[Cites 31, Cited by 0]
Madhya Pradesh High Court
Veer Singh vs The State Of Madhya Pradesh on 26 February, 2026
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2026:MPHC-JBP:16788
1 CRA-6303-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 26 th OF FEBRUARY, 2026
CRIMINAL APPEAL No. 6303 of 2023
VEER SINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Surendra Verma, learned counsel for the applicants.
Shri Veer Vikrant Singh, learned Dy. Advocate General for the respondent State.
ORDER
Per: Justice Avanindra Kumar Singh
This Criminal Appeal has been filed being aggrieved of the judgment dated
20.3.2023 passed by the learned Special Judge (NDPS Act) District Rewa in SC
No. NDPS/20/2019 (State of M.P. Through Police Station Chorhata, District Rewa
v. Veer Singh and others) in Crime No. 46/2019, convicting the
appellants/accused as below:
No. Name of Accused Offence for which Imprisonment Fine In
convicted Default
of
paying
fine
1. Veer Singh S/o Late Section 8, 20 (b) 12 years RI 1,20,000/-One
Sohan Singh (ii-C) read with year RI
Section 29 NDPS
2. Mukesh Prasad Section 8, 20 (b) 12 years RI 1,20,000/-One
Vishwakarma S/o late (ii-C) read with year RI
Bhagwandas Section 29 NDPS
Vishwakarma
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2. At the time of final arguments learned counsel for appellants Shri Surendra
Verma submitted that the appeal has been filed on the grounds that the trial Court
has erred in law as well as on facts while convicting the appellants for the offence
punishable under the provisions of N.D.P.S Act as aforesaid. The trial Court has
failed to consider the fact that the appellants are innocent and they have been
falsely implicated in the offcence. Learned trial Court has also failed to appreciate
that appellant No. 1 (Veer Singh) did not have information regarding contents of
the packets which were to be sent to the place of Ramlal Jaiswal. Learned trial
Court has failed to appreciate testimony of Anil Kumar Vishwakarma (D.W.-1)
who has categorically stated that the appellant was having tea at Dhaba, when
some police officials came. It is pertinent to mention here that aforesaid witness
was running the tea stall and his testimony should have been considered by the
learned trial Court. The learned trial Court has failed to appreciate that in the
present case there is grave violation of Section 50 of NDPS Act, compliance of
which is necessary. In this regard it is pertinent to mention here that consent
memorandum (Ex. P-7) which has been prepared in the present case is joint and
the same is not sufficient to fulfil requirements provided under Section 50 of
NDPS Act as it is a joint Panchnama Even the report of F.S.L was sought and
given on the basis of joint recovery, whereas only appellants were convicted,
seizure was disbelieved for the other co-accused Manoj. learned trial Court has
failed to appreciate that in the present case, there is grave violation of Section 57
of NDPS Act, compliance of which is necessary. The trial court has failed to
consider the fact that there are grave infirmities in the testimonies of the
prosecution witnesses. The prosecution has not been able to prove its case beyond
reasonable doubt as to arrived at the conclusion that the appellants are liable under
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the alleged offences and that learned trial Court has failed to appreciate the
established principle of criminal law that benefit of doubt in a case should always
be given to the accused.
3. Investigating Officer Animesh Dwivedi (PW-8) admitted that he was given
case for investigation on 22nd January 2019, he kept the file with him till 27 th
January, 2019 for which no reasons were assigned. Prosecution Witnesses P.W.-5
Santosh Shukla and P.W-6 Santosh Kushwaha have not supported the prosecution
story and P.W-5 Santosh Shukla has deposed that he had signed plain papers.
There is no evidence of conscious possession. Before proving conscious
possession, presumption under Section 35 of NDPS Act cannot be attracted.
Contraband articles were made homogeneous (समरस) contrary to law. There is
total non-compliance of Section 52-A of NDPS Act, inasmuch as; (i) Samples are
made twice; (ii) Sample made before the Magistrate was not sent to the F.S.L for
testing (iii) It is admitted by the I.O Animesh Dwivedi (PW-8) that Karyvahi
Rojnamcha Sanha of Section 52-A of NDPS Act was not made part of the challan.
It is also admitted by him that necessary particulars were not recorded.
Photographs of exercise under Section 52 - A of NDPS Act was not made part of
the challan conducted after lapse of 5 months on 27th June, 2019; (v) It is also an
admitted fact that neither the full contraband article was produced before the Court
nor the same has been produced before the Magistrate. (vi) There is no
photograph or videography recorded of the exercise conducted under Section 52-A
of NDPS Act; and (vii) the Magistrate had conducted an exercise mechanically in
total careless manner and certificate was issued undated without verifying the
contents and the duty cast on him. Therefore, prayer is made to allow the appeal
and acquit the accused persons.
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4. On the other hand learned Counsel for the State Shri Vikrant Singh
supported the impugned judgment and prayed for dismissal of the appeal. Stating
that minor inconsequential discrepancies cannot be a ground for acquittal over all
evidence and prosecution case has to be seen.
5. The prosecution story in short is that on 21/01/2019 in Police Station
Chorhata, an information was received by Sub Inspector Virendra Singh Parihar
(P.W.-9) posted in Police Station Chorhata at about 10:23 PM that a truck bearing
No. MP 20 HB/3344 is carrying ganja in large quantity illegally and is coming
towards Rewa from Maihar and will reach Rewa between 12 O'clock in the night
and 04:00 AM in the morning, This information was noted in Rojnamcha Sanha
No.53 Ex. P-31 dated 21.1.2019 at 10:23 PM. Thereafter, Constable No.566
Pankaj Mishra P.W.-3 was sent to call two independent witnesses and electronic
weighing machine from the Chorhata was called and his departure was recorded in
Rojnamcha Sanha No.54 Ex. P-32 dated 21.1.2019 at 10.28 p.m. At about 11:12
PM Pankaj Mishra (P.W.-3) came back with two independent witnesses Santosh
Shukla (P.W.-5) and Santosh Kushwaha (P.W. 6) along with electronic weighing
machine with 01 quintal capacity and this was entered in Rojnamcha Sanha No.56
(Ex. P-34) dated 21.1.2019 at 11:12 p.m, work certificate is Ex.P-33 dated
21.1.2019. Witnesses were informed about the information received through the
informant and a panchnama of the same was made and report Rojnamcha Sanha
No.57 (Ex. P-35) dated 21.1.2019 was registered at 11:27 PM. Since, the In-
charge of police station was outside the headquarter therefore for conducting raid,
a memo was prepared and along with panchnama Constable Pankaj Mishra (P.W.-
3) was sent to CSP Headquarter. His departure was registered in Rojnamcha Sanha
58 (Ex. P-36) dated 21.1.2019 at 11:34 PM. It is further the prosecution story that
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since the residence of the CSP was locked, therefore the information and
panchnama was handed over to the reader of the CSP (Police) and obtained an
acknowledgment for the same and returned to the police station and return entry
was made in Rojnamcha Sanha No.59 (Ex. P-37) dated 21.1.2019 time 11:53 PM.
Since the information from the informant was reliable and looking to the
possibility of delay, if the search warrant was to be obtained under Section 41 of
NDPS Act therefore, a panchnama under Section 42 of NDPS Act was made and
looking to the possibility of accused absconding or possibility of the concealment
of the contraband therefore the search warrant was not obtained. The witnesses
accompanied the police staff with the investigation material, they departed for the
spot where the truck was expected to arrive at 00:23 AM and this fact was noted
in Rojnamcha Sanha No.60 (Ex. P-38) dated 22.1.2019, detailed report of
proceeding by T.I. Chorhata to C.S.P, Rewa dated 22.1.2019 is Ex. P-39, Ex. P-40
dated 24.1.2019 is regarding sending sealed packet of 25 grams Ganja Article A-1
to F.S.L Sagar, F.S.L report is Ex. P-41, F.I.R dated 22.1.2019 is Ex. P-42.
Rojnamcha Sanha Ex. P-43 dated 22.1.2019 at 9:16 AM was recorded on return
from the spot, Ex P-44 is photocopy of the certificate of the drug by the Drug
Disposal Committee, Ex. P-45 is photocopy of auction of the truck bearing No.
MP 20 HB 3344 dated 23.11.2019 by the concerned committee of the officers, Ex.
P-46 is list of Narcotic Substance in proceedings under Section 52-A of the NDPS
Act, which is undated and mentioning about proceeding on 22.1.2019 and Ex. P-
47 is again a undated letter written by T.I. Chorhata, P.S., Rewa to Tahsildar who
has certified the same but it is undated.
6. While Sub Inspector Virendra Singh (P.W-9) was waiting for the truck and
the suspects then from the Bela side before the truck No. MP 20 HB 3344, a
Scorpio car bearing No.MP 17 CA 5835 came at about 00:50 AM. Police staff
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stopped the vehicle in which driver Manoj Pandey and Ramlal Jaiswal were found
and in truck, driver Veer Singh, cleaner Gurvinder Singh and Mukesh Prasad
Vishwakarma were found. All persons were questioned by the Sub Inspector
Virendra Singh (P.W.-9), then they informed the police officers that in truck about
10 quintals Ganja was kept in sacks and truck was going to the place of Ramlal
Jaiswal at Rewa.
7. It is further the case of the prosecution that on the spot, a memorandum of
Veer Singh (Ex. P-15) and of Mukesh Prasad Vishwakarma (Ex.P-17) under
Section 27 of Evidence Act was made. Under section 50 of NDPS Act, the accused
persons were given notice (Ex. P-7) to the effect that information has been
received about carrying of illegal narcotic substance ganja and police wants to
search the vehicle i.e. truck and Scorpio. They were also informed that they have a
right for getting vehicles checked by the Magistrate or Police Officer Virendra
Singh Parihar or gazetted officer. Accused consented to the search by Sub
Inspector Virendra Singh Parihar, a panchnama of consent to the above effect was
made thereafter Police Officer and witnesses got themselves searched by the
suspects. A panchnama was made at 02:15 AM.
8. It is further the case of prosecution that at about 02:30 AM when truck and
Scorpio was searched then in the truck bearing No.MP 20 HB 3344 narcotic
substance 'ganja' was found between cartons of dalda and in 50 sacks, 500 packets
were found, a panchnama (Ex. P-9) in this regard was made at 02:40 AM. When
the material was smelled, seen and touched, then it was found that it was the
'ganja', thereafter, panchnama was made in this regard which is Ex. P-10.
Thereafter, electronic weighing machine brought by Santosh Shukla was used. The
contraband 'ganja' was kept in packets of 22 kg each and in 50 sacks 500 packets
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were found. The physical verification panchnama (Ex. P-11) of electronic
weighing machine was prepared at 02:50 AM.
9. Further the case of prosecution is that the contraband which was seized from
the possession of the accused was mixed by putting the material on a big
polythene sheet and all packets were cut and material was mixed and on weighing
the same, the contraband weight was 10 quintals 50 grams ganja Panchnama is Ex.
P-12, worth Rs.1 crore. From the mixed 'ganja' for investigation, samples of two
packets weighing 25 grams each was prepared which was marked as Annexure A/1
& A/2, remaining 'ganja' was filled in 25 sacks each sack weighing 40 kg and
sacks were numbered from 1 to 25 and they were marked as 'A'. Out of the 50
sacks in which 37 sacks were of jute and 13 sacks were of plastic. These were kept
in two sacks equally and sample packets A/1 & A/2 and 25 sacks of 'ganja' were
marked as 'A' and packets were packed with polythene paper and tied with rope in
equal portion.
10. It is further the case of prosecution that at about 06:30 a.m. sealed sample
panchnama (Ex. P-13) was prepared, at 06:55 a.m, chit panchnama (Ex. P-14)
was made, at 07:00 AM, the 'ganja' seized from the truck, Scorpio bilty, papers
and mobile etc. were seized as per seizure memo (Ex. P-20).
11. A copy of seizure memo was given to the accused. As per Section 52 of
NDPS Act., accused were informed that from their (accused persons) possession
narcotic substance 'ganja' has been recovered and seized. Since an offence under
Section 8, 20, 25 & 25-A was committed, accused persons namely Veer Singh,
Mukesh Prasad, were arrested and arrest memo is Ex.P-22 & Ex. P-24 were
prepared separately respectively. Seized contraband was handed over to the Head
Constable (Malkhana) and crime was registered and matter was taken for
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investigation. After completing the investigation, charge-sheet No.92/2019 was
prepared and on 22/04/2019 the charge-sheet was filed before the trial Court.
12. The learned trial court on 08.05.2019 framed the charges against the
appellant/accused under Section 8 r/w Section 20(B)(II-C) and Section 25 r/w
Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The
accused denied the charges and demanded a trial.
13. During the course of the trial, the prosecution examined the following
witnesses PW/1- Mahendra Singh Sub Inspector, PW/2- Mrigendra Singh Baghel
Sub Inspector, PW/3- Pankaj Mishra Constable, PW/4- the then Head Constable
Ramvichar Tiwari, PW/5- independent witness Santosh Shukla, PW/6-
independent witness Santosh Kushwaha, PW/7- Umesh Kumar Tripathi Assistant
Sub Inspector, PW/8- Animesh Dwivedi Inspector, PW/9- the then Inspector
Virendra Singh Parihar, PW/10- Yateesh Shukla.
14. The prosecution exhibited the following documents: Ex.P/1- Duty
Certificate dated 21.1.2019, Ex.P/2- Acknowledgment receipt (undated), Ex.P/3-
Verified Photocopy of seizure register dated 22.1.2019, Ex.P/4-Verified
photocopy of the register of seized goods dated 22.1.2019, Ex.P/5-informant
information panchnama Section 42 of NDPS Act dated 21.1.2019 at 23:20 PM,
Ex.P/6-Panchanama informant (undated) Section 42 (2) of NDPS Act, Ex.P/7
Consent Panchanma dated 22.1.2019 at 2:00 AM, Ex.P/8 Search Panchnama of
witnesses and police officers dated 22.1.2019 at 2:15 AM, Ex. P/9 Search
Panchnama of suspects dated 22.1.2019 at 2:30 AM, Ex.P/10- Panchnama of
identification of drugs dated 22.1.2019 at 2:40 AM, Ex. P/11- Panchnama of Scale
Physical Verification dated 22.1.2019 at 2:50 AM, Ex.P/12-Samaras and weighing
scale Panchnama dated 22.1.2019 at 6:00 AM, Ex.P/13 Panchnama Seal Sample
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dated 22.1.2019 at 6:30 AM, Ex.P/14- Chit Panchnama dated 22.1.2019 at 6:55
AM, Ex.P/15 Memorandum under Section 27 of Evidence Act of Veer Singh dated
22.1.2019 at 1:00 AM, Ex.P/17 Memorandum under Section 27 of Evidence Act
of Mukesh Prasad dated 22.1.2019 at 1:25 AM, Ex.P/20-Property Seizure Memo
dated 22.1.2019 at 7:00 AM, Ex.P/21- Information and fard Panchnama of arrest
dated 22.1.2019 between 7:00 to 7:40 AM, Ex.P/22 Arrest Memo of Veer Singh
dated 22.1.2019 at 7:50 AM, Ex.P/24-Arrest memo of Mukesh Prasad
Vishwakarma dated 22.1.2019 at 8:00 AM, Ex.P/27 Police Statement under
Section 161 of Cr.P.C of Santosh Shukla dated 27.1.2019, Ex.P/28- Information
regarding action taken to the City Superintendent of Police Chorhata dated
21.1.2019 (there is overwriting in date and time in letter of Police Station
Chorhata), Ex.P/29-Spot Map dated 27.1.2019, Ex.P/30- Pre-trial Disposal
Schedule Under Section 52-A of NDPS Act dated 27.6.2019 was prepared,
Ex.P/31, Ex.P/32, Ex.P/34 to Ex.P/38, Ex.P/43 are the Rojnamcha Sanhas, Ex.
P/33 Work certificate Form, Ex.P/39 Detailed report of proceedings, Ex.P/40 letter
for sending drug sample to director State Forensic Lab, Sagar for testing purpose,
Ex.P/41 Drug Examination Report received from FSL Sagar, Ex.P/42- First
Information Report, Ex.P/44- Photocopy of the certificate of destruction of the
drug, Ex.P/45 Photocopy of the auction certificate of the vehicle truck bearing No.
MP 20 HB 3344, Ex.P/46 list of narcotic substances prepared under Section 52-A,
Ex.P/47- Index No.02 signed by TI Chorhata and Executive Magistrate (undated).
15. In addition thereto, the prosecution has exhibited the following articles
during the course of the trial
1. Article CJA-1 (Sample A1 drawn by the Tehsildar during proceeding under
Section 52A),
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2. Article CJA-2 (Sample A2 drawn by the Tehsildar during proceeding under
Section 52A),
3. Article CJA-3 (Sample A2 of the drug taken during the seizure proceeding
A-2)
4. Article CJA-4 (Sealed sample packet A-1 received from FSL Sagar),
5. From Article CJA-5 to CJA-9 (seized Five Mobile phones in sealed
condition),
6. Article CJA-1(450 CC bag of narcotic substance, from which 02 CC
samples have been separated).
7. One Scorpio four wheeler seized on spot bearing Registration No. MP 17
CA 5835.
8. Truck bearing No. MP 20 HB 3344 - (Narcotics Substance seized from the
truck).
16. When examined under Section 313 of the Code of Criminal Procedure,
wherein all 86 questions were put to the accused persons, they generally answered
that they are unaware of the facts (पता नह )ं or denied the allegations as incorrect
(गलत है ). However, the accused Veer Singh also stated that when he was drinking
tea at Dhaba situated at Katni, at that time in a Bolero vehicle 7 to 8 police
personnel in civil dress came and they made him to accompany them in Bolero
and seized the documents of the vehicle and a person from the police party took the
truck to Chorhata Police Station. They took away the truck at 9:00 p.m. whereas
the truck reached at about 3:00 - 4:00 a.m. in the morning.
17. The co-accused, Mukesh Prasad Vishwakarma, in his examination under
Section 313 of the Code of Criminal Procedure, similarly responded to the
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questions by stating that he is unaware of the allegations and that the same were
incorrect. He further stated that he was not travelling in the truck, that he has been
falsely implicated in the present case, and that he is a labourer by occupation.
Police apprehended him at Katni and took him to Police Station Chorhata in a
Bolero vehicle. In defence appellants have produced defence witness Anil Kumar
Vishwakarma (D.W-1).
18. It is further evident that, in addition to the present appellants Veer Singh
and Mukesh Prasad Vishwakarma, the learned trial court, by order dated
08.05.2019, also framed charges against co-accused Manoj Pandey, Gurvinder
Singh, and Ramlal Jaiswal in the same trial under Section 8 read with Section
20(B)(II-C) and Section 25 read with Section 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985.
19. As reflected from the record and the judgment of the learned trial court,
the accused Ramlal Jaiswal expired during the pendency of the trial, as a result of
which the proceedings qua him stood abated. During the course of trial, the co-
accused Gurvinder Singh absconded, and accordingly, his trial was separated by
the learned trial court vide order dated 23.01.2022. Subsequently, on 31.01.2023, a
perpetual arrest warrant was issued against the accused Gurvinder after he was
declared absconding. As per the judgment dated 20.03.2023, the learned trial court
has acquitted co-accused Manoj Pandey.
20. Perused the record of the trial court.
The first ground of objection is that there was violation of Sections 50 & 52-
A of NDPS Act. The above relevant provisions are as under :-
"50. Conditions under which search of persons shall be conducted :-
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(1) When any officer duly authorised under section 42 is about to search
any person under the provisions of section 41, section 42 or section 43,
he shall, if such person so requires, take such person without
unnecessary delay to the nearest Gazetted Officer of any of the
departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he
can bring him before the Gazetted Officer or the Magistrate referred to in
subsection (1).
(3) The Gazetted Officer or the Magistrate before whom any such person
is brought shall, if he sees no reasonable ground for search, forthwith
discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to
believe that it is not possible to take the person to be searched to the
nearest Gazetted Officer or Magistrate without the possibility of the
person to be searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or article or document,
he may, instead of taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under section 100
of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall
record the reasons for such belief which necessitated such search and
within seventy-two hours send a copy thereof to his immediate official
superior.
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Section 52A in The Narcotic Drugs And Psychotropic Substances Act, 1985
as enforceable on 29.05.1989:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
- (1) The Central Government may, having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of proper storage
space or any other relevant consideration, in respect of any narcotic
drugs, psychotropic substances, controlled substances or conveyances,
by notification in the Official Gazette, specify such narcotic drugs,
psychotropic substances, controlled substances or conveyance or class
of narcotic drugs, class of psychotropic substances, class of controlled
substances or conveyances, which shall, as soon as may be after their
seizure, be disposed of by such officer and in such manner as that
Government may, from time to time, determine after following the
procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled
substances or conveyances has been seized and forwarded to the
officer-in-charge of the nearest police station or to the officer
empowered under section 53, the officer referred to in sub-section (1)
shall prepare an inventory of such narcotic drugs, psychotropic
substances, controlled substances or conveyances containing such
details relating to their description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars of the narcotic
drugs, psychotropic substances, controlled substances or conveyances
or the packing in which they are packed, country of origin and other
particulars as the officer referred to in sub-section (1) may consider
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relevant to the identity of the narcotic drugs, psychotropic substances,
controlled substances or conveyances in any proceedings under this
Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such magistrate, photographs of such
drugs, substances or conveyances] and certifying such photographs as
true; or
(c) allowing to draw representative samples of such drugs or
substances, in the presence of such magistrate and certifying the
correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate
shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974),
every court trying an offence under this Act, shall treat the inventory,
the photographs of narcotic drugs, psychotropic substances, controlled
substances or conveyances] and any list of samples drawn under sub-
section (2) and certified by the Magistrate, as primary evidence in
respect of such offence."
21. It is submitted by learned counsel for the appellants that a joint consent
Panchanama was made which is illegal. Now it is to be seen whether questions
were asked to the witnesses during trial about violation of Section 50 of NDPS Act
which is regarding search of a person and consent panchnama for the same
purpose. On this aspect, regarding joint panchnama neither it has been stated as a
ground of appeal nor argued at the time of final hearing of this appeal and not
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raised before the trial Court as to what was the prejudice to the accused in their
defence, if instead of separate consent panchnama, joint panchnama Ex.P-7 was
made for search of vehicle truck from which Ganja was recovered.
22. In this regard, on perusal of the statement of prosecution witnesses S.I.
Mahendra Singh (PW-1) cross-examination in Para-11, S.I. Mrigendra Singh
Baghel (PW-2), Constable Pankaj Mishra (PW-3), Ram Vichar Tiwari (PW-4), S.I.
Umesh Kumar Tripathi (PW-7), Animesh Dwivedi (PW-8), Virendra Singh
Parihar (PW-9), it is seen that no question have been asked from these persons
about violation of section 50 NDPS Act. Even in the statement under Section 313
of Cr.P.C. it has not been stated that on account of joint panchnama Ex.P7 any
prejudice was caused.
23. Learned trial Court has dealt with all these aspects and in Para-57 rightly
has referred to the judgment of Navdeep Singh Vs. State of Haryana, 2013 (2)
SCC 584, wherein the Hon'ble Supreme Court has held that in Section 50 of NDPS
Act regarding information there is no definite form. Similarly, trial court rightly
referred in Para-55 the case of State of MP vs. Dhirendra, AIR 1997 SC 318,
according to which if the independent witnesses admits their signature on
panchnama and did not complaint that they were forced to sign on the documents
and if they turned hostile during trial, prosecution case would not vitiate. Even
otherwise, the truck belong to Veer Singh from which Ganja was recovered and
provision of Section 50 of NDPS Act applies only in those cases where there is
personal search but in this case, contraband Ganja has been recovered from the
body of the truck under possession of appellants Veer Singh and Mukesh. Hence,
objection regarding non-compliance of Section 50 of NDPS Act is not
maintainable and is hereby rejected needless to say that at the time of final hearing
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an objection is made by way of ground of appeal that in this case there is no
document on the basis of which it can be held that the appellant was driving the
truck and learned trial court in Para 57 has wrongly held that truck bearing No.
MP20-HB-3344 from which Narcotics substance ganja was in the possession of
the Veer Singh but the learned trial court in Para 63 has correctly mentioned that
there is no explanation by appellant Veer Singh and Mukesh Prasad Vishwakarma
that at the time truck was seized by the police they were not in possession of the
truck, in fact what has been stated in examination under section 313 Cr.P.C. that
police wrongly arrested them from a tea stall that defence was never taken during
the cross-examination of witnesses as mentioned above in cross examination of
PW1 Mahindra Singh, PW 2 Migendra Singh, PW3 Pankaj Mishra, PW4 Ram
Vichar Tiwari, PW5 Santosh Shukla, PW 6 Santosh Kushwaha (whose statement
was recorded on 23.9.2022 and cross examination was made on 01.11.2022). PW
7 Umesh Kuma Tripathi ,PW 8 Anumesh Dwivedi.
24. PW-9 Virendra Singh Parihar in cross-examination Para 20 was asked
that accused Veer Singh, Gurvinder Singh and Mukesh Prasad Vishwakarma are
driver and cleaner, who were directed by the owner that material has to be taken to
Rewa but they were apprehended in the way to which this witness (PW 9) has
answered that Veer Singh is the truck owner and he was carrying Narcotics
Substance.
25. In his statement under Section 313 Cr.P.C. Veer Singh has not stated he
is not the owner of the truck but has stated that he is a truck driver. If he was not
the owner of the truck it was very easy for the Veer Singh to file the relevant
document that on 21.1.2019 when the truck was apprehended by the police any
other person was the truck owner. Therefore, the plea of being only the truck
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driver or of not being in conscious possession of the truck or material kept in the
truck is not sustainable, in fact, on appreciation of evidence it is seen that at the
time of seizure of truck it was Veer Singh, owner of the truck who was driving of
the truck. It is further seen that as per order sheet dated 17.12.2019, an application
was filed by the accused/appellant Veer Singh that he is owner of the truck bearing
No. MP 20 HB 3334 (correct number is 3344) may be released on interim custody.
Therefore, during the course of argument, this argument that the truck did not
belong to the applicant Veer Singh is incorrect. Application of the Veer Singh is
on record therefore, finding of the Trial Court in Paras 57 & 63 cannot be assailed
that contraband Ganja was recovered from the truck driver (owner) Veer Singh and
cleaner Mukesh Prasad from their conscious possession from truck bearing no.
MP20 HB 3344.
26. Now, the sole objection remains regarding Section 52-A of NDPS Act,
the procedure prescribed under Section 52-A is to prepare an inventory of drug
containing details of description, quality, quantity, mode of packing, marks,
numbers or such other particulars of the Narcotic Substances or Conveyance or the
Packing in which they are packed or origin of country and other particulars as the
officer may thinks fit for identification of substance and make an application to
any Magistrate for the purposes of certifying the correctness of the inventory so
prepared or taking, in the presence of such Magistrate, photographs of such drugs,
substances or conveyances and certifying such photographs as true; or allowing to
draw representative samples of such drugs or substances, in the presence of such
Magistrate and certifying the correctness of any list of samples so drawn.
27. PW-1 Mahendra Singh Sub Inspector in Paras 1 & 6, stated about
mixing of the Ganja from the sacks and making 50-50 gram two packets.
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28. PW-2 Mrigendra Singh Baghel Sub Inspector in Para 3 has stated that
the ganja was mixed and 25-25 gram of two sample packets were made. In cross-
examination Para 6 he has stated that on the spot no form was prepared but
packets were sealed by the seal of Police Station.
29. PW-3 Pankaj Mishra Constable No. 966 has also stated about the
drawing of samples in Para 2 of the statements, in cross-examination Para 4 this
witness has stated that he cannot tell who drew the samples and whose seal was
affixed.
30. PW-4 Ramvichar Tiwari the then Head Constable, Malkhana in para- 2
has stated about keeping the sample and other sacks of Ganja in the Malkhana on
22.1.2019 and entry was made in Malkhana Register and he stated that he had
given a receipt of the same which is Ex.P/2. Thereafter, Packet 'A 1' on 24-01-
2019 was handed over to Constable Narendra Tiwari for sending the same to FSL,
Sagar and on 25-01-2019 material was deposited and he (Narendra Tiwari) filed
the receipt after depositing of the packet. On 27-01-2019 entry was made in
Rojnamcha Sanha 48. Copy of the Malkhana Register is Ex.P/3. Constable No.
1128 Vivek Singh brought the FSL Report from F.S.L. Sagar and entry was made
in Rojnamcha Sanha No. 35/11, true copy is Ex.P/4. In Para-5 of cross-
examination he admitted that he did not open the sacks to verify what is kept
therein, he had received the sacks of Ganja in sealed condition.
31. PW-5 Santosh Shukla, independent witness has been declared hostile
but he has admitted his signature on multiple documents like Ex.P/5-Informant
Information Panchnama Section 42 of NDPS Act, Ex.P/6-Panchanama informant
Section 42(2) NDPS Act, Ex.P/7 Consent Panchanma, Ex.P/8 Search Panchnama
of witnesses and police officers, Ex.P/9 Search Panchnama of suspects, Ex.P/10-
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Panchnama of identification of drugs, Ex.P/11- Panchnama of Electronic Scale
Physical Verification, Ex.P/12-Samaras (mixing) and weighing Panchnama,
Ex.P/13 Panchnama Seal Sample, Ex./14- Chit Panchnama, Ex./15 Memorandum
under Section 27 Evidence Act of Veer Singh, Ex./17 Memorandum under Section
27 Evidence Act of Mukesh Prasad, Ex.P/20-Property Seizure memo, Ex.P/21-
Information and fard Panchnama of Arrest, Ex.P/22 Arrest memo of Veer Singh,
Ex.P/24 Arrest memo of Mukesh Prasad Vishwakarma on which on A-A part there
are his signature. In cross examination Para 6 he stated that when he had signed,
Ex.P/5 to Ex.P/26 nothing was written on them. PW/6 Santosh Kushwaha
independent witness is also hostile but he has accepted his signature on Ex.P/20,
22, 24, on part B-B and in para-2 in examination-in-chief. In para- 3 he has stated
that from truck about 10 quintals of Ganja was seized in 50 sacks in para-4 stated
about verification of Scale and Samras Panchnama proceedings Ex. P-11 and Ex.
P-12, in cross-examination in para-5 he stated that when he signed them, some
documents were written and some were not written.
32. P.W.-7 Umesh Kumar Tripathi A.S.I has stated that on 21.1.2019 he
was Reader to C.S.P. and on that day, Constable Pankaj Mishra brought a Tahrir
regarding police information panchnama from P.S. Chorhata and since C.S.P was
not available, therefore, he had received the same and gave receipt Ex. P-28
wherein 'A to A' his signature and 'B to B' noting is in his hand-writing. In
paragraph-3 he admitted that there is overwriting in Ex. P-28 in date on 'A to A'
part.
33. PW-8 Animesh Dwivedi Inspector in para-2 has stated that he proceeded
for investigation on 27.1.2019. In para-4 of examination-in-chief he has stated that
on 27-06-2019, a letter was written about proceedings under Section 52-A of
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20 CRA-6303-2023
NDPS Act and a pre-trial disposal chart was made which is Ex.P/30 on part 'A to
A' there is his signature. In cross-examination paragraph 6 he stated that between
22.1.2019 to 27.1.2019 he did not investigate as he was busy in other work. In
Para-10 he has stated that proceeding under section 52-A of NDPS Act was done
as per procedure before the Tehsildar. Photographs were taken but he admitted
that "यह कहना सह है क जो फोटो ाफ माननीय तहसीलदार के सम ली गई थी वह चालानी
कायवाह म पेश नह ं क गई है ." In paragraph-11 he admitted that Rojnamcha Sanha
regarding proceedings under Section 52-A of NDPS Act are not attached in the
case.
34. PW-9 Virendra Singh Parihar, the then Inspector, in para-4 of
examination-in-chief has stated that in the truck in jute and plastic sacks there was
Ganja in 2-2 kg packets total packets 500 in number were kept in 50 sacks and
Panchnama Ex. P/9 was made wherein 'C to C' part carries his signature and in
panchnama there are signature of suspects. In para-5 of examination-in-chief he
mentioned that packets were cut and they were mixed together for making them
Samras and that Panchnama is Ex.P/12 was made, and from them two samples of
25 grams each were taken out and packets were made which were marked as
Annexure A/1 and A/2. The remaining Ganja was kept in 25 sacks which they had
taken with them to the spot and in each sack there were 40 kg of Ganja and they
were sealed and numbered from 1 to 25 and all these sacks were marked as 'A'
and the 50 sacks which were seized from the truck containing 37 sacks of Jute and
13 sacks of plastic in which Ganja packets were found were sealed separately in
two sacks in equal number which are B-2 and B-3 and remaining packets of
polythene, paper, tape and rope were also filled in two sacks equally and were
marked as B and B-1.
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35. Virendra Singh (PW-9) in para- 6 of his examination-in-chief, has
stated that he had shown the accused person the brass seal by which the material
was sealed, along with truck, Scorpio vehicle, Bilty papers, papers of the truck
Panchnama Ex. P-20 was made wherein his signatures are on 'C to C' part. In
paragraph-7 he has stated that under Section 57 of NDPS Act he had sent a detailed
report to Senior Officers which is Ex. P-39. Seized material was kept in police
station Malkhana. Sample packets were sent to FSL by letter no. Ex.P/40 for
chemical examination and from there report Ex.P/41 was received and the seized
material was found to be ganja. In Para 8 he has stated that remaining material 9
quintal 99 kg 900gm on 21.8.19 before Truck And Drug Disposal Committees and
I.G. Police Rewa zone drugs were destroyed in Prism Cement factory and disposal
certificate is Ex.P/44. Similarly, a seized truck was auctioned through DSP Police
and Drug Committees on 23.11.19 and truck bearing No. MP20-HD-3344
(typographical error, correct no. is MP20-HB 3344) was sold to purchaser
Manohar Lal Ahuja for Rs.4,02,000/- (Rupees Four Lakh Two Thousand). Auction
certificate is Ex.P/45. In Para 9 he stated that proceeding under section 52-A was
done by Naib Tehsildar Huzure, District Rewa, 2 samples A1 and A2 were
drawn out, samples were sealed which are Articles CJA-1 and CJA-2. On sample
A2 accused, witnesses and Police Officer signed. The Packet A1 received from
FSL Sagar is Article CJA-4.
36. Virendra Singh (PW-9) in para-15 of his cross-examination admitted
that no objectional material was found from the vehicle Scorpio. He further
admitted that on the basis of memorandum of accused Veer Singh nothing
incriminating was found from accused Manoj Pandey which would connect him
with other co-accused. He further admitted that between Scorpio and truck there
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was a distance of 200 meter. In cross examination in Para 19, this witness admitted
that after drawing of samples 10 quintals Ganja remained.
37. PW-10 Naib Tehsildar Yatish Shukla has verified the proceeding under
Section 52-A of the NDPS Act wherein he stated that he drew 50-50 grams of
Ganja each and made 2 sample packets A1 and A2. The concerned document is
Ex.P/46 and Photo verification is Ex.P/47 both documents have his signature on
part A to A. In Para 2 of cross examination this witness has stated that the narcotic
drug was kept in the police station.
Conclusion
38. On total consideration of prosecution evidence in this case, it is seen
that the panchnama photographs taken at the time of disposal of the property ganja
before Executive Magistrate has not been exhibited and attached in charge-sheet
neither concerning Rojnamcha Sanha have been annexed in charge-sheet as
admitted by PW-8 Animesh Dwivedi, Inspector. Similarly, on perusal of the
panchnama application Ex.P/47, it is seen that it is undated and this raises a
suspicion. Similarly, disposal chart Ex.P/46 is also undated. In Ex.P/46 it is
mentioned that out of the 25 sacks of 10 quintal 50 grams ganja seized and sealed
by the seizure officer Sub Inspector Virendra Singh Parihar each carrying 40 kg
ganja, from sack No.1 Naib Tahsildar Huzur Rewa, Yatish Shukla took sample of
50 grams each two packets were made and sack and packet were resealed and in
remark column it is mentioned that sample was taken only from sack No.1 because
all other sacks contained the same ganja, now this remark in Ex.P/46 is totally
illegal as even without opening other 24 sacks how this presumption was drawn
that other 24 sacks contained the same quality, quantity of narcotic substance ganja
and as stated above even photograph is not filed in charge-sheet.
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39. The above procedure fails in the light of the principle of law laid
down by the Hon'ble Supreme Court in following cases :-
( i ) Simarnjit Singh vs. State of Punjab, 2023, LiveLaw (SC) 570 ,
wherein relevant paragraphs 8 , 16 and 17 reads as under :-
8. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's
case1, it was held thus: "15. It is manifest from Section 52-A(2)include
(supra) that upon seizure of the contraband the same has to be
forwarded either to the officerin-charge of the nearest police station or
to the officer empowered under Section 53 who shall prepare an
inventory as stipulated in the said provision and make an application to
the Magistrate for purposes of (a) certifying the correctness of the
inventory, (b) certifying photographs of such drugs or substances taken
before the Magistrate as true, and (c) to draw representative samples in
the presence of the Magistrate and certifying the correctness of the list
of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as
soon as may be allow the application. This implies that no sooner the
seizure is effected and the contraband forwarded to the officer-in-
charge of the police station or the officer empowered, the officer
concerned is in law duty-bound to approach the Magistrate for the
purposes mentioned above including grant of permission to draw
representative samples in his presence, which samples will then be
enlisted and the correctness of the list of samples so drawn certified by
the Magistrate. In other words, the process of drawing of samples has to
be in the presence and under the supervision of the Magistrate and the
entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which,
more often than not, takes place in the absence of the Magistrate does
not in the above scheme of things arise. This is so especially when
according to Section 52-A(4) of the Act, samples drawn and certified by
the Magistrate in compliance with subsections (2) and (3) of Section 52-
A above constitute primary evidence for the purpose of the trial. Suffice
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24 CRA-6303-2023
it to say that there is no provision in the Act that mandates taking of
samples at the time of seizure. That is perhaps why none of the States
claim to be taking samples at the time of seizure."
(ii) Mohammed Khalid & Another Versus The State Of Telangana (Crl
appeal no. 1610 of 2023 judgment dated 01.03.2024 relevant paragraph 22 held as
under :-
22. Admittedly, no proceedings under Section 52A of the NDPS Act
were undertaken by the Investigating Officer PW-5 for preparing an
inventory and obtaining samples in presence of the jurisdictional
Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is
nothing but a waste paper and cannot be read in evidence. The accused
A-3 and A-4 were not arrested at the spot. The offence under Section
20(b)(ii)(c) deals with 17 production, manufacture, possession, sale,
purchase, transport, import or export of cannabis. It is not the case of
the prosecution that the accused A-3 and A-4 were found in possession
of ganja. The highest case of the prosecution which too is not
substantiated by any admissible or tangible evidence is that these two
accused had conspired sale/purchase of ganja with A-1 and A-2. The
entire case of the prosecution as against these two accused is based on
the interrogation notes of A-1 and A-2.
(iii). Bharat Aambale Versus State Of Chhatisgarh ( Crl appeal no. 250 of 2025)
relevant paragraphs 40, 44, 46, 47, 49, 50(v) 50 (vi) judgment dated 6.01.2025
40.Having gone through the materials on record, we are in complete
agreement with the reasoning of the High Court. Although, from the
testimony of PW-15 i.e., the officer-in-charge of the police station
where the seized substance was forwarded it may appear that the seized
substances were simplicter mixed together without following the
procedure of segregating similar packets of same quality and nature into
lots and thereafter taking representative samples therefrom, yet a closer
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25 CRA-6303-2023
reading of the Trial Court's judgment would reveal that the police
officers herein had duly followed the procedure prescribed to the letter
and spirit.
44. The Trial Court in para 34 has clearly observed that all 73 packets
that were seized were opened and the contents inside each packet were
matched and an identification memo was prepared in that regard.
Thereafter, two samples of 100 gm each were prepared by drawing
representative samples / mixed samples and thereafter the remaining
packets were sealed. The relevant observations read as under: - "All the
73 packets were opened and the contents inside them were matched and
an identification panchnama was also prepared. Two sample packets of
100 grams each were prepared from the mixed ganja, after which two
sample packets of 100 grams each and the remaining ganja were filled
in 6 plastic bags and sealed and seizure proceedings were carried out.
46 Even otherwise, if the contention of the appellants was to be
accepted in toto such procedural lapse has absolutely no bearing on the
overall case of the prosecution and by extension the conviction of the
appellant inasmuch as the entire material on record clearly establishes
the recovery and seizure of the ganja at the instance of the accused.
47. Before we close this judgment, we may address one another aspect
as regards Section 52A of the NDPS Act. Wherever any non-
compliance or contravention of either the provision or the Rules /
Standing Order(s) thereunder is alleged, the same must be something
tangible and not a mere bald assertion or superficial claim. The accused
must impute something palpable to make good its case that there has
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26 CRA-6303-2023
been non-compliance of the mandate of the said provision.
49. However, a close reading of the aforesaid decision reveals that this
onus on the prosecution will only encumber once such an issue of non-
compliance arises for consideration. Although, we are in complete
agreement with the aforesaid observations inasmuch as it would be for
the prosecution to establish and prove compliance of Section 52A of the
NDPS Act, yet at the same time, we are of the considered opinion, that
mere assertion by the accused that there has been non-compliance of the
said provision may not be sufficient. The initial burden will always be
on the accused to lay down the foundational facts for establishing that
there has been a non-compliance of Section 52A of the NDPS Act,
either by leading evidence of their own or by relying upon the evidence
of the prosecution itself such as by putting direct and specific questions
to the police officers and key witnesses. Such burden on the accused to
establish contravention of Section 52A of the NDPS Act will only be on
the mere preponderance of probabilities, whereas once the foundational
facts are established that raises an issue as regards the non-compliance
of Section 52A of the NDPS Act, the onus will entirely 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.
50. We summarize our final conclusion as under: -
(V) Mere non-compliance of the procedure under Section 52A or the
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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.
(iv). Surepallly Srinivas Versus The State Of Andhra Pradesh (Now State Of
Telangana) (Crl appeal no. 1474 of 2025) judgment dated 25.03.2025 relevant
paragraphs 14 and 15:
14. In the present case, from the evidence on record, it can be seen and
it is clear that the seized contraband was not properly sealed. Coupled
with this is the fact of the seized contraband not being produced before
the trial court prior to 3rd July, 2010. It is difficult to accept the
prosecution case that though there may not have been strict compliance
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28 CRA-6303-2023
of Standing Order No.1/89, the seized contraband was not tampered at
all. Keeping of the seized contraband by PW-3 in a separate room in his
office for fifteen days could give rise to an allegation that the seized
contraband was by itself substituted and some other items planted to
falsely implicate the accused. To avoid suspicious circumstances and to
ensure fair procedure in respect of search and seizure, it is always
desirable to follow the standing order which provides suitable guidance
for the officers investigating crimes under the NDPS Act. Should there
be any departure, the same must be based on justifiable and reasonable
grounds. We are, satisfied, on appreciation of the evidence on record,
that the possibility of tampering during this fifteen-day period cannot be
totally ruled out and that not only has there been no substantial
compliance of the standing order, the departure has also not been
justified.
15. We have also found from the materials on record that there has been
clear non-compliance with the provisions contained in Section 52-A of
the NDPS Act. Either possibly due to lack of experience of the
investigating officer or his lack of knowledge of the relevant provisions
of the NDPS Act, there were lapses which were duly noted by the
Sessions Judge. Thus, we are unable to hold that there was primary and
reliable evidence before the trial court in respect of the offence
committed. The onus of proving that compliance 7 of 7 with Section 52-
A did not affect the case of the prosecution has not been duly
discharged by the prosecution.
(v) Hon'ble Bench of this court in Vishal Shahni vs State of MP. (Crl.
APPEAL NO. 4576 of 2023) judgment dated 29/02/2024 in para 10 held as
under:
10. Gazette Notification of Ministry of Finance (Department of
Revenue) dated 23.12.2022 in which in exercise of the powers
conferred by Section 76 read with Section 52-A of the Narcotic Drugs
and Psychotropic Substances Ac t, 1985 enacted the Rules. These
Rules are called Narcotic Drugs and Psychotropic Substances
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29 CRA-6303-2023
(Seizure, Storage, Sampling and Disposal) Rules, 2022. Relevant
Rules for adjudication of this case are quoted as under:-
3. Classification of seized material . - (1) The narcotic drugs,
psychotropic substances and controlled substances seized under the
Act shall be classified based on physical properties and results of the
drug detection kit, if any, and shall be weighed separately.
( 2 ) If the narcotic drugs, psychotropic substances and controlled
substances are found in packages or containers, such packages and
containers shall be weighed separately and serially numbered for the
purpose of identification.
( 3 ) All narcotic drugs, psychotropic substances and controlled
substances found in loose form shall be packed in tamper proof bag or
in container, which shall be serially numbered and weighed and the
particular of drugs and the date of seizure shall also be mentioned on
such bag or container:
Provided that bulk quantities of ganja, poppy straw may be packed in
gunny bags and sealed in such way that it cannot be tempered with:
Provided further that seized concealing material such as backpack and
other seized articles shall be sealed separately.
(4) The classification, weighing, packaging and numbering referred to
in this sub-rule shall be done in the presence of search witnesses
(Panchas) and the person from whose possession the drugs and
substances was recovered and a mention to this effect shall invariably
be made in the panchnama drawn on the spot of seizure.
(5) The detailed inventory of the packages, containers, conveyances
and other seized articles shall be prepared and attached to the
panchnama.
8. Application to Magistrate. - After the seized material under the Act
is forwarded to the officer-in-charge of the nearest police station or to
the officer empowered under section 53 of the Act or if it is seized by
such an officer himself, he shall prepare an inventory of such material
in Form-4 and apply to the Magistrate, at the earliest, under sub-
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section (2) of section 52A of the Act in Form-5.
9. Samples to be drawn in the presence of Magistrate . - After
application to the Magistrate under sub-section (2) of section 52A of
the Act is made, the Investigating Officer shall ensure that samples of
the seized material are drawn in the presence of the Magistrate and the
same is certified by the magistrate in accordance with the provisions
of the said-sub-section.
10. Drawing the samples. - (1) One sample, in duplicate, shall be
drawn from each package and container seized.
(2) When the packages and containers seized together are of identical
size and weight bearing identical marking and the contents of each
package give identical results on colour test by the drugs identification
kit, conclusively indicating that the packages are identical in all
respects, the packages and 9 containers may carefully be bunched in
lots of not more than ten packages or containers, and for each such lot
of packages and containers, one sample, in duplicate, shall be drawn:
Provided that in the case of ganja, poppy straw and hashish (charas) it
may be bunched in lots of not more than fourty packages or
containers.
(3) In case of drawing sample from a particular lot, it shall be ensured
that representative sample in equal quantity is taken from each
package or container of that lot and mixed together to make a
composite whole from which the samples are drawn for that lot.
11. Quantity to be drawn for sampling . - (1) Except in cases of
opium, ganja and charas (hashish), where a quantity of not less than
twenty-four grams shall be drawn for each sample, in all other cases
not less than five grams shall be drawn for each sample and the same
quantity shall be taken for the duplicate sample.
(2) The seized substances in the packages or containers shall be well
mixed to make it homogeneous and representative before the sample,
in duplicate, is drawn.
(3) In case where seized quantities is less than that required for
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31 CRA-6303-2023
sampling, the whole of the seized quantity may be sent.
13. Despatch of sample for testing. - (1) The samples after being
certified by the Magistrate shall be sent directly to any one of the
jurisdictional laboratories of Central Revenue Control Laboratory,
Central Forensic Science Laboratory or State Forensic Science
Laboratory, as the case may be, for chemical analysis without any
delay.
the 10 jurisdictional laboratories under the cover of the Test Memo,
which shall be prepared in triplicate, in Form-6.
(3) The original and duplicate of the Test Memo shall be sent to the
jurisdictional laboratory alongwith the samples and the triplicate shall
be retained in the case file of the seizing officer.
40. Therefore, for non-compliance of procedure as prescribed in Section 52-A of
NDPS Act wherein PW-1 Sub Inspector Mahendra Singh stated that two samples
of 50 grams each were taken which is contrary to the prosecution case. Samples at
the time of seizure on spot on 22/01/2019 were not taken before the Magistrate.
The entire ganja was not produced for inspection of the court at the time of trial
because it was already destroyed as per Drug Disposal Rules but their primary
evidence photographs were neither attached nor exhibited in the case. Rojnamcha
Sanha of drug disposal proceeding was also not produced even sampling procedure
was faulty. Magistrate took samples from one sack only. Many panchnama were
undated raising a serious doubt about the fairness in procedure of the investigation
and it is the settled law that harsher the punishment in cases where police is the
complainant and investigator then rules of procedure should be strictly followed
but in this case the whole procedure adopted by the police and Magistrate is faulty
and doubtful, therefore, judgment of the trial Court cannot be upheld for the
reasons mentioned in this judgment.
41. Accordingly, for the reasons mentioned above, this appeal is allowed and
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judgment dated 20/03/2023 of convicting the appellants for the offence as
mentioned in Para-1 of the judgment are set aside. Accordingly, appeal is allowed
and disposed of.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
VKT
