepared the search panchnama (exhibit P-12) recording
the recovery, and also served notices under Section 91 CrPC (exhibit
P-30 and P-31). He further stated that the seized contraband was
identified and seized under panchnamas (exhibit P-13 and P-14).
Thereafter, all 102 packets were homogenized, two representative
samples of 100 grams each were drawn, marked A-1 and A-2, sealed,
and the relevant panchnamas (exhibit P-16 and P-17) were prepared.
On weighment, the total quantity, including the sample packets, was
found to be 102 kilograms (exhibit P-4), following which the contraband
was seized vide exhibit P-18 and both accused persons were arrested.
After returning to the police station, the seized property was deposited
8
in the malkhana (exhibit P-26), the proceedings were entered in the
rojnamcha, and FIR No. 122/2019 (exhibit P-37) was registered. The
sealed samples were subsequently sent to the State FSL, Raipur,
where the FSL Report (exhibit P-38) confirmed the presence of ganja.
He also stated that he obtained the ownership details of the vehicle,
initiated proceedings under Section 52-A of the NDPS Act for inventory
and certification of the seized contraband, and completed the
investigation by recording the statements of the prosecution witnesses.
******* In his cross-examination, he admitted that the departure and
return of the police party were duly recorded in the rojnamcha and that
the police party had left the police station at about 2:30 p.m. and
returned after completion of the proceedings. He stated that the place
of occurrence was situated near Riyaz Dhaba on a busy National
Highway and explained that independent witnesses were summoned
through a police constable. Although he admitted that no separate
document was available regarding the mode of travel of the constables
deputed to inform the SDOP and summon the witnesses, he
consistently maintained that the information regarding the recovery of
contraband was promptly communicated to the SDOP through exhibit
P-21A and that all proceedings were conducted at the spot. He further
clarified that the vehicle checking panchnama (exhibit P-6) was
prepared during the course of vehicle checking itself and denied the
suggestion that the proceedings were fabricated or conducted at the
police station. He further admitted that the accused persons were not
physically taken before a Magistrate or a Gazetted Officer; however, he
9
categorically stated that prior to the search they were informed of their
legal right under Section 50 of the NDPS Act and, after being apprised
of such right, they voluntarily consented to be searched by him,
whereupon the requisite notices and consent panchnama were
prepared. He also admitted certain omissions in the panchnamas and
other documents regarding the description of the vehicle, the seal
sample and certain procedural details. Nevertheless, he consistently
asserted that 102 packets containing ganja were recovered from the
dickey of the Hyundai Accent car, the contraband was duly seized,
homogenized, sampled and sealed in accordance with the procedure
followed during investigation, and the sealed samples were forwarded
to the FSL, which confirmed the presence of ganja. Despite detailed
cross-examination, no material contradiction or inconsistency could be
elicited so as to discredit the core prosecution case regarding the
recovery of the contraband from the possession of the accused
persons, and he firmly denied the defence suggestion of false
implication.
12. Section 43 of the NDPS Act provides the powers of seizure and arrest
in public place which towards as under:
“43. Power of seizure and arrest in public
place- Any officer of any of the departments
mentioned in section 42 may:-
(a) seize in any public place or in transit,
any narcotic drug or psychotropic
substance or controlled substance in
respect of which he has reason to believe
10an offence punishable under this Act has
been committed, and, along with such drug
or substance, any animal or conveyance or
article liable to confiscation under this Act,
any document or other article which he has
reason to believe may furnish evidence of
the commission of an offence punishable
under this Act or any document or other
article which may furnish evidence of
holding any illegally acquired property
which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he
has reason to believe to have committed an
offence punishable under this Act, and if
such person has any narcotic drug or
psychotropic substance or controlled
substance in his possession and such
possession appears to him to be unlawful,
arrest him and any other person in his
company.
Explanation- For the purposes of this section, the
expression public place” includes any public
conveyance, hotel, shop, or other place intended
for use by, or accessible to, the public.
13. From the evidence available on record, it is evident that the accused
persons were intercepted while travelling in a Hyundai Accent Car near
Riyaz Dhaba on the National Highway during routine vehicle checking.
The contraband, namely 102 kilograms of cannabis (ganja), was
recovered from the dickey of the vehicle at a public place while it was
11
in transit. The prosecution case does not disclose that the police party
had any prior secret information regarding the transportation of the
contraband; rather, the recovery was effected during a chance
interception in the course of routine vehicle checking. In such
circumstances, the search and seizure are governed by the provisions
of Section 43 of the NDPS Act, which deals with seizure and arrest
made in a public place, and not by Section 42 of the NDPS Act. In view
of the Explanation appended to Section 43, the requirement of
compliance with Section 42 has no application to the facts of the
present case. Accordingly, the contention of the appellants regarding
non-compliance of Section 42 of the NDPS Act is devoid of merit and
deserves to be rejected.
14. The contraband was recovered and seized while it was being
transported in a Hyundai Accent Car on a public road. The recovery
was thus effected from a vehicle in transit at a public place during
routine vehicle checking. Such a search and seizure squarely falls
within the ambit of Section 43(a) of the NDPS Act, which empowers the
authorized officer to seize any narcotic drug or psychotropic substance
found in any public place or in transit. Consequently, the provisions of
Section 43 of the NDPS Act govern the present case, and not Section
42. Therefore, the statutory requirement under Section 42 regarding
recording the reasons for belief and reducing into writing any prior
information received before conducting the search and seizure is
inapplicable to the facts of the present case.
15. In the matter of Firdoskhan Khurshidkhan vs. State of Gujarat and
12
Another dated 30.04.2024 reported in 2024 SCC OnLine SC 680 has
held in para 18 as under:
“18. Section 42 of the NDPS Act deals with search
and seizure from a building, conveyance or
enclosed place. When the search and seizure is
effected from a public place, the provisions of
Section 43 of the NDPS Act would apply and
hence, there is no merit in the contention of
learned counsel for the appellants that non-
compliance of the requirement of Section 42(2)
vitiates the search and seizure. Hence, the said
contention is noted to be rejected.”
16. In the matter of State of Haryana vs. Jarnail Singh and Others
reported in 2004 (5) SCC 188 in Para 9 and 10 of its judgment the
Hon’ble Supreme Court has held that:
“9. Sections 42 and 43, therefore, contemplate
two different situations. Section 42 contemplates
entry into and search of any building, conveyance
or enclosed place, while Section 43 contemplates
a seizure made in any public place or in transit. If
seizure is made under Section 42 between sunset
and sunrise, the requirement of the proviso
thereto has to be complied with. There is no such
proviso in Section 43 of the Act and, therefore, it
is obvious that if a public conveyance is searched
in a public place, the officer making the search is
not required to record his satisfaction as
contemplated by the proviso to Section 42 of the
NDPS Act for searching the vehicle between
sunset and the sunrise.
13
10. In the instant case there is no dispute that the
tanker was moving on the public highway when it
was stopped and searched. Section 43 therefore
clearly applied to the facts of this case. Such
being the factual position there was no
requirement of the officer conducting the search to
record the grounds of his belief as contemplated
by the proviso to Section 42. Moreover it cannot
be lost sight of that the Superintendent of Police
was also a member of the searching party. It has
been held by this Court in M. Prabhulal vs.
Assistant Director, Directorate of Revenue
Intelligence : (2003) 8 SCC 449 that where a
search is conducted by a gazetted officer himself
acting under Section 41 of the NDPS Act, it was
not necessary to comply with the requirement of
Section 42. For this reason also, in the facts of
this case, it was not necessary to comply with the
requirement of the proviso to Section 42 of the
NDPS Act.”
17. In the matter of Kallu Khan vs. State of Rajasthan reported in 2021
(19) SCC 197 in Para 12, 13 and 16 of its judgment the Hon’ble
Supreme Court has held that:
“12. After hearing and on perusal of record and
the evidence brought, it is apparent that on
apprehending the accused, while making search
of the motor cycle, 900 gm of smack was seized
to which seizure and sample memos were
prepared, as proved by the departmental
witnesses. In the facts of the case at hand, where
the search and seizure was made from the
vehicle used, by way of chance recovery from
14public road, the provisions of Section 43 of the
NDPS Act would apply. In this regard, the
guidance may be taken from the judgments of this
Court in S. K. Raju (supra) and S.K. Sakkar
(supra). However, the recovery made by Pranveer
Singh (PW6) cannot be doubted in the facts of
this case.
13. Now reverting to the contention that the motor
cycle seized in commission of offence does not
belong to accused, however seizure of the
contraband from the motor cycle cannot be
connected to prove the guilt of accused. The Trial
Court on appraisal of the testimony of witnesses,
Constable Preetam Singh (PW1), Constable
Sardar Singh (PW2), S.I. Pranveer Singh (PW6)
and Constable Rajendra Prasad (PW8), who were
members of the patrolling team and the witnesses
of the seizure, proved beyond reasonable doubt,
when they were on patrolling, the appellant came
driving the seized vehicle from opposite side. On
seeing the police vehicle, he had taken back the
motor cycle which he was riding. However, the
police team apprehended and intercepted the
accused and made the search of vehicle, in which
the seized contraband smack was found beneath
the seat of the vehicle. However, while making
search at public place, the contraband was seized
from the motor cycle driven by the accused. Thus,
recovery of the contraband from the motor cycle
of the appellant was a chance recovery on a
public road. As per Section 43 of NDPS Act, any
officer of any of the departments, specified in
Section 42, is having power of seizure and arrest
of the accused from a public place, or in transit of
15any narcotic drug or psychotropic substance or
controlled substance. The said officer may detain
in search any person whom he has reason to
believe that he has committed an offence
punishable under the provisions of the NDPS Act,
in case the possession of the narcotic drug or
psychotropic substance appears to be unlawful.
Learned senior counsel representing the appellant
is unable to show any deficiency in following the
procedure or perversity to the findings recorded
by the Trial Court, affirmed by the High Court. The
seizure of the motor cycle from him is proved
beyond reasonable doubt, therefore, the question
of ownership of vehicle is not relevant. In the
similar set of facts, in the case of Rizwan Khan
(supra), this Court observed the ownership of the
vehicle is immaterial. Therefore, the argument as
advanced by learned senior counsel is of no
substance and meritless.”
18. The next submission of the learned counsel for the appellants that
Section 50 of NDPS Act has also not been complied with as the right to
the appellants about their search have not been informed by the police
authority as provided under Section 50 of the NDPS Act. The
provisions of Section 50 is applicable to the personal search of the
accused persons, whereas in the present case the cannabis (Ganja)
was recovered from the vehicle belongs to the accused persons, which
cannot said to be their personal search. The search of a vehicle does
not comes under the requirement of Section 50 of the NDPS Act and
search of a person is distinguished from search of any vehicle etc.
16
19. In the matter of Kallu Khan (supra) the Hon’ble Supreme Court has
also considered the applicability of Section 50 of NDPS Act in search of
the vehicle. In Para 16, the Hon’ble Supreme Court has held that:
“16. Simultaneously, the arguments advanced by
the appellant regarding non−compliance of
Section 50 of NDPS Act is bereft of any merit
because no recovery of contraband from the
person of the accused has been made to which
compliance of the provision of Section 50 NDPS
Act has to follow mandatorily. In the present case,
in the search of motor cycle at public place, the
seizure of contraband was made, as revealed.
Therefore, compliance of Section 50 does not
attract in the present case. It is settled in the case
of Vijaysinh (supra) that in the case of personal
search only, the provisions of Section 50 of the
Act is required to be complied with but not in the
case of vehicle as in the present case, following
the judgments of Surinder Kumar (supra) and
Baljinder Singh (supra). Considering the facts of
this Court, the argument of non−compliance of
Section 50 of NDPS Act advanced by the counsel
is hereby repelled.”
20. In the matter of State of Punjab vs. Baldev Singh reported in 1999 (6)
SCC 172 in Para 12 of its judgment the Hon’ble Supreme Court has
held:
“12. On its plain reading, Section 50 would come
into play only in the case of a search of a person
as distinguished from search of any premises etc.
However, if the empowered officer, without any
17prior information as contemplated by Section 42
of the Act makes a search or causes arrest of
person during the normal course of investigation
into an offence or suspected offence and on
completion of that search, a contraband under the
NDPS Act is also recovered, the requirements of
Section 50 of the Act are not attracted.”
21. In the matter of Kulwinder Singh and Another vs. State of Punjab
reported in 2015 (6) SCC 674 in Para 18 and 21 of its judgment the
Hon’ble Supreme Court has held that:
“18. In Dharampal Singh v. State of Punjab, it has
been ruled that the expression “possession” is not
capable of precise and complete logical definition
of universal application in the context of all the
statutes. Recently, in Mohan Lal v. State of
Rajasthan11, after referring to certain authorities,
this Court has held as follows:-
“21. From the aforesaid exposition of law it
is quite vivid that the term “possession” for
the purpose of Section 18 of the NDPS Act
could mean physical possession with
animus, custody or dominion over the
prohibited substance with animus or even
exercise of dominion and control as a result
of concealment. The animus and the mental
intent which is the primary and significant
element to show and establish possession.
Further, personal knowledge as to the
existence of the “chattel” i.e. the illegal
substance at a particular location or site, at
a relevant time and the intention based
18upon the knowledge, would constitute the
unique relationship and manifest
possession. In such a situation, presence
and existence of possession could be
justified, for the intention is to exercise right
over the substance or the chattel and to act
as the owner to the exclusion of others.
22. In the case at hand, the appellant, we
hold, had the requisite degree of control
when, even if the said narcotic substance
was not within his physical control at that
moment. To give an example, a person can
conceal prohibited narcotic substance in a
property and move out thereafter. The said
person because of necessary animus would
be in possession of the said substance
even if he is not, at the moment, in physical
control. The situation cannot be viewed
differently when a person conceals and
hides the prohibited narcotic substance in a
public space. In the second category of
cases, the person would be in possession
because he has the necessary animus and
the intention to retain control and
dominion.”
21. In State of H.P. v. Pawan Kumar, it has been
held that:
“10. We are not concerned here with the
wide definition of the word “person”, which in
the legal world includes corporations,
associations or body of individuals as
factually in these type of cases search of
19their premises can be done and not of their
person. Having regard to the scheme of the
Act and the context in which it has been
used in the section it naturally means a
human being or a living individual unit and
not an artificial person. The word has to be
understood in a broad common-sense
manner and, therefore, not a naked or nude
body of a human being but the manner in
which a normal human being will move
about in a civilised society. Therefore, the
most appropriate meaning of the word
“person” appears to be — “the body of a
human being as presented to public view
usually with its appropriate coverings and
clothing”. In a civilised society appropriate
coverings and clothings are considered
absolutely essential and no sane human
being comes in the gaze of others without
appropriate coverings and clothings. The
appropriate coverings will include footwear
also as normally it is considered an essential
article to be worn while moving outside one’s
home. Such appropriate coverings or
clothings or footwear, after being worn,
move along with the human body without
any appreciable or extra effort. Once worn,
they would not normally get detached from
the body of the human being unless some
specific effort in that direction is made. For
interpreting the provision, rare cases of
some religious monks and sages, who,
according to the tenets of their religious
belief do not cover their body with clothings,
20are not to be taken notice of. Therefore, the
work ‘person’ would mean a human being
with appropriate coverings and clothings and
also footwear.
11. A bag, briefcase or any such article or
container, etc. can, under no circumstances,
be treated as body of a human being. They
are given a separate name and are
identifiable as such. They cannot even
remotely be treated to be part of the body of
a human being. Depending upon the
physical capacity of a person, he may carry
any number of items like a bag, a briefcase,
a suitcase, a tin box, a thaila, a jhola, a
gathri, a holdall, a carton, etc. of varying
size, dimension or weight. However, while
carrying or moving along with them, some
extra effort or energy would be required.
They would have to be carried either by the
hand or hung on the shoulder or back or
placed on the head. In common parlance it
would be said that a person is carrying a
particular article, specifying the manner in
which it was carried like hand, shoulder,
back or head, etc. Therefore, it is not
possible to include these articles within the
ambit of the word “person” occurring in
Section 50 of the Act.”
22. The next submission made by learned counsel for the appellants is the
Sections 52 and 52A of the NDPS Act as well as Circular of 1/89
issued by Central Government have not been complied with in the
case for drawing of the samples from the seized articles. Therefore,
21
there is substantial non-compliance of the mandatory provisions of the
NDPS Act and the appellants are entitled for acquittal.
23. From the evidence of PW-12 Ashok Yadav, the investigating officer, it
comes on record that he issued a request letter (exhibit P-42) to the
SDOP Saraipali for inventory and verification of the seized cannabis
(Ganja). On being served the notice upon the Nayab Tahsildar (PW-6)
Indram Chandrawanshi conducted the inventory and prepared the
physical verivication panchnama of the contraband ganja (exhibit P-
23), a verification panchnama under Section 52A(3) of the NDPS Act
(exhibit P-24). The ganja was weighed and photographs were also
taken, which is exhibit P-25.
******* In cross-examination, he admitted that the panchnama has not
been prepared in his own handwriting, but he admitted his signature
put on the panchnama, while conducting the inventory. Though he also
admitted that in another panchnama attached with exhibit P-23, the
seal or signature is not there, but the relevant part of panchnama is
exhibit P-23, in which his signature is there. Nothing substantial could
be extracted from his cross-examination to disbelieve his evidence
regarding the inventory proceedings.
24. PW-1, Meghnath Bariha is the patwari who prepared the spot map
(exhibit P-1) and panchnama (exhibit P-2) and duly supported the
prosecution case. PW-2, Narendra Kumar Miri is the witness to the
weighment panchnama (exhibit P-4). Though he has not supported the
prosecution case, but he admitted his signature on the weighment
22
panchnama (exhibit P-4) and also proved the vehicle checking by the
police on the spot. PW-3, Reshamlal and PW-4 Jitendra Mehar are
also the independent witnesses of search and seizure proceedings,
however they have not supported the prosecution case, but they
admitted their signature in the documents (exhibit P-1 to P-20).
25. PW-5, Ajay Kumar Bhoi is the Head Constable posted at the office of
SDOP, Saraipali. He proved the information received from Singhoda
police station through constable Ramakant Tripthi and issued
acknowledgment (exhibit P-21 and P-22). Nothing could be extracted
from his evidence that he has not received the information from police
station Singhoda.
26. PW-7, Anand Kumar Thakur is the Head Constable posted at police
station Singhoda. He stated in his evidence that on 02.10.2019, the
SHO Ashok Kumar Yadav handed over the seized ganja in four bags,
its sample packets A-1 and A-2, cash of Rs. 1800/-, two mobile phones
and one Hyundai Car No. CG 04 HA 7921 to kept in safe custody and
he issued acknowledged (exhibit P-26). He brought the malkhana
register (exhibit P-27), in which there is entries relating to sending the
samples to the FSL Raipur on 03.10.2019 and the attested copy is
already annexed in the case.
******* In cross-examination he admitted that, the contents of the
document (exhibit P-26) has been returned by the investigating officer.
He admitted that in the document (exhibit P-26), the time has not been
mentioned. The deposition of specimen seal has also not been
23
mentioned in the document (exhibit P-26 and P-27), however he
admitted that he kept the articles in safe custody of malkhana in the
same condition under which it was handed over to him by the
investigating officer.
27. PW-8, Chitranjan Pradhan is the member of search party and he duly
proved his part of the investigation, which they conducted on the spot
and he being the procedural witness duly supported the prosecution
case.
28. PW-9, Ramakant Tripathi is the constable posted at police station
Singhoda. He stated in his evidence that on 02.10.2019, he has taken
the written information to the office of SDOP Saraipali and obtained
acknowledgment (exhibit P-21). He also taken the details of the
proceedings information and obtained acknowledged (exhibit P-22). He
too has remained firm in saying that, he has taken the relevant
document to the office of SDOP Saraipali and admitted that he had
gone there on his own motorcycle.
29. PW-10, Santosh Kumar Sanwra has taken the sample packets of ganja
A-1 and A-2 to the State FSL Raipur along with the memo of
Superintendent of Police, Mahasamund on 03.10.2019 and after
depositing the samples at FSL Raipur, obtained acknowledged (exhibit
P-24).
30. From the cross-examination of these witnesses, the defence could not
be able to elicit any material regarding tempering of the samples of the
seized ganja or to disbelieve his evidence that he has not taken the
24
sample packets to FSL, Raipur.
31. PW-11, Prasant Sagar is also a Head Constable and member of search
party, who has called the independent witness during the search party
and proved the same. He called the independent witnesses from the
village of the witnesses, which were at the distance of about 1-2
kilometer from Riyaz Dhaba, where they were checking the vehicles.
32. PW-13, Shivdayal Baghel was the Station House Officer at police
station Singhoda. In the offence of Crime No. 122/2019 under Section
20(b) of NDPS Act, he appeared before the Executive Magistrate,
Saraipali for inventory proceeding under Section 52A of the NDPS Act.
The physical verification panchnama was prepared in his presence,
which is exhibit P-23. The ganja was found to be 100.270 KG and
photograph was also done. The relevant panchnama is exhibit P-44.
The inventory prepared under Section 52A of NDPS Act is exhibit P-45
and verification of the Executive Magistrate is exhibit P-24 and the
photographs are exhibit P-25. After completion of investigation, he filed
the charge sheet which is exhibit P-46. In cross-examination, he
admitted that before the inventory proceeding under Section 52A of the
NDPS Act, he inspected the relevant malkhana register. The physical
verification panchnama (exhibit P-23) is prepared in his own
handwriting. He admitted that the name of the person, who weighed
the seized ganja and sample is not mentioned in the inventory
proceeding. The photographer has not been made as a witness and
the place where the photographs have been taken are not shown in the
photographs. Though he further admitted that the samples drawn
25
during the inventory under Section 52A of the NDPS Act have not been
sent for its chemical examination to FSL, but he denied that the
inventory proceedings have been drawn arbitrarily. Although he
admitted certain procedural discrepancies in making endorsement in
the malkhana register after the inventory proceeding, however he
denied that he prepared a false case against the appellants.
33. From the evidence adduced by the prosecution, particularly the
testimony of the investigating officer duly corroborated by the seizure
documents, the evidence regarding deposit of the seized articles in the
malkhana, the safe transmission of the samples to the FSL, and the
FSL report confirming that the seized substance was cannabis (ganja),
this Court is satisfied that the prosecution has successfully established
beyond reasonable doubt that the appellants were found in conscious
possession of 102 kilograms of ganja, which they were transporting in
the Hyundai Accent car intercepted during routine vehicle checking.
The recovery of the contraband from the dickey of the vehicle, the
quantity recovered, and the surrounding circumstances clearly
establish the appellants’ dominion and control over the contraband,
thereby attracting the presumption of conscious possession under the
NDPS Act. It is true that certain procedural deficiencies and omissions
have surfaced in the course of the search and seizure proceedings;
however, such lapses are of a technical nature and do not go to the
root of the prosecution case so as to discredit the substantive evidence
regarding recovery and possession of the contraband. The core
prosecution version relating to the seizure of 102 kilograms of ganja
26
from the vehicle occupied by the appellants has remained intact
despite lengthy cross-examination, and no material contradiction has
been elicited to render the recovery doubtful. Consequently, this Court
has no hesitation in holding that the substantive allegation regarding
conscious possession and transportation of commercial quantity of
ganja by the appellants stands duly proved by reliable and cogent
evidence, notwithstanding the minor procedural irregularities noticed
during the search and seizure process.
34. In the matter of Bharat Aambale vs. The State of Chhattisgarh in
CRA No. 250 of 2025, order dated 06.01.2025, the Hon’ble Supreme
Court has held that irrespective of any failure to follow the procedure
laid under Section 52-A of the NDPS Act if the other material on record
adduced by the prosecution inspires confidence and satisfies the Court
regarding both recovery and possession of the contraband and from
the accused, then even in such cases the Courts can without hesitation
proceed for conviction notwithstanding any procedural difficulty in
terms of Section 52-A of the NDPS Act.
35. In the matter of Bharat Aambale (supra) the Hon’ble Supreme Court in
Para 25 to 37 has held as under:
“25. In Noor Aga (supra) the order of conviction
had been set-aside not just on the ground of
violation of Section 52A but due to several other
discrepancies in the physical evidence as to the
colour and weight, and due to the lack of any
independent witnesses. In fact, this Court despite
being conscious of the procedural deficiencies in
27the said case in terms of Section 52A observed
that the matter may have been entirely different if
there were no other discrepancies or if the other
material on record were found to be convincing or
supported by independent witnesses. The
relevant observations read as under: –
“107. The seal was not even deposited in
the malkhana. As no explanation
whatsoever has been offered in this behalf,
it is difficult to hold that sanctity of the
recovery was ensured. Even the malkhana
register was not produced.
xxx xxx xxx
108. There exist discrepancies also in
regard to the time of recovery. The recovery
memo, Exhibit PB, shows that the time of
seizure was 11.20 p.m. PW 1 Kulwant
Singh and PW 2 K.K. Gupta, however,
stated that the time of seizure was 8.30
p.m. The appellant’s defence was that some
carton left by some passenger was passed
upon him, being a crew member in this
regard assumes importance (see Jitendra
para 6). The panchnama was said to have
been drawn at 10 p.m. as per PW 1
whereas PW 2 stated that panchnama was
drawn at 8.30 p.m. Exhibit PA, containing
the purported option to conduct personal
search under Section 50 of the Act, only
mentioned the time when the flight landed
at the airport.
xxx xxx xxx
28
111. In a case of this nature, where there
are a large number of discrepancies, the
appellant has been gravely prejudiced by
their non-examination. It is true that what
matters is the quality of the evidence and
not the quantity thereof but in a case of this
nature where procedural safeguards were
required to be strictly complied with, it is for
the prosecution to explain why the material
witnesses had not been examined. The
matter might have been different if the
evidence of the investigating officer who
recovered the material objects was found to
be convincing. The statement of the
investigating officer is wholly
unsubstantiated. There is nothing on record
to show that the said witnesses had turned
hostile. Examination of the independent
witnesses was all the more necessary
inasmuch as there exist a large number of
discrepancies in the statement of official
witnesses in regard to search and seizure
of which we may now take note.”
(Emphasis supplied)
26. Non-compliance or delayed compliance with
the procedure prescribed under Section 52A of
the NDPS Act or the Rules / Standing Order(s)
thereunder may lead the court to draw an adverse
inference against the prosecution. However, no
hard and fast rule can be laid down as to when
such inference may be drawn, and it would all
depend on the peculiar facts and circumstances
of each case. Such delay or deviation from
29
Section 52A of the NDPS Act or the Standing
Order(s) / Rules thereunder will not, by itself, be
fatal to the case of the prosecution, unless there
are discrepancies in the physical evidence which
may not have been there had such compliance
been done. What is required is that the courts
take a holistic and cumulative view of the
discrepancies that exist in the physical evidence
adduced by the prosecution and correlate or link
the same with any procedural lapses or
deviations. Thus, whenever, there is any deviation
or non-compliance of the procedure envisaged
under Section 52A, the courts are required to
appreciate the same keeping in mind the
discrepancies that exist in the prosecution’s case.
In such instances of procedural error or
deficiency, the courts ought to be extra-careful
and must not overlook or brush aside the
discrepancies lightly and rather should scrutinize
the material on record even more stringently to
satisfy itself of the aspects of possession, seizure
or recovery of such material in the first place.
27. In such circumstances, particularly where
there has been lapse on the part of the police in
either following the procedure laid down in
Section 52A of the NDPS Act or the prosecution in
adequately proving compliance of the same, it
would not be appropriate for the courts to resort to
the statutory presumption of commission of an
offence from the possession of illicit material
under Section 54 of the NDPS Act, unless the
court is otherwise satisfied as regards the seizure
or recovery of such material from the accused
persons from the other material on record.
30
Similarly, irrespective of any failure to follow the
procedure laid under Section 52A of the NDPS
Act, if the other material on record adduced by the
prosecution inspires confidence and satisfies the
court regarding both the recovery and possession
of the contraband from the accused, then even in
such cases, the courts can without hesitation
proceed for conviction notwithstanding any
procedural defect in terms of Section 52A of the
NDPS Act.
28. In Khet Singh v. Union of India reported in
(2002) 4 SCC 380 this Court held that the
Standing Order(s) issued by the NCB and the
procedure envisaged therein is only intended to
guide the officers and to see that a fair procedure
is adopted by the officer-in-charge of the
investigation. It further observed that there may,
however, be circumstances in which it would not
be possible to follow these guidelines to the letter,
particularly in cases of chance recovery or lack of
proper facility being available at the spot. In such
circumstances of procedural illegality, the
evidence collected thereby will not become
inadmissible and rather the courts would only be
required to consider all the circumstances and
find out whether any serious prejudice had been
caused to the accused or not. Further it directed,
that in such cases of procedural lapses or delays,
the officer would be duty bound to indicate and
explain the reason behind such delay or
deficiency whilst preparing the memo. The
relevant observations read as under: –
“5. It is true that the search and seizure of
31contraband article is a serious aspect in the
matter of investigation related to offences
under the NDPS Act. The NDPS Act and
the Rules framed thereunder have laid
down a detailed procedure and guidelines
as to the manner in which search and
seizure are to be effected. If there is any
violation of these guidelines, the courts
would take a serious view and the benefit
would be extended to the accused. The
offences under the NDPS Act are grave in
nature and minimum punishment prescribed
under the statute is incarceration for a long
period. As the possession of any narcotic
drug or psychotropic substance by itself is
made punishable under the Act, the seizure
of the article from the appellant is of vital
importance.
xxx xxx xxx
10. The instructions issued by the Narcotics
Control Bureau, New Delhi are to be
followed by the officer-in-charge of the
investigation of the crimes coming within
the purview of the NDPS Act, even though
these instructions do not have the force of
law. They are intended to guide the officers
and to see that a fair procedure is adopted
by the officer-in-charge of the investigation.
It is true that when a contraband article is
seized during investigation or search, a
seizure mahazar should be prepared at the
spot in accordance with law. There may,
however, be circumstances in which it
32would not have been possible for the officer
to prepare the mahazar at the spot, as it
may be a chance recovery and the officer
may not have the facility to prepare a
seizure mahazar at the spot itself. If the
seizure is effected at the place where there
are no witnesses and there is no facility for
weighing the contraband article or other
requisite facilities are lacking, the officer
can prepare the seizure mahazar at a later
stage as and when the facilities are
available, provided there are justifiable and
reasonable grounds to do so. In that event,
where the seizure mahazar is prepared at a
later stage, the officer should indicate his
reasons as to why he had not prepared the
mahazar at the spot of recovery. If there is
any inordinate delay in preparing the
seizure mahazar, that may give an
opportunity to tamper with the contraband
article allegedly seized from the accused.
There may also be allegations that the
article seized was by itself substituted and
some other items were planted to falsely
implicate the accused. To avoid these
suspicious circumstances and to have a fair
procedure in respect of search and seizure,
it is always desirable to prepare the seizure
mahazar at the spot itself from where the
contraband articles were taken into custody.
xxx xxx xxx
16. Law on the point is very clear that even
if there is any sort of procedural illegality in
33conducting the search and seizure, the
evidence collected thereby will not become
inadmissible and the court would consider
all the circumstances and find out whether
any serious prejudice had been caused to
the accused. If the search and seizure was
in complete defiance of the law and
procedure and there was any possibility of
the evidence collected likely to have been
tampered with or interpolated during the
course of such search or seizure, then, it
could be said that the evidence is not liable
to be admissible in evidence.”
(Emphasis supplied)
29. A similar view as above was reiterated in the
decision of State of Punjab v. Makhan Chand
reported in (2004) 3 SCC 453 wherein this Court
after examining the purport of Section 52A of the
NDPS Act and the Standing Order(s) issued
thereunder, held that the procedure prescribed
under the said order is merely intended to guide
the officers to see that a fair procedure is adopted
by the officer in charge of the investigation and
they were not inexorable rules. The relevant
observations read as under: –
“10. This contention too has no substance
for two reasons. Firstly, Section 52-A, as
the marginal note indicates, deals with
“disposal of seized narcotic drugs and
psychotropic substances”. Under sub-
section (1), the Central Government, by a
notification in the Official Gazette, is
34empowered to specify certain narcotic
drugs or psychotropic substances, having
regard to the hazardous nature,
vulnerability to theft, substitution,
constraints of proper storage space and
such other relevant considerations, so that
even if they are material objects seized in a
criminal case, they could be disposed of
after following the procedure prescribed in
sub-sections (2) and (3). If the procedure
prescribed in sub-sections (2) and (3) of
Section 52-A is complied with and upon an
application, the Magistrate issues the
certificate contemplated by sub-section (2),
then sub-section (4) provides that,
notwithstanding anything to the contrary
contained in the Indian Evidence Act, 1872
or the Code of Criminal Procedure, 1973,
such inventory, photographs of narcotic
drugs or substances and any list of samples
drawn under sub-section (2) of Section 52-A
as certified by the Magistrate, would be
treated as primary evidence in respect of
the offence. Therefore, Section 52-A(1)
does not empower the Central Government
to lay down the procedure for search of an
accused, but only deals with the disposal of
seized narcotic drugs and psychotropic
substances. 11. Secondly, when the very
same Standing Orders came up for
consideration in Khet Singh v. Union of
India this Court took the view that they are
merely intended to guide the officers to see
that a fair procedure is adopted by the
35officer in charge of the investigation. It was
also held that they were not inexorable
rules as there could be circumstances in
which it may not be possible for the seizing
officer to prepare the mahazar at the spot, if
it is a chance recovery, where the officer
may not have the facility to prepare the
seizure mahazar at the spot itself. Hence,
we do not find any substance in this
contention.”
(Emphasis supplied)
30. Thus, from above it is clear that the procedure
prescribed by the Standing Order(s) / Rules in
terms of Section 52A of the NDPS Act is only
intended to guide the officers and to ensure that a
fair procedure is adopted by the officer- in-charge
of the investigation, and as such what is required
is substantial compliance of the procedure laid
therein. We say so because, due to varying
circumstances, there may be situations wherein it
may not always be possible to forward the seized
contraband immediately for the purpose of
sampling. This could be due to various factors,
such as the sheer volume of the contraband, the
peculiar nature of the place of seizure, or owing to
the volatility of the substance so seized that may
warrant slow and safe handling. There could be
situations where such contraband after being
sampled cannot be preserved due to its
hazardous nature and must be destroyed
forthwith or vice-verse where the nature of the
case demands that they are preserved and
remain untouched. Due to such multitude of
36
possibilities or situations, neither can the police be
realistically expected to rigidly adhere to the
procedure laid down in Section 52A or its allied
Rules / Orders, nor can a strait-jacket formula be
applied for insisting compliance of each procedure
in a specified timeline to the letter, due to varying
situations or requirements of each case. Thus,
what is actually required is only a substantial
compliance of the procedure laid down under
Section 52A of the NDPS Act and the Standing
Order(s) / Rules framed thereunder, and any
discrepancy or deviation in the same may lead the
court to draw an adverse inference against the
police as per the facts of each and every case.
When it comes to the outcome of trial, it is only
after taking a cumulative view of the entire
material on record including such discrepancies,
that the court should proceed either to convict or
acquit the accused. Non- compliance of the
procedure envisaged under Section 52A may be
fatal only in cases where such non-compliance
goes to the heart or root of the matter. In other
words, the discrepancy should be such that it
renders the entire case of the prosecution
doubtful, such as instances where there are
significant discrepancies in the colour or
description of the substance seized from that
indicated in the FSL report as was the case in
Noor Aga (supra), or where the contraband was
mixed in and stored with some other commodity
like vegetables and there is no credible indication
of whether the narcotic substance was separated
and then weighed as required under the Standing
Order(s) or Rules, thereby raising doubts over the
37
actual quantity seized as was the case in
Mohammed Khalid (supra), or where the recovery
itself is suspicious and uncorroborated by any
witnesses such as in Mangilal (supra), or where
the bulk material seized in contravention of
Section 52A was not produced before the court
despite being directed to be preserved etc. These
illustrations are only for the purposes of brining
clarity on what may constitute as a significant
discrepancy in a given case, and by no means is
either exhaustive in nature or supposed to be
applied mechanically in any proceeding under the
NDPS Act. It is for the courts to see what
constitutes as a significant discrepancy, keeping
in mind the peculiar facts, the materials on record
and the evidence adduced. At the same time, we
may caution the courts, not to be hyper-technical
whilst looking into the discrepancies that may
exist, like slight differences in the weight, colour or
numbering of the sample etc. The Court may not
discard the entire prosecution case looking into
such discrepancies as more often than not an
ordinarily an officer in a public place would not be
carrying a good scale with him, as held in Noor
Aga (supra). It is only those discrepancies which
particularly have the propensity to create a doubt
or false impression of illegal possession or
recovery, or to overstate or inflate the potency,
quality or weight of the substance seized that may
be pertinent and not mere clerical mistakes,
provided they are explained properly. Whether, a
particular discrepancy is critical to the
prosecution’s case would depend on the facts of
each case, the nature of substance seized, the
38
quality of evidence on record etc.
31. At the same time, one must be mindful of the
fact that Section 52A of the NDPS Act is only a
procedural provision dealing with seizure,
inventory, and disposal of narcotic drugs and
psychotropic substances and does not
exhaustively lay down the evidentiary rules for
proving seizure or recovery, nor does it dictate the
manner in which evidence is to be led during trial.
It in no manner prescribes how the seizure or
recovery of narcotic substances is to be proved or
what can be led as evidence to prove the same.
Rather, it is the general principles of evidence, as
enshrined in the Evidence Act that governs how
seizure or recovery may be proved.
32. Thus, the prosecution sans the compliance of
the procedure under Section 52A of the NDPS Act
will not render itself helpless but can still prove the
seizure or recovery of contraband by leading
cogent evidence in this regard such as by
examining the seizing officer, producing
independent witnesses to the recovery, or
presenting the original quantity of seized
substances before the court. The evidentiary
value of these materials is ultimately to be
assessed and looked into by the court. The court
should consider whether the evidence inspires
confidence. The court should look into the totality
of circumstances and the credibility of the
witnesses, being mindful to be more cautious in
their scrutiny where such procedure has been
flouted. The cumulative effect of all evidence must
be considered to determine whether the
39
prosecution has successfully established the case
beyond reasonable doubt as held in Noor Aga
(supra).
33. Even in cases where there is non-compliance
with the procedural requirements of Section 52A,
it does not necessarily vitiate the trial or warrant
an automatic acquittal. Courts have consistently
held that procedural lapses must be viewed in the
context of the overall evidence. If the prosecution
can otherwise establish the chain of custody,
corroborate the seizure with credible testimony,
and prove its case beyond reasonable doubt, the
mere non-compliance with Section 52A may not
be fatal. The emphasis must be on substantive
justice rather than procedural technicalities, and
keeping in mind that the salutary objective of the
NDPS Act is to curb the menace of drug
trafficking.
34. At this stage we may clarify the scope and
purport of Section 52A sub-section (4) with a view
to obviate any confusion. Sub-section (4) of
Section 52A provides that every court trying an
offence under the NDPS Act, shall treat the
inventory, photographs and samples of the seized
substance that have been certified by the
magistrate as primary evidence.
35. What this provision entails is that, where the
seized substance after being forwarded to the
officer empowered is inventoried, photographed
and thereafter samples are drawn therefrom as
per the procedure prescribed under the said
provision and the Rules / Standing Order(s), and
40
the same is also duly certified by a magistrate,
then such certified inventory, photographs and
samples has to mandatorily be treated as primary
evidence. The use of the word “shall” indicates
that it would be mandatory for the court to treat
the same as primary evidence if twin conditions
are fulfilled being (i) that the inventory,
photographs and samples drawn are certified by
the magistrate AND (ii) that the court is satisfied
that the entire process was done in consonance
and substantial compliance with the procedure
prescribed under the provision and its Rules /
Standing Order(s).
36. Even where the bulk quantity of the seized
material is not produced before the court or
happens to be destroyed or disposed in
contravention of Section 52A of the NDPS Act, the
same would be immaterial and have no bearing
on the evidentiary value of any inventory,
photographs or samples of such substance that is
duly certified by a magistrate and prepared in
terms of the said provision. We say so, because
sub-section (4) of Section 52A was inserted to
mitigate the issue of degradation, pilferage or theft
of seized substances affecting the very trial. It was
often seen that, due to prolonged trials, the
substance that was seized would deteriorate in
quality or completely disappear even before the
trial could proceed, by the time the trial would
commence, the unavailability of such material
would result in a crucial piece of evidence to
establish possession becoming missing and the
outcome of the trial becoming a foregone
conclusion. The legislature being alive to this fact,
41
thought fit to introduce an element of preservation
of such evidence of possession of contraband in
the form of inventory, photographs and samples
and imbued certain procedural safeguards and
supervision through the requirement of
certification by a magistrate, which is now
contained in sub-section (4) of Section 52A. In
other words, any inventory, photographs or
samples of seized substance that was prepared in
substantial compliance of the procedure under
Section 52A of the NDPS Act and the Rules /
Standing Order(s) thereunder would have to
mandatorily be treated as primary evidence,
irrespective of the fact that the bulk quantity has
not been produced and allegedly destroyed
without any lawful order.
37. Section 52A sub-section (4) should not be
conflated as a rule of evidence in the traditional
sense, i.e., it should not be construed to have laid
down that only the certified inventory, photographs
and samples of seized substance will be primary
evidence and nothing else. The rule of ‘Primary
Evidence’ or ‘Best Evidence’ is now well settled. In
order to prove a fact, only the best evidence to
establish such fact must be led and adduced
which often happens to be the original evidence
itself. The primary evidence for proving
possession will always be the seized substance
itself. However, in order to mitigate the challenges
in preservation of such substance till the duration
of trial, due to pilferage, theft, degradation or any
other related circumstances, the legislature
consciously incorporated sub-section (4) in
Section 52A to bring even the inventory,
42
photographs or samples of such seized substance
on the same pedestal as the original substance,
and by a deeming fiction has provided that the
same be treated as primary evidence, provided
they have been certified by a magistrate in
substantial compliance of the procedure
prescribed. This, however, does not mean that
where Section 52A has not been complied, the
prosecution would be helpless, and cannot prove
the factum of possession by adducing other
primary evidence in this regard such as by either
producing the bulk quantity itself, or examining the
witnesses to the recovery etc. What Section 52A
sub-section (4) of the NDPS Act does is it creates
a new form of primary evidence by way of a
deeming fiction which would be on par with the
original seized substance as long as the same
was done in substantial compliance of the
procedure prescribed thereunder, however, the
said provision by no means renders the other
evidence in original to be excluded as primary
evidence, it neither confines nor restricts the
manner of proving possession to only one mode
i.e., through such certified inventory, photographs
or samples such that all other material are said to
be excluded from the ambit of ‘evidence’, rather it
can be said that the provision instead provides
one additional limb of evidentiary rule in proving
such possession. Thus, even in the absence of
compliance of Section 52A of the NDPS Act, the
courts cannot simply overlook the other cogent
evidence in the form of the seized substance itself
or the testimony of the witnesses examined, all
that the courts would be required in the absence
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of any such compliance is to be more careful
while appreciating the evidence.”
36. In the present case the entire search and seizure proceedings have
found genuine and the correct procedure have been drawn by the
police persons. The seizure of cannabis (Ganja) and its weight and
sampling were proved by the Executive Magistrate and nothing
adverse could be found to disbelieve their evidences which further
proves that the appellants were found in possession of such a huge
quantity of cannabis (Ganja) in their vehicle. The appellants did not
able to impute any palpable to make good their case that there has
been non-compliance of any mandatory provisions of the NDPS Act.
37. There is no material available on record so as to arrived at finding that
the accused persons have been falsely implicated in this case. Section
20 of the NDPS Act provides that whoever, in contravention of any
provisions of the NDPS Act or any rule made therein possess cannabis
(Ganja), shall be punished in accordance with the said provisions.
Section 20(b) uses the “possesses”. In the present case the appellants
were found in possession of 102 KG of cannabis (Ganja) in their
Hyundai Accent Car, which they were carrying at the relevant time. The
judgment passed by learned trial Court is quite detailed judgment
which has dealt with every aspect of the matter and the analysis made
therein clearly proves the appellants have committed the offence in
question and were transporting cannabis (Ganja) weighing 102 KG
They could not given any suggestion as to how that huge quantity of
cannabis (Ganja) came to be found in the vehicle in which they were
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travelling.
38. The FSL report (exhibit P-38) further proves that the sample packets of
cannabis (Ganja) which were drawn from the total quantity of cannabis
(Ganja) were found to be contained with cannabis (Ganja) contents
and further corroborates the allegation against the appellants.
39. In view of the above discussion, this Court is of the considered opinion
that the judgment passed by learned trial Court is based on proper
appreciation of evidence which is neither perverse nor contrary to the
record as well as law laid down by the Hon’ble Supreme Court and the
same needs no interference as such the judgment of conviction and
order of sentence awarded to the appellants is hereby affirmed.
40. In the result, the appeal filed by the appellants is hereby dismissed.
The appellants are reported to be in jail since 02.10.2019. They shall
serve the remaining period of jail sentence as has been awarded to
them by the learned trial Court.
41. Registry is directed to send a copy of this judgment to the concerned
Superintendent of Jail where the appellants are undergoing their jail
sentence to serve the same on the appellants informing them that they
are at liberty to assail the present judgment passed by this Court by
preferring an appeal before the Hon’ble Supreme Court with the
assistance of High Court Legal Services Committee or the Supreme
Court Legal Services Committee.
42. Let a copy of this judgment and the original records be transmitted to
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the trial Court concerned forthwith for necessary information and
compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved
