Allahabad High Court
Salamat Raza vs State Of U.P. on 2 January, 2024
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:372
Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33796 of 2023
Applicant :- Salamat Raza
Opposite Party :- State of U.P.
Counsel for Applicant :- Javed Habib
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Srivastava,J.
1. Heard Sri Javed Habib, learned counsel for the applicant, Sri Chote Lal Chaubey, learned AGA-I for the State-opposite party and perused the record.
2. The instant bail application has been filed with a prayer to enlarge the applicants on bail in Case Crime No.173 of 2023, under Section 8/15 of N.D.P.S. Act, Police Station- Katra, District- Shahjahanpur during the pendency of trial.
3. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the instant case. Initially by way of intercepting a vehicle No.UP.25AT9774 DCM Truck, wherein the applicant was travelling as a passenger, who taken lift from the driver one Irfan and the applicant has no concern as it reveals from the record being no criminal history of any type of incident and as such the role defines by the prosecution is contrary to the factual aspect as well as the narration of the story does not corroborate the presence of the applicant in the alleged incident. While further submitting and elaborating the grounds taken up by the learned counsel for the applicant, he further submitted that the sample has not been taken before the Magistrate, hence, there is no compliance of Section 52-A of the N.D.P.S. Act, which has been declared necessary in the judgement pronounced by the Hon'ble Apex Court in the case of Yusuf @ Asif Vs. State reported in 2023 Law Suit (SC) 1020 decided on 13.10.2023, wherein the ratio of the judgement defines that in absence of strict compliance of Section 52(A), (3) and (4) of N.D.P.S. Act, which declared the preliminary evidence in connection with the offences alleged under Section N.D.P.S. Act is not complied, the same culminated in allowing the appeal preferred by the appellant before the Hon'ble Apex Court. Extract of the case of Yusuf (supra) is referred herein below:-
"8. We have heard learned Senior counsel for the appellant. The main plank of his argument is that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A (2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. Further, there is a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband.
9. Learned counsel for the respondent on behalf of the State submitted that the search and seizure was based upon the prior information received by the Intelligence Officer of NCB who has been examined as PW1. The accused persons were disclosed the identity of the officers and after obtaining their consent in writing, the search was carried out in the presence of Superintendent of Police, NCB (PW8) who was a gazetted officer. After seizure, two samples from each packet were drawn and packed separately and were sealed. The NCB seal No.12 was affixed to it and the correct seal number was mentioned in the Mahazar and all other documents except in the godown receipt whereby inadvertently seal No.11 was mentioned. The Officers involved in the search, seizure and arrest operation had duly submitted their report as referred to under Section 57 of the NDPS Act.
10. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.
11. For the sake of convenience, relevant subsections of Section 52A of the NDPS Act are reproduced hereinbelow:
"52A. Disposal of seized narcotic drugs and psychotropic substances.-
(1) .......
( 2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officerincharge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [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 [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 subsection (1) may consider relevant to the identity of the [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 [such drugs or 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 subsection (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
13. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate.
No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
14. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn."
4. While seeking prayer through instant application, learned counsel for the applicant also referred the Notification dated 23.12.2022 issued by the Ministry of Finance(Department of Revenue), Government of India, wherein the procedure has been notified under Chapter-III (Sampling), which is as under:-
"CHAPTER III
(SAMPLING)
8. Application to Magistrate. ? After the seized material under the Act is forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53 of the Act or if it is seized by such an officer himself, he shall prepare an inventory of such material in Form-4 and apply to the Magistrate, at the earliest, under sub-section (2) of section 52A of the Act in Form-5.
9. Samples to be drawn in the presence of Magistrate. ? After application to the Magistrate under sub-section (2) of section 52A of the Act is made, the Investigating Officer shall ensure that samples of the seized material are drawn in the presence of the Magistrate and the same is certified by the magistrate in accordance with the provisions of the said-sub-section.
10. Drawing the samples. ? (1) One sample, in duplicate, shall be drawn from each package and container seized.
(2) When the packages and containers seized together are of identical size and weight bearing identical marking and the contents of each package give identical results on colour test by the drugs identification kit, conclusively indicating that the packages are identical in all respects, the packages and containers may carefully be bunched in lots of not more than ten packages or containers, and for each such lot of packages and containers, one sample, in duplicate, shall be drawn:
Provided that in the case of ganja, poppy straw and hashish (charas) it may be bunched in lots of not more than forty packages or containers.
(3) In case of drawing sample from a particular lot, it shall be ensured that representative sample in equal quantity is taken from each package or container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.
11. Quantity to be drawn for sampling. ? (1) Except in cases of opium, ganja and charas (hashish), where a quantity of not less than twenty-four grams shall be drawn for each sample, in all other cases not less than five grams shall be drawn for each sample and the same quantity shall be taken for the duplicate sample.
(2) The seized substances in the packages or containers shall be well mixed to make it homogeneous and representative before the sample, in duplicate, is drawn.
(3) In case where seized quantities is less than that required for sampling, the whole of the seized quantity may be sent.
12. Storage of samples. - (1) Each sample shall be kept in heat-sealed plastic bags or heat-resistant glass bottle or apparatus, which shall be kept in a paper envelope, sealed properly and marked as original or duplicate, as the case may be.
(2) The paper envelope shall also bear the respective serial number of the package or container from which the sample had been drawn.
(3) The envelope containing the duplicate sample shall also have reference of the test memo and shall be kept in another envelope, sealed and marked 'Secret-drug sample / Test memo', to be sent to the designated laboratory for chemical analysis.
13. Despatch of sample for testing. ? (1) The samples after being certified by the Magistrate shall be sent directly to any one of the jurisdictional laboratories of Central Revenue Control Laboratory, Central Forensic Science Laboratory or State Forensic Science Laboratory, as the case may be, for chemical analysis without any delay.
(2) The samples of seized drugs or substances shall be despatched to the jurisdictional laboratories under the cover of the Test Memo, which shall be prepared in triplicate, in Form-6.
(3) The original and duplicate of the Test Memo shall be sent to the jurisdictional laboratory alongwith the samples and the triplicate shall be retained in the case file of the seizing officer.
14. Expeditious Test.- The chemical laboratory shall submit its report to the court of Magistrate with a copy to the investigating officer within fifteen days from the date of receipt of the sample.
Provided that where quantitative analysis requires longer time, the results of the qualitative test shall be dispatched to the court of Magistrate with a copy to investigating officer within the said time limit on the original copy of the Test Memo and in the next fifteen days the result of quantitative test shall also be indicated on the duplicate Test Memo and sent to the court of Magistrate with a copy to the investigating officer.
15. Duplicate Sample and Remnants of Samples. ? (1) Remnants of samples shall be returned with reference to the Test Memo to the office from which they were received within three months after the analysis by the laboratory.
(2) Immediately after the acceptance of the test report by the court of Magistrate, the duplicate sample held by the Inquiry Officer shall be deposited in the godown referred to in rule 5 along with the remnants of the sample."
5. Per contra, learned A.G.A.1 vehemently opposed the prayer as made in the application and rebutted the stand taken up by the learned counsel for the applicant on the ground that the entire procedure has been adopted by the concerned authority and the quantity of 1 quintal 84 kg. poppy straw has been recovered from the vehicle wherein applicant was travelling with driver and the said vehicle was not passenger vehicle.
6. Having regard to the judgment rendered by the Hon'ble Apex Court and which has been reiterated and referred in Criminal Misc. Bail Application No.38035 of 2023 connected with two other bail applications and the same has been decided on 04.11.2023, wherein the Notification dated 23.12.2022 has been broadly discussed.
7. In view of the aforementioned facts and circumstances, the ground has been made out for seeking bail in the aforesaid case, the bail application is hereby allowed.
8. Let the applicant Salamat Raza involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the conditions that:
i. The applicant will not tamper with the evidence during the trial.
ii. The applicant will not pressurize/intimidate the prosecution witness.
iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required.
iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
v. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
vi. The applicant shall not leave India without the previous permission of the Court.
vii. In the event, the applicant changes residential address, the applicant shall inform the court concerned about new residential address in writing.
9. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 2.1.2024
Mini
