Rajasthan High Court - Jodhpur
Ladu Lal Jat vs State Of Rajasthan on 17 October, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal (Sb) No. 1152/2022
Ladu Lal Jat S/o Magna Jat, Aged About 50 Years, B/c Jat R/o
Bitthalpura Ps Bigod Dist. Bhilwara (At Present Lodged In Dist.
Jail Bhilwara)
----Appellant
Versus
State Of Rajasthan, Through The PP
----Respondent
For Appellant(s) : Mr. Mangi Lal Vishnoi
For Respondent(s) : Mr. Dhan Raj Vaishnav, PP
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment
Reserved On :- 26/09/2024
Pronounced On :- 17/10/2024
1. The sole appellant - Ladu Lal Jat faced trial in Sessions Case
No.12/2019 and by the impugned judgment dated 30.06.2022
was found guilty for offence under Section 8/15 of the NDPS Act
and by order of the same date was awarded rigorous
imprisonment of ten years and to pay a fine of Rs.1,00,000/- and
in default of payment of fine, six months rigorous imprisonment
was ordered.
2. The aforesaid trial arose out of FIR No.202/2018 registered
with Bigod Police Station at the behest of PW-3 - Ram Gopal
Choudhary, who was in-charge Station House Officer of Bigod
Police Station. According to FIR, on 26.09.2018, PW-3 along with
his police team was engaged in checking of the vehicles. At about
6:55 pm, a Bolero vehicle bearing Registration No.RJ-14-UA-9651
was intercepted and from that vehicle twelve, bags of Afeem
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(doda chura) was seized. Total weight of the seized contraband
was 212 Kg. and 650 Grms. The appellant was driving the said
vehicle and was arrested at the spot. Out of seized contraband,
300 Grms. were taken out from each of the bags and two samples
were sent for forensic examination and the rest were sealed as
controlled samples. The remaining contraband were sealed in
different bags at the place of recovery itself. Since the appellant
had no license for carrying the contraband, the appellant was
booked. After investigation, PW-1 - Jaswant Singh submitted
charge-sheet against the appellant.
3. During trial, the prosecution examined altogether ten
witnesses and several documents were marked as exhibits, which
are fully referred, in the trial court's judgment, in detail. No
defense evidence was produced.
4. Learned counsel for the appellant contends that there is
apparent non-compliance of the mandates of Section 52A of the
NPDS Act inasmuch as services of the Magistrate was not taken to
complete the exercise of seizure and taking out the samples.
Similarly, photographs of seizure and taking out of samples were
also not done in contravention of provisions of Section 52A of the
NDPS Act.
Learned counsel contends that another doubtful
circumstance is that one of the witnesses of seizure PW-8 - Arif
Khalifa, did not support the prosecution case and another witness
Dinesh, was not produced before the court by the prosecution,
which further creates doubt on the trustworthiness of the
prosecution case.
(3 of 8) [CRLAS-1152/2022]
Learned counsel for the appellant contends that the seized
materials were sent for FSL on 01.10.2018. On 04.10.2018, the
seized materials were returned back as the seal was tampered.
Thereafter, again it was sent on 08.10.2018 to the Forensic
Science Laboratory. The factum of tampered seal diminishes the
trustworthiness and acceptability of the prosecution case as it is.
5. Learned counsel for the respondent contends that the
appellant has not shown any prejudice due to aforesaid non-
compliance and the prosecution case otherwise stands proved by
oral and documentary evidences produced in the case, which are
referred by the trial court.
6. It is evident from the FIR at Ex.P-1 as well as statement of
PW-3 - the informant of the case that mandates of Section 52A of
the NDPS Act was not complied with. The requirement of
compliance of the provisions of Section 52A of the NDPS Act was
considered by the Hon'ble Supreme Court on several occasions.
The said provisions reads as follows:-
"52A. Disposal of seized narcotic drugs and psychotropic substances.
-- (1) The Central Government may, having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of proper
storage space or any other relevant consideration, in respect of any
narcotic drugs, psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette, specify such
narcotic drugs, psychotropic substances, controlled substances or
conveyance or class of narcotic drugs, class of psychotropic
substances, class of controlled substances or conveyances, which
shall, as soon as may be after their seizure, be disposed of by such
officer and in such manner as that Government may, from time to
time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled
substances or conveyances has been seized and forwarded to the
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officer-in-charge of the nearest police station or to the officer
empowered under Section 53, the officer referred to in subsection
(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, 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 sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act,
1872 (1 of 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 sub-section (2) and certified by the Magistrate,
as primary evidence in respect of such offence."
7. The aforesaid provision was considered by Hon'ble Supreme
Court in Mangilal Vs. The State of Madhya pradesh reported in
2023 INSC 634. Para-4, 5 & 6 of the judgment are being
reproduced below:-
(5 of 8) [CRLAS-1152/2022]
"4. Sub-section (1) of Section 52A of the NDPS Act facilitates
the Central Government a mode to be prescribed to dispose of the
seized narcotic substance. The idea is to create a clear mechanism
for such disposal both for the purpose of dealing with the particular
case and to safeguard the contraband being used for any illegal
purpose thereafter.
5. Sub-section (2) of Section 52A of the NDPS Act mandates a
competent officer to prepare an inventory of such narcotic drugs
with adequate particulars. This has to be followed through an
appropriate application to the Magistrate concerned for the purpose
of certifying the correctness of inventory, taking relevant
photographs in his presence and certifying them as true or taking
drawal of samples in his presence with due certification. Such an
application can be filed for anyone of the aforesaid three purposes.
The objective behind this provision is to have an element of
supervision by the magistrate over the disposal of seized contraband.
Such inventories, photographs and list of samples drawn with
certification by Magistrates would constitute as a primary evidence.
Therefore, when there is non-compliance of Section 52A of the
NDPS Act, where a certification of a magistrate is lacking any
inventory, photograph or list of samples would not constitute
primary evidence.
6. The obvious reason behind this provision is to inject fair play
in the process of investigation. Section 52A of the NDPS Act is a
mandatory rule of evidence which requires the physical presence of
a Magistrate followed by an order facilitating his approval either for
certifying an inventory or for a photograph taken apart from list of
samples drawn.
8. Prior to that in Union of India Vs. Mohanlal & Anr.,
reported in AIROnline 2016 SC 770 on consideration of the
requirement of Section 52A of NDPS Act, the Hon'ble Supreme
Court observed in para 15, 16 & 17 as follows :-
"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
(6 of 8) [CRLAS-1152/2022]
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 Criminal Appeal No.451
of 2011 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−sections (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 Criminal Appeal No.451 of 2011 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." (emphasis
added).
Thus, the act of PW−2 of drawing samples from all the packets at
the time of seizure is not in conformity with what is held by this
Court in the case of Mohanlal2. This creates a serious doubt about
the prosecution's case that the substance recovered was contraband."
(7 of 8) [CRLAS-1152/2022]
9. Yet in Bothilal Vs. Intelligence Officer Narcotics Control
Bureau reported in AIR Online 2023 SC 339, the Hon'ble
Supreme Court accepted submission of the appellant in para-15 of
the judgment, which is being reproduced below:-
"15. Admittedly, PW−2 drew two samples from each of the packets
of the contraband found in the hotel room and kept them in two
separate plastic covers. These covers were sealed and the remaining
contraband was also sealed. Thus, the prosecution claims that the
samples were prepared even before the packets were sent to the
Station House Officer. The submission of the learned senior counsel
appearing for the appellant in Criminal Appeal 451 of 2011 was that
a grave suspicion is created about the prosecution's case as this
action by the PW−2, was contrary to Section 52−A of NDPS Act."
10. The compliance of aforesaid provision is evidently mandatory
for the reason that the report prepared after compliance of the
provision is taken as primary evidence under Section 52A(4) of
the NDPS Act. Once the report is primary evidence, no further
evidence is required to prove the factum of recovery of contraband
from possession of accused. Failure to comply the requirement of
law vitiates the prosecution case.
11. It is not a mere formality to ask the accused whether he
wants to be searched in presence of a gazetted officer, rather, the
exercise should have been done in true spirit of law. Tendency has
developed with the investigation agency to ask the accused
whether he wants to be searched in presence of a gazetted officer
and get his consent in writing, while the accused was in custody of
the police, that he wants to be searched by the police itself.
12. One of the witnesses of seizure has not supported the factum
of search and seizure in his presence and another was not
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produced by the prosecution which adds to the doubt on the
prosecution version. There is evidence that the first samples sent
to the FSL was returned as the seal was tampered one. The
sanctity in exercise creates doubt on the action of the prosecution
in not ensuring purity and trustworthiness that the seized
materials were the same which were sent for FSL examination.
The samples taken out from each of the bags were mixed by the
investigating officer, hence, it would be difficult to assure that all
the bags were containing contraband nor the prosecution would be
taken to have proved the quantum of recovery beyond all
reasonable doubt.
13. For the aforesaid infirmities in the prosecution case i.e. non-
compliance of mandates of Section 52A of the NDPS Act, non
support of the factum of search and seizure of any independent
witness coupled with other failures as discussed above makes the
whole prosecution case doubtful.
14. Hence, this criminal appeal stands allowed and conviction of
the appellant vide the impugned judgment stands hereby set
aside. The appellant is in jail. Let him be set free at once in this
case on execution of a bond that in the event of challenge of this
judgment, the appellant shall cooperate with the proceeding
before the appellate court.
(BIRENDRA KUMAR),J
1-nitin/-
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