Madras High Court
Jesu Antony Vinod @ Vinod vs State Represented By on 19 March, 2024
CRL.A(MD).Nos.783, 771 and 784 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 20.12.2023
Pronounced On : 19.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.783, 771 and 784 of 2023
and
CRL.M.P(MD).Nos.12542, 12405 and 12554 of 2023
Jesu Antony Vinod @ Vinod ... Appellant/Accused No.3
Marimuthu ... Appellant/Accused No.1
Johnpaul @ Balan ... Appellant/Accused No.2
Vs.
State represented by
The Deputy Superintendent of Police,
NIB-CID,
Thoothukudi,
Cr.No.40 of 2008 ... Respondent/Complainant
(In all appeals)
Common Prayer : These Criminal Appeals are filed under Section 374(2)
of Cr.P.C. to call for the records relating to the judgment and conviction
and sentence passed against the appellants/accused passed in C.C.No.45 of
2009 dated 19.06.2023, on the file of the 1st Additional Special Court for
NDPS Act cases, Madurai, and set-aside the same and acquit them from
charges leveled against them.
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For Appellant : Mr.Gopala Krishna Lakshmana Raju,
Senior Counsel for Mr.S.G.L.Rishwanth
in Crl.A(MD)No.783 of 2023.
: Mr.Gopala Krishna Lakshmana Raju,
Senior Counsel for Mr.R.Venkateswaran
in Crl.A(MD)No.771 of 2023.
: Mr.Gopala Krishna Lakshmana Raju,
Senior Counsel for Mr.Y.Athiveerapandiyan
in Crl.A(MD)No.784 of 2023.
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
(in all cases)
COMMON JUDGMENT
These appeals have been filed by the appellants to set aside the
conviction and sentence of 10 years Rigorous Imprisonment against each
and the fine of Rs.1,00,000/- against each, in default, to undergo one year
Simple Imprisonment for the offence under Sections 8(c) r/w 21(c) of
NDPS Act imposed by the 1st Additional Special Court for NDPS Act
cases, Madurai, in C.C.No.45 of 2009 dated 19.06.2023.
2. Since the appellants in all the appeals are arrayed as accused No.1
to 3 in the same crime number, these appeals are taken up together for
hearing and disposed by way of this common judgment.
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3. The case of the prosecution is that on receipt of secret information
on 25.08.2008 at about 04.00 p.m., the Sub-Inspector of Police (P.W.5)
obtained permission from the Higher Officials and went to the place in
front of the Government Tourist Bungalow on Beach Road in Tuticorin
along with the informant and his team and P.W.1, who was VAO. At that
time, they intercepted a two wheeler namely, TVS MAX 100 (Red Colour)
bearing Reg.No.TN-69-J-3327, which was driven by A2 with A1 & A3 and
found that the accused persons were in possession of 0.500 Kg of heroin
worth about Rs.50,00,000/-. After complying the condition under Section
50 of the NDPS Act by giving offer to make the search in the presence of
the learned Judicial Magistrate or the gazetted officer, P.W.5 made a search
of the body of A1 and found that 1 powder pocket, which was hidden in his
hip region and also found 1 black colour Nokia Cellphone. Then, P.W.5
tested the said powder with the help of Narcotic Detection kit and found
the presence of heroine. Thereafter, they took the samples and sealed it and
packed the remaining contraband. Then, P.W.5 arrested A1 to A3 and
prepared attatchi and brought the appellants and the contraband to the
police station and they registered the First Information Report in Crime
No.40 of 2008 against the accused for the offences punishable under
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Sections 8(c) r/w 21(C), 25 and 29 of NDPS Act. After that, he prepared a
detailed report under Section 57 of the NDPS Act and handed over the case
file along with the report to P.W.6, the Inspector of Police. After obtaining
the report, P.W.6 has taken steps to investigate the matter and on
confession of A1, they arraigned A4 as accused. Thereafter, accused were
produced before the Court along with the contraband and they were
remanded to judicial custody. After completion of investigation, the
respondent police filed a final report and the same was taken cognizance
in C.C.No.54 of 2009, on the file of the 1st Additional Special Court for
NDPS Act cases, Madurai.
4. The learned trial Judge summoned the accused and served the
copies under Section 207 Cr.P.C. Then, he framed necessary charges and
questioned the accused. The accused denied the charges and pleaded not
guilty and stood for trial.
5. To prove the case, the prosecution examined P.W.1 to P.W.7 and
exhibited 10 documents as Ex.P.1 to Ex.P.16 and marked 4 material objects
as M.O.1 to M.O.4. Thereafter, the accused were questioned under Section
313 Cr.P.C putting the incriminating evidence available against them and
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they denied the same as false and thereafter, the case was posted for
defence evidence. On the side of the accused, no one was examined and no
documents were exhibited.
6. On perusal of the oral and documentary evidence, the trial Court
found the appellants guilty for the offences under Sections 8(c) r/w 21(c)
of NDPS Act and sentenced them to undergo 10 years Rigorous
Imprisonment each and to pay a fine of Rs.1,00,000/- each, in default to
undergo one year Simple Imprisonment each. Aggrieved by the same, the
present appeals have been filed.
7.The learned senior counsel for the appellants submitted that
according to the prosecution, when P.W.5 was in station, the informant
came to the station and gave an information at about 02.00 p.m. After
receipt of information, P.W.5 got permission from his higher officials and
proceeded to the spot along with the informant, Narcotic Kit and P.W.1, the
Village Administrative Officer, Sankarapperi Village who was also
in-charge of Meelavittan Village at around 01.30 p.m. In view of the above
fact, before receiving the information, they met the Village Administrative
Officer. Hence, the entire prosecution case, which proceeded on receipt of
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information, and visit to the occurrence place and the recovery of
contraband are all suspicious. He specifically argued that P.W.5 recorded
the information at 02.00 p.m is false. There is reasonable doubt over origin
of prosecution case and consequently compliance under Section 42 of the
NDPS Act is not established.
7.1.The learned senior counsel for the appellants further submitted
that the occurrence place is a restricted area i.e., Harbour and the
movement of the public is restricted. In the said place, the presence of the
appellants by driving their vehicle is doubtful.
7.2. The learned senior counsel for the appellants further submitted
that after seizure of the contraband, P.W.5 has taken two samples of the
contraband for conducting test. Each sample weighing 0.005 gms.
Thereafter, they packed and sealed the samples and packed the remaining
contraband and put the seal on it. Admittedly, the occurrence area is a sea
breeze area. The seized contraband is very fine powder. In the sea breeze
area, the case of P.W.5 that they tested such fine powder is not probable
one for the reason that the witnesses themselves admitted that the powder
would easily evaporate in sea breeze. Hence, taking of the samples and
testing the samples in the sea breeze area is doubtful.
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7.3. The learned senior counsel for the appellants further submitted
that as per the Hon’ble Constitution Bench Judgment, the compliance
under Section 50 of the Act is mandatory one in the case of recovery from
body of the appellants. In this case, P.W.1 never deposed about the
compliance of Section 50 of the Act. On contrary, P.W.2 and P.W.5, stated
that they complied the conditions under Section 50 of the Act. In the said
circumstances, the compliance under Section 50 of the Act is not proved.
7.4. The learned senior counsel for the appellants further submitted
that the appellants were arrested and produced before the Court along with
the contraband. Thereafter, the same was returned to the custody of the
respondent police with a direction to produce before the Special Court. In
between, according to the evidence of the police officials, they tested the
heroine in the presence of the Deputy Superintendent of Police. Hence, the
seal of the samples might have been broken before producing the same
before the Special Court on 29.08.2008. The same was corroborated by the
samples sent by the prosecution agency for the second time on 28.10.2010.
Because the contraband taken as sample is 10 gms. But, after conducting
test, it contains only 2.4 gms. Therefore, the seal might have been
tampered. In the said circumstances, there was doubt over the sealing of
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the samples and the remaining contraband. The specimen seal was not
found place in the athatchi. But, in the requisition sent to the Chemical
Analysis Office it was found with specimen seal. In the first report, there
was no mentioning of the percentage of the Diacytal Morphine. In the
subsequent report also marked under Ex.P.16, there was no mentioning of
percentage and in the said report, it is stated that concentration of the
Diacytal Morphine was too low to estimate. In the said situation, the
recovery is not heroin and some other materials and recovered materials
have not been produced before the Court. Considering all the above
aspects, it comes to show that they have not recovered anything from the
appellants at the occurrence place namely, in front of the Government
Tourist Building on Beach Road, Thoothukudi.
7.5. The learned senior counsel for the appellants further submitted
that the appellants’ family members were illegally confined in the police
station and there is pressure on the appellants to admit the above recovery
and hence, the same was made by using the some other materials and
hence, the material produced before the Court is not heroin. Two Chemical
Analysis Reports were marked as Ex.P.16. In both reports, there is no
percentage of the material content of Diacytal Morphine.
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7.6. The learned senior counsel for the appellants further submitted
that there are infirmities regarding the receipt of information. In Ex.P.9, it
is stated that “Ma;thsh; Mfpa ehd; received the information” and there
was no whisper about the driving of two wheeler by the accused in the
restricted area. The said infirmities affected the case i.e., who received the
information and who conducted the raid. There is contradiction regarding
the time in receiving the information and hence, he submitted that Section
42 of the Act is not complied with. P.W.5 deposed that at 02.00 p.m, he
received the information. The prosecution case that at 01.30 p.m, they left
from the police station and picked up the Village Administrative Officer is
an artificial and unbelievable one. Further, there was no documentary
evidence to prove P.W.1 is the Village Administrative Officer of the
Meelavittan Village.
7.7. The learned senior counsel for the appellants further submitted
that according to the available evidence, it is clear that number of persons
were present in the occurrence place and hence, the non-examination of
independent witness affected the conviction and sentence passed by the
Court. In this case, the independent witness has to be examined. In Ex.P.9,
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there is no mentioning of Narcotic kit. The samples taken was only 3.586
gms. The occurrence took place on 25.08.2008. The recovery was made on
the same day itself. But, it was produced before the learned Judicial
Magistrate on 26.08.2008 and there was no explanation for the said delay.
7.8. The learned senior counsel for the appellants further submitted
that taking of second sample is unknown practice. It is seen from the
records that after a lapse of two years from the date of occurrence, the
police officer sent the second sample for analysis on 05.08.2010 without
getting any permission from the authorities.
7.9. The learned senior counsel for the appellants further submitted
that only drug alone was seized and no heroine was seized. According to
the prosecution, the remaining heroine was packed in the same bag and the
said bag was not produced before the Court.
7.10. The learned senior counsel for the appellants further submitted
that A1 and A2 are living closely. The family members were illegally
brought to the police station and nothing was seized from them.
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7.11. The learned senior counsel for the appellants further submitted
that Section 42 of the Act is not complied with and the compliance of
Section 50 of the Act has not been spoken about by P.W.1. The seized
contraband was not properly sealed. There is clear doubt over whether the
recovery contraband was sent to the Court or not? A4 who is the supplier
of the contraband was acquitted by the Court below. Hence, he seeks for
acquittal of the appellants.
8.The learned Additional Public Prosecutor appearing for the State
submitted that compliance of Section 42 is concerned, there is clear
evidence of P.W.5 that he received the information from the informant and
the same was recorded and the same was informed to the Higher Officials
and they granted permission to conduct search. Therefore, the non-
compliance of Section 42 of the Act is not correct.
8.1. The learned Additional Public Prosecutor appearing for the State
further submitted that in Ex.P.5, the Athatchi for recovery of vehicle seized
from A2, vehicle number was given. A2 drove the vehicle and A1 & A3
were the pillion riders and they were found in conscious possession of the
contraband. Hence, as per Section 54 and 35 of the Act, the presumption
arises that the appellants never dispelled the same.
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8.2. The learned Additional Public Prosecutor appearing for the State
further submitted that P.W.1 is the recovery witness. He need not speak
about the compliance under Section 50 of the Act. The learned trial Judge
clearly stated that P.W.5 obtained consent letter from the accused and the
said consent letters were not acknowledged by P.W.1. The absence of
particular word by P.W.1 does not amount to non-compliance of Section 50
of the Act. In this case, P.W.1 and P.W.5 clearly deposed about the
compliance of Section 50 of the Act. There was no challenge of their
evidence and in their cross-examination. Hence, Section 50 of the Act is
complied with.
8.3. The learned Additional Public Prosecutor appearing for the State
further submitted that regarding the seal, on the basis of the evidence of
P.W.2 that the Deputy Superintendent of Police conducted search is
concerned, he was examined after a number of years from the date of the
occurrence and the sweeping answer as if the Deputy Superintendent of
Police conducted search cannot be taken into consideration when the
seized contraband and seized other material objects were produced before
the learned Judicial Magistrate along with the accused at the time of
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remand. The learned Judicial Magistrate, verified the same and directed to
produce the same before the Special Court. It is not the case of the
appellants that the same was not intact at the time of production before the
learned Judicial Magistrate. In the said circumstances, the same cannot be
taken into account.
8.4.Sending of the samples the first and second time is concerned,
the learned Additional Public Prosecutor submitted that the Hon’ble
Supreme Court judgment in E.Micheal Raj Vs. Intelligence Officer,
Narcotic Control Bureau reported in (2008) 5 Supreme Court Cases 161
stated that only actual content by weight of the content of Narcotic Drugs
is relevant for the purpose of determining whether would constitute the
small quantity or commercial quantity ie., neutral substance cannot be
added. Therefore, the second sample was sent to the lab and report was
obtained. In this case, the material chemical namely, Diacytal Morphine is
available in the report. The percentage is some what less. In view of the
decision of the Hon’ble Supreme Court larger Bench decision dated
22.04.2020 in the case of HIRA SINGH and Another Vs. Union of India
and another reported in 2020 20 SCC 272 over ruling the E.Micheal Raj
Vs. Intelligence Officer, Narcotic Control Bureau reported in (2008) 5
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CRL.A(MD).Nos.783, 771 and 784 of 2023
Supreme Court Cases 161, the order of retesting cannot be found fault
with and the same cannot be the ground for interference in the conviction
passed against the appellant. Therefore, there is no question of disbelieving
the version of the prosecution.
8.5. The learned Additional Public Prosecutor appearing for the State
further submitted that in the entire cross-examination of witnesses, there
was no question regarding the evaporation of the contraband due to the
breeze of the sea. In the second Chemical analysis Report, it is clearly
stated that the sample was with the Court seal in the outer pocket. After
removal of the same, it was intact with the Station House Seal. Hence,
there is no tampering at all and in the said circumstances, the submission
of the learned senior counsel that there is tampering by the officer is not
acceptable.
8.6. The learned Additional Public Prosecutor appearing for the
State further submitted that in Ex.P.5, the Athatchi for the recovery of
vheicle from A2, the number of the vehicle was mentioned. It is well
settled that the examination of the independent witness is not necessary. In
this case, P.W.1, the Village Administrative Officer clearly deposed before
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CRL.A(MD).Nos.783, 771 and 784 of 2023
the Court about the recovery of the contraband from the possession of A1
to A3. The acquittal of A4 in this case is not a ground to acquit the
appellants on the ground of principle of parity. Therefore, in all aspects, the
conviction and sentence imposed by the learned trial Judge is conformity
with the law laid down by the Hon’ble Supreme Court. Hence, he seeks for
dismissal of the appeals.
9.This Court perused the records and the documents filed by the
prosecution and the grounds raised by the appellants and also the
argument by the appellants and the learned Additional Public Prosecutor
and also considered the precedents relied upon by them.
10.Now, the question arising for consideration in this case is
whether the conviction and sentence imposed by the learned trial Judge
against the appellants is sustainable?
11.Compliance of Section 50 of the Act:
When A1 to A3 were travelling in a two wheeler bearing
Reg.No.TN-69-J-3327 on 25.08.2008, at about 02.00 p.m, P.W.5 and P.W.2
and the other police officer intercepted the vehicle. After the compliance of
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CRL.A(MD).Nos.783, 771 and 784 of 2023Section 50 of the Act, P.W.5 made a search of the body of A1 and he found
the possession of 500 gms of heroine in the hip of A1. A1 gave the
confession regarding the source of the said contraband. On the basis of the
confession, A4 was arrayed as an accused under Section 29 of the NDPS
Act. The learned trial Judge considering the insufficiency of material,
acquitted A4. The said acquittal is not a ground to acquit the appellants
herein. The appellants travelled in the two wheeler and A1 has carried the
contraband. In the said circumstances, the acquittal of A4 is not a ground
to acquit A1 to A3.
12. P.W.1 is only the recovery witness. He was not the officer under
Section 50 of the NDPS Act. P.W.2 deposed in his evidence before the
Court about the compliance of Section 50 of the Act. P.W.2 as follows:-
“me;j Neuk; tlf;Nf ,Ue;J njw;fhf %d;W
Ngh; b.vz;-69-bN[-3327 vd;w vz;Zs;s Nkhl;lhh;
irf;fpspy; te;jhh;fs;. mth;fis Rw;wp tisj;J
gpbj;J cjtpMa;thsh; milahs ml;ilia
fhz;gpj;J vq;fis mwpKfk; nra;Jnfhz;lhh;. gpd;G>
mth;fsplk; cq;fis Nrhjid nra;a Ntz;Lk;.
mjw;F mUfpy; cs;s ePjpj;Jiw eLth; Kd;Ngh
my;yJ murpjo; gjpT ngw;w mjpfhhp Kd;Ngh
Nrhjid nra;a vd;.b.gp.v]; rl;lj;jpy; cq;fSf;F
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CRL.A(MD).Nos.783, 771 and 784 of 2023chpik cz;L vd;W njhptpj;jhh;. mjw;F mth;fs;
NtW vq;NfAk; nry;y Njitapy;iy. jhq;fNs
Nrhjid nra;ayhk; vd;W rk;kjk; njhptpj;jhh;fs;.
16.15 kzpf;F Nrhjid rk;kj fbjk; jahh; nra;J
khhpKj;J vd;gtUf;F rhh;G nra;Jk; mtiu Nrhjid
nra;a mth; ,Lg;gpy; ,Ue;j ghypjpd; igapy; xU
nghl;lyk; ,Ue;jJ.
13. The said evidence corroborated with the following evidence of
P.W.5:-
“Nkw;gb %d;W egh;fsplKk; vdf;F
fpilf;fg;ngw;w ek;gpf;ifahd jftiy mth;fsplk;
vLj;Jf;$wp ehd; cq;fis jdpj;jdpNa Nrhjid
nra;a Ntz;Lk;. mt;thW Nrhjid nra;Ak;
gl;rj;jpy; ePq;fs; tpUk;gpdhy; mUfpy; cs;s
ePjpj;Jiw eLthplNkh my;yJ murpjo; gjpTngw;w
mYtyhplNkh mioj;Jr;nrd;W Nrhjid nra;ayhk;
vd Nfl;gjw;F vd;bgpv]; rl;lj;jpy; cq;fSf;F
chpik cs;sJ vd njspthf vLj;Jf;$wpNdd;.
mjw;F> Nkw;gb %d;W egh;fSk; vq;fis NtW
vq;Fk; $l;br;nrd;W Nrhjid nra;a Ntz;lhk;.
fh.Jiwapduhd jhq;fNs Nrhjid nra;ayhk; vd
rk;kjk; njhptpj;jdh;. ,jw;F rhl;rpahf
vd;Dld; ,Ue;j jdpegh; rhl;rpfs; fpuhk eph;thf
mjpfhhp uq;fuh[d;> fpuhk cjtpahsh; KUfd;> j.fh.
917 ek;gpehjd; j.fh.1711 nry;yg;gh MfpNahh;fis
rhl;rpfshf rk;gtj;jd;W ,Uf;fnra;J xU Nrhjid
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rk;kj fbjk; 16.15 kzpf;F jahh; nra;J 1tJ egh;
khhpKj;J vd;gtUf;F rhh;Tnra;J mtiu ehd;
Nrhjid Nkw;nfhz;Nld;. Nrhjiidapy;>
mth; ,Lg;gpy; gpuTd; fyh; igapy;
kiwj;Jitj;jpUe;j gTlh; ghf;nfl;Lk; rl;il
Kd;igapy; fUg;Gepw Nehf;fpNah nry;Nghd; xd;Wk;
fz;Lgpbf;fg;gl;lJ.”
14. From the above evidence, it is clear that option was given to the
appellants under Section 50 of the Act and the same was not specifically
questioned by the appellants during their cross-examination. They not even
cross-examined that the appellants were never subjected to any body
search. P.W.1 only acted attesting witness and hence, he also admitted the
preparation of the consent letter. Hence, the absence of the particular word
of ‘consent’ from the evidence of P.W.1 has not affected the prosecution
case. From that alone, it cannot be said that the requirement of Section 50
is not complied with. The Court cannot expect that the witnesses should
depose particular word in the particular manner.
Section 50 of the Act, only creates obligation upon the empowered
officers and his duty before conducting search of person of a suspect, on
the basis of the prior information, to inform the suspect that he has right
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to require his search being conducted in the presence of the Gazetted
Officer or a Magistrate. However, as per the Hon’ble Constitution Bench
dictum in 1996 6 SCC 172 in the case of State of Punjab Vs. Baldev Singh,
“It is, however, not necessary to give the information to the person to be
searched about his right in writing. It is sufficient, if such information is
communicated to the person concerned orally and so far as possible in the
presence of some independent and respectable persons witnessing the
arrest and search. The prosecution must, however, at the trial, establish
that the empowered officer had conveyed the information to the person
concerned of his right of being searched in the presence of a Magistrate or
a Gazetted Officer, at the time of the intended search. Court have to be
satisfied at the trial of the case about due compliance with the
requirements provided in Section 50. NO presumption under Section 54 of
the Act can be raised against an accused, unless the prosecution
establishes it to the satisfaction of the Court that the requirements of
Section 50 were duly complied with”. In this case, the same was duly
complied with. P.W.1 independent witness clearly deposed about the said
compliance. P.W.2 and P.W.5 also corroborated the same. Apart from that,
the prosecution produced Ex.P.1 to Ex.P3 to prove the said compliance. In
313 Cr.P.C., questioning also they have not disputed the above said
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compliance through Ex.P1 to Ex.P3. They never disputed the signature in
Ex.P1 to Ex.P3. Therefore, the contention of the appellant that Section 50
was not complied with cannot be accepted.
15. The learned senior counsel for the appellant submitted that P.W.2
during the cross-examination admitted that the Deputy Superintendent of
Police conducted the test to ascertain the recovered contraband is heroine
or not. This Court examined the entire evidence of P.W.2. On going
through the entire evidence, a sweeping statement has been made by P.W.2
that the Deputy Superintendent of Police conducted the test. On the basis
of the said sweeping statement without any tempering of the seal, this
Court could not doubt the recovery of the contraband from the accused. It
is well settled principle that the entire evidence of the witnesses to be taken
into consideration. Further, the witnesses examined after quite number of
years and hence, the incisive cross examination of the defence counsel
sometimes leads to these type of the sweeping statements and therefore, on
reading the entire evidence along with the remaining evidence and the
material documents prepared at the spot and considering that the same was
produced without any delay even at the time of the remand of the accused
this Court has no reason to doubt the recovery of the contraband. In this
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aspect it is relevant to rely the following portion of the judgment of the
Hon’ble Supreme Court in the case of Rakesh v. State of U.P., (2021) 7
SCC 188 at page 197
14… Mere one sentence here or there and that too to
the question asked by the defence in the cross-
examination cannot be considered stand alone…
16. There was no specific question put to P.W.2 and P.W.5 and the
Investigating Officers regarding the tampering of the seal. It is clear from
Ex.P.8 and Ex.p.16, that the seal was intact. It is the specific case of the
Investigating Agency that after the seizure of contraband, both samples
were separately packed and the remaining contraband was separately
packed and the same were produced before the learned Judicial Magistrate
at the time of remand of the accused. The learned Judicial Magistrate
verified the same and thereafter, the same were produced before the
Special Court. The Special Court also verified the same and repacked the
same with the Court seal. Thereafter, the remaining contraband was
produced before the Court at the time of trial and marked as MO.2 and the
sample was taken for analysis which was marked as MO.1. There was no
tampering of seal as per Ex.P.8 and Ex.P.16. In the said circumstances,
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there is no ground to accept the argument that there is violation of Section
55 of the Act.
17. The learned senior counsel further submitted that there is some
discrepancy about the receipt of the information. In Ex.P.9, it is stated that
the information received by the Inspector of Police i.e., ‘,d;W 25.08.2008
k; Njjp 14.00 kzpf;F Jhj;Jf;Fb vd;Igp-rpIb Ma;thsuhfpa ehd;
Jhj;Jf;Fb mYtyfj;jpy; ,Ue;j NghJ”Therefore, the learned Senior
Counsel further submitted that there is some discrepancy about the receipt
of the information. The Senior Counsel would submit that the information
was not received by the Inspector of Police. To appreciate the same, this
Court perused Ex.P.9 and finds that the said mistake was inadvertent
mistake. In the bottom portion, it is clearly stated that jfty; jUgth;
C/o.G ngj;Juh[; cjtp Ma;thsh; and the consent was given by the
Ma;thsh.; Therefore, there was no infirmity in the said recording of the
information under Section 42 of the NDPS Act. Further, it is the case of the
prosecution that P.W.5 received the secret information and reduced into the
writing and he obtained permission from the Inspector of Police and
proceeded towards the place of the occurrence.
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18. It is a common sense, that the police officer in such emergency
situation alone can reduce the information into writing. In the said
situation, that is the typographical mistake. Hence, it has not affected the
entire prosecution case. They were in pressure to secure the miscreants
before they would leave the place. The said contraband has to be recovered
timely. In the said emergent situation, this type of mistake tend to occur. In
the said situation, the said inadvertent mistake cannot be taken into
account to disbelieve the recovery of the contraband made in the presence
of the independent witness P.W.1
19. In this case, P.W.1 is an independent person. He has no motive to
depose against the appellants and hence, his evidence to show the
possession of recovery of the contraband has to be accepted. In the said
circumstance, once the possession of the contraband is established, then
the appellants should rebut the presumption under Section 54 of the Act.
As per Section 35 of the Act, the appellant is duty bound to rebut the said
presumption beyond reasonable doubt. Section 35 of the Act reads as
follows:-
“35. Presumption of culpable mental state.:-(1) In any
prosecution for an offence under this Act which requires a23/63
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CRL.A(MD).Nos.783, 771 and 784 of 2023culpable 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 as an
offence in that prosecution. Explanation.?In this section ?
culpable mental state? includes intention, motive
knowledge of a fact and belief in, or reason to believe, a
fact.
(2)For the purpose of this section, a fact is said to be
proved only when the court believes it to exist beyond a
reasonable doubt and not merely when its existence is
established by a preponderance of probability.”To rebut the same, the appellants never gave any explanation and never
adduced any evidence to prove his explanation.
20. A2 and A3 have the adequate knowledge about the possession of
the contraband in the custody of A1. Hence, all were in conscious
possession of the contraband. The circumstances also clearly established
that A1 was in possession of the contraband on behalf of A2 and A3 and
hence, the joint possession is clearly established. Hence, they are equally
liable to be convicted under Sections 8(c) r/w 20(b)(ii)(B) of NDPS Act.
21. A detailed argument was made on the basis of two samples sent
for Chemical Analysis. From the records, it is clear that A1 to A3 got bail
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on the ground that the Chemical Analysis Report could not specify the
correct percentage of the Diacytal Morphine in the gross contraband.
Hence, the second sample was sent to ascertain the fact. The second report
also not specified the percentage. But stated the less quantity of Diacytal
Morphine. The Hon’ble Supreme Court judgment in the case of E.Micheal
Raj case, detailed guidelines were given regarding the percentage of the
contraband. If the percentage of the material substance of less quantity,
then the contraband cannot be treated as commercial quantity. On the basis
of the guidelines, the second sample was sent for Chemical Analysis
Report. According to the appellant, in both report, there was no percentage
of the Diacytal Morphine. Therefore, he seeks for acquittal. In E.Micheal
Raj case, it is stated that the percentage of the Nargotic Drugs or
Psychotropic substance has to be identified to determine whether the
recovered contraband comes under the small quantity or commercial
quantity. The law laid down in the case of Micheal Raj reported in 2008 (5)
SCC 161 is declared as not good law in the subsequent Hon’ble Three
Member Bench of Supreme Court in the case of Hira Singh and another
Vs. Union of India and another reported in 2020 20 SCC 272. As per the
notification issued by the Government, the heroine is described as the
Item.No.56. Item No.56 only stated about Diacytal Morphine. But, it has
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not specified about the extent of the percentage. In the said circumstances,
in this case, both report contains the presence of the Diacytal Morphine.
Therefore, the appellants are guilty of possession of the commercial
quantity and liable to be punished under Sections 8(c) r/w 21(c) of the
NDPS Act.
22. In the said circumstances, the submission of the learned counsel
for the appellants is not acceptable.
23.The occurrence took place on 25.08.2008. P.W.1 was cross-
examined on 07.06.2016, P.W.2 was cross-examined on 17.03.2017, P.W.3
was cross-examined on 05.04.2017, P.W.4 cross-examined on 26.02.2018,
P.W.5 was cross-examined on 26.10.2018, 24.07.2019 & 10.04.2023, P.W.6
was cross-examined on 16.08.2022 and P.W.7 was examined on
14.12.2022.
24. In view of the above, examination of witnesses after a number of
years, it is quite normal that there will be is some discrepancies and
contradictions. In the considerable view of this Court it is not a material
one when P.W.1, the independent person clearly spoke about the
possession and recovery of the contraband from the appellants.
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25. The stand that some other materials were recovered from them
under the guise of threat over the family members is not proved through
legal evidence. Once the possession is proved, then the presumption arises
under Section 54 of the Act and the same should be refuted in compliance
with Section 35 of the NDPS Act. Section 35 of the Act clearly states that
it is not preponderance of the probabilities and it is beyond reasonable
doubt.
26.Plea of the non-compliance of Secton 52A of the NDPS Act
caused failure of justice.
25.1.The conjoined reading of Sections 41 to 44, 55 and 57 of the
NDPS Act, shows that every authorised officer from the jurisdictional
Police Station, the department of Central Excise, Narcotic Customs,
Revenue Intelligence or any other department of Central Government etc.,
has reason to believe from personal knowledge or information given by
any person and the same was reduced in writing that any Narcotic drug or
Psychotropic substances or controlled substance in respect of which,
offence punishable under this Act has been committed, they are entitled to
search and seize the contraband. They are called “seizure officer”. They
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shall arrest the accused and produce the accused along with seized
contraband to his immediate Superior of nearest police station or officer
empowered under Section 53 of the Act. The said officers shall take
necessary measure as may be necessary for the disposal, as per Section 52
of the Act. The said report shall be made within 48 hours from the time of
either arrest or seizure. Under Section 55, the officer in charge of police
station shall take charge of the contraband and keep in safe custody
pending orders of the Magistrate. He also shall allow the said seizure
officer to take sample of such contraband and seal the said sample with
seal of officer in charge of Police Station. The Central Government issued
a notification with guidelines to follow the procedure to take the sample
from the recovered contraband and to keep the remaining contraband.
26.1.1.That being the arrangement of the Section and the scheme of
the Act, the Government have brought amendment in the year 1989 vide
Act 2 of 1989 with the following statement of objects and reasons:
Amendment Act 2 of 1989-Statement of
Objects and Reasons- In recent years, India has
been facing a problem of transit traffic in illicit
drugs. The spill-over from such traffic has
caused problems of abuse and addiction. The28/63
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CRL.A(MD).Nos.783, 771 and 784 of 2023Narcotic Drugs and Psychotropic Substances
Act, 1985 provides deterrent punishments for
drug trafficking offences. Even though the major
offences are non-bailable by virtue of the level of
punishments, on technical grounds, drugs
offenders were being released on bail. In the
light of certain difficulties faced in the
enforcement of the Narcotic Drugs and
Psychotropic Substances Act, 1985, the need to
amend the law to further strengthen it, has been
felt.
2.A Cabinet Sub-Committee which was
constituted for combating drug traffic and
preventing drug abuse, also made a number of
recommendations for strengthening the existing
law. In the light of the recommendations of the
Cabinet Sub-Committee and the working of the
Narcotic Drugs and Psychotropic Substances Act,
in the last three years, it is proposed to amend the
said Act. These amendments, inter alia, provide
for the following:-
(i)to constitute a National Fund for Control
of Drugs Abuse to meet the expenditure incurred
in connection with the measures for combating
illicit traffic and preventing drug abuse;
(ii)to bring certain controlled substances
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and Psychotropic Substances under the ambit of
Narcotic Drugs and Psychotropic Substances Act
and to provide deterrent punishment for violation
thereof;
(iii)to provide that no sentence awarded
under the Act shall be suspended, remitted or
commuted;
(iv)to provide for pre-trial disposal of
seized drugs;
(v)to provide death penalty on second
conviction in respect of specified offences
involving specified quantities of certain drugs;
(vi)to provide for forfeiture of property and
a detailed procedure relating to the same ; and
(vii)to provide that the offences shall be
cognizable and non-bailable.
26.1.2.Therefore, “to provide for pre-trial disposal of the seized
contraband”, the 52 A was inserted on 29.05.1989, which reads as follows:
52A. Disposal of seized narcotic drugs and
psychotropic substances.—
(1) The Central Government may, having regard
to the hazardous nature, vulnerability to theft,
substitution, constraint of proper storage space or30/63
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CRL.A(MD).Nos.783, 771 and 784 of 2023any other relevant consideration, in respect of any
narcotic drugs, psychotropic substances,
controlled substances or conveyances, by
notification in the Official Gazette, specify such
narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances,
class of controlled substances or conveyances,
which shall, as soon as may be after their seizure,
be disposed of by such officer and in such manner
as that Government may, from time to time,
determine after following the procedure
hereinafter specified.]
(2) Where any 4 [narcotic drugs, psychotropic
substances, controlled substances or
conveyances] has been seized and forwarded to
the officer-in-charge of the nearest police station
or to the officer empowered under section 53, the
officer referred to in sub-section (1) shall prepare
an inventory of such 4 [narcotic drugs,
psychotropic substances, controlled substances or
conveyances] containing such details relating to
their description, quality, quantity, mode of
packing, marks, numbers or such other identifying
particulars of the 4 [narcotic drugs, psychotropic
substances, controlled substances or31/63
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CRL.A(MD).Nos.783, 771 and 784 of 2023conveyances] 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 4[narcotic
drugs, psychotropic substances, controlled
substances or conveyances] in any proceedings
under this Act and make an application, to any
Magistrate for the purpose of —
(a) certifying the correctness of the inventory so
prepared; or
(b) taking, in the presence of such magistrate,
photographs of 5 [such drugs, substances or
conveyances] and certifying such photographs as
true; or
(c) allowing to draw representative samples of
such drugs or substances, in the presence of such
magistrate and certifying the correctness of any
list of samples so drawn.
(3) Where an application is made under sub-
section (2), the Magistrate shall, as soon as may
be, allow the application.
(4) Notwithstanding anything contained in the
Indian Evidence Act, 1872 (1 of 1972) or the Code
of Criminal Procedure, 1973 (2 of 1974), every
court trying an offence under this Act, shall treat
the innventory, the photographs of 1 [narcotic
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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.]
26.1.3.Section 52 A aims at “pre trial disposal of seized
contraband” with the sole object of avoiding pilferage of contraband and
retruning to the marketplace for recirculation as it is vulnerable to theft and
substitution, against the normal rule of destruction of the material after
conclusion of the trial under Section 452 Cr.P.C., The said provision
intends to authorise the post recovery procedure to dispose the seized
contraband by the officer mentioned Section 52 to prove the case of the
possession of the contraband by taking sample, by preparing inventory in
the presence of the judicial Magistrate. Therefore, the prosecution is not
prevented to prove the case of the possession of the contraband through
legal evidence of the recovery witnesses. Once the possession of the
contraband is proved, the legal presumption under Section 54 comes into
play. Then, the culpable mental state on the part of the accused can be
pressed into service under Section 35 of the Act. Therefore, in a similar
contention raised before the Hon’ble Supreme Court in the case of State of
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Punjab v. Makhan Chand, reported in (2004) 3 SCC 453, the Hon’ble
Supreme Court has rejected the same with the following findings:
“9. Learned counsel for the respondent-
accused relied on certain standing orders and
standing instructions issued by the Central
Government under Section 52-A(1) which require a
particular procedure to be followed for drawing of
samples and contended that since this procedure
had not been followed, the entire trial was vitiated.
10. This contention too has no substance for
two reasons. Firstly, Section 52-A, as the marginal
note indicates, deals with “disposal of seized
narcotic drugs and psychotropic substances”.
Under sub-section (1), the Central Government, by
a notification in the Official Gazette, is empowered
to specify certain narcotic drugs or psychotropic
substances, having regard to the hazardous nature,
vulnerability to theft, substitution, constraints of
proper storage space and such other relevant
considerations, so that even if they are material
objects seized in a criminal case, they could be
disposed of after following the procedure
prescribed in sub-sections (2) and (3). If the
procedure prescribed in sub-sections (2) and (3) of
Section 52-A is complied with and upon an
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application, the Magistrate issues the certificate
contemplated by sub-section (2), then sub-section
(4) provides that, notwithstanding anything to the
contrary contained in the Indian Evidence Act,
1872 or the Code of Criminal Procedure, 1973,
such inventory, photographs of narcotic drugs or
substances and any list of samples drawn under
sub-section (2) of Section 52-A as certified by the
Magistrate, would be treated as primary evidence
in respect of the offence. Therefore, Section 52-A(1)
does not empower the Central Government to lay
down the procedure for search of an accused, but
only deals with the disposal of seized narcotic
drugs and psychotropic substances.”
26.1.4.In the case of Kallu Khan v. State of Rajasthan, reported in
2021 SCC OnLine SC 1223 it has been held as follows:
“13. At this state, the argument advanced by the
appellant regarding non-production of contraband
in the court due to which benefit of doubt ought to
be given to accused, is required to be adverted to.
In the case of State of Rajasthan v. Sahi
Ram, (2019) 10 SCC 649, this Court held that
when the seizure of material is proved on record
and is not even disputed, the entire contraband
material need not be placed on record. It is not a35/63
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CRL.A(MD).Nos.783, 771 and 784 of 2023case in which the appellant has proved beyond
reasonable doubt that while sending the samples
for forensic tests, seals were not intact or the
procedure has been materially not followed by
protecting the seized substance or was not stored
properly, as specified in the case of Mohan
Lal (supra) in which case the directions were
given to be followed on administrative side.
However, in the facts of the case, the said
judgment is not of any help to appellant.
9.10. The Hon’ble Supreme Court held that even
non-production of the entire contraband before
the Court is not fatal when the seizure was proved
and the sample taken from the said seized
contraband is proved. In this aspect, it is relevant
to the judgment of the Hon’ble Supreme Court in
Than Kunwar v. State of Haryana, (2020) 5 SCC
260: (30. The Court also went to hold in Sahi
Ram [State of Rajasthan v. Sahi Ram, (2019) 10
SCC 649 : (2020) 1 SCC (Cri) 85] that if seizure is
otherwise proved on record and it is not even
doubted or disputed, it need not be placed before
the Court. The Court further held that if the seizure
is otherwise proved what is required to be proved
is the fact that samples taken out of a contraband
are kept intact. This Court held as follows : (SCC36/63
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CRL.A(MD).Nos.783, 771 and 784 of 2023pp. 657-58, paras 15-16 & 18)
“15. It is true that in all the aforesaid cases
submission was advanced on behalf of the accused
that failure to produce contraband material before
the court ought to result in acquittal of the
accused. However, in none of the aforesaid cases
the said submission singularly weighed with this
Court to extend benefit of acquittal only on that
ground. As is clear from the decision of this Court
in Jitendra [Jitendra v. State of M.P., (2004) 10
SCC 562 : 2004 SCC (Cri) 2028] , apart from the
aforesaid submission other facets of the matter
also weighed with the court which is evident from
paras 7 to 9 of the decision. Similarly
in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123
: (2011) 2 SCC (Cri) 547] , the fact that there was
no explanation where the seized substance was
kept (para 11) and the further fact that there was
no evidence to connect the forensic report with the
substance that was seized (para 12) were also
relied upon while extending benefit of doubt in
favour of the accused. Similarly, in Vijay
Jain [Vijay Jain v. State of M.P., (2013) 14 SCC
527 : (2014) 4 SCC (Cri) 276] , the fact that the
evidence on record did not establish that the
material was seized from the appellants, was one37/63
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of this Court in Vijay Pandey [Vijay
Pandey v. State of U.P., (2019) 18 SCC 215] ,
again the fact that there was no evidence to
connect the forensic report with the substance that
was seized was also relied upon to extend the
benefit of acquittal.
16. It is thus clear that in none of the decisions of
this Court, non-production of the contraband
material before the court has singularly been
found to be sufficient to grant the benefit of
acquittal.
***
18. If the seizure of the material is otherwise
proved on record and is not even doubted or
disputed, the entire contraband material need not
be placed before the court. If the seizure is
otherwise not in doubt, there is no requirement that
the entire material ought to be produced before the
court. At times the material could be so bulky, for
instance as in the present material when those 7
bags weighed 223 kg that it may not be possible
and feasible to produce the entire bulk before the
court. If the seizure is otherwise proved, what is
required to be proved is the fact that the samples
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submitted for forensic examination the seals were
intact, that the report of the forensic experts shows
the potency, nature and quality of the contraband
material and that based on such material, the
essential ingredients constituting an offence are
made out.”
31. In the facts of this case, no doubt the
contraband article weighed 6 kg 300 gm. A perusal
of the judgment of the trial court does not appear
to suggest that the appellant had taken the
contention regarding non-production of the
contraband before the trial court.
26.2. From the above discussion, it is clear that Section 52 A of the
NDPS Act deals with disposal of the seized contraband and it is not related
to the seizure from the scene of the occurrence. Therefore, this Court is
unable to accept the submission of the learned counsel for the appellant
that the failure on the part of the investigating agency to destruct the
contraband as per the procedure contemplated under Section 52A of the
NDPS Act is a ground to acquittal without going into the legal evidence
available to prove the possession of the contraband, seizure of the
contraband, the arrest of the accused, taking of the samples,forwarding of
the samples and the remaining contraband along with accused immediately
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CRL.A(MD).Nos.783, 771 and 784 of 2023after the arrest to the Court and the production of the remaining samples,
chemical analysis report and the remaining contraband physically as a
material object. Once the above facts are proved through the evidence, the
presumption under the Act will come. Therefore, the interpretation to
Section 52 A of the NDPS Act, is made to achieve the object of NDPS Act.
26.3..The drugs are made to cure the illness and the diseases and to
alleviate the pain during ailment. But, the People misused the same for
illegitimate purpose and therefore, drug abuse has become a social
problem. The NDPS Act was originally brought in the year 1985.
Subsequently, to make it stringent, an amendment was brought in the year
1989 with the object stated supra.
26.4.According to the data, 1.58 Crores children aged between 10 to
17 years are addicted to drugs. The effect of the drug abuse includes
disease transfusion, criminal behaviour, social disorder and even death and
suicide. According to the data, the suicide as a result of a drug abuse has
increased to unimaginable and alarming percentage.
Year Number of suicide
due to drug abuse
2011 3658
2016 5199
2017 6705
2018 7193
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2019 7860
2021 10560
ie., As per the data available from the NCRB, death by suicide
attributed to drug abuse and alcohol addiction continue to increase at the
rate of atleast one death in every hour. Further, as per the data, in the year
2018, due to the drug over dose, 875 deaths has occurred and in the year
2019, 704 deaths. Therefore, there is an alarming situation, which required
immediate action. Therefore, Government brought in Section 52A with
object of disposal of a drugs immediately after the seizure. Therefore,
Section 52 A should be so interpreted to avoid unworkable or
impracticable results. The said principle was fortified in the case of
Sheffield City Council vs. Yorkshire Water Services Ltd., reported in
(1991) 1 WLR 58 : (1991) 2 All ER 280] , WLR at page No.71, and held
as follows:
“Parliament is taken not to intend the carrying out
of its enactments to be unworkable or
impracticable, so the court will be slow to find in
favour of a construction that leads to these
consequences. This follows the path taken by
judges in developing the common law. ‘… the
common law of England has not always developed
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CRL.A(MD).Nos.783, 771 and 784 of 2023down a path that is beset with practical difficulties
the courts have not been frightened to turn aside
and seek the pragmatic solution that will best serve
the needs of society’.”26.4.1. The Hon’ble three judges bench of Supreme Court reiterated
the said principle by interpreting Section 50 of the Act in the case of the
State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 : 2005 SCC (Cri) 943 :
2005 SCC OnLine SC 714 at page 363
18. There is another aspect of the matter, which
requires consideration. Criminal law should be
absolutely certain and clear and there should be no
ambiguity or confusion in its application. The same
principle should apply in the case of search or
seizure, which come in the domain of detection of
crime. The position of such bags or articles is not
static and the person carrying them often changes
the manner in which they are carried. People
waiting at a bus-stand or railway platform
sometimes keep their baggage on the ground and
sometimes keep in their hand, shoulder or back.
The change of position from ground to hand or
shoulder will take a fraction of a second but on the
argument advanced by learned counsel for the
accused that search of bag so carried would be
search of a person, it will make a sharp difference
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in the applicability of Section 50 of the Act. After
receiving information, an officer empowered under
Section 42 of the Act, may proceed to search this
kind of baggage of a person which may have been
placed on the ground, but if at that very moment
when he may be about to open it, the person lifts
the bag or keeps it on his shoulder or some other
place on his body, Section 50 may get attracted.
The same baggage often keeps changing hands if
more than one person are moving together in a
group. Such transfer of baggage in the nick of time
when it is about to be searched would again create
practical problem. Who in such a case would be
informed of the right that he is entitled in law to be
searched before a Magistrate or a gazetted officer?
This may lead to many practical difficulties. A
statute should be so interpreted as to avoid
unworkable or impracticable results. In Statutory
Interpretation by Francis Bennion (3rd Edn.), para
313, the principle has been stated in the following
manner:
“The court seeks to avoid a construction of
an enactment that produces an unworkable or
impracticable result, since this is unlikely to have
been intended by Parliament. Sometimes, however,
there are overriding reasons for applying such a43/63
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CRL.A(MD).Nos.783, 771 and 784 of 2023construction, for example where it appears that
Parliament really intended it or the literal meaning
is too strong.”
20. As pointed out in State of
Punjab v. Baldev Singh [(1999) 6 SCC 172 : 1999
SCC (Cri) 1080] drug abuse is a social malady.
While drug addiction eats into the vitals of the
society, drug trafficking not only eats into the vitals
of the economy of a country, but illicit money
generated by drug trafficking is often used for
illicit activities including encouragement of
terrorism. It has acquired the dimensions of an
epidemic, affects the economic policies of the State,
corrupts the system and is detrimental to the future
of a country. Reference in the said decision has
also been made to some United Nations
Conventions Against Illicit Trafficking in Narcotic
Drugs, which the Government of India has ratified.
It is, therefore, absolutely imperative that those
who indulge in these kind of nefarious activities
should not go scot-free on technical pleas which
come handy to their advantage in a fraction of a
second by slight movement of the baggage, being
placed to any part of their body, which baggage
may contain the incriminating article.
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26.5.Before the implementation of the Narcotic Drugs and
Psychotropic Substance (Seizure, Storage, Sampling and disposal) Rules
2022 which commenced from 23 December 2022, not even Section 52A of
the NDPS Act demanded taking of samples at the spot. The Notification
No.1/1989 prescribed procedure to take samples, seizure and the disposal.
The authorities has strictly followed the procedure during the course of
taking samples, seizure and produced before the Court. Therefore,
considering the drug menace which has been causing pernicious effect to
large Sections of society namely, life of the youths and innocent persons,
the unworkable interpretation has to be avoided. Hence, this Court holds
that when physical production of the contraband and sealed samples are
duly made before the Court, the Court has to take into account the same
without going into the issue of the non-compliance of the post seizure
procedure, which is intended for avoidance of re-circulation, in order to
convict the accused for the possession of the contraband against the law.
26.6.From the reading of the “Mohanlal case” I II III, it is clear that
Section 52 A prescribed procedure to be followed post seizure of the
contraband to ensure prompt destruction of the contraband so that seized
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materials may not be misused. The said direction has been issued only on
considering the submission of the prosecution that seized contraband were
disposed of without taking samples and preserving the remaining
contraband as per the Central Notification No.1/89 ie., on the basis of the
specific observation in Paragraph No.13 of Mohanlal case III that “except
Directorate of Revenue Intelligence, most the States, however claim that
no samples are drawn at the time of the seizure. The DRI alone claims that
sample are drawn at the time of seizure.”
26.6.1.The Hon’ble Supreme Court in Paragraph No.12 of the
Mohanlal Case (mohanlal III- reported in 2016 (3) SCC 379) has held as
follows:
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
psychotropic substances. The Central Government
has in exercise of that power issued Standing
Order No. 1 of 1989 which prescribes the
procedure to be followed while conducting seizure
of the contraband. Two subsequent standing orders46/63
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16-1-2015 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
Standing Order No. 1 of 1989 states that samples
must be taken from the seized contraband on the
spot at the time of recovery itself. It reads:
“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
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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.
26.6.2.The original facts of Mohanlal Case (Mohanlal Case -I
reported in 2012 (7) SCC 712), have made it clear that the Union of India
has preferred appeal against the acquittal. The High Court dismissed the
appeal on the ground that the prosecution failed to prove the seizure of the
contraband beyond reasonable doubt and hence, the prosecution case of
destruction of the contraband without taking sample as per Section 52A of
NDPS Act, cast doubt over the prosecution case. In the said appeal,
considering the re-circulation of the seized contraband, the Hon’ble
Supreme Court called the States to furnish the details of the seizure,
storage, disposal/destruction particulars. Before issuing the said direction,
the Hon’ble Supreme Court has observed as follows in Paragraph No.11 of
the judgment in the case of Union of India v. Mohanlal reported in 2012
7 SCC 712 at page 715
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11. We find considerable merit in the submissions
made by Mr Sinha. The problem is both widespread
and formidable. There is hardly any State in the
country today which is not affected by the
production, transportation, marketing and abuse of
drugs in large quantities. There is in that scenario
no gainsaying that the complacency of the
Government or the officers dealing with the
problem and its magnitude is wholly misplaced.
While the fight against production, sale and
transportation of the narcotic drugs and
psychotropic substances is an ongoing process, it is
equally important to ensure that the quantities that
are seized by the police and other agencies do not
go back in circulation on account of neglect or
apathy on the part of those handling the process of
seizure, storage and destruction of such
contrabands. There cannot be anything worse than
the society suffering on account of the greed or
negligence of those who are entrusted with the duty
of protecting it against the menace that is capable
of eating into its vitals. Studies show that a large
section of the youth are already victims of drug
abuse and are suffering its pernicious effects.
Immediate steps are, therefore, necessary to prevent
the situation from going out of hand.
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26.6.3. Thereafter, after considering the data, the Hon’ble Supreme
Court issued a direction in the case of Union of India v. Mohanlal,
reported in (2016) 3 SCC 379, which reads as follows:
31.1. No sooner the seizure of any narcotic
drugs and psychotropic and controlled substances
and conveyances is effected, the same shall be
forwarded to the officer in charge of the nearest
police station or to the officer empowered under
Section 53 of the Act. The officer concerned shall
then approach the Magistrate with an application
under Section 52-A(2) of the Act, which shall be
allowed by the Magistrate as soon as may be
required under sub-section (3) of Section 52-A, as
discussed by us in the body of this judgment under
the heading “seizure and sampling”. The sampling
shall be done under the supervision of the
Magistrate as discussed in Paras 15 to 19 of this
order.
26.7.The above direction contains two parts:
(i)No sooner the seizure of any narcotic drugs and psychotropic and
controlled substances and conveyances is effected, the same shall be
forwarded to the officer in charge of the nearest police station or to the
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(ii)The officer concerned shall then approach the Magistrate with an
application under Section 52-A(2) of the Act, which shall be allowed by
the Magistrate as soon as may be required under sub-section (3) of Section
52-A, as discussed by us in the body of this judgment under the heading
“seizure and sampling”. The sampling shall be done under the supervision
of the Magistrate as discussed in Paras 15 to 19 of this order.
26.8.Both the directions relate to the procedure to be followed after
the seizure. The said direction was issued on finding that there was no
compliance of the procedure of taking sample at the occurrence place at
the time of the seizure as per the Central Government Notification No.
1/1989. Therefore, the intention of the guidelines issued by the Hon’ble
Supreme Court is that in case of failure to take sample and to prove the
case of the seizure, the prosecution has final opportunity to produce the
entire contraband and take the sample in the presence of the learned
Judicial Magistrate upon making the application and cause destruction of
the contraband. From the above, it is clear that the compliance of the above
direction issued by the Mohanlal Case No.II, to take inventory is the post
seizure procedure to prevent the recirculation of the contraband. In the said
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circumstances, in the case wherever the contraband was seized after taking
the samples as per the Notification No.1/1989 and forwarded to the
competent officer as per Section 52 and the accused along with the seized
contraband are produced before the competent Court and the competent
Court received the contraband and issued a direction to keep the
contraband in proper custody and the same has been properly supervised
and the same has been also produced before the trial Court at the time of
the trial as a material object, as a physical evidence, the same cannot be
brushed aside on the ground that the investigating agency violated the
second part of the direction of the Mohanlal Case No.II, by not disposing
of the seized contraband by making the application under Section 52A of
NDPS Act.
26.9.The Mohanlal Case, is applicable only to the cases where there
is a failure of physical production of the contraband as a material object
and not in all circumstances. The same was considered by the Hon’ble
Supreme Court before and after the Mohanlal case and the Hon’ble
Supreme Court has held that the said non-compliance is not fatal to the
prosecution when the prosecution proved the factum of seizure of the
contraband beyond reasonable doubt and also proved the seized materials
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by producing the same before the trial Court as a material object and
identified the same, through the material witnesses as per law.
26.10.Now this Court adverts to the facts of the present case whether
the prosecution proved the possession of the contraband, seizure and
production of the contraband before the Court in accordance with the
provision of the NDPS Act and the Notification No.1/1989 ?
26.11.To address the issues, it is relevant to extract the various
provisions of the NDPS Act:
Section 52 of the NDPS Act Section 55 of the NDPS Act
Disposal of persons arrested and articles Police to take charge of articles seized
seized.—(1) Any officer arresting a person and delivered.—
under section 41, section 42, section 43 or An officer-in-charge of a police station
section 44 shall, as soon as may be, inform shall take charge of and keep in safe
him of the grounds for such arrest. custody, pending the orders of the
(2) Every person arrested and article Magistrate,
seized under warrant issued under sub- all articles seized under this Act within the
section (1) of section 41 shall be local area of that police station and which
forwarded without unnecessary delay to may be delivered to him,
the Magistrate by whom the warrant was and shall allow any officer who may
issued. accompany such articles to the police
(3) Every person arrested and article station or who may be deputed for the
seized under sub-section (2) of section 41, purpose, to affix his seal to such articles or
section 42, section 43 or section 44 shall to take samples of and from them and all
be forwarded without unnecessary delay to samples so taken shall also be sealed with
— (a) the officer-in-charge of the nearest a seal of the officer-in-charge of the police
police station, or (b) the officer station.
empowered under section 53.
(4) The authority or officer to whom any
person or article is forwarded under sub-
section (2) or sub-section (3) shall, with
all convenient despatch, take such
measures as may be necessary for the
disposal according to law of such person
or article.
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From the reading of Section 52 of the NDPS Act, it is clear that the
Investigating officers shall arrest and seize the contraband. The arrestee
and the seized contraband shall be forwarded to the Magistrate without
unnecessary delay. The arrestee and the seized articles should also be
forwarded to the officer in charge of nearest police station or the officer
empowered under Section 53 of the NDPS Act. The said police officers to
whom the arrestee and the seized articles are forwarded are the officers
under Sub Sections 2 and 3 of Section 52 of the NDPS Act, who have to
take change of and take such measures as may be necessary for the
disposal according to law of such persons or article. Disposal of the
arrestee has been made through the remand by the Magistrate. The disposal
of the seized article has been made through entrusting the custody to the
officer mentioned in Section 55 of the NDPS Act.
26.11.1.The officer who has received the seized article from the
officer mentioned in the NDPS Act is to act as per Section 55 of the NDPS
Act and should take charge of the said seized articles and keep in the safe
custody either by affixing the seal to such articles or allow to take samples
of and from them and all sample so taken shall also be sealed with a seal of
office in charge of police station, till the orders of the Magistrate.
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Therefore, from the reading of Sections 52 and 55 of the NDPS Act, the
disposal of the seized articles by the ground level officers ends with
entrustment of the same with the officer mentioned in Section 55 of the
NDPS Act. The officer mentioned in Section 55 of the NDPD Act, is duty
bound to keep safe custody of the properties till the orders of the
Magistrate. This original position of the Act before the incorporation of
Section 52A of the NDPS Act, ie., 29.05.1989, is that the Union
Government had issued the notification No.1/1989, in the form of
instruction to the investigating officer to follow the procedures during the
course of the arrest and seizure of the articles with the accused person.
26.12.In this case, the contraband was recovered on 25.08.2008 at
04.15 p.m. As per the above notification, the samples S1 and S2 also were
taken. Remaining contraband also was packed as P1 at the occurrence
place itself and Athachi was prepared. All the samples and the entire
contraband were produced before the Court on the same day itself. Form
91 with the particulars of the recovered samples of contraband were also
produced before the learned Judicial Magistrate, on the same day itself at
the time of the remand of the accused. The learned Judicial Magistrate,
after accepting the contraband and verification, directed it to be produced
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before the Principal Special Court for EC and NDPS Act Cases, Madurai.
Thereafter, samples and the remaining contraband were produced before
the Special Court for EC and NDPS Act, Madurai. The relevant Form 91
are as follows:-
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CRL.A(MD).Nos.783, 771 and 784 of 202326.13.The said contraband was produced during the course of the
trial and marked as M.O.1 and M.O.2 and the same was identified by the
witnesses. P.W.1and P.W.2 have cogently deposed about the above
recovery and the taking of the samples and packing of the remaining
contraband and identified the same before the Court at the time of trial.
The learned trial judge also, in the final portion of the judgment in
Paragraph No.49 has directed to take steps for the destruction of the
contraband after the appeal period is over. Therefore, the argument of the
appellant on the basis of the judgment of the Hon’ble Supreme Court
reported in 2023 Live Law SC 549 and 2023 Live Law SC 570 is
misconceived and the facts of the said case is entirely different from the
present facts of the case. In the above cases, the specific stand of the
prosecution is that the entire contraband was destructed and hence, the
Court took a view along with the other circumstances that the prosecution
has not proved the case beyond reasonable doubt.
26.14.Since the question of the compliance of the procedure is
factual aspect and only in the case of the non compliance which cause
failure of justice and creates doubt over the prosecution case over the
recovery, this Court is duty bound to consider the same. On perusal of the
entire material and other records and careful appreciation of the deposition
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of the witnesses and the explanation furnished by the appellant during the
course of the questioning under Section 313 of Cr.P.C., this Court finds
that the appellant never raised the said plea during the entire course of the
trial. But, the learned counsel argued that the non-compliance amounts to
failure of justice, and this Court is duty bound to see any failure of justice
has occurred.
27. In view of the above discussion, this Court is not inclined to
accept the submission of the counsel for the appellant that the non
compliance of the 52A of the NDPS Act vitiated the conviction of the
appellant under Section 8(c) read with Section 20(b)(ii)(c) of the NDPS
Act, 1985.
28.Accordingly, the conviction and sentence passed by the
1st Additional Special Court for NDPS Act cases, Madurai, in C.C.No.45 of
2009, dated 19.06.2023, is hereby confirmed and the Criminal Appeals are
dismissed. Consequently, the connected miscellaneous petitions are closed.
19.03.2024
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
dss/sbn
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To
1. The 1st Additional Special Court for NDPS Act cases,
Madurai.
2. The Deputy Superintendent of Police,
NIB-CID, Thoothukudi.
3.The Superintendent,
Central Prison,Madurai.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
5.The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN,J.
dss/sbn
Order made in
CRL.A(MD).Nos.783, 771 and 784 of 2023
19.03.2024
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