Rajasthan High Court
Ajay Kumar Son Of Shri Madan Lal vs State Of Rajasthan on 22 October, 2024
Author: Anil Kumar Upman
Bench: Anil Kumar Upman
[2024:RJ-JP:43787]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Appeal No.209/2023
Ajay Kumar Son Of Shri Madan Lal, Aged About 43 Years,
Resident Of House No. Rz-266, Rajnagar -2, Palam Colony, South
West Delhi (At Present Lodged In Central Jail Kota)
----Petitioner
Versus
State Of Rajasthan, Through The Public Prosecutor
----Respondent
Connected With
S.B. Criminal Appeal No.1917/2022
Roopnarayan Son Of Omprakash, Aged About 47 Years, Resident
Of House No. Rz-302, Rajnagar -2, Palam Colony, South West
Delhi (At Present Confined At Central Jail Kota)
----Petitioner
Versus
Central Bureau Of Narcotics, Through Special P.P.
----Respondent
For Petitioner(s) : Mr. Pankaj Gupta
Mr. Naman Yadav
Mr. Rohit Khandelwal
Mr. Sourabh Yadav
Mr. Yogendra Singh
For Respondent(s) : Mr. Tej Prakash Sharma, Special PP,
NCB
Mr. Inderjeet Deora
Mr. Vaibhav Jhankra
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
JUDGMENT
DATE OF PRONOUNCEMENT :- 22/10/2024
1. The appellants herein have been convicted for offence under
Section 8/20 (b) (ii) C of the NDPS Act vide judgment dated
05.08.2022 passed by learned Special Judge, NDPS Act Cases,
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Kota in Sessions Case No.27/2020 and sentenced them to undergo
14 years' RI with fine of Rs.1,50,000/- each. In default of
payment of fine, the appellants have been sentenced to undergo
three year's additional rigorous imprisonment.
2. The appellants herein herein have preferred these two
separate criminal appeals under Section 374(2) Cr.P.C. challenging
their conviction and sentence, as mentioned above.
3. Learned counsel for the appellants submits that he wants to
argue the appeal finally. Learned Public Prosecutor is also ready to
argue the matter finally. Thus, the appeal is heard finally. The
application for suspension of sentence is therefore, disposed of.
4. Brief facts of the case are that on 03.12.2019, a Preventive
Team of CNB Kota, led by Mr. C. Prasad, Superintended, CBN Kota
and other members namely Inspector Mr. J.P. Meena, Inspector,
Mr. Pankaj Kumar, Ct. Mohanchand Kalwar, LDC Mr. Gajraj Meena
and Driver Mukesh Singh Rathore were on routine checking. The
team left the police station by Govt. Vehicle No.RJ 20 UA 1973 and
reached Toll Tax Mandana, Jhalawar. At about 10:50 am, one car
No. DL 8 CX 3801 was seen coming there. There were two persons
sitting in the car. The driver of the said car was signaled to stop by
Shri J.P. Meena. The driver disclosed his name as Roopnarayan
and the other person, sitting next to the driver seat, disclosed his
name as Ajay. On interrogation, the appellants herein became
nervous and did not give satisfactory replies to the questions put
to them. On apprehension that they may be carrying some
objectionable material, both appellants along with the car and
independent public witnesses were taken to the office of Deputy
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Narcotics Commissioner, CBN, Kota. Both appellants were apprised
their legal rights of personal search under Section 50 of the NDPS
Act. As per the prosecution case, no suspicious or objectionable
thing was recovered during personal search of both the appellants
but during search of the car, contraband Ganja, kept in total 78
packets were recovered from the dicky of the car. Two lots of 40
packets and 38 packets were made on the basis of their size and
weight. On weighing, 40 packets were found weighing 2.1 Kgs.
each whereas remaining 38 packets were found weighing 2.2 Kgs
each and thus, a total 167.6 Kgs. Ganja was allegedly recovered
from the car. The weight of first lot was 84 Kgs. whereas the
weight of the second lot of 38 packets was 83.6 Kgs. Two samples
of 500 grams each were taken out from both the lots for chemical
examination and they were given mark A-1, A-2, B-1 and B-2
respectively. The remaining contraband was again put in the same
packets and lots of ten packets, were prepared and marked as
A/1, A/2, A/3, A/4, B/1, B/2, B/3 and B/4. The appellants failed to
produce any license or permit for the same. Both the accused
persons were thereafter arrested in connection with the aforesaid
recovery. The police team, thereafter, conducted usual
investigation.
5. In connection with the aforesaid recovery, FIR No.2/2019
was registered at Police Station CBN, Kota for offence under
Section 8/20 of the NDPS Act and investigation commenced. After
completion of investigation, the police filed chargesheet for
offences under Sections 8/20 (c) and 8/29 of the NDPS Act
against accused Roopnarayan, Ajay Kumat (appellants herein) and
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Vinay Kumar in the court of learned Special Judge, NDPS Case,
Kota where charges for aforesaid offences were framed against
the accused persons who pleaded not guilty and claimed trial. In
support of its case, the prosecution examined as many as six
witnesses and exhibited certain documents.
6. The accused persons were questioned under Section 313
Cr.P.C. in which, they denied the prosecution evidence and stated
that they had been falsely implicated in this case. Two witnesses
were produced in defence by the appellants.
7. After conclusion of trial, vide judgment dated 05.08.2022,
the learned trial court convicted the appellants for offence under
Section 8/20 (b) (ii) C of the NDPS Act and sentenced them, as
mentioned above. However, the learned trial court vide the same
judgment, acquitted the accused Vinay Kumar from charge under
Section 29 of the NDPS Act. Hence this criminal appeal.
8. Learned counsel for the appellants contend that the learned
trial court has erred in convicting and sentencing the appellants
for the aforesaid offences and therefore, the same deserves to be
set aside. They submit that the finding recovered by the learned
trial court is patently illegal and perverse to the facts of the case.
The learned trial court has failed to appreciate the evidence in
right and correct perspective.
9. The precise argument of learned counsel for challenging the
impugned judgment of conviction and sentence is that in the
instant case, there is a gross violation of the provisions of Section
52A of the NDPS Act as well as the guidelines issued by the
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Government in this regard. The alleged recovery of contraband
was effected on 03.12.2019 and the Seizure Officer Mr. C. Prasad
(PW.3) took out two samples from each lot, which were marked as
A-1 and A-2 from first lot of forty packets and B-1 and B-2 from
second lot of 38 packets on 03.12.2019 itself but inventory report
(Ex.P/18) in terms of provisions of Section 52A of the NDPS Act,
was prepared on 19.06.2020 that is almost after six months of the
alleged recovery.
10. It is argued that from the testimony of seizure officer PW.3
Mr. C. Prasad and other recovery witnesses, it is apparent that
samples drawn from the alleged recovered contraband on
03.12.2019, were not done in presence of jurisdictional magistrate
and therefore, the proceedings for obtaining samples is in
contravention of provisions of Section 52A of the NDPS Act and
the FSL report (Ex.P/11) is not worthy of being read in evidence
and is nothing but a waste paper. They also argue that
non-compliance of Section 52A of the NDPS Act would be fatal to
the prosecution case. It is further submitted that neither the
samples drawn in the presence of magistrate were sent to FSL nor
the said magistrate, in whose presence inventory in terms of
Section 52A of the NDPS Act was prepared and samples were
drawn, was produced in the witness box to prove the inventory
report. It is also contended by learned counsel that as per the
prosecution case, there were two independent witnesses namely
Ramkailash and Krishna Murari, associated with the search and
seizure proceedings but out of them, only one witness Krishna
Murari (PW.6) appeared before the learned trial court. The other
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witness namely Ram Kailash did not appear before the learned
trial court for his evidence. Learned counsel also submits that no
cross-examination could be done on behalf of the accused
appellants from PW.6 Krishna Murari as after recording his
examination-in-chief, he did not turn up before the learned trial
court. Learned counsel further argue that provisions of Sections
42 and 50 of the NDPS Act were also not complied with. They
craves acceptance of both criminal appeals. Reliance has been
placed on the following judgments:
1. Union of India v. Mohanlal & Anr : (2016) 3 SCC 379.
2. Mohammed Khalid & Anr. v. The State of Telangana : 2024
INSC 158
11. On the basis of these submissions, learned counsel craves
acceptance of the appeals and seek acquittal of the accused
appellants from the charge punishable under Section 8/20 of the
NDPS Act.
12. Per contra, learned Public Prosecutor opposes the submission
advanced by the appellants' counsel. He submits that learned trial
court after appreciating entire evidence and material available on
record has rightly recorded conviction of the accused appellant,
which does not warrant any interference. The prosecution has
proved the case beyond all reasonable doubt against the
appellants. It is also contended by learned Public Prosecutor that
the provisions of Section 52 of the NDPS Act are not mandatory
but directory in nature. He submits that mere fact that Seizure
officer did not draw the samples in presence of jurisdictional
[2024:RJ-JP:43787] (7 of 13) [CRLAS-209/2023]
magistrate, would not vitiate the recovery proceedings particularly
when accused has been found in possession of huge quantity of
contraband and therefore, the learned trial court has rightly
convicted the appellants for offence under Section 8/20 (b) (ii) C
of the NDPS Act. He thus, prays that the instant criminal appeal
may be dismissed.
13. I have heard and considered the submissions advanced by
appellants' counsel as well as learned Public Prosecutor and
perused the material available on record.
14. The NDPS Act was enacted to make stringent provisions for
the control and regulate operations relating to narcotic drugs and
psychotropic substances. This comes along with stringent
punishments such as the minimum sentence under this act being
10 years for the offences punishable under section 19, 24, 27A
and involving contraband of commercial quantity. Such stringent
laws demand for a fair trial by all means, and this fair trial can
only be warranted with the judiciary playing a vital role
throughout the investigation and trial of NDPS cases. Search and
Seizure serves as one of the most vital steps in the timeline of an
NDPS case. This step ultimately plays a major role in determining
whether a person is guilty or not. Hence, it requires a strict
process to be followed by the investigating agency. This process
has to be infallible and just. The statute sets up a transparent and
unprejudiced procedure when it comes to seizure of contraband.
15. Section 52-A of the Act provides for disposal of seized
narcotic drugs and psychotropic substances. Sub-Section (2) of
this Section is very important provision which lays emphasis as to
how samples are to be taken out from the recovered contraband.
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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.
[2024:RJ-JP:43787] (9 of 13) [CRLAS-209/2023]
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1872) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an offence
under this Act, shall treat the inventory, the photographs of
[narcotic drugs, psychotropic substances, controlled
substances or conveyances] and any list of samples drawn
under subsection (2) and certified by the Magistrate, as
primary evidence in respect of such offence."
16. From a bare perusal of the provision, it is evident that the
Magistrate's role in the investigation is extremely crucial as it
ensures that the investigation is legitimate and the due process
has been followed. As per the aforesaid provision, 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. These
provisions set up a burden on the prosecution to establish
compliance of due procedure in front of the court.
17. After perusing the material available on record and after
going through the statements of the prosecution witnesses
particularly seizure officer PW.3 C. Prasad, and the documents
exhibited by the prosecution in support of its case, one thing is
very much clear that the prosecution has failed to bring on record
any evidence to the effect that the procedure prescribed under
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subsections (2), (3) and (4) of Section 52A of the NDPS Act was
properly followed while making the seizure and drawing sample.
The two samples (Mark A/1 and B/1) taken out from the
recovered contraband and sent to the FSL, were not drawn in
presence of the Magistrate.
18. Apart from it, proceedings for preparation of inventory in
terms of Section 52A of NDPS Act, were done almost after six
months of the alleged recovery and the prosecution failed to give
reasonable explanation for this delay. The representative samples
taken in presence of the magistrate were not sent to FSL. Further,
the said learned Magistrate could not be produced in the witness
box to prove the inventory report. The samples (Mark A-1 and
Mark B-1 ) taken by the seizure officer at the time of alleged
recovery, were sent to the FSL, which has no evidentiary worth
and cannot be read in evidence. In the case of Mohammed
Khalid & Anr. vs The State of Telangana reported in 2024
INSC 158, Hon'ble Apex Court has held that the FSL report of the
samples, which were taken in absence of the jurisdictional
magistrate, is nothing but a waste paper and cannot be read in
evidence.
19. Hon'ble Supreme Court judgment in the case of Union of
India v. Mohanlal & Anr. : (2016) 3 SCC 379 has observed as
under:-
"15. It is manifest from Section 52A (2)(c) (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
[2024:RJ-JP:43787] (11 of 13) [CRLAS-209/2023]
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-section (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."
20. The Apex Court in the case of Mangilal v State of Madhya
Pradesh : 2023 SCC online SC 862, observed as below:-
"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
[2024:RJ-JP:43787] (12 of 13) [CRLAS-209/2023]
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."
21. Section 52-A (2) ensures that the investigation may happen
without any faults and the law laid down is followed in whole.
Leaving no empty spaces to twist and turn the law, this provision
happens to be stringent for both the accused and the Investigating
Agency. While a fair investigation is promised to the accused, it is
also made sure that the accused, if guilty, does not escape the
punishment due to mere technical and procedural errors made by
the investigation agencies. To work on this, the investigation
agencies are also advised to draw samples from the seized
contraband in front of the accused as well as the magistrate to
make the entire process infallible. It could be seen recently in the
case of Yusuf @ Asif v State reported in 2023 (4) Crimes
(SC) 261 that the Hon'ble Apex Court had to reverse the
judgments of the High Court and the Trial Court where these
courts had convicted the accused, simply because the
Investigating Agency drew samples from the seized contraband
without complying with the provisions of Section 52-A (2).
[2024:RJ-JP:43787] (13 of 13) [CRLAS-209/2023]
22. In backdrop of the aforesaid discussion, without delving into
other aspects of this case, I am of the considered opinion that
proper compliance of provisions of Section 52A of the NDPS Act
was not made in the instant case at the time of conducting search
and seizure proceedings, which renders the entire recovery
proceedings vitiated and on this sole ground alone, the conviction
recorded by the learned trial court vide impugned judgment
deserves reversal. Accordingly, the impugned judgment of
conviction and sentence dated 05.08.2022 passed by learned
Special Judge, NDPS Cases, Kota in Sessions Case No.27/2020 is
hereby quashed and set aside. The accused appellants
Roopnarayan and Ajay Kumar are hereby acquitted of the charge
punishable under Section 8/20 (b) (ii) C of the NDPS Act. Both
accused appellants are in jail. They shall be released from prison
forthwith, if not warranted in any other case.
23. The appeals are allowed in these terms.
24. However, keeping in view the provisions of Section 437-A
Cr.P.C., each of the accused appellants are directed to furnish a
personal bond in the sum of Rs.40,000/- and a surety bond in the
like amount before the learned trial court, which shall be effective
for a period of six months to the effect that in the event of filing of
a Special Leave Petition against the present judgment on receipt
of notice thereof, the appellants shall appear before the Supreme
Court.
25. Record be returned to the trial court forthwith.
(ANIL KUMAR UPMAN),J
Lalit Mohan/57-58
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