Rajasthan High Court - Jodhpur
Surendra Kumar vs State Of Rajasthan (2024:Rj-Jd:39604) on 24 September, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:39604]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal (Sb) No.1483/2023
Surendra Kumar S/o Shri Mahaveer Prasad, Aged About 30
Years, R/o Ward No. 13, Bhambhuwali Dhani, Police Station
Sadar Hanumangarh, Dist. Hanumangarh. (Presently Lodged At
Central Jail, Bikaner)
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Mangi Lal Vishnoi
For Respondent(s) : Mr. Surendra Bishnoi, PP
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
Reserved on :- 09/09/2024
Pronounced on :- 24/09/2024
1. The sole appellant Surendra Kumar has challenged his
conviction for the offence under Section 8/22 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 by the impugned
judgment dated 10.07.2023 passed by the learned Special Judge,
NDPS Act Cases, Hanumangarh in Sessions Case No. 21/2020
(CIS No. 21/2020). The learned trial Judge has sentenced the
appellant with 10 years' rigorous imprisonment plus fine of Rs.1
Lac and in default of payment of fine, 6 months' rigorous
imprisonment has been ordered. By the same judgment, co-
accused Ashok Kumar was acquitted giving benefit of doubt.
2. In brief, the prosecution case is that on 13.1.2020 at about
10:39 am, PW-3 Bishan Sahay, SHO of Goluwala Police Station,
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Hanumangarh alongwith other constables was on patrolling duty.
While patrolling, PW-3 Bishan Sahay saw a motor-cycle rider
carrying a bag consisting of white powder on the fuel tank of the
TVS motorcycle. On seeing the police, the rider turned his
motorcycle in the opposite direction and started fleeing on his
motorcycle bearing registration number RJ 31 SP 0531, however,
he was caught by the police. The appellant was the rider on the
motor-cycle.
3. From the said bag, Tramadol Hydrocholoride Prolonged -
release Tablets IP TRICORE - SR were found. The total weight of
the Tablets was 704 Grams. The police team took samples from
the seized Tablets and the rest were sealed separately. For the
incident aforesaid, FIR No.14/2020 (Exhibit P4) for offences under
Sections 8, 22 and 29 NDPS Act was registered with Goluwala
Police Station, District Hanumangarh.
4. During trial prosecution examined altogether 14 witnesses
and several documents were exhibited; relevant whereof would be
referred hereinafter.
5. The defence examined one witness, namely, DW-1 Kuldeep
Singh. The defence version is that in fact a police personnel came
on a motorcycle and made DW-1 Kuldeep Singh, who was working
on a canal, to call on a phone number through his own mobile
phone. It was in fact appellant's phone number and as a result of
being called, the appellant arrived near the canal track empty
handed. Also, the police did not procure any independent witness
at the site of search, instead planted a false case against the
appellant by making one of the police personnel as a search
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witness. Relying on the evidence of prosecution witnesses and the
documents, the learned trial Judge has recorded the conviction, as
above.
6. 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 entire
exercise was made. This would be evident from the FIR as well as
testimony of PW-3, 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.
7. 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. The exercise is not a mere formality, but to ensure and
inspire confidence in the exercise of search and seizure by the
police. Learned counsel for the appellant contends that the place
of search was such that assistance of some passers-by could have
been taken, as independent witnesses at the site of search,
therefore, non-compliance of the requirements of law without
mentioning as to who were the local inhabitants who were
[2024:RJ-JD:39604] (4 of 11) [CRLAS-1483/2023]
contacted and had refused to be a witness to the search, makes
the prosecution case doubtful. In absence of any independent
witnesses, two police personnels namely, Mahendra Kumar (PW-7)
and Chandravijay Shekhar (PW-11) were made witness to the
search, which tells upon the prosecution case. Learned counsel for
the appellant submits that the prosecution case is that constable
Kripalaram was sent to bring independent and respectable person
of the locality to witness the search, but Kripalaram was not
produced as prosecution witness.
8. Learned counsel for the appellant contends that as per the
mandate of Section 102(3) Cr.P.C., every Police Office is bound to
forthwith report seizure to the Magistrate having jurisdiction. In
the case on hand, no such reporting was made to the Magistrate.
9. 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, the entire prosecution case
cannot be brushed aside.
10. 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:-
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"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 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.
[2024:RJ-JD:39604] (6 of 11) [CRLAS-1483/2023]
(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."
11. 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.
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-
[2024:RJ-JD:39604] (7 of 11) [CRLAS-1483/2023]
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."
12. 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
[2024:RJ-JD:39604] (8 of 11) [CRLAS-1483/2023]
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."
13. 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."
[2024:RJ-JD:39604] (9 of 11) [CRLAS-1483/2023]
14. In the case on hand, there is flagrant violation of the
mandate of the aforesaid provision. The seized articles were not
sent to the Police Station or the Officer empowered under Section
53 NDPS Act for preparation of inventory. After compliance of the
aforesaid requirement, application should have been made to the
Magistrate for certifying correctness of the inventory so prepared.
15. In the case on hand, on 13.01.2020 itself inventory was
prepared at the time of seizure without presence of the
Magistrate. No photographs of the aforesaid exercise was taken.
Samples were taken on the spot itself without ensuring presence
of the Magistrate. The Samples were sent for forensic examination
to FSL on 14.01.2020, thereafter, the investigator realized that
law has not been complied or the investigator was acting in casual
manner that is why application for obtaining services of the
Magistrate (Ex.P/46) was made for the first time on 06.04.2021.
PW-6 - the Magistrate concerned has deposed that again the
sealed articles were opened before him on 18.11.2021 after more
than one and half year and the inventory was prepared as well as
other exercise was done vide report dated 18.11.2021. Entire this
subsequent exercise vitiated the prosecution case for not acting
consistent with the requirements of Sub-section (2) of Section 52A
NDPS Act.
16. Evidently the Police Officer who allegedly made search and
seizure has violated the aforesaid mandate of law creating doubt
on the prosecution version. The entire exercise of search,
preparation of inventory and taking out of samples were made at
the spot at the time of search and without ensuring presence of
[2024:RJ-JD:39604] (10 of 11) [CRLAS-1483/2023]
the Magistrate while allowing to draw representative samples. The
prosecution case is fit to be discarded for this lapse alone.
17. Non-examination of independent witnesses of seizure is not
fatal in each and every case especially when the prosecution case
is otherwise wholly reliable. However, when the prosecutor
appears to be acting in flagrant violation of mandate of law, the
requirement assumes importance. Moreover, no service of
independent witness was taken, rather, the raiding party who were
members of the prosecution team allegedly witnessed the search
and seizure. Constable Kripalaram who was sent by the informant
PW-3 to bring independent witnesses of locality to witness search
was not produced as prosecution witness to substantiate that in
fact the police had acted to ensure compliance of the provisions of
Section 100 (4) CrPC.
18. None of the prosecution witnesses, who are party to the
Raiding Team have stated that any of the independent witnesses
were contacted at the time of search or disclosed the names of the
persons who did not agree to be a witness of the search. Only the
police officials who are party to the search are witnesses of search
and seizure.
19. 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.
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20. 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.
21. In the result, conviction of the appellant is hereby set aside.
The appellant is in jail. Let the appellant be set free at once on
execution of bond by the appellant that in the event of challenge
of this judgment he shall appear before the appellate court.
22. This appeal stands allowed accordingly.
(BIRENDRA KUMAR),J
65-Nitin/-
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