Rajasthan High Court - Jodhpur
Ram Lal vs State Of Rajasthan on 24 October, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:43373]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Appeal (Sb) No. 2413/2023
Ram Lal S/o Sh. Kanhaiya Lal, Aged About 37 Years, R/o
Barvada Gurjar, P.S. Chhotisadri, Dist. Pratapgarh, Raj. (At
Presently Appellant Is Lodged In Dist. Jail, Pratapgarh)
----Appellant
Versus
State Of Rajasthan, Through Pp
----Respondent
For Appellant(s) : Mr. Bhagirath Ray Bishnoi
For Respondent(s) : Mr. Kuldeep Singh, PP
Mr. Deepak Choudhary
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment
Judgment Reserved on : 19.10.2024
Pronounced on : 24.10.2024
1. The sole appellant Ram Lal has challenged his conviction for
the offence under Section 8/15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 by the impugned judgment
dated 16.10.2023 passed by the learned Special Judge, NDPS
Cases, Pratapgarh in Sessions Case No. 10/2022. The learned trial
Judge has sentenced the appellant with 20 years' rigorous
imprisonment plus fine of Rs. 2 Lacs and in default of payment of
fine, 2 years' rigorous imprisonment has been ordered.
2. In brief, the prosecution case is that on 10.07.2021 at about
08:44 pm, PW-6 Devi Lal, in-charge of Chotisadri Police Station,
Pratapgarh alongwith other constables was on patrolling duty. At
around 09.05 pm, the police personnel reached Jeevanpura Fanta
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road, where they saw a Tractor of Mahindra Company coming
towards the same road, however, they noticed that the sky-blue
trolley attached to the tractor was without any number plate. The
police personnel also noticed that another person was also sitting
next to the driver of the tractor. On seeing the police, the driver of
the tractor started running towards the field, leaving the tractor in
the middle of the road. The police personnel reached near the
tractor and informed the co-passenger to remain seated and sent
three police constables (PW-5 Maheshchand, Mahipal Singh and
Sureshchandra) to search for the fleeing driver of the tractor,
however, they were unable to find the driver due to darkness of
the night. The appellant was the co-passenger of the tractor and
on being asked about the driver of the tractor, appellant revealed
his name as Devilal. On searching the said tractor trolley, 7 black
plastic bags were found.
3. From the said plastic bags, half-crushed Opium Dodachura
was found. The total weight of the contraband was 154 Kg 100
Gms. The police team took samples from each of the 7 seized
bags and the rest were sealed separately. For the incident
aforesaid, FIR No. 179/2021 (Exhibit P-26) for offences under
Sections 8 & 15 NDPS Act was registered with police station
Chotisadri Police Station, Pratapgarh.
4. During trial prosecution examined altogether 8 witnesses
and several documents were exhibited; relevant whereof would be
referred hereinafter.
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5. The defence version is that in fact a false case was planted
against the appellant and there has been complete violation of the
mandates of sec. 52 A NDPS Act.
6. Relying on the evidence of prosecution witnesses and the
documents, the learned trial Judge has recorded the conviction, as
above.
7. Learned counsel for the appellant contends that it is an
admitted case of the prosecution that the seized material was not
sealed in presence of the Magistrate nor the samples were taken
out in presence of the Magistrate nor photography of the entire
exercise was made. This would be evident from the FIR as well as
testimony of PW-6, therefore, there is non-compliance of the
mandate of Section 52A of the NDPS Act. As a result whereof the
whole trial stands vitiated and the learned trial Judge has not
considered this infirmity properly.
8. Learned counsel for the appellant next contends that
presence of independent witnesses was not ensured at the site of
search. Sub-Section (4) of Section 100 Cr. P.C., provides that
before making a search under this Chapter, the officer or other
person about to make it shall call upon two or more independent
and respectable inhabitants of the locality in which the place to be
searched is situate or of any other locality if no such inhabitant of
the said locality is available or is willing to be a witness to the
search. Learned counsel for the appellant contends that non-
compliance of the requirements of law without ensuring presence
of independent witnesses, makes the prosecution case doubtful. In
absence of any independent witnesses, two police personnels,
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namely, Mahesh (PW-5) and Sureshchandra (not examined)
were made witness to the search. Non-production of
Sureshchandra, the witness of search and seizure by the
prosecution adds to doubt because the provision is specific under
Sub-Section (4) of Section 100 Cr. P.C., that if independent person
from locality is not available, then witness of other locality ought
to have been called for before affecting search and seizure to
inspire confidence on the exercise.
9. Learned counsel for the appellant contends that as per the
mandate of Section 102(3) Cr. P.C., every Police Officer is bound
to forthwith report seizure to the Magistrate having jurisdiction. In
the case on hand, no such reporting was made to the Magistrate.
10. Learned counsel for the appellant contends that there is
non-compliance of Notification No. F.1(3)FD/EX/85-I dated 16-10-
86, as power under sec. 42 of the NDPS Act was not exercised by
the Inspector of Police and Sub-Inspector of police, posted as
Station House Officer. Even if the power was exercised by Police
Officer other than the Authorised Officer, such officer has to
immediately handover the person arrested and the articles seized
to the concerned Police Inspector or S.H.O. of the Police station
concerned, which was not done. Evidently in the case on hand the
informant was Incharge of Police Station, as such, was not an
Authorized Officer under Section 42 of NDPS Act vide notification
above, therefore, the informant was expected to hand-over the
arrested accused as well as seized articles to the SHO concerned
but before doing that he himself entered into the exercise of
taking out samples without ensuring presence of the Magistrate or
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taking photographs of such exercise, therefore, the action of the
informant evidently is unauthorized under the law.
11. Learned counsel for the respondent contends that the
learned trial Judge has taken note of requirements of Section 52A
of the Narcotic Drugs and Psychotropic Substances Act, 1985 as
well as the other requirements while passing the impugned
judgment. No motive is alleged on the part of police for false
implication of the appellant. Only for non-joining of independent
witnesses at the time of search, that too due to the place being
isolated one and the location of the area being remote as well as
due to the fact that it was night time and no one could be found to
be made as an independent witness, the entire prosecution case
cannot be brushed aside. Learned counsel for the State
respondent further contends that the appellant, owner of the
tractor, was found on the tractor at the time of seizure, hence, the
material against the appellant goes to show his guilt.
12. There is no dispute that the mandate of Section 52A of
NDPS Act was not complied with in this case. On several occasions
the requirement of compliance of the mandate of Section 52A of
NDPS Act was considered by Hon'ble Supreme Court in the past.
Section 52A of the Narcotic Drugs and Psychotropic Substances
Act, 1985 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
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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 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."
13. 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 :-
"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.
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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."
14. 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 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
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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."
15. Yet in Bothilal Vs. Intelligence Officer Narcotics Control
Bureau reported in AIROnline 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."
16. In the case on hand, there is flagrant violation of the
mandate of the aforesaid provision. The entire exercise of search,
seizure and taking out of samples were made at the spot at the
time of search and without ensuring presence of the Magistrate
while allowing to draw representative samples. The prosecution
case is fit to be discarded for this lapse alone.
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17. None of the prosecution witnesses, who are party to the
Raiding Team have disclosed the names of the persons who did
not agree to be a witness of the search. This goes to show that in
a casual and unmindful manner police submitted report against
the appellant and asked him to face trial without following the
mandate of law.
18. If any independent witness would have been taken as
witness of seizure, then it would have been consistent with the
requirements of law and would have been in favour of
trustworthiness of the prosecution case. The law is well settled
that plurality of witness is not the requirement, however, the
prosecution is expected to prove each and every detail to dispel
any doubt appearing in the trustworthiness of the case. In
addition to the aforementioned infirmities, non-production of the
seized contraband before the court further adds to the doubt. If
the exercise under Section 52A of the NDPS Act would have been
properly been done, the same would have been primary evidence
under Sub-Section(4) of Section 52A of the NDPS Act and on non-
compliance of the same, the prosecution cases looses its
trustworthiness.
19. The learned trial Judge has failed to consider that the
prosecution failed to prove compliance of the mandate of Section
52A of the Narcotic Drugs and Psychotropic Substances Act, 1985
or the mandate of law under the Code of Criminal Procedure, 1973
as referred above.
20. In the result, conviction of the appellant is hereby set aside.
The appellant has already remained in jail for more than 3 years.
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Let the appellant be set free at once on execution of bond by the
appellant that in the event of challenge of this order he shall
appear before the appellate court.
21. This appeal stands allowed accordingly.
(BIRENDRA KUMAR),J
Sanjay/-
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