Karnataka High Court

Sharukh vs State Of Karnataka on 5 July, 2024

Author: S.Vishwajith Shetty

Bench: S.Vishwajith Shetty

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                                          CRL.A No. 200230 of 2023
                                      C/W CRL.A No. 200147 of 2023



                       IN THE HIGH COURT OF KARNATAKA,        ®
                              KALABURAGI BENCH

                     DATED THIS THE 5TH DAY OF JULY, 2024

                                   BEFORE
               THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY


                   CRIMINAL APPEAL NO. 200230 OF 2023 (374)
                                     C/W
                   CRIMINAL APPEAL NO. 200147 OF 2023 (374)


            IN CRIMINAL APPEAL NO. 200230 OF 2023
            BETWEEN:
               SHARUKH S/O AYYUB KHAN,
               NOW AGED 28 YEARS,
               OCC: COOLIE,
               R/O. TITIWALA UMBARNI ROAD,
               MUMBAI CITY,
               MAHARASHTRA-421 605.
Digitally                                               ...APPELLANT
signed by
SHILPA R
TENIHALLI   (BY SRI SANTOSH KUMAR B. METRI, ADVOCATE)
Location:
HIGH        AND:
COURT OF
KARNATAKA
               STATE OF KARNATAKA,
               THROUGH HUMNABAD POLICE STATION,
               HUMNABAD, TQ: HUMNABAD,
               DIST: BIDAR.
               REP.BY THE ADDL. SPP,
               HIGH COURT OF KARNATAKA,
               KALABURAGI BENCH-585 103.
                                                    ...RESPONDENT
            (BY SRI VEERANAGOUDA MALIPATIL, HCGP)
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                                   NC: 2024:KHC-K:4643
                                   CRL.A No. 200230 of 2023
                               C/W CRL.A No. 200147 of 2023



     THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 29.08.2022 OF
II ADDL. DIST. AND SESSIONS JUDGE BIDAR, SITTING AT
BASAVAKALYAN IN SPL. CASE NO.312/2019 AND ACQUIT THE
APPELLANT HEREIN FOR THE CHARGES FOR WHICH HE WAS
CONVICTED.


IN CRIMINAL APPEAL NO. 200147 OF 2023
BETWEEN:
    SHUBHAM
    S/O ANUPCHAND CHODHARI,
    AGED ABOUT 20 YEARS,
    OCC: COOLIE,
    R/O. DAANIYA SAKKARA ILLABAD,
    UTTAR PRADESH,
    NOW R/AT. AMBEWALI UMBARNI ROAD,
    MUMBAI-400 097.
                                                ...APPELLANT
(BY SRI B.C. JAKA, ADVOCATE)
AND:

    THE STATE OF KARNATAKA
    THROUGH HUMNABAD POLICE STATION,
    DIST: BIDAR-585 330,
    NOW REPRESENTED BY ADDL. SPP.,
    HIGH COURT OF KARNATAKA,
    KALABURAGI BENCH-585 107.
                                             ...RESPONDENT
(BY SRI VEERANAGOUDA MALIPATIL, HCGP)
     THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE DATED 29.08.2022 IN SPL.C. NO.312/2021
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE
BIDAR, SITTING AT BASAVAKALYAN BY ALLOWING THIS
APPEAL. CONSEQUENTLY ACQUIT THE APPELLANT/ ACCUSED
OF THE CHARGES LEVIED AGAINST HIM, FOR THE OFFENCES
PUNISHABLE U/SEC. 20(b)(II)(b), 20(c) OF NDPS ACT.
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                                    NC: 2024:KHC-K:4643
                                  CRL.A No. 200230 of 2023
                              C/W CRL.A No. 200147 of 2023



     THESE APPEALS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

These two appeals under Sections 374(2) of Cr.P.C

arise out of judgment and order of conviction and

sentence dated 29.09.2022 passed by the Court of the II

Additional District and Sessions Judge, Bidar sitting at

Basavakalyan in Special Case No.312/2021 and therefore

the appeals are heard together and disposed of by this

common judgment.

2. Heard the learned counsel for the parties.

3. It is the case of the prosecution that on

19.02.2019 at about 9.45 a.m., near Gate-I of Humnabad

Bus Stand within the limits of Humnabad Police Station,

accused Nos.1 and 2 were found illegally transporting the

contraband article - ganja, which totally weighed 30

kilogram. The accused were apprehended and from their

possession ganja weighing 30 kilograms was seized and

subjected to panchanama. Thereafter, the seized

contraband article and the apprehended accused were

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brought to the police station and FIR in Crime No.24/2019

was registered. After investigation, charge-sheet was filed

against accused Nos.1 and 2 for the offences punishable

under Sections 20(b)(ii), 20(B) and 20(C) of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (hereinafter

referred to as the 'NDPS Act' for brevity).

4. The Trial Court after taking cognizance of the

charge-sheeted offences had framed charges against

accused, read over and explained the same to the

accused. Since the accused pleaded not guilty and claimed

to be tried, the prosecution in order to prove its charges

against the accused had examined eight charge-sheet

witnesses as PW.1 to PW.8, got marked 11 documents as

Ex.P.1 to Ex.P.11 and 17 material objects were got

marked as MO-1 to MO-17. After the prosecution

completed its side of evidence, the Trial Court had

recorded the statement of the accused under Section 313

of Cr.P.C. However, no defence evidence was led on behalf

of accused, but one document was marked as Ex.D1 on

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behalf of defendant. The Trial Court thereafter heard the

arguments addressed on both sides and vide impugned

judgment and order, convicted accused Nos.1 and 2 for

the offences punishable under Sections Sections 20(b)(ii),

20(B) and 20(C) of the Narcotic Drugs and Psychotropic

Substances Act, 1985 and sentenced them to undergo

rigorous imprisonment for a period of 10 years and pay

fine of `20,000/- each and in default to undergo simple

imprisonment for a further period five months. Being

aggrieved by the said judgment and order of conviction

and sentence passed by the Trial Court, the accused Nos.1

and 2 are in appeal.

5. Learned counsel for the appellants submits that

the Trial Court has erred in convicting the appellants for

the alleged offences. He submits that there is a delay in

sending the contraband article seized to the Forensic

Science Laboratory for chemical examination. Therefore,

the chances of tampering with the contraband article

cannot be ruled out. He submits that the Forensic Science

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Laboratory Officer who has issued report as per Ex.P.10 is

not examined by the prosecution. He also submits that

there is no compliance of Section 52A of the NDPS Act in

the present case and therefore the Trial Court was not

justified in convicting the appellants.

6. Per contra, learned High Court Government

Pleader for respondent/State has argued in support of the

impugned judgment and order of conviction and sentence.

He submits that even though PW.2 and PW.3 who are the

panch witnesses have not supported the case of the

prosecution, the charges have been proved against the

appellants beyond reasonable doubt by the prosecution on

the basis of the oral and documentary evidence available

on record. He submits that all the official witnesses have

supported the case of the prosecution and there is no

reason to disbelieve their evidence. He submits that

sample drug has tested positive and Ex.P10 report from

FSL clearly demonstrates the same. Accordingly, he prays

to dismiss the appeals.

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7. FIR in Crime No.24/2019 was registered by the

Humnabad Police Station, Bidar against the appellants

herein on the basis of the first information dated

19.02.2019 received from CW.1 (PW.6). In the first

information, it is stated that, on 19.02.2019, when first

informant was in the police Station he had received a

credible information about two persons transporting

contraband article - ganja and therefore after seeking

permission from his higher officers, he had conducted a

raid and apprehended accused Nos.1 and 2 along with

contraband article - ganja, which totally weighed 30

kilograms.

8. The prosecution in order to prove its case

against the accused has in all examined eight charge-

sheet witnesses as PW.1 to PW.8. PW.1 is the gazetted

officer who was a Member of the raiding squad. PW.2 and

PW.3 are the panch witnesses to Ex.P2 - seizure

panchanama of contraband article - ganja that was seized

from the possession of accused Nos.1 and 2. PW.4 is a

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vegetable vendor and his weighing machine was used by

the raiding squad to weigh the contraband article - ganja

that was seized from the possession of accused Nos.1 and

2. PW.5 is the Investigating Officer who had registered the

FIR in Crime No.24/2019 and after completing the

investigation had filed the charge-sheet in the present

case. PW.6 is the first informant in the present case. He

was working as a Sub-Inspector of Police in Humnabad

Police Station as on the date of incident. He speaks about

the raid conducted by him along with PW.1, PW.7 and

PW.8. He also speaks about seizure of contraband article -

ganja totally weighing 30 kilograms from the possession of

accused. PW.7 and PW.8 are the Police Constables who

were the Members of the raiding squad. These witnesses

also speak about the raid conducted on 19.02.2019 and

about the seizure of contraband article - ganja from the

possession of accused. Ex.P.1 is the notice issued by PW.1

gezetted officer to the accused persons in compliance of

requirement of Section 50 of the NDPS Act. Ex.P.2 is the

panchanama under which contraband article - ganja

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weighing 30 kilogram was seized from the possession of

accused Nos.1 and 2 along with other articles which

included cash and mobile phone of the accused.

9. From a perusal of Ex.P.2, it is seen that sample

of the contraband article - ganja was collected by PW.6 at

the time of preparing the seizure panchanama and the

said sample of the contraband article was sealed and kept

separately. Subsequently, the said sample of the

contraband article was forwarded by the Investigating

Officer to the Forensic Science Laboratory for the purpose

of chemical examination and Ex.P.10 is the report received

from the Forensic Science Laboratory, which confirms that

the sample of the contraband article - ganja had tested

positive for cannabis (ganja).

10. Perusal of the available material on record

would go to show that prior to forwarding the sample of

the contraband article - ganja to the Forensic Science

Laboratory the inventory of the seized contraband article -

ganja was not prepared and got certified before the

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jurisdictional Magistrate by the Investigating Officer as

required under Section 52A of the NDPS Act.

11. Section 52A of sub-section (2), (3) and (4) of

NDPS Act provides for the procedure and manner of

seizing, preparing of inventory of the seized contraband

article, drawing of sample and getting inventory certified

by the Magistrate etc.,

12. Section 52A of NDPS Act 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,

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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 sub-section (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 3[narcotic drugs, psychotropic substances, controlled substances] or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 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

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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 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."

13. In the present case, there is absolutely no

compliance of the aforesaid provisions of law. Section

52(A) of the NDPS Act deals with seizure of contraband

article, forwarding the seized contraband article and

obtaining certification from the relevant Magistrate.

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Section 52(A) of the NDPS Act considers that the certified

inventory of seized substance along with any list of seized

samples as primary evidence in the trial.

14. From a reading of the aforesaid provisions, it is

clear that, whenever a contraband article is seized the

officer referred to in sub-section (1) of Section 53 of NDPS

Act, shall prepare the inventory of the seized contraband

articles in detail and the description of the seized

contraband article, mode of packing, identify marks and

quantity in each pack shall be mentioned and thereafter

an application shall be filed to the jurisdictional Magistrate

for the purpose of certifying the correctness of the

inventory and also for allowing to draw samples of the

contraband article in the presence of the Magistrate for

forwarding the same to the Forensic Science Laboratory

for chemical examination.

15. Mere fact that the samples were drawn in the

presence of a gazetted officer is not sufficient for

compliance of the mandate of Sub Section (2) of Section

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52A of the NDPS Act. In the case on hand, the

mandatory requirement of Section 52A is not at all

complied and therefore, the photograph - Ex.P3, samples

drawn in the presence of gazetted officer under

panchanama - Ex.P2 and the FSL report obtained as per

Ex.P10 cannot be considered as primary evidence and in

the absence of primary evidence, the trial gets vitiated.

16. In the case of Mangilal vs. State of Madhya

Pradesh reported in 2023 INSC 634, the Hon'ble

Supreme Court has observed Section 52A of the NDPS Act

is a mandatory rule of evidence. In paragraph No.5 and 6

of the said judgment, it is observed as follows:

"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

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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."

17. In the case of Mohammed Khalid and

Another vs. State of Telangana reported in 2024 INSC

158, the Hon'ble Supreme Court in paragraph No.22 has

observed as follows:

"22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the

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Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report(Exhibit P-11) is nothing but a waste paper and cannot be read in evidence."

18. In the present case, the samples from the

seized contraband article was drawn by PW.6 in the

presence of PW.1, who is a Gazetted Officer. No sample of

the contraband article has been drawn in the present case

in the presence of the Magistrate. The material on record

also go to show that after seizure of the contraband article

and before the sample of the contraband article was

forwarded by the Investigating Officer to the forensic

science laboratory for chemical examination, the

jurisdictional Magistrate has not certified inventory of the

contraband article or the sample, which was drawn by

PW.6 at the time of preparing seizure panchanama - Ex.P2

in front of PW.1, who is a Gazetted Officer.

19. Section 52(A)(2) is introduced in the statute

with an object to give some sanctity for the seizure made

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and also to prevent any mischief at the hands of the police

officers or any other officer investigating the cases under

the provisions of the NDPS Act. The punishment for the

offences under the provisions of the NDPS Act depends

upon the quantity of the contraband article seized and

therefore, to rule out any foul play during the course of

investigation, necessity of preparing the inventory and

getting the same certified by the jurisdictional Magistrate

within a reasonable time and drawing of sample from the

seized contraband article becomes mandatory.

20. In the case of Yusuf @ Asif vs. State reported

in 2021 INSC 912, the Hon'ble Supreme Court in

paragraph Nos.15, 16 and 17 has observed as follows:

"5. In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer incharge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make

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an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.

16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.

17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside."

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21. Even in the case on hand, there is no

compliance of the requirement of Sub Sections (2) and (3)

of Section 52(A) of the NDPS Act and therefore, it is

apparent that the seized contraband article and the

samples drawn from the same would not be valid piece of

primary evidence and therefore, no reliance can be placed

either on Ex.P2 - seizure mahazar, Ex.P3 - photograph

and Ex.P11 - report of the FSL. Under the circumstances,

the impugned judgment and order of conviction and

sentence passed by the Trial Court cannot be sustained.

Accordingly, following order is passed:

ORDER

a. The criminal appeals are allowed.

b. The impugned judgment and order of conviction

and sentence passed by the Court of II Additional

District and Sessions Judge, Bidar sitting at

Basavakalyan in Special Case No.312/2021 dated

29.08.2022 and 30.08.2022 are set aside and the