Mahesh Kumar Son Of Moolchand Mahajan vs State Of Rajasthan
2024 Latest Caselaw 6192 Raj/2

Rajasthan High Court

Mahesh Kumar Son Of Moolchand Mahajan vs State Of Rajasthan on 22 October, 2024

Author: Anil Kumar Upman

Bench: Anil Kumar Upman

[2024:RJ-JP:44175]
        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               S.B. Criminal Appeal (Sb) No.3096/2023

Mahesh Kumar Son Of Moolchand Mahajan, Aged About 47 Years,
Resident Of Ward No. 15, Jogiyo Ka Mohalla, Pragpura, Jaipur
Rural (Raj) (At Present Confined In Sub-Jail Kotputli, Jaipur)
                                                                   ----Petitioner
                                    Versus
State of Rajasthan, through Public Prosecutor

----Respondent

For Petitioner(s) : Mr. Rajveer Singh Gurjar Mr. Anirudh Singh Shekhawat Mr. Pradeep Malik Mr. Sunil Kumar Meena Mr. P.L. Saini Mr. Kapil Nagayach For Respondent(s) : Mr. Mahendra Meena, PP

HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

JUDGMENT

DATE OF PRONOUNCEMENT :: 22/10/2024

1. The appellant herein has been convicted and sentenced vide

judgment dated 05.10.2023 passed by learned Addl. Sessions

Judge No.1, Kotputli, Jaipur in Sessions Case No.31/2019 as

below:-

Offence                  Sentence                         fine
Section 8/15 of the 12 Years' rigorous Rs.1,00,000/-.     In
NDPS Act            imprisonment       default of payment of
                                       fine,     1    year's
                                       additional RI
Section 8/20 of the 12 Years' rigorous Rs.1,00,000/-.     In
NDPS Act            imprisonment       default of payment of
                                       fine,     1    year's
                                       additional RI

Both the sentences were ordered to run concurrently

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2. The appellant herein has preferred the instant criminal

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

sentence, as mentioned above.

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

learned Public Prosecutor, the appeal has been heard finally.

Therefore, the suspension of sentence application, filed on behalf

of the appellant is disposed of.

4. Brief facts of the case are that on 23.12.2018, Shri Suresh

Kumar, SI, SHO PS Pragpura along with other staff personnel were

on patrolling duty. They left the police station at 3:57 PM. At about

4:40 PM, the police team reached Jogiyo Ka Mohalla, located near

Kailash Vidhyapeeth Private school where they saw one person

standing in front of one Mahesh General Store. The person was

having two white colour polythenes in his left hand and two black

colour plastic sacks in his right hand. On seeing the police team,

he started fleeing away from there. On suspicion, the said man

was stopped immediately and checked. The man became nervous

and disclosed that he was having charas, ganja and doda post in

the polythene and sacks, being carried by him. He disclosed his

name as Mahesh Kumar, appellant herein. He failed to show any

license or permit for the contraband recovered from his

possession. ASI Rameshwar Singh was sent to bring two

independent public witnesses for the purpose of recovery

proceedings. At 6:10 PM, he returned to the spot and produced

one person Manmohan Yadav as independent public witness to the

proceedings. He submits that despite best efforts, only one person

was ready to become the witness to the recovery proceedings.

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Thereafter, the appellant was apprised about his legal rights

regarding personal search under Section 50 of the NDPS Act. As

per the prosecution case, contraband charas weighing 1.4 Kgs.

was recovered from from the white colour polythene, out of which,

two samples (test sample and control sample) of 100 grams each

were taken out and same were marked as "A-1" and "A-2"

respectively and remaining contraband was put in the same

polythene and sealed and thereafter, same was marked as "A".

From the other white colour polythene, contraband Ganja

weighing 5.840 Kgs. was recovered, out of which, two samples

(test sample and control sample) of 250 Grams each were taken

out and same were marked as "B-1" and "B-2" respectively and

remaining contraband was put in the same polythene and sealed.

Same was given mark "B". The black colour sacks, carried by the

appellant, were also checked. A total of 31.100 Kgs. contraband

Dodapost was recovered from the two sacks. The first sack was

containing 17.100 Kgs contraband whereas in the other sack,

there was 13.400 Kgs. contraband lying. Two samples of 250

grams each (test sample and control sample) were taken out from

both the sacks and marked as "C-1", "C-2", "D-1" and "D-2"

respectively. Remaining contraband were again kept in the same

sacks and thereafter, both were sealed and marked as "C" and

"D". The appellant was 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.527/2018

was registered at Police Station Pragpura for offences under

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Sections 8/20 and 8/15 of the NDPS Act and investigation

commenced. After completion of investigation, the police filed

chargesheet for the aforesaid offences against the accused

appellant. On 01.07.2019, charge for offences under Section 8/20

and 8/15 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 14 witnesses and exhibited 30

documents.

6. The accused appellant was questioned under Section 313

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

that he had been falsely implicated in this case. The appellant did

not wish to produce any evidence in his defence.

7. After conclusion of trial, the learned trial court convicted the

appellant for offences under Section 8/20 & 8/15 of the NDPS Act

and sentenced him, 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

offences under Sections 8/20 & 8/15 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

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

Government. The alleged recovery of contraband was effected on

23.12.2018 and the Seizure Officer PW.3 Shri Suresh Kumar, SI

SHO Police Station Pragpura, took out samples (Mark "A-1", "A-2",

"B-1", "B-2", "C-1", "C-2" and "D-1" and "D-2") from the

contraband allegedly recovered from the possession of the

appellant at the spot on 23.12.2018 itself but inventory report in

terms of provisions of Section 52A of the NDPS Act, was prepared

on 08.01.2019 that is almost after 16 days of the alleged

recovery.

10. He argues that from the testimony of seizure officer PW.3

Suresh Kumar SI SHO PS Pragpura, it is apparent that samples

drawn from the alleged recovered contraband on 23.12.2018,

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. Apart from above, learned counsel argues that provisions of

Section 42 of the NDPS Act have not been complied with as

neither any memo in pursuance of provisions of Section 42 of the

NDPS Act was prepared by the seizure officer nor any information

in writing was forwarded to any senior officer. Further, the

magistrate Shri Balkrishan Katara, the then CJM, Kotputli, Jaipur

under whose presence and supervision, the inventory report was

prepared, was not produced in the witness box to prove the

[2024:RJ-JP:44175] (6 of 13) [Criminal Appeal No-3096/2023]

inventory report. Another infirmity, pointed out by the prosecution

is that Malkhana register was not produced and exhibited by the

prosecution, which raised a finger of suspicion regarding the

safekeeping of the contraband. 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

11. The appellant has already served sentence of nearly 5 years

and 9 months. With these submissions, learned counsel craves

acceptance of the instant appeal and seeks acquittal of the

accused appellant from the charges punishable under Sections

8/20 & 8/15 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. 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

magistrate, would not vitiate the recovery proceedings particularly

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when accused has been found in possession of huge quantity of

contraband and therefore, the learned trial court has rightly

convicted the appellant for offences under Sections 8/15 and 8/20

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

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

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:44175] (9 of 13) [Criminal Appeal No-3096/2023]

(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

especially seizure officer PW.3 Suresh Kumar, SI SHO PS Pragpura

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

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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 samples (Mark "A-1", "B-1', "C-1" and "D-1")

which were 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 sixteen

days of the alleged recovery and the prosecution failed to give

reasonable explanation for this delay. As per the inventory report,

the test samples (Mark 'A-3', "B-3", "C-3" and "D-3" ) 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. As per the FSL report (Ex.P/30), the

samples (Mark A-1, B-1, C-1 and D-1) taken by the seizure officer

on 23.12.2018 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

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

[2024:RJ-JP:44175] (11 of 13) [Criminal Appeal No-3096/2023]

to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-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:-

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"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."

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).

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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 05.10.2023 passed by learned

Addl. Sessions Judge No.1, Kotputli, Jaipur in Sessions Case

No.31/2019 is hereby quashed and set aside. The accused

appellant is hereby acquitted of the charges punishable under

Sections 8/20 & 8/15 of the NDPS Act. He is in jail. He 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

Lalit Mohan/

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