Patna High Court
Brijpal vs The State Of Bihar on 1 October, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.71 of 2023
Arising Out of PS. Case No.-184 Year-2020 Thana- BUXAR District- Buxar
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Brijpal, Son of Rajole Resident of L1/1339, Gali No.7, Sangam Bihar Devoli,
P.S.- Name Sarai, South Delhi, District- Delhi, State- Delhi
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant/s : Mr. Chandra Mohan Singh, Advocate
For the Respondent/s : Ms. Abha Singh, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
01.10.2024
.
At the outset, it is important to mention that this
appeal was taken on board under the caption "For
Orders" where initially prayer of bail and suspension of
sentence under Section 389(1) of the Cr.P.C. was raised
by learned counsel appearing on behalf of the appellant
but, after short argument, it is submitted that he is
ready for final hearing of the appeal, which was not
objected by learned APP and, therefore, this appeal is
being finally heard under aforesaid caption. Submission
for final hearing is raised mainly in view of Section
374(4) of the Cr.P.C., where every such appeal is to be
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
decided within six months of its filing.
2. This appeal has been preferred by the
appellant/convict under Section 374(2) of the Code of
Criminal Procedure (hereinafter referred to as 'the
Code') challenging the impugned judgment of conviction
dated 15.10.2022 and order of sentence dated
18.10.2022 passed by learned Additional Sessions
Judge-XI, Buxar, in N.D.P.S. Case No. 08/2020 (arising
out of Buxar (Town) P.S. Case No. 184 of 2020,
whereby the concerned Trial Court has convicted the
appellant/convict for the offences punishable under
Sections 20(b)(ii)(C) of the Narcotics Drugs and
Psychotropic Substances Act (for short N.D.P.S. Act.)
and he has been sentenced to undergo rigorous
imprisonment for ten years with fine of Rs. 1,00,000/-
and in default of payment of fine to further undergo
rigorous imprisonment for six months for the offence
punishable under Section 20(b)(ii)(C) of the N.D.P.S.
Act, rigorous imprisonment for ten years and fine of Rs.
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
1,00,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for six months for the
offence punishable under Section 22(C) of the N.D.P.S.
Act, rigorous imprisonment for ten years with fine of
Rs.1,00,000/- and in default of payment of fine further
to undergo R.I. for six months, R.I. for ten years under
Section 27A of N.D.P.S. Act with fine of Rs. 1,00,000/-
in default, to undergo R.I. for six months, further R.I.
for ten years with fine of Rs. 1,00,000/- under Section
29 of the N.D.P.S. Act in default of payment of fine, to
undergo R.I. for six months and further the appellant
was ordered to undergo R.I. for one year under section
51 of the Disaster Management Act, 2005. However, all
aforesaid sentences have been ordered to run
concurrently.
3. The prosecution story as per FIR is that on
13.05.2020 at 09.05 AM, the informant received a
secret information that some illegal psychotropic
substance was being transported in Grey colour Hyundai
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
Sports car through Buxar-Kochas Marg to UP. It has
further been alleged in the FIR that the informant/PW-2,
Circle Officer, Satyendra Kumar and other members of
Police were directed to take necessary action. A sanha
was registered by informant regarding this and
proceeded to that place with investigation kit and police
force along with Circle Officer. The informant started
vehicle checking at 09.35 and during aforesaid checking,
the police stopped the alleged vehicle at about 10.50
AM. A valid vehicle pass was issued by SDM Saket Delhi
dated 11.05.2020 attached on front glass of the car
bearing No. UP76L4827, upon which, the name of
apellant, namely, Brijpal was written. Due to lock-down,
no independent witness was found, therefore, in
presence of two constables, namely, Manish Kumar
(P.W.-4) and Deepak Kumar Rana (P.W.-3), the alleged
car was searched by the informant and police personnel
in accordance with law and after compliance of Section
50 of the N.D.P.S. Act. Notice under Section 50 of
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
N.D.P.S. Act was signed by C.O. Satyendra Kumar,
informant and two witnesses, Manish Kumar and Deepak
Kumar. On being searched, a smart cell phone of OPPO
company, another cell phone of LETV company of golden
colour, a key pad cell phone of ZIOX company, Rs.
2500/- cash, license card, pan card, two Adhar Cards,
Sale letter dated 17.01.2020 were recovered from
possession of the accused person. Apart from these
articles, 23 packets of Ganja like substance, each of 1
kg and 8 packets of Ganja like substance, each of 500
gms were recovered from possession of the accused-
appellant and marked by informant as S-1 and S-2.
Sample of seized article was prepared on a plain paper
by the informant, which was signed by informant, C.O.
Satyendra Kumar Singh, constable Manish Singh and
Deepak Kumar Rana. Seizure list was prepared. On
being asked, the accused- appellant told the informant
that the alleged 27 kg ganja was given to him by an
unknown person and that would be delivered to Rajesh
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
Singh S/o Kishan Singh, House No. 788, Gali No-9,
Sangam Bihar Church, New Delhi and the aforesaid
Rajesh had transferred one lakh rupees in account of the
said unknown person. The case was registered and
accused arrested.
4. On the basis of aforesaid written statement, an FIR
was lodged on 13.05.2020 by the Sub Inspector of
Police, being Buxar (Town) P.S. Case No.184 of 2020
registered under Sections 417, 418, 419, 420, 467,
468, 471, 188, 269, 270 and 271 of the I.P.C and
under Sections 20(b)(ii)(C), 22, 25, 27(a) and 29 of the
N.D.P.S. Act and Section 51 of the Disaster
Management Act. After investigation, the police
submitted charge sheet against the sole accused-
appellant, namely, Brijpal vide charge-sheet No. 341 of
2020 dated 30.07.2020 under Sections 20(b) (ii)(C),
22, 27(a) and 29 of the N.D.P.S. Act and Section 51 of
Disaster Management Act, 2005 and Sections 417, 418,
419, 420, 467, 471, 188, 269, 270 and 271 of the
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
Indian Penal Code. Thereafter, cognizance was taken by
the Court.
5. The learned trial Court explained the
aforesaid charges to appellant/accused, to which, he
pleaded "not guilty" and claimed to be tried.
6. To established its case before the learned
trial Court, the prosecution has examined altogether
seven witnesses. They are:-
P.W. No. Name of witnesses
P.W.-1 Roushan Kumar (SHO,
Dhansoi P.S.)
P.W.-2 Ranjeet Kumar
(informant) SHO, Buxar
Town P.S.
P.W.-3 Deepak Kumar Rana
(Constable)
P.W.-4 Manish Kumar Singh
(Constable)
P.W.-5 Ganesh Kumar Mandal
P.W.-6 Pramod Kumar Suman
(Constable)
P.W.-7 Uday Shankar
Prasad(I.O.)
7. The prosecution relied upon following
documentary evidence also as to substantiate its case
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
during trial, which are as under:-
Exhibit No(s). List of documents
Exhibit -1 Signature of informant
P.W.-2 on seizure list
Exhibit 1/1 Signature of Anchal
Adhikari on seizure list
Exhibit 1/2 Signature of accused Brij
Pal on seizure list
Exhibit-2 Signature of informant on
arrest memo
Exhibit-2/1 Signature of Anchal
Adhikari on arrest memo
Exhibit-3 Signature of informant on
self written statement
Exhibit-3/1 Signature of Anchal
Adhikari on self statement
of informant
Exhibit-4 Signature of informant on
formal FIR
Exhibit-P-5 FSL Report
8. No oral or documentary evidence was
produced during the trial by the appellant.
9. After examination of prosecution witnesses
and by taking note of evidence and incriminating
circumstances as surfaced during trial, statement of
accused person/appellant was recorded under Section
313 of Cr.P.C. which was denied by the appellant in
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
totality by claiming his complete innocence and false
implication.
10. On the basis of evidence as surfaced
during the trial, the learned trial Court convicted and
sentenced the appellant/convict, in aforesaid terms.
11. Being aggrieved with aforesaid judgment
of conviction and order of sentence, the
appellant/accused has preferred the present appeal.
12. Hence, the present appeal.
Arguments on behalf of the
appellant/convict:
13. It is submitted by learned counsel
appearing for appellant that it is apparent from the
testimony of PW-2, namely, Ranjeet Kumar, who is the
informant of this case, that Search, Sealing and Seizure
(SSS) of seized contraband/ Ganja was not made as per
mandatory provisions available under NDPS Act. It is
submitted that compliance of Section 42 of the N.D.P.S.
Act also not appears to be followed.
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
14. Learned counsel further submitted that the
mandatory compliance of Section 52-A of the N.D.P.S.
Act was not made in this case and on this score alone,
the impugned judgment of conviction required to be set
aside.
14.1. It is further submitted that sampling of
seized material was not done at spot itself and further
there are material contradictions surfaced amongst the
different prosecution witnesses. It is further pointed out
that even an attempt to search independent witness was
not made by prosecution during seizure of the
contraband and mere under the garb of COVID like
situations, the availability of independent witnesses was
overlooked. It is also pointed out that neither seized
material was produced before the Court during the trial,
as material exhibits nor any certificate regarding its
destruction was produced and on this score also, the
judgment of conviction is fit to be set aside/quashed.
14.2. In support of his submission, learned
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
counsel for the appellants/convicts relied upon the legal
reports of Hon'ble Supreme Court as available through
Yusuf @ Asif Vs. State [2023 SCC Online SC
1328]; Simarnjit Singh Vs. State of Punjab [2023
SCC Online SC 906] and Mangilal Vs. State of
Madhya Pradesh [2023 SCC Online SC 862].
15. The leaned APP, Ms. Abha Singh while
appearing on behalf of the State submitted that the
vehicle in issue was occupied by the appellant only and
therefore, it cannot be said that he was not under the
knowledge as to carrying the consignment of contraband
i.e. Ganja. It is submitted that sampling was done in
terms of law as per the testimony of prosecution
witnesses, particularly PW-2 and if there is any flaw that
is due to prevailing of extraordinary situation like
COVID-19, whereas it was fairly conceded that sampling
was not made before the Judicial Magistrate in view of
Section 52-A of N.D.P.S. Act or appears to be
destructed in view of Union of India vs. Mohanlal
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
[(2012) 7 SCC 712]. It was also conceded that no
certificate regarding destruction of contraband was
produced during the trial. The learned APP further
pointed out that the search was made in presence of the
Circle Officer (C.O.) of the area, who was there in
capacity of Executive Magistrate and, therefore, it
appears that entire Search, Sealing and Seizure was
made in presence of Executive Magistrate, as such,
same cannot be viewed with doubt. Hence, it is
submitted that impugned judgment under appeal is not
required to be interfered on the grounds, as submitted
above.
16. I have perused the trial court records
carefully
and gone through the evidences available on record and
also considered the rival submissions as canvassed by
learned counsel appearing on behalf of the parties.
17. As to re-appreciate the evidences, while
dealing with present appeal, it would be apposite to
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
discuss the evidences as available on record.
18. It appears from the perusal of record and
the submissions raised by the parties that the most
important witness of this case is PW-2 Ranjeet Kumar,
who is also the informant of this case. He received
information from his Senior Officers on 13.05.2020 that
one i-10 Car (further stated as one light motor vehicle)
was coming from the side of Sadar Hospital, Buxar and
going towards Uttar Pradesh, which was loaded with
Ganja. Upon such information, he (PW-2) constituted a
team consisting of C.O. Buxar, A.S.I. Raushan Kumar
(PW-1), Constable Manish (PW-4), Pramod (PW-6),
Ganesh (PW-5), Deepak Rai (PW-3). At that point of
time, due to COVID lockdown, the movement of vehicle
was less. He found that one vehicle from Buxar town-
side is coming towards Chausa, which was asked to stop
and was checked, upon checking, the driver of the
vehicle was informed about the secret information that
he is carrying the contraband i.e. Ganja. The consent of
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
search was given by the said driver, upon which, the
vehicle was searched and thereafter, from its dickey, 23
packets, each containing 1kg of Ganja were recovered
from a bag. Similarly, from another bag 8 packets, each
of ½ kg i.e. total of 4 kg was recovered and thus, from
two bags total of 27 kg of Ganja was recovered from the
dickey of the aforesaid vehicle. As there was no
independent witness due to lockdown, therefore, two
Constables of the raiding team was asked to be the
witness of Search, Seizure and Sampling. It was said
that electronic weighing machine was with them, which
upon weighing, found that the total weight of contraband
about 27 kgs. All the seized material was sealed at the
place of occurrence itself. It was found during checking
that the permission to drive in COVID lockdown was not
issued in favour of the driver rather it was issued in
name of different person, as the driver disclosed his
name as Brijpal (appellant) who was the resident of
Delhi. He collected I-Card of the appellant, which was
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
issued in two different names. He also seized mobile of
the appellant and Rs. 2,500/-. A seizure list was
prepared for all seized materials, which was signed by
the members of the raiding team and also by Circle
Officer. He identified the seizure list during the trial,
which upon, his identification, exhibited as Exhibit-1.
He also identified the signature of Circle Officer, which
upon his identification, exhibited as Exhibit-1/1. He
also identified the signature of appellant over said
seizure list, which upon his identification, exhibited as
Exhibit-1/2. He also identified his signature on arrest
memo of the appellant which upon his identification
exhibited as Exhibit-2. He also identified the signature
of C.O. on arrest memo of appellant, which upon his
identification, was exhibited as Exhibit-2/1. He
reported the aforesaid information through computer
typed application to S.H.O. Town, District-Buxar. He
identified his signature on his written information, which
upon his identification, exhibited as Exhibit-3. He also
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
identified the signature of Circle Officer over said written
information, which upon his identification, was exhibited
as Exhibit-3/1. He identified the writing of Thana
Manager, namely, Varsha Jain, who said to written the
formal FIR, which upon his identification, was exhibited
as Exhibit-4.
18.1. Upon cross-examination, it was stated by
him that the seized material was not before him. It was
also stated that the Circle Officer did not disclose his
post below his signature. He failed to disclose the station
diary entry regarding information. He did not even
enquire about the seized vehicle. It was categorically
stated by him that on sealed article there was no
signature of any witness, seizure list was also not
signed. It also appears from his examination-in-chief
that the sampling was done in very illegal manner as
sample was not drawn from each of the packets and
moreover the weight of sample was also not specified.
19. PW-1 is Raushan Kumar, who was
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
posted as A.S.I. in Buxar Town Police Station and was
also the member of the raiding team. He narrated
almost same story regarding recovery of 27 kgs. of
Ganja on 13.05.2020 from a vehicle where the appellant
was driver, as it was deposed by PW-2 and the same
was not required to be repeated again for the sake of
brevity. He failed to disclose the number of seized
vehicle carrying consignment of contraband/Ganja. It
was stated that traffic remains available on Buxar
Chausa road but on that particular day, due to lockdown
it was less. Seized material was also not produced before
him. He failed to disclose that from where weighing
machine was brought.
20. PW-3 is Deepak Kumar Rana, who was
the member of the raiding team and was posted in Town
P.S. Buxar as a constable. It appears from his
examination-in-chief that recovered Ganja was between
27-28 kgs. The seized material was not even produced
before him. He failed to disclose about the exact number
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
of vehicle, which was being checked on that day but,
subsequently, stated that 25-30 vehicles were checked.
He also failed to disclose that from where the weighing
machine was brought. His statement was not recorded
by Police Inspector i.e. PW-7 during the course of
investigation, which is sufficient to gather that he
deposed first time during the trial as PW-3.
21. PW-4 is Manish Kumar Singh, who was
also posted on 13.05.2020 in Buxar Town Police Station
as Constable and was also the member of the raiding
team. He narrated the recovery in the same manner as it
was deposed by PW-2/informant. It was stated that
recovered quantity of Ganja was 27 kg. The seized
material was also not produced before him during the
trial. The sealed material was also not bearing his
signature. It was deposited in Malkhana by Ranjeet Sir
(PW-2/informant). He failed to disclose the Entry No. of
Malkhana. On contrary, it was stated that Buxar Chausa
road is a busy road.
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
22. PW-5 is Gangesh Kumar Mandal, who
also supported the occurrence by stating that recovery
was 27 kg of Ganja.
22.1. Upon cross-examination, he was unable
to disclose the vehicle number. He failed to disclose
whether sealing was made before him or not, the sealed
material was not produced before him. He did not sign
over seal. It was stated by him that the seized material
was weighed at Thana contrary to the earlier statement
of the prosecution witnesses that it was weighed at place
of occurrence itself.
23. PW-6 is Pramod Kumar Suman who
also supported the occurrence and recovery of
contraband i.e. of 27 kg from the vehicle where the
appellant was driver on 13.05.2020.
23.1. Upon cross-examination, it was stated
that seized material was not produced before him during
the trial. He did not even sign the seal. It was stated
that Malkhana Register was signed by Ranjeet
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
Kumar/PW-2. It was also stated by him that the seized
material was weighed in Police Station. This fact of
weighing contraband at Police Station as deposed by
PW-5 appears contrary to rest of the prosecution
witnesses.
24. PW-7 is the Investigation Officer of this
case, who is Uday Shankar Prasad and was posted as
A.S.I. in Town Police Station on 13.05.2020. He
received investigation report of present case bearing
Buxar (Town) P.S. Case No. 184 of 2020 on
13.05.2020. During investigation, he recorded the
statements of seizure list witnesses, informant and other
prosecution witnesses including Constable Deepak
Kumar, who categorically stated as PW-3 that his
statement was not recorded by Daroga Ji. After
concluding the investigation, he submitted the charge-
sheet against appellant through Charge-Sheet No.
341/2020.
24.1. Upon cross-examination, he failed to
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
disclose the number of seized vehicle. It was stated that
seized material was sealed by S.H.O. i.e. PW-
2/informant and the Circle Officer. He failed to state
whether seal was put under signature of any witness or
not. Seizure list witness was not produced before him
during the trial. It was stated that for chemical
examination 40 gms of seized contraband was taken out
from each of the seized packets as a sample. No
statement of Gazetted Officer was recorded. He never
visited the house of appellant in connection with
investigation. He did not mention the exhibit mark of
seized materials in case diary. He only mentioned Mark-
SI and Mark-S2, which was not produced before him
during the trial.
25. From the aforesaid discussions of the
evidences as available on record, it appears that whether
the weighing of seized contraband at spot appears
doubtful, as two prosecution witnesses PW-5 and PW-6
stated that the weighing was done at Police Station, if it
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
is so, then Sealing, Sampling and Seizure of seized
material at place of recovery itself is appearing doubtful.
All prosecution witnesses including informant/PW-2 and
Investigating Officer/PW-7 categorically stated during
trial that seized contraband was not produced before
them. They are also silent about destruction of
contraband and also to produce any certificate before the
Court. Withdrawal of sample of seized contraband,
before Judicial Magistrate is also not appears available
out of testimony of prosecution witnesses, which appears
straightway violation of mandatory provisions of law as
available under Section 52A of N.D.P.S. Act. The
compliance of Sections 42 and 50 of N.D.P.S. Act also
appear doubtful, whereas a mere formal attempt
regarding search notice under Section 50 of N.D.P.S. Act
appears available.
26. In this context, it would be apposite to
reproduce paragraph '11, 12, 13, 15 & 16' of the
judgment of Hon'ble Apex Court in Yusuf @ Asif's case
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
(supra), which reads as under:-
"11. For the sake of convenience, relevant sub-sections
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 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 [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 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 Criminal
Procedure Code, 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
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
samples drawn under sub-section (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 sub-sections (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 sub- section (2) of Section
52A of the NDPS Act.
15. 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-in-charge 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 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
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
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."
27. In Simarnjit Singh's case (supra), the
Hon'ble Apex has held in paragraph 9 and 10, which
reads as under:
"9. In paragraphs 15 to 17 of the decision of this Court
in Mohanlal's case, it was held thus:
"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
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
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 subsections (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."
10. Hence, the act of PW-7 of 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.
This creates a serious doubt about the prosecution's case
that substance recovered was a contraband."
28. It would be further apposite to reproduce
paragraph 6, 8 and 9 of the Mangilal's case (supra),
which reads as under:
"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. In due compliance of Section 52A(1) of
the NDPS Act the Ministry of Finance (Department of
Revenue) issued a Notification No. G.S.R. 339(E) dated
10.05.2007 which furnishes an exhaustive manner and
mode of disposal of drugs ending with a certificate of
destruction:
"4. Manner of disposal
1) Where any narcotic drug or psychotropic substances
has been seized and 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
narcotic drugs or psychotropic substances as per
Annexure 1 to this notification and apply to any
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
Magistrate under sub-section (2) of section 52A as per
Annexure 2 to this notification.
2) After the Magistrate allows the application under sub-
section (3) of section 52A, the officer mentioned in
clause (1) above shall preserve the certified inventory,
photographs and samples drawn in the presence of the
Magistrate as primary evidence for the case and submit
details of the drug consignments to the Chairman of the
Drug Disposal Committee for a decision by the committee
on the disposal. The officer shall send a copy of the
details along with the drug consignments to the officer-in-
charge of the godown.
XXX XXX XXX
4.2 Mode of disposal of drugs.
(i) Opium, morphine, codeine and thebaine shall be
disposed of by transferring to the Government Opium
and Alkaloid Works under the Chief Controller of
Factories.
(ii) In case of drugs other than the drugs mentioned in
clause (i), the Chief Controller of Factories shall be
intimated by the fastest means of communication
available, details of drug consignments that are ready for
disposal.
(iii) The Chief Controller of Factories shall indicate within
15 days of the date of receipt of the communication, the
quantities of drugs, if any, that are required by him to
supply as samples under Rule 67B.
(iv) Such quantities of drugs, if any, as required by the
Chief Controller of Factories under clause (iii) shall be
transferred to him and the remaining quantities of drugs
shall be destroyed as per the procedure outlined in para
4.1.2.
(v) Destruction shall be by incineration in incinerators
fitted with appropriate air pollution control devices, which
comply with emission standards. Such incineration may
only be done in places where adequate facilities and
security arrangements exist. In order to ensure that such
incineration may not be a health hazard or polluting,
consent of the State Pollution Control Board or Pollution
Control Committee, as the case may be, should be
obtained. Destruction shall be carried out at the presence
of the Members of the Drug Disposal Committee.
XXX XXX XXX
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
4.4 Certificate of destruction.
A certificate of destruction (in triplicate) containing all the
relevant data like godown entry number, gross and net
weight of the drugs seized, etc., shall be prepared and
signed by the chairman and members of the Drug
Disposal Committee as per format at Annexure 3. The
original copy shall be pasted in the godown register after
making necessary entries to this effect, the duplicate to
be retained in the seizure case file and the triplicate copy
will be kept by the Drug Disposal Committee. Details of
disposal of drugs shall be reported to the Narcotics
Control Bureau in the Monthly Master Reports."
8. Before any proposed disposal/destruction mandate of
Section 52A of the NPDS Act requires to be duly
complied with starting with an application to that effect. A
Court should be satisfied with such compliance while
deciding the case. The onus is entirely on the prosecution
in a given case to satisfy the Court when such an issue
arises for consideration. Production of seized material is a
factor to establish seizure followed by recovery. One has
to remember that the provisions of the NDPS Act are
both stringent and rigorous and therefore the burden
heavily lies on the prosecution. Non-production of a
physical evidence would lead to a negative inference
within the meaning of Section 114(g) of the Indian
Evidence Act, 1872 (hereinafter referred to as the
Evidence Act). The procedure contemplated through the
notification has an element of fair play such as the
deposit of the seal, numbering the containers in seriatim
wise and keeping them in lots preceded by compliance of
the procedure for drawing samples. The afore-stated
principles of law are dealt with in extenso in Noor Aga v.
State of Punjab, (2008) 16 SCC 417:
"89. Guidelines issued should not only be substantially
complied with, but also in a case involving penal
proceedings, vis-à-vis a departmental proceeding, rigours
of such guidelines may be insisted upon. Another
important factor which must be borne in mind is as to
whether such directions have been issued in terms of the
provisions of the statute or not. When directions are
issued by an authority having the legal sanction granted
therefor, it becomes obligatory on the part of the
subordinate authorities to comply therewith.
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
90. Recently, this Court in State of Kerala v. Kurian
Abraham (P) Ltd. [(2008) 3 SCC 582], following the
earlier decision of this Court in Union of India v. Azadi
Bachao Andolan [(2004) 10 SCC 1] held that statutory
instructions are mandatory in nature.
91. The logical corollary of these discussions is that the
guidelines such as those present in the Standing Order
cannot be blatantly flouted and substantial compliance
therewith must be insisted upon for so that sanctity of
physical evidence in such cases remains intact. Clearly,
there has been no substantial compliance with these
guidelines by the investigating authority which leads to
drawing of an adverse inference against them to the
effect that had such evidence been produced, the same
would have gone against the prosecution.
92. Omission on the part of the prosecution to produce
evidence in this behalf must be linked with a second
important piece of physical evidence that the bulk
quantity of heroin allegedly recovered indisputably has
also not been produced in court. The respondents
contended that the same had been destroyed. However,
on what authority it was done is not clear. Law requires
that such an authority must flow from an order passed by
the Magistrate. Such an order whereupon reliance has
been placed is Exhibit PJ; on a bare perusal whereof, it is
apparent that at no point of time had any prayer been
made for destruction of the said goods or disposal
thereof otherwise. What was necessary was a certificate
envisaged under Section 110(1-B) of the 1962 Act. An
order was required to be passed under the
aforementioned provision providing for authentication,
inventory, etc. The same does not contain within its
mandate any direction as regards destruction.
XXX XXX XXX
95. The High Court proceeded on the basis that non-
production of physical evidence is not fatal to the
prosecution case but the fact remains that a cumulative
view with respect to the discrepancies in physical
evidence creates an overarching inference which dents
the credibility of the prosecution. Even for the said
purpose the retracted confession on the part of the
accused could not have been taken recourse to.
96. Last but not the least, physical evidence relating to
three samples taken from the bulk amount of heroin was
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
also not produced. Even if it is accepted for the sake of
argument that the bulk quantity was destroyed, the
samples were essential to be produced and proved as
primary evidence for the purpose of establishing the fact
of recovery of heroin as envisaged under Section 52-A of
the Act.
XXX XXX XXX
100. Physical evidence of a case of this nature being the
property of the court should have been treated to be
sacrosanct. Non-production thereof would warrant
drawing of a negative inference within the meaning of
Section 114(g) of the Evidence Act. While there are such
a large number of discrepancies, if a cumulative effect
thereto is taken into consideration on the basis whereof
the permissive inference would be that serious doubts are
created with respect to the prosecution's endeavour to
prove the fact of possession of contraband by the
appellant. This aspect of the matter has been considered
by this Court in Jitendra v. State of M.P. [(2004) 10 SCC
562 : 2004 SCC (Cri) 2028] in the following terms :
(SCC p. 565, para 6)
"6. ... In the trial it was necessary for the prosecution to
establish by cogent evidence that the alleged quantities
of charas and ganja were seized from the possession of
the accused. The best evidence would have been the
seized materials which ought to have been produced
during the trial and marked as material objects. There is
no explanation for this failure to produce them. Mere oral
evidence as to their features and production of
panchnama does not discharge the heavy burden which
lies on the prosecution, particularly where the offence is
punishable with a stringent sentence as under the NDPS
Act.""
9. On the issue of seizure in the presence of Magistrate,
we wish to place reliance upon the decision of this Court
in Union of India v. Mohanlal, (2016) 3 SCC 379:
"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
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
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."
29. In view of aforesaid discussion of
evidence and by taking a guiding note of settled legal
ratio as discussed above, it appears that the mandatory
provisions of Sampling, Seizure and Sealing (SSS) not
appears to be followed in this case beside non-
compliance of Section 52-A of the N.D.P.S. Act. There
are major contradictions also surfaced amongst the
testimony of the prosecution witnesses, who are none
but the members of raiding team and were present at
the place of occurrence from very beginning of raid to its
conclusion.
30. Therefore, it can be said safely that
prosecution could not established its case beyond all
reasonable doubt during the trial, the benefit of which
must be extended to the appellant/convict.
31. Hence, the appeal stands allowed.
Patna High Court CR. APP (SJ) No.71 of 2023 dt.01-10-2024
32. Accordingly, the impugned judgment of
conviction dated 15.10.2022 and order of sentence
dated 18.10.2022 respectively passed by learned
Additional Sessions Judge-XI, Buxar in N.D.P.S. Case
No. 08/2020 arising out of Buxar (Town) P.S. Case No.
184 of 2020 is hereby quashed and set aside.
Consequently, the appellant is acquitted of the charges
levelled against him.
33. Since appellant namely, Brijpal is in
custody, he is directed to be released forthwith, if his
presence is not required in any other case.
34. Fine, if any paid by appellant be returned
to him immediately.
35. Let a copy of this judgment be sent to
learned trial court along with Trial Court Record.
(Chandra Shekhar Jha, J.)
Shubham/Jyoti/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 08.10.2024
Transmission Date 08.10.2024
