Madras High Court
Shebik vs The State Rep. By on 4 June, 2024
Crl.A.(MD).No.503 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH Court
DATED: 04.06.2024
CORAM
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.A.(MD).No.503 of 2023
and
Crl.M.P(MD).No.9585 of 2023
Shebik .. Appellant
Vs.
The State rep. by
The Inspector of Police,
B-1 Town Police Station,
Ramanathapuram
(Crime No.72 of 2022) .. Respondent
PRAYER: Appeal filed under Section 374 (2) of the Criminal Procedure
Code, to call for the records to set aside the judgment and conviction dated
05.05.2023 by the learned Additional District and Sessions
Judge/Presiding Officer, Special Court for EC and NDPS Act Cases,
Pudukkottai in C.C.No.245 of 2022 and acquit the appellant.
For Appellant : Ms.Devaki
For Respondent : Mr.B.Nambi Selvan
Additional Public Prosecutor
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JUDGMENT
The accused No.2 in C.C.No.245 of 2022 on the file of the
Additional District and Sessions Judge/Presiding Officer, Special Court
for EC and NDPS Act Cases, Pudukkottai, has filed this Criminal Appeal
before this Court challenging the conviction and sentence imposed against
him in the impugned judgment dated 05.05.2023. The conviction and
sentence is as follows:
Conviction for the Offence under Sentence of Imprisonment
Section
8(c) r/w 21(C) of the NDPS Act 12 years R.I and to pay a fine of
Rs.1,20,000/- in default to
undergo 6 months S.I
2. On 02.04.2022 at about 15 hours, P.W.8 received the secret
information about the illegal transportation of 1.030 Kgs of Hashish oil.
Thereafter, he reduced the same in writing and sent the same to his
superior under Ex.P.7 in compliance with Section 42 of the NDPS Act.
After getting permission, he along with his team, namely, P.W.1 and P.W.2
went to the scene of the occurrence. The informer identified the accused
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Nos.1 and 2 and on seeing the team, the appellant and the other accused,
Mohammed Javid Rahman were trying to escape from the scene of
occurrence along with the contraband. At that time, the appellant alone
was nabbed by P.W.8 and other accused fled away from the scene of
occurrence. P.W.8 has informed about his right to be searched in the
presence of the learned Judicial Magistrate or the gazetted officer as per
Section 50 of the NDPS Act. He had no objection to be searched by the
police officers themselves. Hence, they prepared the seizure Mahazar and
also on search, they found that the accused No.2 was in possession of
yellow-coloured plastic bag with Hashish oil. Hence, after ascertaining
that the said contraband was hashish oil, P.W.8 arrested the accused at 6.30
pm and recorded his confession statement. After that, they recovered the
hashish oil and weighed it and found it was 1.030 kilograms of hashish oil,
and they took the samples as S1 and S2 and obtained the signature and
completed the process. The independent witnesses did not come forward
to be witnesses and the same was recorded in the presence of P.W.1 and
P.W.2 and another witness, Anbarasan, namely, Grade 1 Constable of the
Department. P.W.3, P.W.4 and P.W.5 were independent witnesses for
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Crl.A.(MD).No.503 of 2023
observation mahazar and the rough sketch for which they subscribed their
signature in the observation mahazar and the sketch. Thereafter, P.W.8
came to the police station and registered the case in Crime No.72 of 2022
and also handed over all the materials along with the accused. The accused
was brought to the police station and he was produced before the learned
Judicial Magistrate along with contraband. Further, the absconding
accused was arrested in another case in Kerala and the same came to the
knowledge of P.W.8 and on 15.05.2002, he was arrested and some
recoveries were made. Thereafter, investigation was completed and the
final report was filed upon receipt of the chemical analysis report to prove
the content of the Hashish oil and the final report was taken on file in
CC.No.245 of 2020.
3. After appearance of the accused, copies of records were furnished
to them under Section 207 Cr.P.C. The learned Trial Judge, on perusal of
records and on hearing both sides and being satisfied that there existed a
prima facie case against the accused/appellant, framed charges under
Sections 8(c) r/w 21(c) of the NDPS Act 1985 and the same was read over
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and explained to him and on being questioned, the accused/appellant
denied the charges and pleaded not guilty and stood for trial.
4.The prosecution, in order to prove its case, had examined 8
witnesses as P.W.1 to P.W.8 and exhibited 20 documents as Ex.P.1 to Ex.P.
20 and marked six material objects as M.O.1 to M.O.6.
4.1. M.O.1 and M.O.2 are the sample Hashish oil and M.O.3 is the
remaining contraband.
5.When the accused was examined under Section 313(1) (b) of
Cr.P.C., with regard to incriminating aspects against him, he denied the
evidence as false and further stated that a false case has been foisted
against him. The accused has neither produced any documents nor
examined any witness on his side.
6.The learned Trial Judge, considering the materials and
circumstances found that accused No.1 in C.C.No.245 of 2022 was not
guilty and acquitted him and the accused No.2/appellant herein alone was
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Crl.A.(MD).No.503 of 2023
found guilty and passed the following conviction and sentence as against
the appellant:
Conviction for the Offence under Sentence of Imprisonment
Section
8(c) r/w 21(C) of the NDPS Act 12 years R.I and to pay a fine of
Rs.1,20,000/- in default to
undergo 6 months S.I
7. Submissions of the learned counsel for the appellant:
7.1.In the seized materials, there was no SHO seal in the seized
documents and no public witness was examined and in form 50 there was
no signature of the officers and also there was no compliance of section 42
of the NDPS Act.
7.2.Apart from that, there was failure to follow Section 42(1) of the
NDPS Act.
7.3.According to the investigating agency, the entire contraband was
produced before the Malkana, but the Malkana Register was not produced.
7.4.The officer had not sent the contraband to the chemical lab
within 72 hours as per the Notification 1 of 88 and same was sent with
delay. The said delay caused prejudiced to him.
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7.5.There was non compliance of section 52A of the NDPS Act and
there is no destruction as per section 52A of the NDPS Act.
7.6.Finally, the Hashish oil was recovered and the weight was given
in the final report as 1.030. Hence, the same was weighed along with the
cover containing the contraband and hence, without cover, the said
quantity comes below the commercial quantity, that is below 1 litre. In
such circumstances, he seeks for the reduction of the sentence.
8. Submissions of the learned Additional Public Prosecutor:
The learned Additional Public prosecutor, on the other hand,
submitted that P.W.8 upon receipt of the information reduced the same in
writing under Ex.P7 and after obtaining the permission from the higher
officials, he went to the occurrence place and seized the contraband and
hence there is no violation of the section 42 of the NDPS Act. There is a
specific claim by the recovery officer that the independent witness did not
come forward to give the evidence and hence the same was recorded in the
proceedings and the non-examination of independent witness is not fatal
when the evidence of P.W.8, P.W.1 and P.W.2 are cogent and corroborated
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Crl.A.(MD).No.503 of 2023with each other. The entire contraband was produced from the Malkana
and the same was marked as M.O.3 without any objection and hence there
is no prejudice caused because of failure to produce the Malkana register.
The delay in the receipt of FSL report is not within the domain of the
investigation officer. They produced the entire contraband along with the
accused at the time of the remand before the competent court and the said
delay is not fatal when there was no case of tampering of the contraband.
In this case, Section 52-A of the NDPS Act is not applicable when the
entire contraband was produced before the learned Judicial Magistrate
within the specified period and it is not the case of the prosecution, that
there was a destruction of the entire contraband. Apart from that, the
sample was properly taken and the same was produced before the learned
Judicial Magistrate and remaining contraband was marked as M.O.3. In
these circumstances, the argument of the learned counsel for the appellant
relating to Section 52-A of the NDPS Act is deserved to be rejected. The
quantity of the Hashish oil is concerned, actually, the recovered
contraband is 1.300 ml. There was a omission while framing of charge,
and it is just a mistake but the entire contraband is 1.330 ml. All the
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Crl.A.(MD).No.503 of 2023documents including the seizure document shows that 1.300 ml was
seized. Hence, the case clearly comes under the commercial quantity. In
the said circumstances, seeks for dismissal of the appeal.
9. This Court considered the rival submissions made by the learned
counsel appearing on either side and perused the materials available on
record.
10.Compliance of Section 42-(1) of the NDPS Act:
P.W.8 has deposed that he has received the secret information on
02.04.2002, relating to the illegal transportation of the Hashish oil by A1
and A2. The same was reduced in writing under Ex.P7. The higher official
also received the said information and made the endorsement that he
received and also they gave the permission to conduct search. In the said
circumstances, there is compliance of the section 42-(1) of the NDPS Act.
11.Compliance under Section 50 of the NDPS Act:
As held above, in this case, yellow colored plastic bag with Hashish
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Crl.A.(MD).No.503 of 2023oil seized by P.W.8 in the presence of P.W.1 and P.W.2 no contraband was
recovered from the body of the appellant. Therefore, as held by the
Hon’ble Three Judges Bench of the Supreme Court reported in 2005 (4)
SCC 350, under Section 50 of the NDPS Act, is not applicable. Apart
from that, the evidence of P.W.1, P.W.2 and P.W.8 that they complied the
requirement of Section 50 of the Act supported by material documents
cannot be disbelieved. Hence, the argument of the learned counsel for the
appellant that the appellant is entitled to acquittal for violation of Section
50 of the NDPS Act, cannot be accepted.
12. Failure to Examine Independent witnesses:
In this case, recovery of the contraband has been clearly proved
through the evidence of P.W.1, P.W.2 and P.W.8. The evidence of P.W.1,
P.W.2 and P.W.8 are cogent and trustworthy. No circumstances were
elicited by the defence to disbelieve their evidence and no motive is either
attributed against them or proved to the satisfaction of the Court. The
recovered articles immediately were produced before the Court at the time
of the remand itself and there was no explanation on the side of the
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Crl.A.(MD).No.503 of 2023appellant. Further, it is the specific case of the prosecution that in the spot,
the independent witness did not come forward to subscribe to the
preparation of recovery and other formalities. The Hon’ble Supreme Court
in various precedents reiterated principle that the non examination of the
independent witness is not a ground to disbelieve the case of the
prosecution of recovery of contraband,. The Hon’ble Constitution Bench in
the case of Surinder Kumar v. State of Punjab reported in 2020 (2) SCC 563
paragraph Nos.14 and 15 has held as follows:
14.Further, it is contended by the learned Senior
Counsel appearing for the appellant that no independent
witness was examined, despite the fact they were
available. In this regard, it is to be noticed from the
depositions of Devi Lal, Head Constable (PW 1), during
the course of cross-examination, has stated that efforts
were made to join independent witnesses, but none were
available. The mere fact that the case of the prosecution
is based on the evidence of official witnesses, does not
mean that same should not be believed.
15. The judgment in Jarnail Singh v. State of
Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC
521 : (2011) 1 SCC (Cri) 1191] , relied on by the counsel
for the respondent State also supports the case of the
prosecution. In the aforesaid judgment, this Court has
held that merely because prosecution did not examine
any independent witness, would not necessarily lead to
conclusion that the accused was falsely implicated. The
evidence of official witnesses cannot be distrusted and
disbelieved, merely on account of their official status.
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Apart from that, in the spot, the independent witness did not come
forward to subscribe to the preparation of the recovery and other
formalities, and hence, the recovery was made from the appellant in the
presence of P.W.1, P.W.2. P.W.8’s evidence is corroborated by P.W.1 and
P.W.2. P.W.1, P.W.8 clearly deposed that he made a search of the appellant
and the appellant had the cover containing the Hashish oil. In the said
circumstances, Section 50 is not applicable and also there is no necessity
to follow the condition stated under section 50 of NDPS Act.
Jeet Ram v. NCB, (2021) 14 SCC 592 : 2020 SCC OnLine SC
735 at page 600
17. The trial court acquitted the appellant
mainly on the ground that prosecution case was
not supported by independent witnesses;
conscious possession was not proved; non-
compliance of Section 50 of the NDPS Act; proper
procedure was not followed in sending the
samples for examination and the case of the
prosecution was unnatural and improbable. As
rightly held by the High Court, this Court in State
of H.P. v. Pawan Kumar [State of H.P. v. Pawan
Kumar, (2005) 4 SCC 350 : 2005 SCC (Cri) 943]
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has held that Section 50 of the NDPS Act is
applicable only in the case of personal search, as
such, there is no basis for the findings recorded
by the trial court that there was non-compliance
of provision under Section 50 of the NDPS Act.
Even with regard to the finding of the trial court
that the case of the prosecution was not supported
by independent witnesses, it is clear from the
evidence on record that the incident had
happened at about 10.30 p.m. in a dhaba which is
away from the village site and all other persons
who are found in the dhaba were the servants of
the accused. It is also clear from the evidence on
record that Suresh Kumar and Attar Singh
examined on behalf of the appellant are closely
related to the accused, as such, they could not be
said to be independent witnesses. Pappu was the
only other person who is none other than the
servant of the dhaba and we cannot expect such a
person to be a witness against his own master.
The recovery was proved through the evidence of the P.W.8, P.W.1 and
P.W.2. After recovery, he was properly arrested and produced before the
learned Judicial Magistrate for remand, along with the contraband.
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13.Plea of the non-compliance of Secton 52A of the NDPS Act
caused failure of justice.
The sample also was properly taken as per the evidence of P.W.8
and sample was taken as S1, S2 and the remaining contraband was intact
and also all were produced before the learned judicial magistrate at the
time of the remand. Form 91 also was marked before the court. In form 91,
the learned Judicial Magistrate clearly stated that he verified form 91 and
the same was marked as Ex.P20 and the learned Judicial Magistrate clearly
made endorsement that the entire contraband was produced and directed
to produce before the Special Court. The said document was marked and,
there is no dispute relating to the preparation of the Ex.P.20. In view of the
above, the argument of the learned counsel for the appellant that 52A is
not complied, can not be accepted.
13.1.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.,
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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
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.
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Crl.A.(MD).No.503 of 2023
13.1.1.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. The Narcotic
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 existingPage 16 of 52
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Crl.A.(MD).No.503 of 2023law. 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
which are used for manufacture of Narcotic
Drugs 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;
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(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.
13.1.2.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 or
any other relevant consideration, in respect of any
narcotic drugs, psychotropic substances,
controlled substances or conveyances, by
notification in the Official Gazette, specify such
narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances,
class of controlled substances or conveyances,
which shall, as soon as may be after their seizure,
be disposed of by such officer and in such manner
as that Government may, from time to time,Page 18 of 52
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Crl.A.(MD).No.503 of 2023determine 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 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 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
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Crl.A.(MD).No.503 of 2023prepared; 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 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.]
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13.1.3.Section 52 A aims at “pre trial disposal of seized
contraband” with the sole object of avoiding pilferage of contraband and
returning 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 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
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Crl.A.(MD).No.503 of 2023standing 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
application, the Magistrate issues the certificate
contemplated by sub-section (2), then sub-section
(4) provides that, notwithstanding anything to the
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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.”
13.1.4.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 onPage 23 of 52
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Crl.A.(MD).No.503 of 2023record. It is not a case 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 bePage 24 of 52
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Crl.A.(MD).No.503 of 2023proved is the fact that samples taken out of a
contraband are kept intact. This Court held as
follows : (SCC pp. 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 VijayPage 25 of 52
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Crl.A.(MD).No.503 of 2023Jain [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 one
of the relevant circumstances. In the latest
decision 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 soPage 26 of 52
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Crl.A.(MD).No.503 of 2023bulky, 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 taken from and out of the contraband
material were kept intact, that when the samples
were 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.
13.2. 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
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Crl.A.(MD).No.503 of 2023Court 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 for 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 after 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 gets attracted. Therefore, the
interpretation to Section 52 A of the NDPS Act, is made to achieve the
object of NDPS Act.
13.3.The drugs are made to cure the illness and the diseases and to
alleviate the pain during ailment. But, 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.
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Subsequently, to make it stringent, an amendment was brought in the year
1989 with the object stated supra.
13.4.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
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 have occurred and in the year
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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, which has
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
on strictly logical lines, and where the logic leads
down 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’.”Page 30 of 52
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Crl.A.(MD).No.503 of 202313.4.1. The Hon’ble three benches 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
in the applicability of Section 50 of the Act. After
receiving information, an officer empowered under
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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 aPage 32 of 52
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Crl.A.(MD).No.503 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
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placed to any part of their body, which baggage
may contain the incriminating article.
13.5.Before the implementation of the Narcotic Drugs and
Psychotropic Substance (Seizure, Storage, Sampling and disposal) Rules
2022 which commenced from 23rd 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 have 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.
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13.6.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
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.”
13.6.1.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 forPage 35 of 52
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Crl.A.(MD).No.503 of 2023seizure, 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 orders
one dated 10-5-2007 and the other dated
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.”Page 36 of 52
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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.
13.6.2.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
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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
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
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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.
13.6.3. 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 underPage 39 of 52
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Crl.A.(MD).No.503 of 2023Section 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.
13.7.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
officer empowered under Section 53 of the Act.
(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 Paragraph Nos.15 to 19 of this order.
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13.8.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 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
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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.
13.9.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
by producing the same before the trial Court as a material object and
identified the same, through the material witnesses as per law.
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13.10.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 ?
13.11.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 seized.—(1) Police to take charge of articles
Any officer arresting a person under section 41, section seized and delivered.—
42, section 43 or section 44 shall, as soon as may be, An officer-in-charge of a police
inform him of the grounds for such arrest. station shall take charge of and keep
(2) Every person arrested and article seized under in safe custody, pending the orders
warrant issued under sub-section (1) of section 41 shall of the Magistrate,
be forwarded without unnecessary delay to the all articles seized under this Act
Magistrate by whom the warrant was issued. within the local area of that police
(3) Every person arrested and article seized under sub- station and which may be delivered
section (2) of section 41, section 42, section 43 or section to him,
44 shall be forwarded without unnecessary delay to— (a) and shall allow any officer who may
the officer-in-charge of the nearest police station, or (b) the accompany such articles to the
officer empowered under section 53. police station or who may be
(4) The authority or officer to whom any person or article deputed for the purpose, to affix his
is forwarded under sub-section (2) or sub-section (3) seal to such articles or to take
shall, with all convenient despatch, take such measures as samples of and from them and all
may be necessary for the disposal according to law of samples so taken shall also be sealed
such person or article. with a seal of the officer-in-charge
of the police station.
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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.
13.11.1.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
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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.
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.
13.12.Since the question of the compliance of the procedure is
factual aspect and only in the case of non compliance which causes failure
of justice and creates doubt over the prosecution case over the recovery,
this Court has to consider the same. On perusal of the entire material and
other records and careful appreciation of the deposition of the witnesses
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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 course of the trial. But, the
learned counsel argued that non-compliance amounts to failure of justice,
and this Court is duty bound to see any failure of justice has occurred. In
this case, yellow-coloured plastic bag with the Hashish oil was seized by
the police officers and they took the samples as S1 and S2 and packed the
remaining oil. He also weighed the remaining contraband and packed it
separately. Thereafter, they arrested the accused and the accused gave the
confession and he admitted that he and his friend purchased the said
contraband from unknown person and A2 was also implicated in this case.
The said samples of the contraband was produced along with “following
Form 91 under Ex.P.9 before the learned Judicial Magistrate on the date
of recovery itself” and the same was verified by the learned Judicial
Magistrate and directed to be produced before the Special Court without
any delay. The same is as follows:-
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14. Discussion on Quantity of contraband:
Apart from that, this court perused the entire documents. In
Ex.Nos.P1, P2, P3, P11 and P19, the seized quantity of the Hashish oil is
mentioned as 1.300 grams. After taking the sample, remaining contraband,
only, has been stated. In the final report, the charge framed by the learned
trial judge, it was mentioned as 1.030 kilograms. The, said typographical
error cannot be taken as material, when the evidence of the entire
documents, including the evidence of P.W.8, P.W.1 and P.W.2, clearly
show that the recovered contraband is 1.300 kilogram. In view of the said
circumstances, this Court is unable to accept the argument of the learned
counsel for appellant that the contraband was, below the commercial
quantity. In all aspects, the prosecution clearly proved the charge against
the appellant and so far as other accused is concerned, there is no material
except the confessional statement of the appellant and hence, the learned
Trial Judge correctly acquitted him. In all aspects, this court finds no merit
in the contention of the appellants and hence, the appeal deserves to be
dismissed.
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15. Accordingly, this Criminal Appeal stands dismissed and the
judgment of the learned Additional District and Sessions Judge, Special
Court for EC and NDPS Act cases, Pudukkottai in C.C.No.245 of 2022,
dated 05.05.2023, is hereby confirmed. Consequently, connected
miscellaneous petition is closed.
04.06.2024
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
sbn
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Crl.A.(MD).No.503 of 2023
To
1.The Additional District and Sessions Court,
Special Court for EC and NDPS Act Cases,
Pudukkottai.
2.The Inspector of Police,
B-1, Town Police Station,
Ramanathapuram
3.The Superintendent of Prison,
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.
sbn
Crl.A.(MD).No.503 of 2023
and
Crl.M.P(MD).No.9585 of 2023
04.06.2024
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