CAV Judgment:
Rajeev Ranjan Prasad, J.
1. This appeal is arising out of the judgment of conviction dated 22.02.2023 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 24.02.2023 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge-III, Muzaffarpur (hereinafter referred to as the ‘learned Trial Court’) in NDPS Case No. 18 of 2019 arising out of NCB Case No. 12 of 2019.
2. By the impugned judgment, the learned trial court has been pleased to convict the appellants for the offences punishable under Sections 20(b)(ii)(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) and ordered to undergo rigorous imprisonment for twenty years and to pay a fine of Rs.2,00,000/- each under Section 20(b)(ii)(c) of the NDPS Act. For the offence under Section 29 NDPS Act, they have further been ordered to undergo rigorous imprisonment for twenty years and to pay a fine of Rs. 2,00,000/- each. In case of default of payment of fine, they have to further undergo additional two and half years rigorous imprisonment. Both the sentences are to run concurrently.
Prosecution Case
3. The prosecution case as alleged is that on 08.05.2019 at about 09:00 AM, the informant, namely, Amar Shankar (PW-4) got a secret information that one oil tanker with Registration No. AS-17B-7231 is coming from Tripura via Guwahati, Siliguri and Purnea to Muzaffarpur carrying ganja in bulk quantity which is expected to arrive Purnea at about 18:00 O’clock. On receiving this information, a seven-member team of NCB was constituted. On 08.05.2019 at about 11:00 Hours, they left Patna with seizing kit and reached Gulab Bagh Chauraha, Purnea at about 17:30 Hours. At about 18:30 Hours, one white colour oil tanker with Registration No. AS-17B-7231 came from Dalkhola and was heading towards the road to Darbhanga. At about 22:30 Hours, the tanker reached Simrahi Bazar, Supaul, one person boarded the tanker there and the tanker moved further. The team also followed them to arrest other persons also who were involved in smuggling. On 09.05.2019 at about 06:00 AM, they reached Yadav Chauk, Muzaffarpur where two persons, namely, Ramlal Sah and Nageshwar Paswan were made independent witnesses. One more person reached the tanker and when he was boarding the same, the team stopped them and the persons on the tanker disclosed their names as Sandeep Kumar, Kuldeep Singh, Manoj Sah and Shankar Das. They all accepted that there is ganja in the tanker. On the same day at about 07:00 AM, the team along with the independent witnesses, oil tanker and the four persons reached Abkari Thana, Chhatachauk, Muzaffarpur where following the procedures of Section 50 of the NDPS Act, the four accused persons were searched in presence of the independent witnesses from whose possession, nothing incriminating material could be found. From the tanker, 55 packets each weighing 10 kgs total weight 550 kgs of ganja was recovered, some portion of which was sent for examination.
4. At the police station, three copies of test memo and search-cum-seizure list were prepared on which they put their signature and thumb impression.
5. On the basis of the copy of notice under Section 50 of the NDPS Act, Seizure list, Test memo, Carbon copy of notice under Section 67 of the NDPS act, statements of accused persons, arrest memo, Jama Talasi of accused, statement of independent witnesses under Section 67 of the NDPS, Medical report of the accused persons, documents of oil tanker, sample of seized narcotics in four sealed envelopes, Narcotics Control Bureau registered NCB Case No. 12 of 2019 under Sections 8, 20(b)(ii) (c), 25, 27 and 29 of the NDPS Act against accused persons, namely, (1) Manoj Sah, (2) Shankar Das, (3) Sandeep Kumar, (4) Kuldeep Singh. After that complaint petition was submitted before learned trial court with a prayer to take cognizance against above- named accused persons showing investigation continuing against Sukhwinder Singh (absconding) and Biswajeet Das (absconding). On the basis of the complaint petition and other materials available on the record, learned trial court vide order dated 13.11.2019 took cognizance of the offences punishable under sections 20(b)(ii)(c), 25, 27 and 29 of the NDPS Act against four accused persons namely (1) Manoj Sah, (2) Shankar Das, (3) Sandeep Kumar and (4) Kuldeep Singh and directed the office to open supplementary record against the absconding accused, namely, Sukhwinder Singh and Biswajeet Das.
6. Charges were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. Accordingly, vide order dated 19.01.2021, charges were framed against the appellants under Sections 20(b)(ii)(c), 25 and 29 of the NDPS Act.
7. In course of trial, the prosecution examined as many as six witnesses and exhibited several documents to prove it’s case. The list of the prosecution witnesses and the list of exhibits are being shown hereunder in tabular form:-
| PW-1 | Paramhans Kumar |
| PW-2 | Anil Kumar Prasad |
| PW-3 | Ravi Ranjan Kumar |
| PW-4 | Amar Shankar |
| PW-5 | Dhiraj Kumar |
| PW-6 | Rajan Kumar |
| Exhibit-1 | The statement of Kuldeep Singh |
| Exhibit-2 | Signature of the witnesses on the seizure list |
| Exhibit-3 | The statement of Sandeep Kumar |
| Exhibit-4 | Statement of independent witness Ram Lal Sah |
| Exhibit-2/1 | Signature of witness Ravi Ranjan Kumar on the last page of search-cum-seizure list |
| Exhibit-5 | Statement of Shankar Das |
| Exhibits-6, 6/1, 6/2, 6/3 | Search notice |
| Exhibit-2/2 | Search-cum-Seizure memo |
| Exhibit-7 | Test Memo |
| Exhibits-8, 8/1, 8/2, 8/3 | Notice under Section 67 |
| Exhibit-9 | Statement of accused Manoj Sah |
| Exhibits-10, 10/1, 10/2, 10/3 | Arrest Memo |
| Exhibits-11, 11/1, 11/2, 11/3 | Search and Seizure |
| Exhibit-12 | Interrogation of Shankar Das |
| Exhibit-13 | The correspondence under Section 65B of the IT Act |
| Exhibit-14 | True copy of report of Churawari P.S. Case No. 48 of 2018 under NDPS Act against Shankar Das |
| Exhibit-15 | Certification |
| Exhibit-15A | Inventory |
| Exhibit-15B | Photograph of seized ganja |
| Exhibit-16 | Certificate of seized vehicle |
| Exhibit-17 | Report dated 11.05.2019 submitted by Amar Shankar, Seizing Officer |
| Exhibit-19 | Test Memo report in which presence of ganja has been proved |
| Exhibit-20 | Complaint letter along with enclosures |
| Exhibit-21 | Writing and signature of page no. 128 entry no. 126 of the malkhana register |
| Material Exhibit ‘i’ | Sealed envelope BS-2 |
| Material Exhibit ‘ii’ | Sealed envelope AS-2 |
| Material Exhibit ‘iii’ | Sealed envelope of NCB-12 of 2019 |
Findings of the learned trial court
9. Learned trial court after analysing the evidences available on the record found that the prosecution has succeeded in proving the allegation of possessing and transporting ganja in oil tanker in violation of the NDPS Act and the quantity of the ganja was found to be commercial.
10. Learned trial court found that the prosecution has followed the established procedure for making search, seizure and sampling. Learned trial court found that the prosecution has proved the place, date and time of the occurrence.
11. Learned trial court found that on the basis of the cogent, convincing and reliable evidences brought on the record, prosecution has been able to prove the guilt against the appellants. Hence, learned trial court convicted the appellants for the offences punishable under Section 20(b)(ii) (c) and 29 of the NDPS Act.
Submissions on behalf of the appellants
12. Learned counsel for the appellants has submitted that the impugned judgment and order of the learned trial court suffers from several illegalities and infirmities. It is submitted that in this case, the two independent seizure list witnesses namely Ramlal Shah and Nageshwar Paswan have not been examined. There is no compliance with the requirement of Section 42(1) of the NDPS Act. It is submitted that though the seizing officer/informant has stated that he had recorded the information received on 08.05.2019 at about 9:00 Hrs. that an oil tanker bearing registration no. AS17B7231 is carrying a huge quantity of ganja from Agartala, Tripura will come to Muzaffarpur via Guwahati-Siliguri-Purnea and the said oil tanker may cross Purnea in the evening on the same day at about 18:00 Hrs. After recording the said information, he had communicated the same to Sri T. N. Singh, Zonal Director, NCB, Patna who consented and constituted a team of NCB Patna, the submission is that the said recording of information and proof of communication of the same to the Zonal Director has not been brought in evidence.
13. Learned counsel further submits that there was a substantial delay in certification of the inventory. Shri Deepak Kumar, the learned Judicial Magistrate First Class, who was deputed to do the certification work, did it only on 29.10.2019. Submission has also been made that the sampling of ganja was not done in the presence of a Magistrate. Nothing is there on the record to show as to when the samples were sent to the FSL. It is also submitted that the seized materials were not produced before the learned court. The destruction report of the narcotics was also not brought on the record.
14. Learned counsel has relied upon the judgments of the Hon’ble Supreme Court in the case of Karnail Singh and Others Vs. State of Haryana reported in (2009) 8 SCC 539; Darshan Singh vs. State of Haryana reported in (2016) 14 SCC 358; Mohd. Khalid and Anr. vs. State of Telangana reported in (2024) 5 SCC 393; Yusuf @ Asif vs. State reported in (2024) 14 SCC 217; State of U.P. v. Hansraj reported in (2018) 18 SCC 355 and Mangilal vs. State of Madhya Pradesh reported in 2023 INSC 634. It is submitted that the learned trial court has committed grave error in appreciation of the evidences on the record, hence, the impugned judgment and order are liable to be set aside and the appellants may be acquitted giving them benefit of doubt.
Submissions on behalf of the State
15. On the other hand, learned Additional Public Prosecutor for the State submits that in this case, the prosecution has been able to prove beyond all reasonable doubts that the entire procedures relating to search, seizure and sampling of the narcotics have been fully complied with. It is submitted that the information received by the informant Amar Shankar (PW-4) had been recorded and communicated to his senior officer whereafter a team of NCB, Patna was constituted comprising Sri Amar Shankar (Intelligence Officer and Seizing Officer), Sri Manoj Kumar Yadav, Havaldar, Sri Rajnish Kumar, Sipahi, and Sri Sanjeev Kumar, Driver from NCB Patna. The team of the NCB Patna intercepted the oil tanker bearing registration no. AS17B7231 in presence of the seizure list witnesses. Four persons were found sitting in the vehicle. They were (1) Sandeep Kumar, (2) Kuldeep Singh, (3) Manoj Shah and (4) Shankar Das. On their request and to provide them safety, the oil tanker and those persons together with both independent witnesses were brought to the State Excise Office at Chhata Chowk, Muzaffarpur on the same day where the search of the oil tanker was conducted in which 55 nos. of rectangular packets wrapped in brown colour adhesive tape were recovered from one of the oil tanks of the said oil tanker.
16. It is submitted that on opening of the oil tank, 55 packets dried brown colour substance believed to be ganja was found. The packets were weighed which were found to be 550 (55 x 10 kilograms). Thereafter, seized 55 packets were divided into two lots marked as Lot-A and Lot-B containing 28 packets and 27 packets respectively.
17. Learned Additional Public Prosecutor submits that the two samples of 25-25 grams each were drawn from each lot of the seized substance and were sealed with departmental seal and were marked as 'AS1', 'AS2', 'BS1' and 'BS2'. Signatures of seizing officer, both the independent witnesses and four accused persons were obtained on all sealed items.
18. Learned Additional Public Prosecutor submits that the contention of learned counsel for the appellants that the sampling was not done in presence of a Magistrate and that the seized narcotics were not produced in court are not correct submissions. It is a matter of record that the accused persons and the seized contraband with the samples were produced in court, whereafter the learned court granted permission to keep the remaining seized contraband, duplicate sample 'AS2' and 'BS2' in NCB Malkhana, Patna and deposition of seized oil tanker at Kanti Police Station, District Muzaffarpur. The court also granted permission for sending the samples 'AS1' and 'BS1' to CRCL, Kolkata for chemical examination. The prosecution has proved godown entry serial number 126 dated 10.05.2019 to show that the seized contraband samples marked 'AS2' and 'BS2' were deposited with NCB Malkhana vide receipt (Exhibit '21').
19. Learned Additional Public Prosecutor further submits that the samples marked as 'AS1' and 'BS1' along with two copies of test memo were sent to CRCL, Kolkata through special messenger for chemical examination. The chemical examination report of CRCL, Kolkata dated 15.05.2019 has confirmed the content of the samples as ganja and the copy of the report was sent to the court of learned District and Sessions, Muzaffarpur.
20. Learned Additional Public Prosecutor further submits that the plea of the learned counsel regarding non- compliance with Section 42 of the NDPS Act would not inspire confidence. It is submitted that in this case, the vehicle in question is an oil tanker which is a public utility service vehicle and even as it is owned by a person, it cannot fall in the category of a private vehicle. It is, thus, submitted that in fact Section 42 of the NDPS Act has no application in this case as the vehicle in question would fall in the category of a public service conveyance.
21. Referring to the judgment of the Hon’ble Supreme Court in the case of Karnail Singh (supra), learned Additional Public Prosecutor submits that in the said case, the Hon’ble Constitution bench has, though, held at one stage that if there is total non-compliance of provision, the same would adversely effect the prosecution case and to that extent it is mandatory but after taking note of the amendments brought in Section 42 with effect from 02.10,2001, the Hon’ble Supreme Court has held that the non-compliance of the said provision may not vitiate the trial if it does not cause any prejudice to the accused. Referring to paragraph ‘34’ of the judgment in the case of Karnail Singh (supra), learned Additional Public Prosecutor submits that the Hon’ble Supreme Court has held that if the statutory provision under Sections 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. It has been held that these provisions should be taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened peddlers.
22. It is submitted that so far as the judgment in the case of Boota Singh and Ors. vs. State of Haryana reported in (2021) 19 SCC 606 is concerned, the Hon’ble Supreme Court has held in the said case on the basis of the evidence that the vehicle was not a public conveyance but was a vehicle belonging to accused Gurdeep Singh. The registration certificate of the vehicle which was placed on record also did not indicate it to be a public transport vehicle. In that background, it was held that the explanation to Section 43 shows that a private vehicle would not come within the expression “public place” as explained in Section 43 of the NDPS Act. It was, thus, held that the relevant provision would not be Section 42 of the NDPS Act but the case would come under Section 43 of the NDPS Act. It is submitted that the facts of this case are conversed. It is a case of oil tanker which is used for transportation of oil and it is always registered as a commercial/public utility service vehicle.
23. Learned Additional Public Prosecutor submits that from the evidences available on the record, it may be easily found that the seizing officer submitted the carbon copy of notice under Section 50 of the NDPS Act, seizure list, test memo, carbon copy of notice under Section 67 NDPS Act, statements of accused persons, arrest memo, jama talasi of accused persons, documents of oil tanker, hand impression of accused persons and sample of seized narcotics in four sealed envelopes of NCB Case No. 12/2019 instituted under Sections 8, 20, 25 and 29 of the NDPS Act before the court of learned Sessions Judge-cum-Special Judge, Muzaffarpur. It is pointed out that on the same day i.e. on 10.05.2019, the I.O. filed an application along with test memo for permission for storage of seized contraband at NCB Malkhana, Patna, seized vehicle at P.S. Kanti, Muzaffarpur and for sending the sample of seized narcotics to CRCL, Kolkata. The court granted the permission on 10.05.2019 itself.
24. Learned Additional Public Prosecutor further submits that on 24.05.2019, the I.O. filed a petition before the learned court for deputing a Judicial Magistrate for certification of seized goods which were lying in the Malkhana/godown, NCB, Patna. This application was filed keeping in view the hazardous nature and constraints of proper storage space in the malkhana/godown. On the request of the I.O., the learned Sessions Judge, Muzaffarpur deputed one Shri Deepak Kumar, Judicial Magistrate, 1st Class, Muzaffarpur (East) to certify the seized goods in connection with NCB NDPS Case No. 12 of 2019. It is, thus, submitted that the seized ganja were kept in the Malkhana by order of the learned court and again the order was passed for certification of the ganja which were lying in the Malkhana. It is submitted that in such circumstance, this Court would find from the evidence of the informant (PW-4) and other witnesses that the sampling was done in presence of the accused persons and the test memo (Exhibit ‘7’) has been brought on record in this regard.
25. Learned Additional Public Prosecutor submits that in this case, Exhibit ‘14’ is verification report submitted by the ASI of Police, Airport Police Station, Narsingarh, West Tripura to Shri Dhiraj Kumar, Intelligence Officer, Office of the Narcotics Control Bureau, Rajiv Nagar, Patna from which it would appear that during the verification and inquiry, it has been established that Shankar Das is involved in ganja trafficking cases and one NBWA was pending against him which was issued by Special Judge, North Tripura, Dharmanagar in c/w Case No. Special (NDPS) 03 of 2019, arising out of Churaibari P.S. Case No. 48/2018. Exhibit ‘15’ is certification of the entries and according to this, the re- samples were drawn in the presence of the Magistrate before the order passed for the pre-trial disposal. Exhibit ‘15’ is dated 29.10.2019 and it refers the order dated 24.05.2019. After the re- sample was drawn in presence of the Magistrate, the contraband articles were resealed in presence of the Magistrate. Exhibit ‘15A’ is the certification of the inventory, Exhibit ‘15-B’ is the photographs of the narcotic and Exhibit ‘16’ is certificate of the entries made with regard to the oil tanker. Exhibit ‘18’ is the godown/malkhana receipt showing deposit of 549.900 kg of ganja kept in 55 rectangular packets in Lot-A and Lot-B, four samples sealed in paper envelopes marked ‘AS1’, ‘AS2’, ‘BS1’ and ‘BS2’ of 25 gram each and one oil tanker. The Malkhana Incharge has proved the entry number 126 in the Malkhana/godown register.
26. Learned Additional Public Prosecutor lastly submits that recently in the case of Narcotics Control Bureau vs. Kashif reported in (2024) 11 SCC 372, the Hon’ble Supreme Court has considered all the previous case laws and delved into Section 52A of the NDPS Act. The Hon’ble Supreme Court has held that notwithstanding anything contained in the Indian Evidence Act or the Code of Criminal Procedure, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs and psychotropic substances and list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.
27. Learned Additional Public Prosecutor submits that in paragraph ‘36’ of its judgment in case of Kashif (supra), the Hon’ble Supreme Court has referred the Constitution Bench judgment in case of Pooran Mal vs. Director of Inspection (Investigation) New Delhi (1974) 1 SCC 345 wherein it has been observed that in India, the law of evidence is modelled on the rules of evidence which prevailed in English Law and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure. In the case of State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172, the Hon’ble Supreme Court has explained that the judgment in Pooran Mal (supra) case cannot be understood to have laid down the law that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search. The Constitution Bench further held that the question of admissibility of evidence, which may be relevant to the question in issue, has to be decided in the context and the manner in which the evidence was collected and is sought to be used.
28. Learned Additional Public Prosecutor further submits that in the case of State of H.P. vs. Pirthi Chand reported in (1996) 2 SCC 37, the Hon’ble Supreme Court following the observations made by the Constitution Bench in Pooran Mal (supra) held inter alia that the power of search and seizure is an accepted norm in our criminal law and the Evidence Act permits relevancy as the only test of admissibility of evidence. It has been held that the evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground and it is wrong to invoke the spirit of the Constitution to exclude such evidence. The Courts in India refuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure.
29. It is submitted that in paragraph '41' of its judgment in case of Kashif (supra), the Hon’ble Supreme Court has held that in view of the law laid down by the Constitution Benches in the case of Pooran Mal (supra) and in case of Baldev Singh (supra), any procedural illegality in conducting the search and seizure by itself, would not make the entire evidence collected thereby inadmissible. The Court would have to decide the admissibility of the evidence in the context and the manner in which the evidence was collected and was sought to be used during the course of trial. On the strength of these judgments, learned Additional Public Prosecutor for the State submits that any procedural irregularity or illegality found to have been committed in conducting the search and seizure would not by itself make the entire evidence inadmissible. The Court have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused.
30. It is, thus, submitted that on the face of the evidences present on the record, the learned trial court has rightly held that the guilt of the accused have been duly proved. No interference with the impugned judgment and order is warranted.
Consideration
31. Having heard learned counsel for the appellants and learned Additional Public Prosecutor for the State as also on perusal of the records, this Court finds that in this case, PW-4 has categorically recorded that he had received information on 08.05.2019 at 09:00 Hrs. which he had recorded in writing and communicated to the Zonal Director who constituted a team of NCB officials at Patna. The said written note has not been brought on record but in our considered opinion, the evidences collected during search of the vehicle in question cannot be thrown away on this ground alone. In the case of Karnail Singh (supra), it has been categorically held that non-compliance of the provision may not vitiate the trial if it does not cause any prejudice to the accused. It has been further held that this provision should not be misused by the wrongdoers/offenders as a major ground for acquittal and it is to be taken as a discretionary measure which should check the misuse of the act rather than providing an escape to the hardened drug peddlers.
32. There is yet another reason for not accepting the plea of the appellants as regards non-compliance with Section 42 of the NDPS Act. In our opinion, the vehicle in question is an oil tanker which is a public utility transport vehicle and even though it is owned by one individual, the test is not the ownership. The test is as to whether the vehicle is a ‘private service vehicle’ or it is a ‘public service vehicle’. In the Motor Vehicle Act 1988, section 2(33) and 2(35) defines the ‘private service vehicle’ and ‘public service vehicle’ which we reproduce hereunder for a ready reference:-
“(33) “private service vehicle” means a motor vehicle constructed or adapted to carry more than six persons excluding the driver and ordinarily used by or on behalf of the owner of such vehicle for the purpose of carrying persons for, or in connection with, his trade or business otherwise than for hire or reward but does not include a motor vehicle used for public purposes;
(35) “public service vehicle” means any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage.”
33. In the present case, there cannot be any iota of doubt that the vehicle in question is a public utility service vehicle, therefore, in this case, Section 43 of the NDPS Act could be applied whereunder there is no requirement to record in writing the information received and communication of the same to the senior police officers. For these reasons, the plea based on Section 42 of the NDPS Act would fall.
34. Learned counsel for the appellants has submitted that in this case the seizure list witnesses have not been examined. In this regard, we have noticed from the evidence of the prosecution witnesses, particularly the evidence of the informant (PW-4) that he has proved the seizure list prepared in his handwriting and he has stated that on each of the pages there are signature of the accused persons, the signature of both the independent witnesses and the signature of the members of the NCB team. This seizure list has been marked Exhibit ‘2/2’. A perusal of the search-cum- seizure list present on the record would show that the search-cum- seizure list contains signature of all the accused, the two seizure list witnesses and the members of the NCB team. In presence of the accused persons, the seized contraband ganja ware kept in two lots i.e. Lot-A and Lot-B. Lot-A contained 28 packets which were kept in 14 nylon sacks containing two packets each. Lot-B contained 27 packets which were kept in 13 nylon sacks containing two packets and one nylon sack having one packet. From both the lots, some quantity of ganja were taken out and four samples of 25 gram each were prepared. The samples taken out from Lot-A were kept in two separate plastic pouch which were sealed with heat seal and after putting each of them in an envelope, the same was closed with seal and stamp and marked 'AS1' and 'AS2'. In similar manner, the two samples taken from Lot-B were dealt with and marked 'BS1' and 'BS2'. It is evident that the sampling was done by the NCB team led by PW-4 in presence of the accused persons and members of the NCB team. The seized articles were kept in sealed nylon sacks and on the sealed packets also signature of all the accused persons, the seizure list witnesses and the seizing officer were taken.
35. This Court further finds that three test memos were prepared. The prosecution has brought on record the test memos which is Exhibit ‘7’. The FSL report number 456-457/SHD(N)-49-50 dated 15.06.2019 has been brought in evidence as Exhibit ‘19’. The FSL report confirmed that the packets marked as 'AS1' and 'BS1' were found having leaves seeds and stalks and each responded to the test for cannabis. Each has the characteristic of ganja.
36. This Court has further found that with the permission of the learned court, the ganja seized by the NCB team and the sample of seized narcotics were sent to NCB Malkhana, Patna and the vehicle was ordered to be kept at the Police Station Kanti, Muzaffarpur. The prosecution witness namely Rajan Kumar (PW-6) has deposed. He produced the Malkhana register of NCB Patna, the seized articles of this case and the representative sample kept in the sealed envelope which was prepared at the time of certification. PW- 6 produced the sealed envelope of 'AS2' and 'BS2' which were in his custody. He has proved the signature of Amar Shankar (PW-4) on both the envelopes. This witness has also proved that in the Malkhana register on page no. 128, godown entry no. 126 is related to this case in which the entry has been made of the seized articles and he has proved that both the entries are in his handwriting and that of Hawaldar Manoj Kumar. He has also stated that five other persons have put their signature in this entry who are Manoj Kumar Yadav, Rajan Kumar, Robinson Gamte, Amar Shankar and one more signature which he did not identify. At his instance, Exhibit ‘21’ has been marked.
37. This Court finds that the learned trial court examined PW-6 under Section 165 of the Indian Evidence Act. Both the sealed envelope produced by PW-6 were marked Material Exhibit ‘I’ and ‘II’. The third envelope was marked Material Exhibit ‘III’. PW-6 is a competent witness who was Malkhana Incharge since November, 2020. He had produced the material exhibits on the direction of the Zonal Director.
38. We have noticed that in this case, on the order of the learned trial court passed on 24.05.2019, Sri Deepak Kumar, Judicial Magistrate, 1st Class, Muzaffarpur (East) was deputed to certify the seized goods. Exhibit '15', '15A' and '15B' are clearly showing that inventory of the seized ganja was prepared and representative samples of the ganja was drawn in presence of the Magistrate before order for the pre-trial disposal. We find that in this case while preparing inventory, photograph of the seized articles were also taken which has been proved as Exhibit ‘15B’.
39. On the face of the entire materials which we have noticed hereinabove, we are of the considered opinion that the contention of the learned counsel for the appellants that there is a delay in certification and sampling of the seized ganja would not be a valid ground to canvass. The sampling in duplicate was done in presence of the accused on 09.05.2019 itself and it was duly produced before the learned court on 10.05.2019 in sealed condition which were sent to the Forensic Science Laboratory (FSL) by order of the court. By order of the court only the seized articles were sent to the Malkhana of the NCB at Patna which were later on produced by PW-6. In his deposition, PW-6 has categorically stated that he had produced the seized exhibits with the Malkhana register and representative sample in the court. The defence never raised any ground of serious prejudice because of non-examination of the seizure list witnesses.
40. In the kind of the materials present on the record, we take note of the relevant part of the judgment of the Hon’ble Supreme Court in the case of Kashif (supra). In case of Kashif (supra), the Hon’ble Supreme Court has taken note of the views expressed by the Supreme Court in case of Yusuf @ Asif vs. State reported in (2024) 14 SCC 217 and Khalid (supra). It has been held in paragraph ‘46’ of the judgment in Kashif (supra) as under:-
46. At this stage, we must deal with the recent judgments in Simarnjit Singh v. State of Punjab([(2024) 14 SCC 222 : 2023 SCC OnLine SC 906]), in Yusuf v. State([(2024) 14 SCC 217 : 2023 SCC OnLine SC 1328]), and in Mohd. Khalid v. State of Telangana([(2024) 5 SCC 393 : (2024) 2 SCC (Cri) 650]) in which the convictions have been set aside by this Court on finding non-compliance with Section 52-A and relying upon the observations made in Mohanlal([Union of India v. Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864]). Apart from the fact that the said cases have been decided on the facts of each case, none of the judgments has proposed to lay down any law either with regard to Section 52-A or on the issue of admissibility of any other evidence collected during the course of trial under the NDPS Act.
41. In paragraph ‘50’ of its judgment in Kashif (supra), the Hon’ble Supreme Court has summarised the discussions which we reproduce hereunder for a ready reference:-
50. The upshot of the above discussion may be summarised as under:
50.1 The provisions of the 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.
50.2 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.
50.3 The purpose of insertion of Section 52-A 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.
50.4 Sub-section (2) of Section 52-A 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.
50.5 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.
50.6 Any lapse or delay in compliance with Section 52-A 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.
42. In yet another judgment, in case of Bharat Aambale vs. State of Maharashtra reported in (2025) 8 SCC 452, the Hon’ble Supreme Court has been pleased to summarise the law relating to search, seizure and sampling of Narcotic Drugs and Psychotropic Substances in the following words:-
“56. We summarise our final conclusion as under:
56.1. Although Section 52-A 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 the presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52-A sub- section (2) of the NDPS Act.
56.2. 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(Union of India v. Mohanlal, (2016) 3 SCC 379 : (2016) 1 SCC (Cri) 864), yet we are of the opinion that the process of inventorying, 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.
56.3. Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52-A of the NDPS Act and the Rules/Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52-A sub-section(4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
56.4. The procedure prescribed by the Standing Order(s)/Rules in terms of Section 52-A 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.
56.5. Mere non-compliance of the procedure under Section 52-A 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.
56.6. 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 52-A of the NDPS Act.
56.7. 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.
56.8. Where there has been lapse on the part of the police in either following the procedure laid down in Section 52-A 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.
56.9. The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52-A, 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.
56.10. Once the foundational facts laid indicate non-compliance of Section 52-A 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 52-A 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.”
43. Similar view has been taken by the Hon’ble Supreme Court in the case of Surepally Srinivas vs. State of Andhra Pradesh (now State of Telangana) reported in 2025 SCC OnLine SC 683 with regard to the effect of non- compliance with the provisions of subsection (2) of Section 52A of the NDPS Act.
44. Applying the aforesaid views of the Hon’ble Supreme Court, when we examine the evidences available on the record, in the present case, it is found that the prosecution has brought on record the mandatory evidences such as inventory photographs, sample of seized substance which were prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act. In our considered opinion, a fair procedure has been adopted by the seizing officer and the Investigating Officer and they have fully complied with the procedure. Nothing has been brought to the notice of this Court which may lead the Court to draw an adverse inference against the prosecution.
45. In result, we find no merit in these appeals. The appeals are dismissed.
46. Let a copy of this judgment together with the trial court’s record be sent down to the learned trial court.