Himachal Pradesh High Court
Date Of Decision: 9.9.2024 vs State Of Himachal Pradesh on 9 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:8432
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.Appeal No. 307 of 2021
.
Date of Decision: 9.9.2024
_____________________________________________________________________
Fateh Ram
.........Appellant
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. G.R. Palsra, Advocate.
For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.
Verma, Additional Advocates General with Mr. Ravi
rChauhan, Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant Criminal appeal filed under Section 374 of the CrPC
lays challenge to judgment dated 10.9.2021 passed by the learned Special
Judge, Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No. 32
of 2015, titled State of Himachal Pradesh v. Fateh Ram, whereby Court
below while holding the appellant/accused (hereinafter referred to as
“accused”), guilty of his having committed offence punishable under
Section 20(b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act
(in short “Act”), convicted and sentenced him to undergo rigorous
imprisonment for a period of six years and pay compensation to the tune of
Rs. 60,000/-.
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
2 2024:HHC:8432
2. Precisely, the facts of the case, as emerge from the record are
that SHO Chet Singh (PW10), HC Nand Lal (not examined), HC Rajesh
.
Kumar (PW4), Constable Khem Chand (not examined) and Constable Ramji
Dass (not examined), present at Nagchala in the official vehicle being driven
by Constable Devender Kumar (not examined) in connection with the theft
of Raghunath temple saw the accused coming from Bagla to Nerchowk on
foot. Since after having seen police, accused attempted to run away, police
apprehended him on the basis of suspicion. Having noticed conduct of the
accused coupled with the fact that he was carrying bag Ext.P2, police
thought at the first instance, made an attempt to associate independent
witnesses, but since none was found, it proceeded to conduct search of the
accused by associating HC Rajesh Kumar and C. Khem Chand as
witnesses. Police also gave personal search to the accused, but no
incriminating substance was found during the personal search of the police
and in that regard, memo (Ex.PW4/A) was prepared. However, police
recovered one plastic bag (Ex.P-7), containing black coloured stick like
substance (Ex.P-8) wrapped with transparent polythene from the bag of the
petitioner. Police after having smelled the substance found the same to be
cannabis and accordingly with the help of an electronic weighing scale,
weighed the same, which was found to be 600 grams. The cannabis was
put in the carry bag in the same manner in which it was recovered and
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
3 2024:HHC:8432
thereafter, the carry bag was again tied. All the articles and carry bag were
put in the bag in the same manner in which they were recovered. The bag
.
was put in a cloth parcel (Ex.P-1) and the parcel was sealed with 12
impressions of seal ‘M’. SHO Chet Singh, conducted the investigation and
filled the NCB-1 form (Ex.PW10/C) in triplicate and obtained the seal
impression on the NCB-1 form. Sample seal (Ex.PW4/B) was taken on a
separate piece of cloth and thereafter, seal was handed over to HC Rajesh
Kumar, after the use. The parcel, NCB-1 form in triplicate and sample seals
were taken in possession vide memo (Ex.PW4/C), which was signed by HC
Rajesh Kumar, C.Khem Singh and accused Fateh Ram. Besides handing
over seizure memo to the accused free of cost, SHO Chet Singh sent the
rukka (Ex.PW10/A) through HC Rajesh Kumar. HC Rajesh Kumar handed
over the rukka to PW7 HC Rohit Thakur and thereafter SHO Chet Singh
conducted the investigations at the spot. He after having prepared the site
plan (Ex.PW10/B) also recorded the statements of the witnesses as per
their versions. Since no plausible explanation came to be rendered on
record by the accused qua the possession of the aforesaid quantity of
contraband, police arrested the accused and prepared a memo (Ex.PW4/D).
After completing necessary codal formalities on the spot, police brought the
accused and case property to the police station and thereafter, the case
property was handed over to HHC Raj Kumar (PW1), who made an entry at
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
4 2024:HHC:8432
serial no. 1018/2014. (Ex.PW1/A). Afore HHC Raj Kumar deposited the
parcel, NCB-1 form, copy of FIR and seizure memo in the Malkhana.
.
Subsequently after HHC Raj Kumar sent entire contraband to FSL Junga
on 12.12.2014 for chemical analysis through HC Vikas Thakur PW5 vide
RC No. 325/14 (Ex.PW1/B). HC Vikas Thakur deposited all the articles in
FSL Junga and handed over the receipt to MHC on his return. Besides
above, a special report (Ex.PW3/A) was prepared and was handed over to
r to
PW6 Vijay Singh with the direction to take it to Additional S.P. Mandi, who
handed over the special report to the reader of Addl. S.P. Mandi, Shri
Kuldeep Chand Rana. Additional S.P. made an entry on the special report
and handed it over to his reader ASI Balam Ram (PW3) with direction to
make an entry in his register. PW3 ASI Balam Ram made an entry at serial
No. 92 (Ex.PW3/A). Kuldeep Chand Rana also executed an affidavit
(Ex.PW3/B) regarding this fact. HC Samad brought the parcel sealed with
12 impressions of seal ‘M’ and 4 impressions of seal ‘FSL’ along with a
report of chemical analysis and handed them over to MHC Rajesh Kumar,
who thereafter, made an entry in the register and deposited the case
property in Malkhana. The result of chemical analysis (Ex. PW10/B)
disclosed that the exhibit was the extract of cannabis and a sample of
charas, which contained 28.53% w/w resin in it. After completion of
investigation, police presented challan in the competent Court of law.
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
5 2024:HHC:8432
3. Being fully convinced that prima-facie case is made out against
the accused, Court below proceeded to frame charge against him under
.
Section 20(b) (ii) (B) of the NDPS Act, to which, he pleaded not guilty and
claimed to be tried.
4. Prosecution with a view to prove its case examined as many as
ten witnesses, whereas despite sufficient opportunity, accused failed to lead
evidence in defence.
5.
In his statement recorded under Section 313 CrPC, he denied
the case of the prosecution in toto. He stated that false case was made
against him and witnesses deposed against him falsely, however, as has
been noticed herein above, no evidence in defence was ever led on record.
6. Learned Court below on the basis of totality of evidence
adduced on record before it, proceeded to hold the accused guilty of his
having committed offence punishable under Section 20(b) (ii) (B) of the
NDPS Act and accordingly convicted and sentenced him as per description
given hereinabove. In the aforesaid background, accused has approached
this Court in the instant proceedings, praying therein for his acquittal after
setting aside judgment of conviction and order of sentence recorded by the
Court below.
7. Precisely, the grouse of the accused, as has been highlighted in
the appeal and further canvassed by Mr. G.R. Palsra, learned counsel
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
6 2024:HHC:8432
representing him, is that there is no compliance of Section 52A of the Act,
whereby it was incumbent upon the investigating agency to produce the
.
entire contraband before the Magistrate for preparation of the inventory
and drawing of represented samples. While making this Court peruse
records, especially challan filed under Section 173 CrPC, Mr. Palsra,
vehemently argued that Investigating Officer straightaway sent the entire
bulk of contraband allegedly recovered from the ac used to the FSL for
chemical analysis, which
has rendered the case of the prosecution
doubtful with regard to recovery.
8.
While making this Court peruse Section 52A of the Act, Mr.
Palsra, vehemently argued that aforesaid provision of law was introduced
with a specific object to avoid misuse, substitution and tampering of the
contraband allegedly recovered by the investigating agency. Mr. Palsra,
stated that Section 52A(2) makes it mandatory for investigating agency to
prepare the inventory of the seized articles including the contraband and
thereafter, procedure has be followed by supplying an application to the
Magistrate for the purpose of certifying the correctness of the inventory so
prepared, taking photographs in presence of the Magistrate, and certifying
the inventory as true or taking samples in presence of Magistrate with due
certification . He stated that since aforesaid provision of law never came to
be complied with in the case at hand, there was no occasion, if any, for the
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
7 2024:HHC:8432
learned Court below to hold the accused guilty of his having committed
offence punishable under Section 20(b) (ii) (B) of the NDPS Act. To
.
substantiate his aforesaid argument, Mr. Palsra, invited attention of this
Court to the judgments passed by the Hon’ble Apex Court in Mangilal v.
State of Madhya Pradesh 2023 SCC OnLine SC 862 and Mohammed
Khalid and Anr. v. The State of Telangana, Criminal Appeal No. 1610
of 2023 (alongwith connected matter), wherein it has been categorically
held that compliance of Section 52A is mandatory and omission, if any, on
the party of the investigating agency, is fatal to the case of the prosecution.
In case titled Mohammed Khalid (supra), Hon’ble Apex Court has held that
in case no proceedings Section 52A of the Act are undertaken by the
Investigating Officer for preparing inventory and obtaining samples in the
presence of the Judicial Magistrate, FSL report is nothing but a waste
paper and cannot be read in evidence. Besides above, Mr. Palsra, further
argued that bare reading of the statements given by the prosecution
witnesses, nowhere proves the case of the prosecution, rather (PW4) HC
Rajesh Kumar and (PW10) SHO Chet Singh, who are the witnesses of
recovery, nowhere supported the case of the prosecution. While making
this Court peruse statements made by the afore witnesses, Mr. Palsra
submitted that there are material inconsistencies and contradictions
because Chet Singh (PW10), stated on oath that all the documents with
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
8 2024:HHC:8432
regard to seizure were written by the Constable Rajesh Kumar, whereas
Rajesh Kumar while deposing before the Court below contradicted the
.
aforesaid version of Chet Singh and stated that all the documents including
the aforesaid documents were prepared by the Chet Singh (PW10).
9. While supporting the impugned judgment of conviction and
order of sentence recorded by the Court below, Mr. Rajan Kahol, learned
Additional Advocate General, vehemently argued that since entire bulk of
contraband allegedly recovered from the conscious possession of the
accused was sent to the FSL, there is no question of tampering, rather
report of FSL itself suggests that it after having received the entire bulk of
contraband, drew the representative samples which were subsequently
found to be samples of cannabis. While making this Court peruse Section
52A of the Act, learned Additional Advocate General attempted to argue
that Section 52A(1) of the Act deals with disposal of the narcotics property
and as such, omission, if any, on the part of the investigating agency to
produce the contraband before the Magistrate before drawing
representative samples may not be fatal to the case of the prosecution,
especially when FSL gave its report after drawing the representative
samples from the entire bulk of the contraband made available to it. Mr.
Kahol, further submitted that there may be minor contradictions in the
statements of PW4 and PW10, but if same are read in conjunction, it clearly
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
9 2024:HHC:8432
proves the case of the prosecution that on the date of the alleged incident,
police after having recovered the contraband from the conscious possession
.
of the accused, completed all the necessary codal formalities on the spot,
but since no plausible explanation ever came to be rendered on record at
the behest of the accused qua possession of the contraband, he was
arrested that too after lodging of FIR.
10. Having heard learned counsel for the parties and perused the
material available on record vis-à-vis reasoning assigned in the judgment
impugned in the instant proceedings, this Court finds merit in the
contention of Mr. Palsra, learned counsel appearing for the accused that at
no point of time, application under Section 52A of the Act was ever
submitted before the Magistrate concerned for preparation of the inventory,
as a result thereof, representative samples of contraband were also not
drawn in the presence of the Magistrate. Similarly, on account of non-filing
of the application as per Section 52A, photographs of the contraband, were
also not clicked in the presence of the Magistrate. As per Mr. G.R. Palsra,
learned counsel appearing for the accused, it was mandatory for the
investigating agency to file an application under Section 52A of the Act to
Magistrate for certification of inventory so prepared by the investigating
agency and representative samples for chemical analysis could only be
drawn in the presence of the Magistrate, however, such plea of his has been
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
10 2024:HHC:8432
refuted by the learned Additional Advocate General on the ground that
since entire bulk of contraband was sent to FSL for chemical analysis and
.
FSL submitted report qua the nature of substance sent to him after
drawing representative sample from the entire bulk of contraband,
omission, if any, to prepare inventory and production of same before the
Magistrate, may not be of much consequence. To support his aforesaid
submission, learned Additional Advocate General invited attention of this
Court to the judgment passed by the Hon’ble Apex Court in case titled
State of Himachal Pradesh v. N.S. God 2013 (3) SCC 594, (already taken
note by the Court below, at page 34 of the judgment), wherein it has been
held that where no prejudice is caused to the accused on account of
procedural lapse on the part of the prosecution, such lapse is not fatal to
the case of prosecution case.
11. Before ascertaining the correctness of the aforesaid rival
submissions made by the learned counsel for the parties, this Court deems
it fit to take note of Section 52A of the Act, which read as under:
“52A. Disposal of seized narcotic drugs and psychotropic
substance
2[(1) The Central Government may, having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of proper
storage space or any other relevant consideration, in respect of any
narcotic drugs, psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette, specify such::: Downloaded on – 12/09/2024 20:29:41 :::CIS
11 2024:HHC:8432narcotic drugs, psychotropic substances, controlled substances or
conveyance or class of narcotic drugs, class of psychotropic.
substances, class of controlled substances or conveyances, which
shall, as soon as may be after their seizure, be disposed of by such
officer and in such manner as that Government may, from time to
time, determine after following the procedure hereinafter specified.](2) Where any 3[narcotic drugs, psychotropic substances, controlled
substances or conveyances] has been seized and forwarded to the
officer-in-charge of the nearest police station or to the officerempowered under section 53, the officer referred to in sub-section (1)
shall prepare an inventory of such 3[narcotic drugs, psychotropic
substances, controlled substances or conveyances] containing such
details relating to their description, quality, quantity, mode ofpacking, marks, numbers or such other identifying particulars of
the 3[narcotic drugs, psychotropic substances, controlled substances]
or conveyances or the packing in which they are packed, country of
origin and other particulars as the officer referred to in sub-section(1) may consider relevant to the identity of the 3[narcotic drugs,
psychotropic substances, controlled substances or conveyances] in
any proceedings under this Act and make an application, to anyMagistrate for the purpose of–
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such magistrate, photographs
of 4[such drugs, substances or conveyances] and certifying suchphotographs as true; or
(c) allowing to draw representative samples of such drugs or
substances, in the presence of such magistrate and certifying
the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
12 2024:HHC:8432
(4) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974),.
every Court trying an offence under this Act, shall treat the
innventory, the photographs of 5[narcotic drugs, psychotropic
substances, controlled substances or conveyances] and any list of
samples drawn under sub-section (2) and certified by the Magistrate,
as primary evidence in respect of such offence.]
12. Bare perusal of aforesaid provision of law clearly reveals that
the Central Government, having regard to the hazardous nature,
vulnerability to theft, substitution, constraint of proper storage space or
any other relevant consideration, in respect of any narcotic drugs,
prescribed for specific procedure to be followed by the investigating agency
after recovery of the contraband. As per aforesaid provision of law, where
any narcotics substance is seized and forwarded to the officer-in-charge of
the nearest police station or to the officer empowered under Section 53, he
shall prepare an inventory of such narcotic substance, containing such
details relating to its description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars of the narcotic
substance and make an application, to any Magistrate for the purpose of
certifying the correctness of inventory so prepared.
13. As per aforesaid provision of law, photographs of the
contraband shall also be clicked in the presence of the Magistrate, who will
certify the same. Most importantly, representative samples of contraband
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
13 2024:HHC:8432
would be drawn in the presence of the Magistrate, who would further certify
the list of samples so drawn. It is only after certification of samples drawn
.
in the presence of the Magistrate, I.O. would send the samples to the FSL
for chemical analysis.
14. Admittedly, in the case at hand, procedure as envisaged under
Section 52A of the Act, never came to be complied with, rather as per own
case of the prosecution, investigating agency after recovery of the
r to
contraband, sent the entire bulk, firstly, to Malkhana and thereafter to FSL
for chemical analysis. There is nothing to suggest that contraband
allegedly recovered from the conscious possession of the accused was made
homogenous before sending it to the FSL. Though report of FSL reveals
that it before conducting chemical analysis, drew representative samples,
but that may not be of much consequence for the reason that samples
were never drawn in the presence of the Magistrate in terms of Section 52A
of the Act. As has been noticed herein above, Section 52A came to be
incorporated w.e.f. 29.5.1989, with a specific object to prevent theft,
substitution and tampering of contraband and after coming to operation of
the aforesaid provision of law, it became mandatory for the investigating
officer to prepare the inventory after recovery of the contraband as well as
other relevant material and present the same before the Magistrate by way
of filing appropriate application under the aforesaid provision of law.
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
14 2024:HHC:8432
Magistrate after receipt of the aforesaid application would certify the
correctness of the inventory so prepared and would also authorize clicking
.
of photographs of the contraband. Most importantly, as per the aforesaid
provision of law, representative samples of such drugs would also be drawn
in the presence of the Magistrate and thereafter, it can only be sent to the
FSL for sampling. In the instant case, aforesaid provision never came to be
complied with.
15.
Now, the question which needs to be determined in the instant
proceedings is whether entire case of the prosecution would fail if there are
some procedural irregularities which have caused no prejudice to the
accused?
16. Mr. Rajan Kahol, learned Additional Advocate General
specifically placed reliance upon the judgment passed by the Hon’ble Apex
Court in case titled State represented by Inspector of Police Chennai v.
N.S. Gnaneswaran, (2013) 3 SCC 594, to state that procedural irregularity
on the part of the prosecution is not fatal to the prosecution case,
especially when there is nothing to suggest that on account of the same, no
prejudice, if any, has been caused to the accused. However, having perused
the aforesaid judgment, this Court has no hesitation to conclude that same
has no application in the present case and learned Court below ignoring
objection raised by the learned counsel for the accused during trial with
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
15 2024:HHC:8432
regard to non-application of Section 52 A of the Act, wrongly applied the
aforesaid judgment passed by Hon’ble Apex Court. If the aforesaid
.
judgment is read in its entirety, it does not specifically deal with case under
the NDPS Act, rather in the aforesaid case, FIR against the accused was
registered under Section 120-B read with Sections 420, 467, 468 and 471
of the IPC. In the afore case, accused approached the High Court under
Section 482 Cr.P.C. to seek quashment of FIR on the ground that
requirement in Section 154(2) CrPC, for issuing a copy of such information
recorded was mandatory, however, Hon’ble Apex Court rejected the
aforesaid plea on the ground that in case prosecution is able to show that
no prejudice, if any, has been caused to the accused on account of non
supply of information under Section 154(2) of the CrPC, inaction on the
part of investigating agency to supply copy of FIR, may not be fatal of the
case of the prosecution.
17. Needless to say, in the case at hand, case has been registered
under the NDPS ACt, which is a special enactment. Since under the Act,
specific procedure has been laid down for dealing with the contraband after
its recovery and it is mandatory for the investigating agency to prepare
inventory of contraband as well as other articles recovered from the
conscious possession of the accused, failure on the part of the investigating
agency to comply with aforesaid procedure can be said to be fatal to the
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
16 2024:HHC:8432
case of the prosecution because very non-compliance of the aforesaid
provision of law renders the story of the prosecution doubtful. As has been
.
noticed herein above, very purpose and object of Section 52A of the Act is
to prevent theft, substitution and tampering of the contraband. Central
Government while inserting aforesaid provision of law made it mandatory
for the investigating agency to prepare the inventory of the seized
contraband as well as other material and place it before Magistrate for
certification. Very object of certification of the inventory so prepared by the
Investigating Officer and Magistrate is to ensure that no tampering takes
place and only such samples, which are drawn in the presence of the
Magistrate, are sent for chemical analysis.
18. As per aforesaid provision of law, such application is to be
submitted before the Magistrate at the first instance so that no delay is
caused in drawing the samples as well as identification of the contraband
allegedly recovered from the conscious possession of the accused. Very
purpose of clicking photographs in terms of the aforesaid provision of law
is to ensure that contraband is not subsequently substituted or tampered
with. However, in the case at hand, entire procedure as envisaged under
Section 52A, never came to be complied with.
19. Hon’ble Apex Court in Mangilal and Mohammed Khalid cases
(supra) had an occasion to deal with Section 52A of the Act. In both the
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
17 2024:HHC:8432
judgments, Hon’ble Apex Court, categorically held that compliance of
Section 52A of the Act, is mandatory and non-compliance thereof, render
.
the story of the prosecution totally doubtful and without there being
compliance of Section 52A of the Act, case of the prosecution is bound to
fail. Most importantly, in case titled Mohammad Khalid (supra) Hon’ble
Apex Court has categorically held that in case, Investigating Officer failed
to prepare the inventory in terms of Section 52A of the Act and samples
20.
r to
were not obtained in the presence of the jurisdictional Magistrate, report of
FSL, if any, is nothing, but a waste paper and cannot be read in evidence.
Relevant para of the judgment passed by the Hon’ble Apex
Court in Mangilal case (supra), reads as under:
“12. We further find that memorandum under Section 27 of the Act,
as witnessed by the two witnesses, P.W.3 and P.W.4 would be of no
value in evidence as there is no discovery of new fact involved. Bethat as it may, these witnesses also turned hostile. The record would
also indicate that an order was passed by the trial Judge permittingthe prosecution to keep the seized materials within the police station,
to be produced at a later point of time. This itself is a sufficient
indication that the mandate of Section 52A has not been followed.
There is no explanation either for non-production of the seized
materials or the manner in which they are disposed of. No order
passed by the Magistrate allowing the application, if any, filed
under Section 52A of the NDPS Act. P.W.10, Executive Magistrate
has deposed to the fact that he did not pass any order for the
disposal of the narcotics substance allegedly seized. Similarly, P.W.12::: Downloaded on – 12/09/2024 20:29:41 :::CIS
18 2024:HHC:8432who is In- charge of Malkhana also did not remember any such order
having been passed. On the issue of disposing narcotic substance in.
derogation of the compliance contained in Section 52A of the NDPS
Act, this Court in Union of India v. Jarooparam, (2018) 4 SCC 334
has held as follows:
“8. What transpires from the abovequoted paragraph is that
after taking out two samples of 30 gm each, the Executive
Magistrate returned the entire remaining seized property to the
investigating officer PW 6. To further ascertain the same, wehave also carefully perused the exact content of the proceedings
dated 14-10-2004 (Annexure P-5) recorded by the Executive
Magistrate, Singoli Tappa. The proceedings recorded as far asthe respondent herein is concerned, read thus:
Proceedings
14-10-2004: Case submitted. Shri Harvinder Singh, Inspector
(Investigating Officer), Narcotics Bureau, Singoli has submitted
three sealed packets of seized stuff in Crime No. 1 of 2004under Sections 8/18 and 8/29 of the NDPS Act, 1985. These
packets were marked A, B and C and the details are given asunder:
1-A: On the packet marked “A” it was indicated that packet
contains 7.200 kg opium seized from Jaroopram, s/o
Ganga Ram Bishnoi. On opening the packet, transparent
polythene bag was found, in which again two polythenepackets were found. One polythene indicated 4.000 kg and
the second one 3.200 kg opium, respectively. A composite
sample of 30-30 gm each have been taken from the two
packets and kept in a small plastic polythene and marked
A-3 and A-4 and sealed. The remaining seized stuff and::: Downloaded on – 12/09/2024 20:29:41 :::CIS
19 2024:HHC:8432samples sealed as usual are handed over to the presenting
officer Shri Harvinder Singh, Inspector.
.
9. From the above proceedings, it is crystal clear that the
remaining seized stuff was not disposed of by the Executive
Magistrate. The contraband stuff as also the samples sealed as
usual were handed over physically to the Investigating OfficerHarvinder Singh (PW 6). Also the trial Court in its judgment
specifically passed instructions to preserve the seized property
and record of the case in safe custody, as the co-accusedBhanwarlal was absconding. The trial Court more specifically
instructed to put a note with red ink on the front page of the
record for its safe custody. In such a situation, it assumes
importance that there was nothing on record to show as to whathappened to the remaining bulk quantity of contraband.
The absence of proper explanation from the prosecution
significantly undermines its case and reduces the evidentiary
value of the statements made by the witnesses.
10. Omission on the part of the prosecution to produce the bulk
quantity of seized opium would create a doubt in the mind of
the Court on the genuineness of the samples drawn and markedas A, B, C, D, E, F from the allegedly seized contraband.
However, the simple argument that the same had beendestroyed, cannot be accepted as it is not clear that on what
authority it was done. Law requires that such an authoritymust flow from an order passed by the Magistrate. On a bare
perusal of the record, it is apparent that at no point of time any
prayer had been made by the prosecution for destruction of the
said opium or disposal thereof otherwise. The only course of
action the prosecution should have resorted to is for its disposal
is to obtain an order from the competent Court of Magistrate as
envisaged under Section 52-A of the Act. It is explicitly made::: Downloaded on – 12/09/2024 20:29:41 :::CIS
20 2024:HHC:8432under the Act that as and when such an application is made,
the Magistrate may, as soon as may be, allow the application.
(see also Noor Aga v. State of Punjab, (2008) 16 SCC 417 :
(2010) 3 SCC (Cri) 748).
11. There is no denial of the fact that the prosecution has not
filed any such application for disposal/destruction of the
allegedly seized bulk quantity of contraband material nor was
any such order passed by the Magistrate. Even no notice has
been given to the accused before such alleged
destruction/disposal. It is also pertinent here to mention that
the trial Court appears to have believed the prosecution story in
a haste and awarded conviction to the respondent without
warranting the production of bulk quantity of contraband. But,
the High Court committed no error in dealing with this aspect of
the case and disbelieving the prosecution story by arriving at
the conclusion that at the trial, the bulk quantities of
contraband were not exhibited to the witnesses at the time of
adducing evidence.
12. Turning to the other discrepancies in the prosecution case,
PWs 1 and 2 the independent witnesses portrayed by the
prosecution have turned hostile and did not support its case. It
is manifest from the record that they had simply put their
signatures on the papers at the whims of the investigating
agency. Another aspect that goes in favour of the accused is
that, the version of prosecution that the respondent voluntarily
made the confessional statement cannot be believed in the light
of admission by Narcotics Officer (PW 5), a key prosecution
witness, that the statement of the respondent-accused
under Section 67 of the Act was recorded while he was in his
custody and the time was not mentioned on the statements.
This fact further gets corroborated with the statement of PW 6
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
21 2024:HHC:8432
also that the statement of the accused was recorded after arrest
and while in custody. Thus, it cannot be said that the statement
.
of the accused confessing the crime was voluntarily made under
the provisions of the Act.” (emphasis supplied)”
21. Relevant para of the Mohammed Khalid case reads as under:
“22. Admittedly, no proceedings under Section 52A of the NDPS Act
were undertaken by the Investigating Officer PW-5 for preparing an
inventory and obtaining samples in presence of the jurisdictional
Magistrate. In this view of the matter, the FSL report (Exhibit P-11) isnothing but a waste paper and cannot be read in evidence. The
accused A-3 and A-4 were not arrested at the spot. The offence
under Section 20 (b) (ii) (c) deals with production, manufacture,possession, sale, purchase, transport, import or export of cannabis.
It is not the case of the prosecution that the accused A-3 and A-4
were found in possession of ganja. The highest case of the
prosecution which too is not substantiated by any admissible or
tangible evidence is that these two accused had conspiredsale/purchase of ganja with A-1 and A-2. The entire case of the
prosecution as against these two accused is based on the
interrogation notes of A-1 and A-2.”
22. At this juncture, it is also apt to take note of the judgment
passed by the three Judges Bench of the Hon’ble Apex Court in Union of
India v. Mohan Lal and Anr., (2016) 3 SCC 379, wherein Hon’ble Apex
Court while holding that inventory prepared under Section 52A of the Act is
primarily evidence, has held as under:
“11. Similarly, regarding the steps taken at the time of destruction to
determine the nature and quantity of the substance being destroyed,::: Downloaded on – 12/09/2024 20:29:41 :::CIS
22 2024:HHC:8432the reports submitted by the State Governments give varying
answers. There is no uniformity in the procedure adopted by those.
associated or in charge of the process of destruction. The reports
suggest as if adequate steps are taken to prevent damage, loss,
pilferage and tampering/substitution of the narcotic drugs and
psychotropic substances from the point of search to the point ofdestruction but there is no uniformity or standard procedure
prescribed or followed in that regard. Having said that we must
mention that we are in these proceedings concerned with thefollowing three issues only for the present:
(i)Seizure and sampling of the Narcotic drugs and
Psychotropic substances,
r(ii) their storage, and
(iii) their destruction
Seizure and sampling:
12. Section 52-A(1) of the NDPS Act, 1985 empowers the Central
Government to prescribe by a notification the procedure to be
followed for seizure, storage and disposal of drugs and psychotropicsubstances. The Central Government have in exercise of that power
issued Standing Order No. 1/89 which prescribes the procedure to
be followed while conducting seizure of the contraband. Two
subsequent standing orders one dated 10.05.2007 and the otherdated 16.01.2015 deal with disposal and destruction of seized
contraband and do not alter or add to the earlier standing order that
prescribes the procedure for conducting seizures. Para 2.2 of the
Standing Order 1/89 states that samples must be taken from the
seized contrabands on the spot at the time of recovery itself. It reads:
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
23 2024:HHC:8432
“2.2. All the packages/containers shall be serially numbered
and kept in lots for sampling. Samples from the narcotic drugs
.
and psychotropic substances seized, shall be drawn on the spot
of recovery, in duplicate, in the presence of search witnesses
(Panchas) and the person from whose possession the drug is
recovered, and a mention to this effect should invariably be
made in the panchnama drawn on the spot.”
13. Most of the States, however, claim that no samples are drawn at
the time of seizure. Directorate of Revenue Intelligence is by far the
only agency which claims that samples are drawn at the time of
seizure, while Narcotics Control Bureau asserts that it does not do
so. There is thus no uniform practice or procedure being followed by
the States or the Central agencies in the matter of drawing of
samples. This is, therefore, an area that needs to be suitably
addressed in the light of the statutory provisions which ought to be
strictly observed given the seriousness of the offences under the Act
and the punishment prescribed by law in case the same are proved.
We propose to deal with the issue no matter briefly in an attempt to
remove the confusion that prevails regarding the true position as
regards drawing of samples.
14. Section 52A as amended by Act 16 of 2014, deals with disposal of
seized drugs and psychotropic substances. It reads:
“Section 52A : Disposal of seized narcotic drugs and
psychotropic substances.
(1) The Central Government may, having regard to the
hazardous nature of any narcotic drugs or psychotropic
substances, their vulnerability to theft, substitution, constraints
of proper storage space or any other relevant considerations, by
notification published in the Official Gazette, specify such::: Downloaded on – 12/09/2024 20:29:41 :::CIS
24 2024:HHC:8432narcotic drugs or psychotropic substances or class of narcotic
drugs or class of psychotropic substances which shall, as soon.
as may be after their seizure, be disposed of by such officer and
in such manner as that Government may from time to time,
determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has been
seized and forwarded to the officer-in-charge of the nearest
police station or to the officer empowered under section 53, the
officer referred to in sub-section (1) shall prepare an inventory
of such narcotic drugs or psychotropic substances containing
such details relating to their description, quality, quantity,
mode of packing, marks, numbers or such other identifying
particulars of the narcotic drugs or psychotropic substances or
the packing in which they are packed, country of origin and
other particulars as the officer referred to in sub-section (1) may
consider relevant to the identity of the narcotic drugs or
psychotropic substances in any proceedings under this Act and
make an application, to any Magistrate for the purpose of-
(a) certifying the correctness of the inventory so prepared;
or
(b) taking, in the presence of such Magistrate, photographs
of such drugs or substances and certifying such
photographs as true; or
(c) allowing to draw representative samples of such drugs
or substances, in the presence of such Magistrate and
certifying the correctness of any list of samples so drawn.
(3) When an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence
Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973
(2 of 1974), every Court trying an offence under this Act, shall
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
25 2024:HHC:8432
treat the inventory, the photographs of [narcotic drugs,
psychotropic substances, controlled substances or conveyances]
.
and any list of samples drawn under sub-section (2) and
certified by the Magistrate, as primary evidence in respect of
such offence.”
15. It is manifest from Section 52A (2)(c) (supra) that upon seizure of
the contraband the same has to be forwarded either to the officer in-
charge of the nearest police station or to the officer empowered
under Section 53 who shall prepare an inventory as stipulated in the
said provision and make an application to the Magistrate for
purposes of (a) certifying the correctness of the inventory (b)
certifying photographs of such drugs or substances taken before the
Magistrate as true and (c) to draw representative samples in the
presence of the Magistrate and certifying the correctness of the list of
samples so drawn.
16. Sub-section (3) of Section 52- A requires that the Magistrate shall
as soon as may be allow the application. This implies that no sooner
the seizure is effected and the contraband forwarded to the officer in
charge of the Police Station or the officer empowered, the officer
concerned is in law duty bound to approach the Magistrate for the
purposes mentioned above including grant of permission to draw
representative samples in his presence, which samples will then be
enlisted and the correctness of the list of samples so drawn certified
by the Magistrate. In other words, the process of drawing of samples
has to be in the presence and under the supervision of the Magistrate
and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which,
more often than not, takes place in the absence of the Magistrate
does not in the above scheme of things arise. This is so especially
::: Downloaded on – 12/09/2024 20:29:41 :::CIS
26 2024:HHC:8432
when according to Section 52-A(4) of the Act, samples drawn and
certified by the Magistrate in compliance with sub-section (2) and (3)
of Section 52-A above constitute primary evidence for the purpose of the
.
trial. Suffice it to say that there is no provision in the Act that mandates
taking of samples at the time of seizure. That is perhaps why none of the
States claim to be taking samples at the time of seizure.”
23. Though during proceedings of the case, learned counsel for the
petitioner-accused has been also able to point out certain discrepancies and
inconsistencies in the statements made by prosecution witnesses, especially
which are related to recovery, timing and place of occurrence, but since this
Court is convinced that there is total non-compliance of Section 52A of the Act,
which is fatal for the case of the prosecution, there appears to be no need to go
into aforesaid aspect of the matter.
24. Consequently, in view of the above, this Court finds merit in the
present appeal and accordingly, same is allowed and accused is acquitted of
the charges framed against him. Accused is ordered to be released forthwith.
In the aforesaid terms, present appeal is disposed of alongwith pending
applications, if any.
25. Registry is directed to prepare and send the release warrants of
the accused to the Superintendent of Jail, Model Central Jail, Nahan, District
Sirmaur, Himachal Pradesh, forthwith, enabling said authority to release the
accused, if not required in any other case.
September 9, 2024 (Sandeep Sharma),
(manjit) Judge
::: Downloaded on - 12/09/2024 20:29:41 :::CIS