Gauhati High Court
Crl.A./269/2023 on 3 October, 2023
GAHC010146332023
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
Criminal Appeal No. 269/2023
BHASKAR BARUAH
S/O PROMOD BARUAH,
VILL.- KENEDY PARK,
P.S.- MARIANI, DIST.- JORHAT, ASSAM, PIN- 785634.
..... Appellant.
-Versus-
1. THE STATE OF ASSAM,
REP. BY LD. P.P., GOVT. OF ASSAM.
2. RANJIT KR. DEY
(SI OF POLICE GUWAHATI GPRS)
AGED ABOUT 64 YEARS
S/O LT. RAJANI KANT DEY
VILL.- BARUAH BARI
P.O.- SONAPUR, DIST.- KAMRUP (M)
ASSAM, PIN- 782402.
...... Respondent.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocates for the Appellant : Mr. N K. Murry.
Advocate for the respondent : Mr. K.K. Parasar.
Addl. P.P. Assam.
Date of Hearing : 15.09.2023
Page 1 of 19
Date of Judgment : 03.10.2023.
JUDGMENT (CAV)
Heard Mr. N.K. Murry, learned counsel for the appellant and
Mr. K.K. Parasar, learned Addl. P.P. for the State respondent.
2. This appeal, under Section 374[2] of the Cr.P.C. is preferred
by the appellant against the judgment and order dated 12.05.2023,
passed by the learned Special Judge, Kamrup [M] at Guwahati, in
NDPS Case No. 100/2019.
3. It is to be noted here that vide judgment and order dated
12.05.2023, the learned court below has convicted the appellant, Sri
Bhaskar Baruah, under Section 20[b][ii][B] of the NDPS Act and
sentenced him to suffer rigorous imprisonment for 4 years with fine
of Rs. 50,000/- with default stipulation.
4. The background facts, leading to filing of the present appeal,
are adumbrated herein below:-
―On 15.09.2019, ASI S.K. Dube along with GRP and CRPS
personnel checked Train No. 12423 DN Rajdhani Express,
which were being parked at plat form No. 1 and at about 7 am
they have recovered two big white coloured polythene carry
bags inside a dark green coloured VIP trolley bag from a
passenger, under Seat No. 43. Then the informant had taken
the passenger to Platform No. 1 and reported the matter to
the Officer In-Charge of GRPS. Accordingly, the Officer In-
Charge of GRPS, Guwahati has issued an authorization letter,
under Section 41[2] of the NDPS Act to SI Ranjit Kr. Dey and
on the basis of the said letter the informant along with the
staff rushed to the Platform No. 1 and conducted search of the
passenger and recovered seven handful dry leafs packets,
suspected to be Ganja in two big white coloured polythene
bags. The appellant, when asked, introduced himself as
Bhaskar Baruah of Mariani, Jorhat and also he discloses that
he purchased the same from a person at Shillong and boarded
the train from Guwahati Railway Station to Delhi for business
purpose. Thereafter, the informant weighed and found total 5
kgs of Ganja and seized the same in presence of witnesses
and drawn sample from the seized Ganja and sent the same
for FSL for examination. Thereafter, the appellant was
arrested under Section 43 of the NDPS Act and handed over
the Officer In-Chage of Guwahati GRPS and thereafter, SI
Ranjit Kr. Dey had lodged one FIR. Thereafter, the
investigation was carried out and the FSL report was collected,
which confirmed that the sample collected from the seized
articles gave positive test for Ganja. And accordingly, on
completion of investigation, charge sheet was submitted
against the appellant to stand trial in the court under Section
20[a] of the NDPS Act. Thereafter, the appellant was produced
before the learned court below and after hearing both the
parties, the learned court below had framed charge against
the appellant under Section 20[b][ii][B] of the NDPS Act and
explained the particulars of the charge to the appellant to
which he pleaded not guilty and claimed to tried. Thereafter,
the prosecution side had examined the witnesses and
thereafter, examined the appellant under Section 313 of the
Cr.P.C. Thereafter, hearing learned counsel for both the
parties, the learned court below has convicted the appellant
and sentenced him as aforesaid.‖
5. Being highly aggrieved, the appellant has approached this
Court, by filing the present application on the grounds mentioned as
under:-
[i] That, the seized articles were not seized from the
possession of the appellant;
[ii] That, while conducting search, the informant did not
comply with the provision of Section 50 and 100 of the
NDPS Act;
[iii] That, the informant has not comply with the provision of
Section 52[a] of the NDPS Act;
[iv] That, the informant is not the eye witness and before his
arrival the sample was taken;
[v] That, all the prosecution witnesses are the official
witnesses and there is no any independent witness,
which is contrary to the provision of Section 100[4] of
the NDPS Act.
6. Mr. Murry, learned counsel for the appellant, during the
argument, had reiterated the grounds mentioned herein above and
further submits that the Investigating Officer had not complied with
the provision of Section 50/100/52[A] of the NDPS Act and that non
compliance of the same is fatal to the prosecution case. Mr. Murry
further submits that all the witnesses of the prosecution are official
witnesses and there is no independent witness of seizure, to the
occurrence and that before arrival of the informant at the place of
occurrence the sample was drawn up and that too in absence of the
Magistrate, and as held in the case of Nazir Ahmed vs. The King-
Emperor [Air] 1836 PC 256, the procedure prescribed in the
statute has to be followed and all other modes are forbidden. Mr.
Murry had also referred following case laws to bolster his
submission:-
[i] Noor Aga vs. State of Punjab and another, reported
in [2008] 16 SCC 417;
[ii] Mohan Lal vs. State of Punjab, reported in [2018]
17 SCC 627; and
[iii] Sahib Singh vs. State of Punjab, reported in [1996]
11 SCC 685.
7. On the other hand, Mr. Parasar, learned Addl. P.P. has
supported the impugned judgment and order and submits that the
learned court below has rightly arrived at the conclusion of guilt of
the appellant under Section 20[b][ii][B] of the NDPS Act and that
there are sufficient materials to establish the ingredients of the
charge under the aforesaid section against the appellant and
therefore, it is contended to maintain the conviction and sentence,
so passed by the learned court below. Mr. Parasar has also
submitted written argument on behalf of the respondent No.1,
reiterating the same points.
8. Having heard the submissions of learned counsel for both the
parties, I have carefully gone through the memo of appeal as well
as the grounds mentioned therein and the record of the learned
court below and also the impugned judgment and order dated
12.05.2023, passed by the learned Special Judge, Kamrup [M] at
Guwahati, in NDPS Case No. 100/2019.
9. It appears from the record of the learned court's below that
the charge was framed against the appellant under Section
20[b][ii][B] of the NDPS Act, which states about the unlawful
possession of the contraband substance. The charge against the
appellant was that at about 7 am of 15.09.2019, he was in
possession of 5 kgs Ganja, while he was travelling by Train No.
12423, Down Dibrugarh Rajdhani Express, in Coach No. B-9, seat
No. 43, which was standing in Platform No. 1 of the Guwahati
Railway Station.
10. In order to prove the charge against the appellant, in the
learned court below the prosecution side had examined as many as
5 witnesses. P.W. - 4, Shri Ranjit Kr. Dey is the SI of Guwahati
GRPS. His evidence reveals that on 15.09.2019, at about 7 am, the
Officer In-Charge of GRPS, Guwahati had informed him that the
train checking party, which was deputed at Platform No. 1 of
Guwahati Railway Station had recovered some Ganja like substances
from a passenger in Delhi bound Rajdhani Express and detained him
at the Platform and thereafter, a GD Entry No. 380 dated
15.09.2019, Exhibit -p4, was made by the OC and instructed him to
take necessary step as per the NDPS Act and issued an authority
letter, Exhibit 5 to him. Thereafter, he proceeded to the Platform
No. 1 and found the train checking party with a person, along with a
green coloured trolley bag and accordingly, they have checked the
trolley bag and found 7 muthas of Ganja in 2 white coloured
polythene bags, weighing about 5 kg. Thereafter, he had collected
four samples of 24 grams each marked as A1 and A2 as original and
he also seized one android mobile handset, train ticket and one pan
card belonging to the person and preparing seizure list Exhibit p3,
and he also confirmed the trolley bag - Material Exhibit-2 and
proved the envelope containing duplicate samples as material
Exhibit 3 and also proved the envelope containing the seized mobile
phone, pan card and train ticket as Material Exhibit- 4. Thereafter,
he proved inventory list as Exhibit p6 and thereafter, prepared
sketch map Exhibit p7 and thereafter, requested the nearby people
to become witness of seizure list, but none had agreed. Thereafter,
he has examined the witnesses and he proceeded to the Guwahati,
GRPS after completion of all the formalities and took the accused
and the sample to the OC. Thereafter, he lodged the FIR- Exhibit p8
at the GRPS. The defence had cross- examined this witness at
length. But nothing tangible could be elicited to discredit his version.
It is, however, elicited that at the time of preparing inventory and
drawing of samples the members of train checking party and S.I.,
Sanjay Kr. Dubey and another constable who accompanied him to
the platform No. 1, were present.
11. PW-5, Mahesh Baishya, is the SI of Guwahati, GRPS, who had
completed remaining part of the investigation and his evidence
reveals that having been endorsed by the O/C to complete the
investigation, he found that the seized articles were submitted to
the Sheristadar of Guwahati, GRPS vide receipt - Exhibit p9.
Thereafter, on the next day, on 16.09.2019, he received the original
samples from the Sheristadar and through special messenger he
had forwarded the sample to the FSL vide Exhibit p10 and
thereafter, he had sent the same to the Director of FSL for
examination vide test memo in triplicate -Exhibit p11. Thereafter, he
received the report- Exhibit p12 from the Directorate of Forensic
Science -Exhibit p13 and p14 are the receipt dated 16.09.2019, and
the report of the FSL reveals that the sample gave positive tests for
Cannabis [Ganja] and the on completion and having found materials
against the accused he had submitted Charge Sheet -Exhibit p15
against accused.
12. In his cross-examination, it is elicited that he had sent the
sample to the FSL on 16.09.2019. The prosecution side has
examined Dr. Dhurbajyoti Hazarika, the Deputy Director, Drugs and
Narcotics Division, Directorate of Forensic Science as P.W.-1 and he
confirmed that the sealed envelope in Exhibit A1 and A2, containing
25 grams of dry plant materials, which he marked as DN-
775/2019[a] and DN-775/2019[b] and facsimile of the seal was
found to be ―GHTY GRPS‖, and accordingly, he examined the same
as per United Nation Drug Testing Laboratory Manual and found
that the sample gave positive test for Cannabis [Ganja] and he
submitted his report as Exhibit p5 and which was forwarded by the
Directorate of Forensic Science, Assam vide Exhibit p2 and he also
confirmed the remnant of sample, Material Exhibit 1. And nothing
tangible could be elicited in cross-examination of this witness also.
13. Thus, the report- Exhibit p1 and the evidence of P.W.1 goes a
long way to establish beyond reasonable doubt that the sample
collected by P.W. 4 and forwarded to FSL by P.W.-5, gave positive
test for Cannabis [Ganja]. The total weight of the Cannabis (Ganja)
was 5 kg. It is to be noted here that the factum of quantity of
Cannabis (Ganja) has not been disputed by the appellant side.
14. Now it is to be seen from whose possession it was recovered.
In this regard, the evidence of P.W.-2 and P.W.-3 are relevant. The
evidence of P.W.-3 reveals that on 15.09.2019, he was attending
checking duty at Guwahati Railway Station at Platform No. 1, from 6
am to 10 am and at around 7 am Delhi bound Rajdhani Express
arrived at the Platform No. 1, and they have entered into the Train
and while checking seat No. 43 of coach No. B9 they have found
one green coloured trolley bag and upon inquiry, accused Bhaskar
Baruah claimed the ownership of the said bag, and then on
suspicion they asked Bhaskar Barua to open the bag, and
thereafter, they found 7 muthas of Ganja in 2 white coloured plastic
bags. Thereafter, the matter was reported to O/C of GRPS,
Guwahati who asked them to bring down the passenger to the
platform and thereafter, S.I. Ranjit Kr. Dey arrived at the place of
occurrence with weighing machine and after weighing the same,
they have found total 5 kg of Ganja. Then SI Ranjit Kr. Dey drew 4
nos. of sample from the contraband substance and also seized
mobile phone, train ticket from the accused, vide seizure list-Exhibit
p5. Thereafter, the person was taken to the GRPS, Guwahati and
handed over to the O/C. Cross-examination of these witnesses could
elicit nothing tangible to discredit his version and he categorically
stated that they have found the accused in seat No. 43 and the
accused himself opened the trolley bag and thereafter, they become
sure that it belongs to him.
15. PW-2, Premchand Singh also accompanied P.W. 3 and lends
unstinting support to his version. He also confirmed the seizure list -
Exhibit p3 and Material Exhibit 2, 3 and 4. It is elicited in his cross-
examination that during regular checking they have found ganja in
the trolley bag of the accused and not on the basis of any specific
information and they have found the accused sitting in the Seat No.
43 of Coach No. B9. Thus, the P.W.-2 also corroborated the version
of P.W.-3 in material particulars.
16. It is a fact that no independent eye witnesses have been
examined herein this case. But, I find no ground to disbelieve the
Police personnel, who appears to have been testified cogently
without fear or favour. Nothing tangible could be elicited in their
cross-examination also and that they have successfully withstood
the same. Thus, the evidence of P.W.-2, 3, 4 and 5 goes a long way
to establish beyond reasonable doubt that the seized Ganja were
recovered from the possession of the accused in a trolley bag while
he was traveling in Rajdhani Express on 15.09.2019. It is of course
argued by the learned counsel for the appellant that no independent
eye witnesses were examined by the prosecution side as mandated
by the Section 100 of the Cr.P.C. But, it appears from the evidence
of PW-4 that he had requested the independent witnesses to remain
present at the time of seizure and taking sample, but nobody
agreed to the same. This piece of evidence of PW-4 is not disputed
in cross-examination by the appellant. Thus, the submission of Mr.
Murry, the learned counsel for the appellant, that mandate of
section 100 Cr.P.C. has not been followed, is found to be devoid of
merit. I have gone through the case law - Sahib Singh (supra)
referred by him in this regard and I find that the ratio laid down
therein would not advance his case inasmuch as here in this case
the I.O. had called independent witnesses to join search and seizure
but none agreed. In the referred case the I.O. made no such
attempt to call independent witness.
17. I have also considered the submissions of learned Advocates
for the appellant, in the light of facts and circumstances discussed
herein above. And I find the submission of learned counsel for the
appellants bereft of merit, so far it relates to non compliance of
section 42 and 50 are concerned at the time of seizure. As discussed
earlier, the contraband substances were recovered and seized while
the same were being carried in a ‗public conveyance'. In that view
of the matter the section to be attracted herein this case is not 42
and 50 of NDPS Act. Rather section 43 is attracted herein this case
and Mr. Kaushik, the learned Addl. P.P. has rightly pointed this out
during argument. Be it mentioned here that in the case of S.K.
Raju@ Abdul Hoque @ Jagga(supra) it has been held by
Hon'ble Supreme Court that:-
"An empowered officer under Section 42(1) is obligated to
reduce to writing the information received by him, only when an
offence punishable under the Act has been committed in any
building, conveyance or an enclosed place, or when a document
or an article is concealed in a building, conveyance or an
enclosed place. Compliance with Section 42, including recording
of information received by the empowered officer, is not
mandatory, when an offence punishable under the Act was not
committed in a building, conveyance or an enclosed place.
Section 43 is attracted in situations where the seizure and
arrest are conducted in a public place, which includes any public
conveyance, hotel, shop, or other place intended for use by, or
accessible to, the public."
18. Here in this case the contraband substances were recovered
from a trolley bag, not from the person of the accused. And as such,
to the considered opinion of this court, section 50 of the NDPS Act is
not attracted herein this case. Though Mr. Murry, the learned
counsel for the appellant submits that non compliance of section 50
NDPS Act vitiates trial yet, I find the same bereft of merit. Notably,
explaining the object of the section 50 of NDPS Act, Hon'ble
Supreme Court, in the case of Baljinder Singh (supra) has held
that ―Section 50 of the Act affords protection to a person in matters
concerning ―personal search‖ and stipulates various safeguards.‖
19. However, there is substance in the submission of Mr. Murry,
the learned counsel for the appellant that the mandatory provision
of section 52 A of the NDPS Act was not followed here in this case
and the representative sample was not drawn in presence of the
Magistrate and the law, laid down by Hon'ble Supreme Court in the
case of Union of India v. Mohanlal, (2016) 3 SCC 379, has not
been followed. In this context I find it necessary to discuss the
provision of section 52A of the NDPS Act.
20. Section 52A of the NDPS Act read as under:-
―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, determine after following the procedure
hereinafter specified.
(2) Where any 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 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 sub-
section (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, 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 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 sub-section
(2) and certified by the Magistrate, as primary evidence in
respect of such offence.‖
21. In the case of Mohanlal (supra) Hon'ble Supreme Court has
held as under.
"15. It is manifest from Section 52-A(2)include (supra) that
upon seizure of the contraband the same has to be forwarded
either to the officer- in-charge of the nearest police station or to
the officer empowered under Section 53 who shall prepare an
inventory as stipulated in the said provision and make an
application to the Magistrate for purposes of (a) certifying the
correctness of the inventory, (b) certifying photographs of such
drugs or substances taken before the Magistrate as true, and (c)
to draw representative samples in the presence of the
Magistrate and certifying the correctness of the list of samples
so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate
shall as soon as may be allow the application. This implies that
no sooner the seizure is effected and the contraband forwarded
to the officer-in-charge of the police station or the officer
empowered, the officer concerned is in law duty-bound to
approach the Magistrate for the purposes mentioned above
including grant of permission to draw representative samples in
his presence, which samples will then be enlisted and the
correctness of the list of samples so drawn certified by the
Magistrate. In other words, the process of drawing of samples
has to be in the presence and under the supervision of the
Magistrate and the entire exercise has to be certified by him to
be correct.
17. The question of drawing of samples at the time of seizure
which, more often than not, takes place in the absence of the
Magistrate does not in the above scheme of things arise. This is
so especially when according to Section 52-A(4) of the Act,
samples drawn and certified by the Magistrate in compliance
with sub-sections (2) and (3) of Section 52-A above constitute
primary evidence for the purpose of the trial. Suffice it to say
that there is no provision in the Act that mandates taking of
samples at the time of seizure. That is perhaps why none of the
States claim to be taking samples at the time of seizure.
22. While explaining the importance of compliance of section 52 A,
in the case of Mangilal vs. The State of Madhya Pradesh
reported in 2023 LiveLaw (SC) 549 Hon'ble Supreme Court has
held as under:-
"4. Sub-section (1) of Section 52A of the NDPS Act facilitates
the Central Government a mode to be prescribed to dispose of
the seized narcotic substance. The idea is to create a clear
mechanism for such disposal both for the purpose of dealing
with the particular case and to safeguard the contraband being
used for any illegal purpose thereafter.
5. Sub-section (2) of Section 52A of the NDPS Act mandates a
competent officer to prepare an inventory of such narcotic drugs
with adequate particulars. This has to be followed through an
appropriate application to the Magistrate concerned for the
purpose of certifying the correctness of inventory, taking
relevant photographs in his presence and certifying them as
true or taking drawal of samples in his presence with due
certification. Such an application can be filed for anyone of the
aforesaid three purposes. The objective behind this provision is
to have an element of supervision by the magistrate over the
disposal of seized contraband. Such inventories, photographs
and list of samples drawn with certification by Magistrates
would constitute as a primary evidence. Therefore, when there
is non-compliance of Section 52A of the NDPS Act, where a
certification of a magistrate is lacking any inventory,
photograph or list of samples would not constitute primary
evidence.
6. The obvious reason behind this provision is to inject fair play
in the process of investigation. Section 52A of the NDPS Act is a
mandatory rule of evidence which requires the physical
presence of a Magistrate followed by an order facilitating his
approval either for certifying an inventory or for a photograph
taken apart from list of samples drawn."
23. Again in the case of Simarnjit Singh vs. The State of
Punjab, in Criminal Appeal No. 1443 of 2023 (Arising out of
S.L.P.(Crl.) No. 1958 of 2023) decided on 9 May, 2023 Hon'ble
Supreme Court has held that :-
"drawing samples from all the packets at the time seizure
is not in conformity with the law laid down by this Court in
the case of Mohanlal (2016) 3 SCC 379, This creates a
serious doubt about the prosecution's case that substance
recovered was a contraband."
24. Now, adverting to the facts and circumstances here in this
case, I find that after recovery of contraband substances the officer
concerned i.e. P.W.4 never approached the Magistrate for certifying
the correctness of the inventory, certifying photographs of such
drugs or substance taken before the Magistrate as true for grant of
permission to draw representative sample so drawn in his presence.
He had merely produced the seizure list before the learned
Magistrate, for his signature. He had drawn the sample in the very
place of occurrence. Thus, the entire process of drawing of sample,
was not in conformity with Section 52A of the NDPS Act and the law
laid down by Hon'ble Supreme Court in the case of Mohanlal
(supra). This creates a serious doubt about the prosecution's case
which is not free from suspicion and the same cannot be said to be
established beyond all reasonable doubt, in the given background,
especially in view of the evidence of P.W.1 and P.W.3.
25. Notably, the learned court below had totally ignored this
aspect in the impugned judgment and order and though the learned
counsel for the appellant had raised the issue of non compliance of
section 52 A of the NDPS Act, the learned court below had dealt
with the same, in Para No. 19 of the judgment, as under:-
―Record reflects that inventory list was prepared by the search
seizing officer, P.W.4 - Ranjit Kr. Dey on 15.09.2019, itself and
it also bears the signature of the accused. The same was
produced before the Ld. JMFC, Kamrup(M) on 15.09.2019 and
there is endorsement of the ld. Magistrate with his seal and
signature. Prosecution proved the inventory list as P-6/PW-4.
As such it is not a case that no inventory was prepared.‖
26. Thus, it becomes crystal clear that though the inventory was
prepared and produced before the learned JMFC, yet, mandatory
rule of evidence, which requires the physical presence of a
Magistrate followed by an order facilitating his approval either for
certifying an inventory or for a photograph taken apart from list of
samples drawn had not been followed. After doing everything at the
place of occurrence, right from preparing inventory to taking of
sample, only the inventory was produced before the learned
Magistrate. Mr. Murry, the learned counsel for the appellant has
rightly pointed this out during argument that if a statute has
conferred a power to an act and has laid down the method in which
that power has to be exercised, it necessarily prohibits the doing of
act in any other manner than that which has been prescribed and
that the principle laid down in the case of Nazir Ahmed vs. King
Emperor, reported in AIR 1936 PC 253 is applicable in the case
in hand and that the said principle has been followed in the case of
State of U.P. vs. Singhara Singh and others, reported in AIR
1954 SC 358. There is substance in the submissions, so advanced
by Mr. Murry, and this court is inclined to record concurrence with
the same. I have also gone through the other case laws (i) Noor
Aga (supra) and (ii) Mohan Lal (supra) and I find that the ratio
laid down in the case of Mohan Lal (supra) has advanced the
argument of Mr. Murry, learned counsel for the appellant. In the
case of Mohan Lal in para No.13 it has been held as under:-
"13. A fair trial to an accused, a constitutional guarantee under
Article 21 of the Constitution, would be a hollow promise if the
investigation in an NDPS case were not to be fair or raises serious
questions about its fairness apparent on the face of the investigation.
In the nature of the reverse burden of proof, the onus will lie on the
prosecution to demonstrate on the face of it that the investigation was
fair, judicious with no circumstances that may raise doubts about its
veracity. The obligation of proof beyond reasonable doubt will take
within its ambit a fair investigation, in the absence of which there
can be no fair trial. If the investigation itself is unfair, to require the
accused to demonstrate prejudice will be fraught with danger vesting
arbitrary powers in the police which may well lead to false
implication also. Investigation in such a case would then become an
empty formality and a farce. Such an interpretation therefore
naturally has to be avoided."
27. Also I find that in the given facts and circumstances on the
record, the ratio laid down in the case of Noor Aga (supra) also to
some extent, advanced the case of the appellant in as much as in
the said case a view has been taken that if there are discrepancies
in the prosecution evidence that lack credibility, the accused can be
acquitted.
28. As the samples of the contraband substances, here in this
case, was collected in contraventions of the provisions of section
52A of the NDPS Act and also in total contravention of the ratio laid
down in the case of Mohanlal (supra), it gives rise to reasonable
suspicion in mind about the veracity of the case. Therefore, it
cannot be said that the prosecution side has succeeded in bringing
home the charge against the appellant beyond all reasonable doubt.
The appellant, as such, is entitled to be acquitted on benefit of
doubt. Thus, impugned judgment and order, so passed by the
learned court below, failed to withstand the legal scrutiny and on
such count it requires interference of this court.
29. In the result, I find sufficient merit in this appeal, and
accordingly, the same stands allowed. The impugned judgment and
order of conviction stands set aside and quashed. The appellant is
acquitted on benefit of doubt. He shall be released from the jail
hazoot forthwith if not warranted in any other case. Send down the
record of the learned court below with a copy of the judgment and
order.
JUDGE
Comparing Assistant
