Madhya Pradesh High Court
Rajlal Yadav vs The State Of Madhya Pradesh on 3 March, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:9819
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 3 rd OF MARCH, 2025
MISC. CRIMINAL CASE No. 282 of 2025
RAJLAL YADAV AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Prakash Upadhyay - Senior Advocate with Shri Shrey Diwan -
Advocate for the applicants.
Shri Ravendra Shukla-Government Advocate for the respondent/State.
ORDER
This is first bail application filed under Section 439 of the Cr.P.C. on
behalf of applicants (483 of the Bharatiya Nagarik Suraksha Sanhita, 2023).
2. The applicants are in jail since 27.08.2024 in connection with Crime
No.263 of 2024 registered at P.S. Shahpur, District-Rewa for the offence
punishable under Sections 8, 20 and 25 of NDPS Act.
3. Prosecution story in brief is that 14 bags containing 210 kgs Ganja
were recovered from the house of applicants and it belonged to co-accused.
4. Learned Senior counsel for the applicants at the outset submits that
as per memorandum recorded in the instant case, allegations against present
applicants are that they stored Ganja and it belonged to co-accused Ravi. It is
also urged that in the instant case, mandatory provisions of Section 52-A of
NDPS Act, 1985 (here-in-after referred as Act) as well as The Narcotics
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Drugs and Psychotropic Substances Act (Seizure, Storage, Sampling and
Disposal) Rules, 2022 (here-in-after referred as NDPS Rules, 2022) have not
been complied with. In the instant case, allegedly 14 white bags containing
220 packets were recovered and Panchnama was prepared on 27.08.2024 at
about 1:00 a.m. in the night. It is also urged that no sampling has been done
at the spot. Further, all the packets and bags were opened by Investigating
Officer on the spot and thereafter, they were mixed and again, contraband
was packed and sealed in 14 bags. Above act of Investigating Officer has
materially prejudiced the applicants. It is also urged that it is not a case in
which Investigating Officer was not aware of aforesaid NDPS Rules, 2022.
5. Learned Senior counsel for the applicants, after referring to Rules 3
(2), (3) and (4) as well as Rules 8, 9 10 and 11 of NDPS Rules, 2022, it is
urged that Investigating Officer has not complied with aforesaid Rules and
aforesaid Rules does not permit Investigating Officer to open the packets and
mix them on the spot. It is only after Rules 8 and 9 of NDPS Rules, 2022
have been complied with, then, only under Rule 10, contraband bunching can
be done, especially, Ganja, Poppystraw and Hashish.
6. Learned Senior counsel for the applicants also submits that in view
of aforesaid, it cannot be said that the quantity and contraband allegedly
recovered from the applicants represent the true nature of contraband as well
as quantity of contraband seized. With respect to aforesaid, learned Senior
counsel has relied upon Ram Bharose Vs. State (Govt. Of NCT of Delhi)
2022 SCC Online Del 5029, Kalyan Sharma @ Mukesh Sharma Vs. State of
Madhya Pradesh 2023 0 Supreme (MP) 502 and Govind Vs. The State of
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Madhya Pradesh 2023 Supreme (Online)(MP) 2527.
7. Learned Senior counsel for the applicants further submits that as per
Rules, Magistrate is authorized for sampling and Investigating Officer does
not have the power to open and take sample, including mixing. Thus, in the
instant case, there is total non-compliance of aforesaid NDPS Rules, 2022 as
well as Section 52-A of NDPS Act and this has caused serious prejudice to
the applicants. With respect to sampling, learned Senior counsel for the
applicants has relied upon Vishal Shahni Vs. State of Madhya Pradesh 2024
SCC Online MP 1286. It is also urged that in the instant case, as per
documents on record, it appears that there was electronic weighing machine
as well as physical scale along with weight of 500 gms and 50 gms. It is not
clear as to whether contraband has been weighed on electronic or physical
weighing scale.
8 . Learned Senior counsel for the applicants also submits that
seal Panchnama does not contain the signature of applicants. Further, order-
sheets of JMFC pertaining to sampling procedure, also does not contain
signature of applicants. It is also not mentioned in aforesaid order-sheets that
signature of applicants were taken thereon. Further, after referring to
Rojnamcha, it is urged that therein, it is not mentioned that for executing
warrant of which accused they had gone on the spot because in Mukhbir
Panchnama, it has been mentioned that information was received on the spot
itself. Further, in the instant case, recovery has been effected allegedly from
house but there is nothing on record to show that applicants were in
possession of the house from which recovery has been made. No documents
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have been filed with respect to above. In the instant case, after investigation,
charge-sheet has been filed. Applicants are in jail since 27.08.2024. On
above grounds, it is urged that applicants be released on bail.
9 . Learned Government Advocate for the State has opposed the bail
application and submits that in view of quantity of contraband, applicants are
not entitled to be released on bail.
10. I have heard learned counsel for the parties and perused record of
the case.
11. This Court has examined submissions of learned counsel for the
parties minutely in the light of documents available on record and in the light
of principles laid down in Bharat Aambale Vs. The State of Chhastisgarh in
Criminal Appeal No.250 of 2025 and Narcotics Control Bureau Vs. Kashif
2024 SCC Online SC 3848 .
12. Hon'ble Apex Court in para-50 of Bharat Aambale Vs. The State
of Chhastisgarh (Supra) has summarized final conclusion as under:-
"50. We summarize out final conclusion as under:-
(I) Although Section 52A is primarily for the disposal
and destruction of seized contraband in a safe manner
yet it extends beyond the immediate context of drug
disposal, as it serves a broader purpose of also
introducing procedural safeguards in the treatment of
narcotics substance after seizure inasmuch as it provides
for the preparation of inventories, taking of photographs
of the seized substances and drawing samples therefrom
in the presence and with the certification of a
magistrate. Mere drawing of samples in presence of a
gazetted officer would not constitute sufficient
compliance of the mandate under Section 52A sub-
section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of
samples from the seized substance must take place at
the time of seizure as held in Mohanlal (supra), yet we
are of the opinion that the process of inventorying,
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photographing and drawing samples of the seized
substance shall as far as possible, take place in the
presence of the accused, though the same may not be
done at the very spot of seizure.
(III) Any inventory, photographs or samples of seized
substance prepared in substantial compliance of the
procedure prescribed under Section 52A of the NDPS
Act and the Rules / Standing Order(s) thereunder would
have to be mandatorily treated as primary evidence as
per Section 52A sub-section (4) of the NDPS Act,
irrespective of whether the substance in original is
actually produced before the court or not.
(IV) The procedure prescribed by the Standing Order(s)
/ Rules in terms of Section 52A of the NDPS Act is
only intended to guide the officers and to see that a fair
procedure is adopted by the officer in-charge of the
investigation, and as such what is required is substantial
compliance of the procedure laid therein.
(V) Mere non-compliance of the procedure under
Section 52A or the Standing Order(s) / Rules thereunder
will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering the
prosecution's case doubtful, which may not have been
there had such compliance been done. Courts should
take a holistic and cumulative view of the discrepancies
that may exist in the evidence adduced by the
prosecution and appreciate the same more carefully
keeping in mind the procedural lapses.
(VI) If the other material on record adduced by the
prosecution, oral or documentary inspires confidence
and satisfies the court as regards the recovery as-well as
conscious possession of the contraband from the
accused persons, then even in such cases, the courts can
without hesitation proceed to hold the accused guilty
notwithstanding any procedural defect in terms of
Section 52A of the NDPS Act.
(VII) Non-compliance or delayed compliance of the
said provision or rules thereunder may lead the court to
drawing an adverse inference against the prosecution,
however no hard and fast rule can be laid down as to
when such inference may be drawn, and it would all
depend on the peculiar facts and circumstances of each
case.
(VIII) Where there has been lapse on the part of the
police in either following the procedure laid down in
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Section 52A of the NDPS Act or the prosecution in
proving the same, it will not be appropriate for the court
to resort to the statutory presumption of commission of
an offence from the possession of illicit material under
Section 54 of the NDPS Act, unless the court is
otherwise satisfied as regards the seizure or recovery of
such material from the accused persons from the other
material on record.
(IX) The initial burden will lie on the accused to first
lay the foundational facts to show that there was non-
compliance of Section 52A, either by leading evidence
of its own or by relying upon the evidence of the
prosecution, and the standard required would only be
preponderance of probabilities.
(X) Once the foundational facts laid indicate non-
compliance of Section 52A of the NDPS Act, the onus
would thereafter be on the prosecution to prove by
cogent evidence that either (i) there was substantial
compliance with the mandate of Section 52A of the
NDPS Act OR (ii) satisfy the court that such non-
compliance does not affect its case against the accused,
and the standard of proof required would be beyond a
reasonable doubt."
13. Hon'ble Apex Court in Narcotics Control Bureau (Supra) in para-
39 has summarized the law as under:-
"39. The upshot of the above discussion may be summarized as
under:-
(i) The provisions of NDPS Act are required
to be interpreted keeping in mind the scheme,
object and purpose of the Act; as also the
impact on the society as a whole. It has to be
interpreted literally and not liberally, which
may ultimately frustrate the object, purpose
and Preamble of the Act.
(ii) While considering the application for bail,
the Court must bear in mind the provisions of
Section 37 of the NDPS Act which are
mandatory in nature. Recording of findings
as mandated in Section 37 is sine qua non is
known for granting bail to the accused
involved in the offences under the NDPS Act.
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(iii) The purpose of insertion of Section 52A
laying down the procedure for disposal of
seized Narcotic Drugs and Psychotropic
Substances, was to ensure the early disposal
of the seized contraband drugs and
substances. It was inserted in 1989 as one of
the measures to implement and to give effect
to the International Conventions on the
Narcotic drugs and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays
down the procedure as contemplated in sub-
section (1) thereof, and any lapse or delayed
compliance thereof would be merely a
procedural irregularity which would neither
entitle the accused to be released on bail nor
would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality
found to have been committed in conducting
the search and seizure during the course of
investigation or thereafter, would by itself not
make the entire evidence collected during the
course of investigation, inadmissible. The
Court would have to consider all the
circumstances and find out whether any
serious prejudice has been caused to the
accused.
(vi) Any lapse or delay in compliance of
Section 52A by itself would neither vitiate
the trial nor would entitle the accused to be
released on bail. The Court will have to
consider other circumstances and the other
primary evidence collected during the course
of investigation, as also the statutory
presumption permissible under Section 54 of
the NDPS Act."
14. Thus, perusal of Narcotics Control Bureau Vs Kashif (Supra) and
Bharat Aambale Vs. The State of Chhastisgarh (Supra) reveal that therein
Hon'ble Apex Court has examined provisions of NDPS Act, including
standing orders/Rules, judgment of Union of India Vs. Mohan Lal & Anr.
reported in (2016) 3 SCC 379, including NDPS Rules, 2022.
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15. Perusal of submissions of learned Senior counsel for the applicants
reveal that crux of submissions of learned Senior counsel for the applicants is
non-compliance of Section 52-A of NDPS Act as well as various Rules of
NDPS Rules, 2022 and that contraband was mixed by Investigating Officer
on the spot itself and it has affected applicants adversely and has caused great
prejudice.
16. Perusal of case dairy reveal that all the documents prepared at the
scene of incident, including Talashi Sahmati Panchanama, Talashi
Panchnama, Seizure memo, Madak Drav Pahchan Panchnama, Taul
Panchnama, Panchnama seal Namuna etc. contain signature of both the
applicants.
1 7 . Further, even if, the illegalities/infirmities as pointed out by
learned Senior counsel for the applicants in the investigation are taken into
consideration, still, evidence available at this stage, clearly prima-facie
establish recovery of contraband from present applicants. In the instant case,
the contraband allegedly recovered from applicants is of commercial
quantity. Therefore, provisions of Section 37 of NDPS Act would also apply.
18. Hence, having regard to overall evidence available on record and
nature thereof with respect to applicants' involvement in the offence and in
view of law laid down by Hon'ble Apex Court in Narcotics Control Bureau
(Supra) and Bharat Aambale (Supra) as well as provisions of Section 37 of
NDPS Act, in this Court's considered opinion, applicants are not entitled to
be released on bail.
19. In view of aforesaid, Ram Bharose (Supra), Kalyan Sharma
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(Supra), Govind (Supra) and Vishal Shahni (Supra) does not help applicants
in any way.
2 0 . Resultantly, in view of discussion in the foregoing paras,
applicants are not entitled to be released on bail.
21. Hence, application filed by the applicants is hereby dismissed.
(ACHAL KUMAR PALIWAL)
JUDGE
vai
