Judgment and Order : KARDAK ETE, J. Heard Mr. T. N. Minto, learned counsel for the appellant. And also heard Mr.T. Ete, learned Additional Public Prosecutor for the State. 2. This criminal appeal under section 374(2) of Cr.PC, 1973 is directed against the judgment dated 23.04.2024 and Order of Sentence dated 30.04.2024 passed by the learned Special Judge (NDPS), Bomdila, for the District of East Kameng, West Kameng and Tawang in Special NDPS case no. 23/2023 under Section 21(b) of the NDPS Act, 1985, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for 3 years and 6 months with fine of Rs. 50,000/- for the offence of possessing intermediate quantity of contraband substance (Di-acetyl morphine) and in default of payment of fine to undergo further imprisonment of 2 months. 3. The case set up by the prosecution is that an FIR dated 12.07.2023 was lodged by Inspector Mr. Onyak Lego of Bomdila Police Station alleging that on 12.07.2023 at about 1610 hrs., a credible information was received from a source that a person namely Bhapo Marphew is selling contraband drugs i.e. heroin, from his residence located at Bidum village (Wangho). The information further asserted that if immediate action is not initiated, the peddler may change his location or may finish selling the contraband drugs. He has shared the information with higher authority and accordingly, he along with H/c Tenzin Norbu and H/c driver Jambey Milong Kharpa proceeded to the location in order to nab the drug peddler without giving the accused chance to change the location and to complete selling of the drug. In this regard an entry vide GDE No. 06 dated 12.07.2023 was made. On arrival at said location and before he searched the house of peddler, he had looked for independent witnesses in the locality but no one was found. Since there was strong chance that they may get spotted by the peddler and the peddler may escaped from the spot, he along with accompanying staff entered the house of suspect, Shri Bhapo Marphew without further delay. On entry, two persons namely- Shri Bhapo Marphew and Shri Tenzin Dargey were found present in the bedroom of suspect Shri Bhapo Marphew. Subsequently, they have apprised the suspects regarding their purpose of visit and asked the suspect for cooperation. On entry, two persons namely- Shri Bhapo Marphew and Shri Tenzin Dargey were found present in the bedroom of suspect Shri Bhapo Marphew. Subsequently, they have apprised the suspects regarding their purpose of visit and asked the suspect for cooperation. The suspects were asked to allow search of their persons and notices under section 50 of NDPS Act were served upon them. The suspects agreed and accordingly, they were searched but nothing was found from their possession. Thereafter, bedroom of Shri Bhapo Marphew was thoroughly searched on which following materials were recovered: (i) 1 (one) transparent plastic pouch containing pinkish yellow colour powdery substance suspected to be contraband drugs i.e. heroin weighing 5.8 grams, (ii) 1 (one) blue colour soap case inside which plastic pouch containing the suspected contraband drugs was found, (iii) 3 (three) disposable syringes, (iv) One black colour Samsung mobile handset (keypad) bearing IMEI No. 356214100962510 and 356215100962517 without SIM card of Tenzin Dargey, (v) 1 (one) golden colour Itell mobile handset bearing IMEI No. 911654202159002 and 911654202119010 along with one Airtel SIM card having caller ID No. 7831991059 card of Tenzin Dargey and (vi) 1 (one) maroon colour Redmi 9 power mobile handset bearing IMEI No. 869938053397049 and 869938053397056 along with one Airtel SIM card bearing caller ID No. 8413026025 of Shri Bhapo Marphew. Consequently, the informant has seized all the aforesaid articles and apprehended both the accused namely- Tenzin Dargey & Shri Bhapo Marphew. Thereafter, the informant brought both the apprehended accused along with seized articles and produced before Shri Kesang Wangda, Executive Magistrate, Bomdila. The photograph of seized materials were taken, the inventory was prepared, the samples were drawn and other required formalities were done in presence of Executive Magistrate. Later on, both the apprehended accused along with seized materials were brought to Police Station. It is further stated that accused persons namely Tenzin Dargey was found already booked in 2 other cases for Bomdila PS vide Bomdila PS C/ No. 24/21 U/s 27(b)/29 NDPS Act and Bomdila PS C/ No. 37/22 U/s 21(a)/27/29 NDPS Act. 4. Upon receipt of the said FIR, Bomdila Police Station case no. 07/2023 under Section 21(b) NDPS Act was registered. Upon completion of investigation, a chargesheet was filed against the appellant and one Tenzin Dargey. 4. Upon receipt of the said FIR, Bomdila Police Station case no. 07/2023 under Section 21(b) NDPS Act was registered. Upon completion of investigation, a chargesheet was filed against the appellant and one Tenzin Dargey. The learned Court has framed the charge against the appellant and one Tenzin Darge and the charges were read over and explained to the accused persons to which they have pleaded not guilty and claimed to be tried. 5. During the course of trial, the prosecution has examined in all 7 witnesses including the informant and the Investigating Officer. After closing the prosecution witnesses, the accused persons were examined under section 313 Cr.PC. The accused pleaded innocence, however, they have not adduced any defence evidence. 6. The case projected by the prosecution is that the appellant is a drug peddler and he was selling contraband drugs suspected to be heroin from his residence and during the operation both the accused persons, i.e., the appellant and one Tenzin Dargey were found together and Tenzin Dargey is involved in 2 cases of Bomdila Police Station relating to possession and consumption of contraband substance. Therefore, it was charged that both accused persons in furtherance of their common intention have possessed intermediate quantity of contraband substance. 7. After consideration and appreciation of evidence, the learned Special Judge (NDPS) has held that prosecution has proved the case beyond reasonable doubt that the appellant has possessed intermediate quantity of Di-acetyl morphine and thereby committed an offence punishable under section 21(b) NDPS Act. However, learned Special Judge (NDPS) has held that prosecution could not prove that accused Tenzin Dargey had any common intention to possess the contraband drugs, thereby acquitted him from the charges. Accordingly, the learned Special Judge (NDPS) has convicted and sentenced the appellant as mentioned herein above. 8. Mr. T. N. Minto, learned counsel for the appellant submits that the learned Special Judge (NDPS), Bomdila, did not appreciate the evidence on record appropriately and reached an erroneous conclusion about the guilt of the appellant and convicted him. He submits that the appellant has been convicted under section 21(b) of NDPS Act, however, the prosecution has failed to prima facie establish charge against him under section 21(b) of the NDPS Act, beyond reasonable doubt. He submits that the appellant has been convicted under section 21(b) of NDPS Act, however, the prosecution has failed to prima facie establish charge against him under section 21(b) of the NDPS Act, beyond reasonable doubt. The prosecution has failed to prove that the contraband drug, which allegedly seized from the appellant, was seized from the residence of the appellant, as no independent witness was present during the seizure. Moreover, the contraband was not recovered from the physical possession of the appellant. 9. Mr. Minto, learned counsel, submits that the learned Special Judge (NDPS), while convicting the appellant has recorded that the PW-5, Inspector Onyak Lego, had got an credible and prior information about the contraband substance against the appellant, whereas, the police has failed to convert the oral information into a written, which would have been the proper procedure to seek permission from the Magistrate to raid the suspected location. The police had not sought any permission to the raid the alleged house of the appellant. He submits that the PW-5 has failed to produce any independent witness regarding the seizure of contraband substance and no seizure list was prepared on the spot rather the contraband substance were shifted to the Police station and later the Magistrate alleged to have arrived at the police station and the seizure list was prepared in presence of the Magistrate, PW-7. The recovery/seizure of the contraband was not done before the Magistrate and no independent witness was present at the time of seizure of the contraband substance. Therefore, there is no evidence against the appellant. The learned Trial Court has failed to properly appreciate and consider the evidences on record and convicted the appellant without considering the procedural lapses in the investigation. 10. He submits that the prosecution had not prepared the duplicate sample of the contraband substance which violates section 52(A) of the NDPS Act, thereby, the appellant is entitled to be acquitted. The learned trial court had observed in its judgment at paragraph 30 that the suspected contraband in this case was measuring to 5.8 gram and for the examination of contraband substance like heroin, minimum 5 gram of sample is required to be sent to FSL examination. The learned trial court had observed in its judgment at paragraph 30 that the suspected contraband in this case was measuring to 5.8 gram and for the examination of contraband substance like heroin, minimum 5 gram of sample is required to be sent to FSL examination. Therefore, the learned Trial court has considered about non preparation of duplicate sample before sending to the FSL, as the suspected contraband in this case was not likely to be made in duplicate according to the observation of the learned trial court, however, even after having made observation about the minimum requirement of 5 gram contraband substance to be required for FSL examination, has failed to consider the fact that there was 0.8 gram more which could have been made as the duplicate sample. Therefore, the fact that the duplicate sample was not prepared shows that the prosecution has failed to follow the procedure laid down under section 52 of the Act. He submits that presence of magistrate is mandatory during the seizure of the contraband substance and the inventory has to be prepared in presence of the Magistrate, however in this instant case during the seizure no Magistrate was present nor any independent witness. 11. He submits that there are many procedural lapses in the investigation on the part of the Police, which cast a doubt on the story of the prosecution. The I.O. of the case, PW-5, has stated in his deposition that they had not obtained any search warrant before raiding the house of the appellant from where the accused persons were apprehended. He had stated that the magistrate (PW-7) was not present during the seizure and also stated that there was a prior information before the raid, however the I.O had failed to manage the warrant of search. Moreover, the seizure of the contraband drugs which were allegedly recovered from the bedroom of the appellant was not made before a Magistrate, which casts serious doubt on the conduct of the Police, more so, PW-7, is not even empowered or notified as Special Magistrate under the NDPS Act by the State Government. 12. Mr. Moreover, the seizure of the contraband drugs which were allegedly recovered from the bedroom of the appellant was not made before a Magistrate, which casts serious doubt on the conduct of the Police, more so, PW-7, is not even empowered or notified as Special Magistrate under the NDPS Act by the State Government. 12. Mr. Minto, learned counsel, submits that PW-7, the Magistrate, has clearly stated in his deposition that as per the information he had visited the Police Station and he had seen the accused person behind the police lockup and accordingly the police has shown him the seized materials, however the I.O, PW-5, in his deposition had stated that he had produced the accused person before the Magistrate and later both the accused persons were taken to the Police Station and the case was registered. Therefore, statements of both PW-7 and PW-5 contradict each other, thereby creates doubt. The search and seizure was conducted by PW-5 on prior information regarding alleged possession of contraband substance and PW-5 has failed to follow the procedure of noting down the information and informing about the same to his superior officer as provided under section 42 of the NDPS Act. The learned Court below while rejecting the said submission of the defense and its reliance placed on section 42, has erroneously held that PW-5 had information asserting that if immediate action is not initiated the peddler may change his location or may finish selling the contraband drugs completely contrary to the procedure under section 42 of the Act, in respect of search and seizure of contraband substance in any building, conveyance or place. The learned Special Judge (NDPS), has only taken into consideration of the statement of Prosecution witnesses which favors the prosecution story and has completely disregarded the evidence in favour of the accused persons as PW-7, who had deposed that he was not present during the search and seizure of the contraband substance which is clear that the provision of section 42 the Act was not complied with. 13. Mr. Minto, learned counsel, submits that the offences punishable under the NDPS Act are grave in nature and consequently, grave punishment have been provided under the Act for any contravention. Therefore, procedural safeguards have been provided under the Act and section 42 NDPS, one of the such safeguards, is required to be mandatorily complied with. 13. Mr. Minto, learned counsel, submits that the offences punishable under the NDPS Act are grave in nature and consequently, grave punishment have been provided under the Act for any contravention. Therefore, procedural safeguards have been provided under the Act and section 42 NDPS, one of the such safeguards, is required to be mandatorily complied with. Moreover, the PW-5 had categorically stated that he has not obtained search warrant from the Magistrate. 14. Mr. Minto, learned counsel, submits that the learned Trial Court has failed to consider that in a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused person always rest upon the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions and even wherein a statutory presumption exists, the foundational facts are required to be established and proved. Therefore, in the absence of compliance of section 42 & 52 of the NDPS Act, the conjoined effect would be that the whole trial is vitiated as it is the foundation of the entire prosecution. If the search and seizure is held to be illegal then all the subsequent events would be of no consequence and therefore, entire trial stands vitiated. 15. Mr. Minto, learned counsel, submits that the learned Special Judge (NDPS), was faced with two possibilities, one of which was favorable to the appellant but the learned Special Judge (NDPS) has ignored the various judgements of the Hon'ble Apex Court, that when two possible views exist, the view that favors the accused person shall be preferred, has convicted Shri Bhapo Marphew merely on the basis of surmises, by ignoring the reasonable doubts that clearly exist. The learned Special Judge (NDPS), has overlooked the cardinal principle which mandates adoption of the view favorable to the accused person. If on the evidence adduced in a case, one view points to the guilt of the accused and the other to his innocence, the Court should refrain from recording a finding of guilt of the accused. The learned Special Judge (NDPS), has overlooked the cardinal principle which mandates adoption of the view favorable to the accused person. If on the evidence adduced in a case, one view points to the guilt of the accused and the other to his innocence, the Court should refrain from recording a finding of guilt of the accused. However, a finding of guilt has been recorded even though the prosecution has failed to discharge its burden of eliminating doubts, while also overlooking cardinal principles of Criminal Jurisprudence, thus, the impugned judgment dated 23.04.24 and sentence dated 30.04.2024, portrays erroneous application of judicial mind and calls for interference and as such the judgement dated 23.04.2023 and order dated 30.04.2024 are liable to be set aside and quashed. 16. Mr. T. Ete, learned Additional Public Prosecutor for the State, submits that the Hon’ble Special Court, after careful appreciation of evidence has found that the prosecution successfully established beyond reasonable doubt that the contraband recovered from the appellant’s possession was Di-Acetyl Morphine (Heroin) weighing 5.8 grams, which falls within the intermediate quantity as per the NDPS Act. He submits that the concept of "possession" under the NDPS Act is not limited to physical custody but extends to conscious possession. An accused who exhibits control over contraband and is aware of its nature is deemed to be in conscious possession. He submits that the contraband was recovered from the bedroom of the appellant, thereby establishing his exclusive possession over the substance. The appellant had knowledge of its presence, thereby satisfying the legal requirement of conscious possession under the NDPS Act. He further submits that when contraband is recovered from the place under the exclusive control of the accused, it constitutes conscious possession unless rebutted by cogent evidence. The burden is on the accused to provide an explanation negating possession, failing which the presumption under the NDPS Act applies. In the present case, the appellant failed to rebut the presumption of possession, further strengthening the prosecution's case. 17. On the contention of the appellant regarding non-compliance of Section 42 of the NDPS Act, particularly that the search was conducted without a search warrant, Mr. T. Ete, learned Addl. PP submits that it is clearly evidenced from Exhibit-23, that as per Section 42(2) of the NDPS Act, PW-5 duly recorded the receipt of information and forwarded the same to his superior officer within 72 hours. T. Ete, learned Addl. PP submits that it is clearly evidenced from Exhibit-23, that as per Section 42(2) of the NDPS Act, PW-5 duly recorded the receipt of information and forwarded the same to his superior officer within 72 hours. Therefore, search and seizure were conducted strictly in accordance with the law, and no procedural lapse occurred. When the arrest, search, and seizure are conducted by a Gazetted Officer who is empowered under the NDPS Act, compliance with Section 42 is not mandatory. PW-5, who conducted the search, seizure, and arrest, is a Gazetted Officer, as per Notification No. HMB(A)- 01/2005 dated 03.03.2005 issued by the Home Department, Government of Arunachal Pradesh. He is specifically empowered under the NDPS Act to enter, search, seize, and arrest without a warrant by virtue of Notification No. HMD(B)- 46/2005. Thus, compliance with Section 42 of the NDPS Act was not mandatory in the present case. However, despite not being required, the investigating officer duly complied with the statutory requirement, further affirming the lawfulness of the search and seizure. 18. On the argument of the appellant that the inventory was not prepared in strict compliance with Section 52A of the NDPS Act, rendering the prosecution's case unreliable, Mr. T. Ete, learned Add. PP, submits that mere breach of Section 52A of the NDPS Act does not vitiate the trial if the recovery of contraband is otherwise proved beyond reasonable doubt. He submits that PW-5, after seizing the contraband at the place of recovery, proceeded to the police station. In the presence of the Magistrate, he prepared the inventory and submitted an application under Section 52A (2) of the NDPS Act, seeking certification of the inventory, permission to take photographs of the seized items in the inventory in the Magistrate's presence, certification of those photographs as true, and authorization for drawing samples along with certification of the list of samples drawn. The application was duly accepted by PW-7, the Magistrate, who verified and certified the correctness of the enclosed inventory, the photographs taken, and the list of samples drawn in his presence. thereby ensuring compliance with the statutory requirements under the NDPS Act. The chain of custody remained intact, and the samples sent for forensic examination at APFSL, PTC, Banderdewa tested positive for Di-Acetyl Morphine (Heroin). thereby ensuring compliance with the statutory requirements under the NDPS Act. The chain of custody remained intact, and the samples sent for forensic examination at APFSL, PTC, Banderdewa tested positive for Di-Acetyl Morphine (Heroin). He submits that the appellant did not challenge the authenticity, integrity, or chain of custody of the inventory during trial or cross-examination. The leftover contraband, which was returned after forensic examination, was properly sealed with intact wax seals, and the appellant failed to dispute its authenticity. The procedural compliance in the present case including the preparation of the inventory in the presence of the Magistrate, the certification of samples, and the verification of the seized contraband demonstrates full adherence to legal requirements. Therefore, the absence of independent witnesses or minor procedural lapses in inventory preparation does not create any reasonable doubt regarding the lawfulness of the recovery, seizure, and examination of the contraband. 19. He submits that the leftover contraband, which remained after FSL examination, was produced before the court and marked as MOB-6, which contained three intact wax seals. The FSL expert, in his deposition, stated that the leftover contraband was the residual portion of the sample initially sent for examination, which weighed 5.8 grams. After conducting the forensic analysis, 5.26 grams of the exhibit remained in the plastic pouch, which was then properly sealed and returned to the SP, Bomdila, with three intact wax seals. Despite having the opportunity, the appellant did not dispute or challenge the authenticity, integrity, or chain of custody of the leftover contraband during the cross-examination of the FSL expert. Therefore, the absence of any challenge to the leftover contraband further reinforces the prosecution's case, leaving no room for doubt regarding the proper handling, sealing, and chain of custody of the seized contraband. 20. With regard to challenge by the appellant to the validity of the certification process under Section 52A(2) of the NDPS Act, as per the Gazetted notification 2022, arguing that only a Judicial Magistrate is competent to certify the correctness of the inventory, photographs, and representative samples of the seized narcotic substance, he submits that this contention is misconceived and legally unsustainable and that this issue was never raised before the Hon'ble Trial Court, and it is for the first time that the appellant has raised this issue before this Hon'ble Appellate Court. In fact, no prejudice was caused to the accused, and the procedural aspect, which has not been raised at the trial stage, cannot be raised before the appellate court. It is also well settled that the mode or method of proof, if disputed, has to be raised at the trial stage; if not, then the same cannot be raised at a later stage. However, unlike other provisions of the NDPS Act, such as Section 36A, where the legislature has expressly referred to Judicial Magistrates, Section 52A(2) employs the phrase "any Magistrate", which, with due respect, is not restrictive in nature and includes both Executive and Judicial Magistrate. 21. He submits that the certification process under Section 52A(2) serves as an evidentiary safeguard, ensuring that the inventory, photographs, and representative samples maintain the same evidentiary value as the original contraband seized. This process is purely procedural and does not require an adjudicatory function, thereby making Executive Magistrates equally competent to undertake this responsibility. He submits that a restrictive interpretation that limits the term "any Magistrate" exclusively to Judicial Magistrates would not only run counter to the legislative intent but also create unnecessary procedural impediments in law enforcement. Particularly in remote or rural areas, where the availability of Judicial Magistrates may be limited, such a constraint would result in undue delays and disrupt the chain of custody of seized contraband. The presence of any Magistrate, including Executive Magistrate, ensures procedural compliance without hampering the administration of justice. He further submits that in the present case, the certification was carried out in full compliance with the mandate of Section 52A(2). Therefore, the appellant's contention to the contrary is legally untenable. Moreover, even if it is assumed for the sake of argument that the certification ought to have been conducted by a Judicial Magistrate, the same would not vitiate the trial. 22. On the contention of the appellant that the prosecution relied solely on police witnesses, Mr. T. Ete, learned Add. PP, submits that police testimony, if credible, is sufficient to convict an accused. In the present case, no independent witnesses were present as the search was conducted at the appellant's residence. However, the search and seizure were carried out only after due compliance with the mandate under Section 50(5) of the NDPS Act, 1985. T. Ete, learned Add. PP, submits that police testimony, if credible, is sufficient to convict an accused. In the present case, no independent witnesses were present as the search was conducted at the appellant's residence. However, the search and seizure were carried out only after due compliance with the mandate under Section 50(5) of the NDPS Act, 1985. There is nothing in the evidence of the prosecution witnesses to suggest any false implication of the appellant in the present case. Furthermore, there is no evidence of enmity between the prosecution witnesses and the accused/convicted person. The testimony of the seizure witnesses is duly corroborated by the material evidence on record, making their statements reliable, free from doubt, and worthy of acceptance. Therefore, he submits that the present appeal may be dismissed. 23. Mr. T. Ete, learned Add. PP, in support of his submissions, has placed reliance on the following judgements:- (i). Balbir Kaur Vs. State of Punjab, reported in (2009) 15 SCC 795 (ii). Union of India Vs. Satrohan, reported in (2008) 8 SCC 313 (iii). Bharat Aambale Vs. State of Chhattisgarh, reported in 2025 SCC Online SC 110. (iv). State of Punjab Vs. Makhan Chand, reported in AIR 2004 SC 3061 (v). Rizwan Khan Vs. State of Chhattisgarh, reported in (2020) 9 SCC 627 . 24. I have considered the submissions advanced by the learned counsel for the parties and also perused the records. 25. To appreciate, it is apposite to refer to the deposition/evidence of the prosecution witnesses: 26. PW-1, Narcotic expert, had deposed that on 26.07.23, FSL Banderdawa has received sample materials under section 21(b) NDPS Act through constable driver Mr. L. M. Thongchi of SP office, Bomdila. He has received 1 (one) seal intact envelope bearing No. BDL/CR-05/23/6384 which matched with the forwarding letter accompanying the sample. He has also received one box sealed with white marking cloth containing 9 lac seals which were intact and marked sample. He found suspected contraband substance in plastic pouch weighing 5.8 grams. He has marked the said contraband substance in the laboratory as item 1 of APFSL/NAR/187/2023. He has conducted test of the sample contraband as per the manual provided vide DFSS (MHA New Delhi). On being tested he found said sample of contraband substance to be Di-acetyl Morphine popularly known as brown sugar. He has marked the said contraband substance in the laboratory as item 1 of APFSL/NAR/187/2023. He has conducted test of the sample contraband as per the manual provided vide DFSS (MHA New Delhi). On being tested he found said sample of contraband substance to be Di-acetyl Morphine popularly known as brown sugar. After examination 5.26 gram was left in the plastic pouch, accordingly he has sealed the same and returned back to SP Bomdila along with report of examination prepared by him. In the cross examination, he had stated that he has not exhibited the requisition letter. He has not mentioned in the report regarding weight of remaining sample after examination, however, he has mentioned the same on his forwarding letter. In the report, wax seal is not present, however, it contains his seal and round seal of APFSL. 27. PW-2, Shri Jambey Minong Kharpa, H/C, had deposed that on 12.07.2023 he was on duty at Police Station, Bomdila. He was instructed by OC PS Bomdila for accompanying him for some duty. Accordingly, he went with him. He along with the team of police personnel went there. On the way he was told by OC, PS Bomdila that their team is going to conduct raid at the resident of Bhapo Marphew situated at Bidum village. During raid they have recovered suspected contraband substance from the possession of Bhapu Murphew in his room. During the time of raid Tenzin Dargey was also present at the room of Bhapo Marphew. OC, PS Bomdila has conducted body search of the accused persons. Thereafter, they brought both Tenzin Dargey and Bhap Marphew to Police Station along with seized contraband substance. He put his signature on the seizure memo, contraband substance and weighing scale memo as witness. He exhibited weighing scale memo along with his signature, seizure memo dated 12.07.23 regarding contraband substance and MR No. 05/23 along with his signature, seizure memo dated 12.07.23 regarding mobile handset and MR No. 05/23 and along with his signature, notices U/s 50 NDPS Act given to Tenzin Dargey ad Bhapo Marphew along with his signature, MOB I -redmi mobile handset MOB 2- Itell mobile handset, MOB 3- Samsung mobile handset seized during the raid, MOB 4 three Nos. of syringe with needle and MOB 5 soap case in which contraband substance were found. of syringe with needle and MOB 5 soap case in which contraband substance were found. In the cross examination, he had stated that during the time of search no other persons were present except police personnel. The mobiles were seized from the hand of the accused person, MOB 2 was in the hand of Bhapo Marphew and he does not remember about other mobiles. He has seen recovery of MOB 4 syringe from the bag but he cannot say the bag belongs to which of accused person. MOB 5 was containing the contraband substance. He cannot say about the name of company of weighing machine. Further he had stated that he does not know whether there was prior information for the raid. He does not remember whether weighing was done at the spot. He cannot say whether anything was recovered from the body of accused. He cannot say whether any contraband substance was recovered from Tenzin Dargey but the same was recovered from their bag. He cannot say the bag belongs to which of accused persons. 28. PW-4, Shri Tenzin Norbu, H/C, had deposed that on 12.07.2023 he was instructed by OC PS Bomdila for accompanying him for some duty. Accordingly, he went with him along with the team of police personnel. On the way he was told by OC that their team is going to conduct raid at the resident of Bhapo Marphew situated at Bidum village near Wangho village. During raid he has seen residence of Bhapo Marphew was locked from inside. On being knocked the accused persons have opened the same. On entering the room it is seen that accused persons namely Bhapo Marphew and Tenzin Dargey were sleeping on the bed. They have recovered suspected contraband substance from the possession of Bhapo Marphew in his room along with 3 empty syringes and some mobile handset. During the time of raid Tenzin Dargey was also present at the room of Bhapo Marphew. OC PS Bomdila has conducted body search of the accused persons. OC PS Bomdila has seized the contraband substance at the spot and scaled the same. Thereafter, they brought both Tenzin Dargey and Bhapo Marphew to Bomdila PS along with seized contraband substance. He exhibited almost the same materials as exhibited by PW- 2. 29. In the cross examination, PW-4 had stated that he does not know whether there was any search warrant. Thereafter, they brought both Tenzin Dargey and Bhapo Marphew to Bomdila PS along with seized contraband substance. He exhibited almost the same materials as exhibited by PW- 2. 29. In the cross examination, PW-4 had stated that he does not know whether there was any search warrant. No materials were recovered from accused persons. They have recovered the materials from the room where both of accused persons were present. He does not remember whether there was any independent witness except police during the time of seizure. He does not remember whether magistrate was present. Three wax seal was put during seizure of contraband substance. He has not seen the signature on the seal cover. He does not remember whether magistrate was present. During search and seizure they normally carry police equipments including weighing machine. During the time of weighing he was holding the accused persons. He does not know whether there was any information before raid. 30. PW-3, Shri Dorjee Phunchu Thongchi, had deposed that he knows the accused persons standing on the dock. On 12.07.2023 the OC, PS Bomdila along with police ready team has conducted raid at the residence of Bhapo Marphew situated at Bidum village and recovered some contraband substance. Accordingly, the team brought both Tenzin Dargey and Bhapo Marphew to Bomdila PS along with seized contraband substance. OC PS Bomdila namely Inspector O. Lego has filed the FIR and registered the case endorsed the same to him for investigation. The contraband substance already seized by OC PS Bomdila and the same is handed over to him. He has arrested accused persons namely Tenzin Dargey and Bhapo Marphew and produced them before the court. He has forwarded the seized materials for FSL examination through SP office Bomdila. Thereafter, as per order of SP he has handed over the case file to SI Nima Tsering for investigation into the case. He exhibited arrest memos of Bhapo Marphew and Tenzin Dargey along with his signature, rough sketch map of PO along with his signature, the production of accused persons along with his signature, forwarding of seizure materials along with his signature, format of requisition of CDR along with his signature, prayer for judicial custody of accused persons along with his signature, forwarding of medical examination of accused along with his signature, forwarding of exhibit along with his signature, case exhibit receipt from FSL, along with his signature. MOB 1 is redmi mobile handset seized during the raid. MOB 2 is I-tell mobile handset seized during the raid. MOB 3 is Samsung mobile handset seized during the raid. MOB 4 is 3 Nos. of syringe with needle seized during the raid. MOB 5 is soap case in which contraband substance were found. 31. In the cross examination, PW-3 had stated that he was not present during search and seizure. He cannot say where from MOBs shown to him are seized. He has not mentioned date on sketch map. He does not know whether there was search warrant from magistrate for the raid. OC O.Lego has apprehended accused persons from the house and produced at PS with FIR and he has arrested them. No independent persons have lodged FIR apart from police. He has forwarded the suspected contraband measuring 5.8 grams for FSL examination but he has not forwarded the empty syringe for FSL examination. Contraband substances were in plastic pouch but not in vials. In forwarding he gave the description of the packet of contraband substance. He cannot say whether there was any prior information for the raid. He has not kept any duplicate sample of contraband substance as entire seized contraband substance was forwarded for FSL examination. Before sending the seized materials for FSL examination they have maintained the same through MR register. 32. PW-5, Inspector Onyok Lego, OC, and the informant who conducted raid and recovered the contraband substance from the possession of accused person. He had deposed that on 03.07.2023 credible information was received from reliable source that Shri Bhapo Marphew is selling contraband drugs from his residence situated at Bidum village.. On receipt of information he along with H/CT Tenzin Norbu and H/CT Jambey Miron Kharpa proceeded towards the residence of accused Bhapo Marphew. On reaching the house of peddler, he searched for independent witness before search but no one was found nearby. Subsequently they entered the house of accused and they have seen 2 accused persons namely- Bhapo Marphew and Tenzin Dargey present inside the residence. He has advised them about their purpose of visit. Accordingly, they have conducted search of their body and room after complying procedure laid down under NDPS Act. During the search of bedroom of accused Bhapo Marphew some articles were recovered i.e., one transparent plastic pouch containing pinkish yellow colour powder substance suspected to be contraband drugs. He has advised them about their purpose of visit. Accordingly, they have conducted search of their body and room after complying procedure laid down under NDPS Act. During the search of bedroom of accused Bhapo Marphew some articles were recovered i.e., one transparent plastic pouch containing pinkish yellow colour powder substance suspected to be contraband drugs. On scaling, the weight was found to be 5.8 grams. One blue colour soap case inside which plastic pouch containing suspected contraband substance, three nos of disposable syringe, one black colour Samsung mobile handset bearing IMEI No. 356214100962510 and 356215100962517 without SIM card belongs to Tenzin Dargey, one golden colour Itell mobile handset bearing IMEI No. 91165202159002 and 911654202159010 along with one airtel SIM card having caller ID No. 8731991059 belongs to accused Tenzin Dargey & one maroon (red) colour redmi 9 power mobile handset bearing IMEI No. 86998053397049 and 869938053397056 along with one airtel SIM card bearing caller ID No. 8413026025 which belongs to Bhapo Murphew was found. He has seized all of the recovered materials and apprehended both of accused persons Tenzin Dargey and Bhapo Marphew. He has brought both accused persons with seized articles and produced them before Magistrate Mr. K. Wangda (PW-&). Accordingly photograph of seized materials were taken and inventory was prepared regarding the seized materials and obtained certification from the magistrate. Both the accused and seized materials brought at PS and case was lodged against both accused persons. Accordingly, Bomdila PS C/ No. 07/23 U/s 219b) NDPS Act was registered against both the accused and endorsed the same to ASI D.P. Thongchi for investigation. He exhibited P.ex. 3, seizure memo dated 12.07.23 regarding contraband substance and MR No. 05/23 along with his signature. P.exht. 4 is seizure memo dated 12.07.23 regarding mobile handset and MR No. 05/23 along with his signature. P.ex. 5 is notice U/s 50 NDPS Act given to Tenzin Dargey along with his signature. P.ex. 6 is notice under section 50 of the NDPS Act given to Bhapu Marphew along with his signature. P.ex. 17 is police self search memo along with his signature. P.ex. 18 is FIR lodged by him along with his signature. P.ex. 19 sample packaging memo, along with his signature. P.ex. 20 is certificate of correctness of inventory along with his signature. P.ex. 21 is certificate received from CO. P.ex. 22 is inventory of seized narcotic drugs along with his signature. P.ex. 18 is FIR lodged by him along with his signature. P.ex. 19 sample packaging memo, along with his signature. P.ex. 20 is certificate of correctness of inventory along with his signature. P.ex. 21 is certificate received from CO. P.ex. 22 is inventory of seized narcotic drugs along with his signature. P.ex 23 is intimation memo to SP along with his signature. P.ex. 24 is requisition for CDR sent to SP along with his signature. MOB 1 is redmi mobile handset belongs to Bhapo Marphew seized during the raid. MOB 2 is I-tell mobile handset belongs to Tenzin Dargey seized during the raid. MOB 3 is Samsung mobile handset belongs to Tenzin Dargey seized during the raid. MOB 4 is 3 Nos. of syringe with needle seized during the raid. MOB 5 is soap case in which contraband substance were found. MOB 7 to9 are photographs taken by him along with his signatures. 33. In the cross examination, PW-5 had stated that there was prior information before the raid. FIR is not lodged by any independent person. During the time of seizure of materials Magistrate was not present. There was no independent witness present. He has not obtained any search warrant from Magistrate. The information was prompt and as the accused was selling the contraband the same may finish anytime and he did not get time for obtaining warrant from Magistrate. He has mentioned in the FIR that accused Bhapo Marphew was selling contraband substance. He has not submitted any documents to show that the house belongs to Bhapo Marphew. He has not recovered any suspected materials from the body of accused persons. He has stated that he has written the information and forwarded to his superior officer who is SP Bomdila vide paper exhibit 23. During body search magistrate was not present. It is denied that while preparing inventory of seized materials he has not followed the mandate U/s 52A NDPS Act. 34. PW-6, Shri Nima Tering, had deposed that he cannot identify accused persons standing on the dock as when he received the case diary for investigation, the accused persons were already examined and they were remanded in judicial custody. During the month of October further investigation of present case was endorsed to me and till then maximum of investigation was carried on by previous I.O. and the case was pending for FSL examination report. During the month of October further investigation of present case was endorsed to me and till then maximum of investigation was carried on by previous I.O. and the case was pending for FSL examination report. He has received FSL examination report of contraband substance which affirmed that seized materials are Di-acetyl morphine which comes within the purview of NDPS Act. As he has found prima facie materials U/s 219b) NDPS Act against accused persons namely Bhapo Marphew and Tenzin Dargey and accordingly laid charge sheet. He exhibited P.ex. 1 is report of FSL examination received by him. P.ex. 2 is weighing scale memo. P.ex. 3 is seizure memo dated 12.07.23 regarding contraband substance and MR No. 05/23. P.ex. 4 is seizure memo dated 12.07.23 regarding mobile handset and MR No. 05/23. P.ex. 5 is notice U/s 50 NDPS Act given to Tenzin Dargey. P.ex. 6 is notice U/s 50 NDPS Act given to Bhapu Murphew.P.ex. 7 is arrest memo of Bhapo Murphew. P.ex. 8 is arrest memo of Tenzin Dargey. P.ex. 9 is rough sketch map of PO. P.ex. 10 is the production of accused persons. P.ex. 11 is forwarding of seizure materials.P.ex. 12 is format of requisition of CDR. P.ex. 13 is prayer for judicial custody of accused persons. P.ex. 14 is forwarding of medical examination of accused. P.ex. 15 forwarding of exhibit. P.ex. 16 is case exhibit form to FSL. P.ex. 17 is police self search memo. P.ex. 18 is FIR. P.ex. 19 sample packaging memo. P.ex. 20 is certificate of correctness of inventory. P.ex. 21 is certificate received from CO regarding correctness of inventory. P.ex. 22 is inventory of seized narcotic drugs. P.ex 23 is intimation memo to SP. P.ex. 24 is requisition for CDR sent to SP. P.ex 25 is FSL report forwarding by SP, 25(a) signature of Dy. SP which he can identify, P.ex. 26 charge sheet consisting of 6 pages along with his signature. MOB 1 is redmi mobile handset belongs to Bhapo Murphew seized during the raid. MOB 2 is Itell mobile handset belongs to Tenzin Dargey seized during the raid. MOB 3 is Samsung mobile handset belongs to Tenzin Dargey seized during the raid. MOB 4 is 3 Nos of syringe with needle seized during the raid. MOB 5 is soap case in which contraband substance were found. MOB 2 is Itell mobile handset belongs to Tenzin Dargey seized during the raid. MOB 3 is Samsung mobile handset belongs to Tenzin Dargey seized during the raid. MOB 4 is 3 Nos of syringe with needle seized during the raid. MOB 5 is soap case in which contraband substance were found. MOB 6 is the return sample after FSL examination containing 3 wax seal he has received along with FSL report after examination. MOB 7 to 9 are photographs. MOB 10 is sealed packet in which he has forwarded the MOBs to the court with charge sheet along with his signature. In the cross examination, he had stated that he has not recorded 161 statement of witness as investigation of the case was done by previous IO. He has not marked the materials object produced today for identification. He has not forwarded the syringe for FSL examination and has not explained details about the same for identification. He has not found any search warrant by Magistrate for raid. 35. PW-7, Shri Kesang Wangda, the Magistrate, had deposed that during the year 2023 he was posted at Bomdila as Circle Officer cum Executive Magistrate and he was discharging his duty as Town Magistrate. On 12.07.2023 he has received information form OC PS Bomdila that they have apprehended some persons and recovered some suspected contraband substance. As per the information he has visited PS Bomdila immediately and seen that accused persons standing on the dock were arrested and they were inside the police lock up. He was shown seized materials and he has physically verified the same. There was suspected contraband substance in plastic pouch containing pinkish powder substance, blue colour soap case, disposal syringe, 3 mobile handset. The substance were scaled in my presence and it was found to be 5.8 grams. He has received an application for collection of sample from the seized substance. Sample were collected by IO in his presence and accordingly he has certified the same. Inventory was prepared by I.O. and after verifying the same he has issued correctness certificate of inventory. He exhibited P.ex. 2 is weighing scale memo along with his signature. P.ex. 3 is seizure memo dated 12.07.23 regarding contraband substance and MR No. 05/23 along with his signature. P.ex. 4 is seizure memo dated 12.07.23 regarding mobile handset and MR No. 05/23 along with his signature. P.ex. He exhibited P.ex. 2 is weighing scale memo along with his signature. P.ex. 3 is seizure memo dated 12.07.23 regarding contraband substance and MR No. 05/23 along with his signature. P.ex. 4 is seizure memo dated 12.07.23 regarding mobile handset and MR No. 05/23 along with his signature. P.ex. 19 sample packaging memo, along with his signature. P.ex. 20 is certificate of correctness of inventory, along with his signature. P.ex. 21 is certificate issued by me regarding correctness of inventory along with his signature. P.ex. 22 is inventory of seized narcotic drugs, along with his signature MOB 1 is redmi mobile handset seized by police, MOB 2 is Itell mobile handset seized by police. MOB 3 is Samsung mobile handset seized by police. MOB 4 is 3 Nos. of syringe with needle seized by police. MOB 5 is soap case in which contraband substance were found seized by police. MOB 7 to 9 are photographs, along with his signatures regarding certifying correcting the same. 36. During cross examination, PW-7 had stated that he was not present at the spot during the time of search and seizure of contraband substance. It is denied that samples were not drawn for FSL examination in his presence. He does not remember weight of the sample sent for FSL examination. There were total 5.8 grams for contraband substance. He has certified MOB 7 & 9 as he has identified the person but he has not visited the place of occurence. There is no list of samples though in certification of inventory it is mentioned. In inventory quality is kept blank as the same cannot be determined by its perusal. It is denied that inventory is not prepared as provided under section 52A NDPS Act. 37. Careful scrutiny of the above testimony, reveals that PW-5 along with PW- 2 & 4 have conducted raid at the residence of appellant and recovered contraband substance measuring 5.8 grams from his room. During search and seizure, other accused Tenzin Dargey was also present with the appellant in his room. PW- 2, 3, 4 & 5 have clearly deposed that PW-5 has received specific information that appellant is selling contraband substance from his residence. PW- 2, 4 and 5 have stated that they went to the residence of the appellant and found appellant and one Tenzin Dargey in his room. PW- 2, 3, 4 & 5 have clearly deposed that PW-5 has received specific information that appellant is selling contraband substance from his residence. PW- 2, 4 and 5 have stated that they went to the residence of the appellant and found appellant and one Tenzin Dargey in his room. The defense did not assailed the statement of PW- 2, 3, 4 & 5, that the residence belongs to appellant and he was physically present along with Tenzin Dargey at the residence during the search and recovery of contraband substance. Even in the cross examination of PW- 2, 3, 4 & 5, the defense failed to contradict the same. Admittedly, the police have not recovered any contraband substance from the body of the accused persons, but contraband substance was recovered from the bedroom of the appellant. It is proved by the prosecution that contraband substance measuring 5.8 grams which comes within the intermediate quantity is recovered from the conscious possession of the appellant. 38. Record reveals that the IO had forwarded the recovered contraband substance in sealed cover to the FSL for examination and the FSL report shows that suspected contraband substance to be Di-acetyl morphine. PW-1, the FSL expert, had deposed that the suspected contraband sample was received on 26.07.2023 which was brought by driver constable L.M Thongchi of SP Office Bomdila. On receipt of the material, he has found the seal intact with the envelope and the same matched with the forwarding letter accompanying the sample. He has opened the sealed container and found suspected contraband in plastic pouch measuring 5.8 grams. He has examined the contraband substance as per the SOP and found to be Di-acetyl morphine. He has exhibited the FSL report prepared by him and the returned sample. No contradiction could be brought by the defense regarding the FSL examination in the cross examination. The FSL report regarding chemical analysis of seized material reflects that the sample was received by the examining officer having seal which are intact which tally with the specimen sealed on the forwarding letter. 39. The sample packaging memo which was prepared in presence of PW- 7 on the date of seizure itself and the said sealed sample was forwarded for FSL examination and PW-1 has received the same with intact seal. No tempering of the samples could be established as the seal was intact. 39. The sample packaging memo which was prepared in presence of PW- 7 on the date of seizure itself and the said sealed sample was forwarded for FSL examination and PW-1 has received the same with intact seal. No tempering of the samples could be established as the seal was intact. Therefore, the prosecution has be able to prove that the contraband substance recovered from the conscious possession of appellant is psychotropic substance of intermediate quantity. 40. The search and seizure of the suspected contraband substance is proved by the PW-5, with PW-2 & PW-4. The evidence of PW-7 has proved the inventory and sampling made in his presence. Thus, no illegality is found in respect of search and seizure as well as inventory and sampling as the procedure laid down appears to have been complied with. 41. The testimony of the prosecution witnesses established that the suspected contraband substance found to be Di-acetyl morphine, was recovered from the conscious possession of the appellant, which the defense failed to contradict. It is true that once the foundational fact is proved by the prosecution there will be presumption under section 54 of the NDPS Act which provides for presumption against the accused person and cast liability upon the accused for reverse burden to prove his innocence. It may be presumed, unless and until the contrary is proved, that the accused has committed an offence under the Act. Section 35 provides for presumption of culpable mental state of the accused person. It is provided that "Presumption of culpable mental state (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged. 42. It is also true that the settled principle of law is that in a Penal Statute where harsh punishment is provided against accused person the standard of prove is always higher. 42. It is also true that the settled principle of law is that in a Penal Statute where harsh punishment is provided against accused person the standard of prove is always higher. Mere application of Sections 35 & 54 of the NDPS Act does not altogether relieve the prosecution of the burden of proof contemplated under sections 101 and 102 of the Evidence Act (corresponding to sections 104 and 105 of BSA, 2023) but merely lessen the burden on the prosecution by shifting the onus upon the accused. However, such reverse onus would shift upon the accused only when the prosecution succeeds in prima facie establishing the charge by adhering to the standard of proof of beyond reasonable doubt. It is only then, the accused would have to displace the presumption of guilt. In present case the prosecution has proved that the appellant was apprehended with conscious possession of 5.8 grams contraband substance. It is also proved that seized materials were examined by FSL and ascertained the same to be Di-Acetyl Morphine. Thus, in my view, the prosecution has proved the case beyond reasonable doubt that appellant has possessed intermediate quantity of contraband substance. 43. Regard being had to the non-compliance with Section 42 of the NDPS Act, particularly that the search was conducted without a search warrant, it reveals from Exhibit-23 that PW-5 has recorded the receipt of information and forwarded the same to the superior officer within 72 hours. PW-5, who conducted the search, seizure, and arrest, is a Gazetted Officer, as per Notification No. HMB(A)-01/2005 dated 03.03.2005 issued by the Home Department, Government of Arunachal Pradesh. He is empowered under the NDPS Act to enter, search, seize, and arrest without a warrant. Thus, search and seizure appears to have been conducted in accordance with the law. In this context, reference may be made to case of Satrohan ,(Supra), wherein the Hon'ble Supreme Court has held that when the arrest, search, and seizure are conducted by a Gazetted Officer who is empowered under the NDPS Act, compliance with Section 42 is not mandatory. 44. Regarding the contention that the inventory was not prepared in strict compliance with Section 52A of the NDPS Act, which renders the prosecution's case unreliable, this court finds that PW-5, after seizing the contraband, proceeded to the police station. 44. Regarding the contention that the inventory was not prepared in strict compliance with Section 52A of the NDPS Act, which renders the prosecution's case unreliable, this court finds that PW-5, after seizing the contraband, proceeded to the police station. In the presence of the PW- 7, he prepared the inventory and submitted an application under Section 52A (2) of the NDPS Act, seeking certification of the inventory, permission to take photographs of the seized items in the inventory, certification of those photographs as true, and authorization for drawing samples along with certification of the list of samples drawn. The application was duly accepted by PW-7, who verified and certified the correctness of the enclosed inventory, the photographs taken, and the list of samples drawn in his presence thereby had ensured compliance with the statutory requirements under the NDPS Act. The appellant did not challenge the authenticity, integrity, or chain of custody of the inventory. The leftover contraband, which was returned after forensic examination, was properly sealed with wax seals, and the appellant failed to dispute its authenticity. The procedural compliance in the present case including the preparation of the inventory in the presence of PW- 7, the certification of samples, and the verification of the seized contraband demonstrates full adherence to legal requirements. Therefore, the absence of independent witnesses or minor procedural lapses in inventory preparation would not create any reasonable doubt regarding the lawfulness of the recovery, seizure, and examination of the contraband. 45. Regard being had to the contention of the appellant on the validity of the certification process under Section 52A(2) of the NDPS Act, arguing that only a Judicial Magistrate is competent to certify the correctness of the inventory, photographs and representative samples of the seized narcotic substance and not Executive Magistrate, this court would agree with the submission of learned Addl. PP, that unlike other provisions of the NDPS Act, such as Section 36A, where the legislature has expressly referred to Judicial Magistrate, Section 52A(2) employ the words "any Magistrate", which in my view is not restrictive in nature and would include both Executive and Judicial Magistrate. 46. PP, that unlike other provisions of the NDPS Act, such as Section 36A, where the legislature has expressly referred to Judicial Magistrate, Section 52A(2) employ the words "any Magistrate", which in my view is not restrictive in nature and would include both Executive and Judicial Magistrate. 46. In the case of Makhan Chand, (Supra), the Hon'ble Supreme Court has held that Section 52A is solely concerned with the disposal of seized narcotic drugs and psychotropic substances and does not empower the Central Government to prescribe procedures for the search of an accused and non compliance of the procedure for drawing sample prescribed by Govt. under Section 52A does not vitiate trial. In the present case, it is seen that the certification process under Section 52A(2) serves as an evidentiary safeguard, ensuring that the inventory, photographs, and representative samples maintain the same evidentiary value as the original contraband seized. This process appears to be purely procedural and does not require an adjudicatory function, thereby making Executive Magistrates equally competent to undertake the responsibility. It would not be appropriate to give a restrictive interpretation that limits the term "any Magistrate" exclusively to Judicial Magistrate which would not only run counter to the legislative intent but also create unnecessary procedural impediments in law enforcement, particularly in remote or rural areas in the state like Arunachal Pradesh, where the availability of Judicial Magistrate may be limited, such a constraint would result in undue delay and disrupt the chain of custody of seized contraband. The presence of any Magistrate, including Executive Magistrate, ensures procedural compliance without hampering the administration of justice. As noted above, the certification was carried out in full compliance with the mandate of Section 52A(2). Therefore, the appellant's contention deserved to be rejected. The procedural irregularities, if any, would not render the entire trial void, provided there is substantial compliance with the legal safeguards. 47. In the case of Bharat Aambale, (Supra), the Hon'ble Supreme Court has held that technical lapses in procedural compliance do not override substantive evidence when the recovery, seizure, and forensic confirmation of contraband are otherwise duly established. Mere breach of Section 52A of the NDPS Act does not vitiate the trial if the recovery of contraband is otherwise proved beyond reasonable doubt. 48. This court take note that no independent witnesses were present at time the search was conducted at the residence of appellant. Mere breach of Section 52A of the NDPS Act does not vitiate the trial if the recovery of contraband is otherwise proved beyond reasonable doubt. 48. This court take note that no independent witnesses were present at time the search was conducted at the residence of appellant. However, the search and seizure were carried out on due compliance with the mandate under Section 50(5) of the NDPS Act. There is nothing in the evidence of the prosecution witnesses to suggest any false implication of the appellant in the present case. The testimony of the seizure witnesses is supported by the material evidence on record which are reliable. 49. On careful scrutiny of the evidence, in my view, the prosecution has established beyond reasonable doubt that the contraband recovered from the appellant’s possession was Di-Acetyl Morphine (Heroin) weighing 5.8 grams, which falls within the intermediate quantity as per the NDPS Act, 1985 as the concept of "possession" under the NDPS Act is not limited to physical custody but extends to conscious possession. 50. In Balbir Kaur (Supra), the Hon'ble Supreme Court has held that an accused who exhibits control over contraband and is aware of its nature is deemed to be in conscious possession. In the present case, the contraband was recovered from the bedroom of the appellant, thereby establishing his exclusive possession over the substance. The appellant had knowledge of its presence, thereby satisfying the legal requirement of conscious possession. When contraband is recovered from an area under the exclusive control of the accused, it constitutes conscious possession unless rebutted by cogent evidence. The burden is on the accused to provide an explanation negating possession, failing which the presumption under the NDPS Act applies. The appellant failed to rebut the presumption of possession. 51. From the analysis of the evidence on record in its entirety and the law enunciated by the Hon’ble Supreme Court, I am of the view that the prosecution has been able to establish the conscious possession of the contraband substance and has proved the guilt of the appellant beyond reasonable doubt. The testimony of PW-1, 2, 3, 4, 5 and 7 are credible, reliable and trustworthy and clearly establishes the possession, if not, conscious possession, of the contraband substance Di-Acetyl Morphine by the appellant. The testimony of PW-1, 2, 3, 4, 5 and 7 are credible, reliable and trustworthy and clearly establishes the possession, if not, conscious possession, of the contraband substance Di-Acetyl Morphine by the appellant. I have, therefore, no incertitude in holding that the evidence led by the prosecution establishes the charge brought against the appellant Bapho Marphew beyond reasonable doubt. Thus, the learned Special Judge (NDPS), Bomdila has rightly convicted the appellant. 52. Consequently, the conviction of the appellant by the impugned judgement dated 23.04.2024 and Order of sentence dated 30.04.2024 passed by the learned Special Judge (NDPS), Bomdila, in Special NDPS case no. 23/2023 under Section 21(b) of NDPS Act, 1985, is upheld. 53. In the result, Criminal Appeal stands dismissed.