Sunita Wife Of Jang Bahadur Daughter Of ... vs State Of Rajasthan
2024 Latest Caselaw 6191 Raj/2

Rajasthan High Court

Sunita Wife Of Jang Bahadur Daughter Of ... vs State Of Rajasthan on 22 October, 2024

Author: Anil Kumar Upman

Bench: Anil Kumar Upman

[2024:RJ-JP:31321]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Criminal Appeal (Sb) No. 917/2024

Sunita W/o Shri Jang Bahadur D/o Late Shri Ganesh, aged 48
years, R/o E-2-44, Third Floor, Majnu Ke Teela, Civil Lines, North
Delhi (At Present Confined in Central Jail Jaipur)
                                                                   ----Appellant
                                    Versus
State of Rajasthan, through PP
                                                                 ----Respondent

For Appellant(s)           :    Mr. Manish Kumar
For Respondent(s)          :    Mr. Suresh Kumar, PP



           HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

                               JUDGMENT

         DATE OF PRONOUNCEMENT                      ::     22/10/2024

1. The appellant herein has been convicted for offence under

Section 8/20 of the NDPS Act vide judgment dated 22.03.2024

passed by learned Special Judge, NDPS Act Cases, Jaipur Metro-I

in Sessions Case (NDPS Case) No.14/2022 and sentenced to

undergo ten years' RI with fine of Rs.1,00,000/-. In default of

payment of fine, the appellant was sentenced to one year's

additional rigorous imprisonment.

2. With the consent of learned counsel for the appellant and

learned Public Prosecutor, instead of suspension of sentence

application, the instant appeal is heard finally. Accordingly, the

suspension of sentence application is disposed of.

[2024:RJ-JP:31321] (2 of 13) [CRLAS-917/2024]

3. The appellant herein has preferred the instant criminal

appeal under Section 374(2) Cr.P.C. challenging her conviction and

sentence, as mentioned above.

4. Brief facts of the case are that on 21.04.2021, Shri Devendra

Kumar, Inspector Police Station Sanjay Circle lodged a report

inter alia alleging that in the night of 20.04.2021, he along with

other police staff were on patrolling duty. At 11:37 PM, he along

with other police staff left the police station. At about 3:15 AM,

when they reached in front of police line, Station Road, they saw

two women, who on seeing the police party, tried to hide

themselves. The police party went to them and asked as to why

they were trying to hide themselves to which, they became

nervous and failed to give any satisfactory reply. On apprehension

that the women might have some objectionable material with

them and their personal search seemed to be necessary, notice

was issued to Ct. Mukesh Kumar for bringing two independent

witnesses for the purpose of conducting their personal search. Ct.

Mukesh returned to the spot and told that nobody was ready to

become independent witness of the proceedings. Upon

interrogation, they disclosed their names to be Sunita, appellant

herein and Khemu. Both were apprised with their legal rights

regarding personal search. As per the prosecution case, during

personal search of the appellant, one bag was recovered from the

possession of the appellant in which, dark brownish substance,

kept in polythene was recovered. Upon smelling and inspecting

the substance and on the basis of past experience, the same was

found to be Charas. On asking, the appellant failed to produce any

[2024:RJ-JP:31321] (3 of 13) [CRLAS-917/2024]

license or permit for the same. The contraband charas was

weighed on electronic machine. The net weight of the recovered

contraband was 1.251 grams. Two samples (Mark 'A' and Mark 'B')

of 100 grams each were taken out of the recovery contraband and

remaining contraband was again kept in the same polythene and

thereafter it was sealed and stamped. Similarly, during search of

accused Khimu, contraband Charas weighing 750.2 grams was

recovered from the bag, recovered from her possession. Two

samples (Mark 'D' and Mark 'E') were taken out from the

recovered contraband and remaining contraband was kept in the

same polythene and thereafter, it was sealed and stamped. Both

the accused persons were thereafter arrested in connection with

the aforesaid recovery. The police team, thereafter, conducted

usual investigation and returned to police station.

5. In connection with the aforesaid recovery, FIR No.93/2020

was registered at Police Station Sanjay Circle, Jaipur for offence

under Section 8/20 of the NDPS Act and investigation

commenced. After completion of investigation, the police filed

chargesheet for offence under Section 8/20 of the NDPS Act

against the accused appellant Sunita and for offence under

Section 8/20 of NDPS Act and Section 419 IPC against the accused

Khimu @ Shyam Kumari. On 21.02.2022, charge for offence under

Section 8/20 of the NDPS Act was framed against the appellant

who pleaded not guilty and claimed trial. In support of its case,

the prosecution examined as many as 15 witnesses and exhibited

80 documents.

[2024:RJ-JP:31321] (4 of 13) [CRLAS-917/2024]

6. The accused appellant was questioned under Section 313

Cr.P.C. in which, she denied the prosecution evidence and stated

that she had been falsely implicated in this case. She also stated

that she was living in Delhi along with co-accused Khimu on rent.

She used to go with her for travelling. In Jaipur, she gave her a

bag and asked her to keep it. She did not know as to what was

kept in the said bag. The appellant did not wish to produce any

evidence in her defence.

7. Since, the co-accused Khimu Magar @ Shyam Kumari did not

appear before the learned trial court and participated in the

proceedings before the learned trial court, she was declared

absconder by the learned trial court and trial was proceeded qua

the appellant herein only. After conclusion of trial, the learned trial

court convicted the appellant for offence under Section 8/20 of the

NDPS Act and sentenced the appellant, as mentioned above.

Hence this criminal appeal.

8. Learned counsel for the appellant contends that the learned

trial court has erred in convicting and sentencing the appellant for

offence under Section 8/20 of the NDPS Act and therefore, the

same deserves to be set aside. He submits 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

[2024:RJ-JP:31321] (5 of 13) [CRLAS-917/2024]

52A of the NDPS Act as well as the guidelines issued by the

Government vide Standing Order Nos.1/1988 & 1/1989. The

alleged recovery of contraband was effected on 21.04.2021 and

the Seizure Officer PW.12 Shri Devendra Kumar, Inspector Police

Station Sanjay Circle, took out test sample (Mark A) and control

sample (Mark-B) from the contraband allegedly recovered from

the possession of the appellant at the spot on 21.04.2021 itself

but inventory report in terms of provisions of Section 52A of the

NDPS Act, was prepared on 06.09.2021 that is almost after four

and half months of the alleged recovery.

10. He argues that from the testimony of seizure officer PW.13

Devendra Kumar, it is apparent that samples drawn from the

alleged recovered contraband on 21.04.2021, 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 is not worthy of

being read in evidence and is nothing but a waste paper. He

argues that non-compliance of Section 52A of the NDPS Act would

be fatal to the prosecution case and on this ground alone, he

craves acceptance of this criminal appeal. He has placed reliance

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

[2024:RJ-JP:31321] (6 of 13) [CRLAS-917/2024]

11. On the basis of these submissions, learned counsel craves

acceptance of the instant appeal and acquittal of the accused

appellant from the charge punishable under Section 8/20 of the

NDPS Act.

12. Per contra, learned Public Prosecutor opposes the submission

advanced by the appellant's 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

appellant. The learned trial court after dealing with each and every

defence/grounds taken by the appellant, has passed a reasoned

and detailed judgment, recording finding of conviction of the

appellant. Learned Public Prosecutor contends that the provisions

of Section 52A of the NDPS Act are not mandatory but are

directory in nature and therefore, mere fact that the samples were

not drawn in presence of the jurisdictional magistrate, will not

vitiate the recovery proceedings particularly when, the accused

appellant has been arrested on the spot with huge quantity of

contraband. He thus, prays that the instant criminal appeal may

be dismissed.

13. I have heard and considered the submissions advanced by

appellant's 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

[2024:RJ-JP:31321] (7 of 13) [CRLAS-917/2024]

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.

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,

[2024:RJ-JP:31321] (8 of 13) [CRLAS-917/2024]

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 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

[2024:RJ-JP:31321] (9 of 13) [CRLAS-917/2024]

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

especially seizure officer PW.13 Devendra Kumar, Inspector PS

Sanjay Circule 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 subsections (2), (3)

and (4) of Section 52A of the NDPS Act was properly followed

while making the seizure and drawing sample. The sample (Mark

A) which was sent to the FSL, was 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 four

and half months of the alleged recovery and the prosecution

failed to give reasonable explanation for this delay. The sample

(Mark 'CS-1') taken in presence of the magistrate was not sent to

FSL. The sample (Mark-A) taken by the seizure officer on

[2024:RJ-JP:31321] (10 of 13) [CRLAS-917/2024]

21.04.2021 was 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

sample, which was 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 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

[2024:RJ-JP:31321] (11 of 13) [CRLAS-917/2024]

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 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."

[2024:RJ-JP:31321] (12 of 13) [CRLAS-917/2024]

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).

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 22.03.2024 passed by learned

Special Judge, NDPS Cases, Jaipur Metro I in Sessions Case (NDPS

Case) No. 14/2022 is hereby quashed and set aside. The accused

[2024:RJ-JP:31321] (13 of 13) [CRLAS-917/2024]

appellant is hereby acquitted of the charge punishable under

Section 8/20 of the NDPS Act. She is in jail. She shall be released

from prison forthwith, if not warranted in any other case.

23. The appeal is allowed in these terms.

24. However, keeping in view the provisions of Section 437-A

Cr.P.C., the accused appellant is 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 appellant shall appear before the Supreme

Court.

25. Record be returned to the trial court forthwith.

(ANIL KUMAR UPMAN),J

GAUTAM JAIN /257

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