Rajasthan High Court - Jodhpur

Hanuman Ram vs State Of Rajasthan on 24 September, 2024

Author: Birendra Kumar

Bench: Birendra Kumar

[2024:RJ-JD:37849]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       AT JODHPUR
             S.B. Criminal Appeal (Sb) No. 498/2024

Hanuman Ram S/o Surja Ram, Aged About 32 Years, R/o
Ramdawas Kalla Police Station Pipar City District Jodhpur (Raj)
(Confined In District Jail Chittorgarh)
                                                                        ----Appellant
                                    Versus
State Of Rajasthan, Through Pp
                                                                  ----Respondent
                              Connected With
            S.B. Criminal Appeal (Sb) No. 1303/2022
1.                                         Basanti       Lal     S/o     Shri   Botlal
                                           Dhakad, Aged About 47 Years,
                                           R/o       Raghunathpura              Police
                                           Station Chhoti Sadri, District
                                           Pratapgarh.
2.                                         Prakash         S/o     Shri     Mangilal
                                           Dhakad, Aged About 38 Years,
                                           R/o Hadmatiyan Jagir, Police
                                           Station Chhoti Sadri, District
                                           Pratapgarh.
                                                                       ----Appellants
                                    Versus
State Of Rajasthan, Through Pp
                                                                  ----Respondent


For Appellant(s)          :     Mr. Bhagirath Ray Bishnoi
                                Mr. Bhushan Singh Charan
                                Mr. Birbal Ram Bishnoi
For Respondent(s)         :     Mr. Urja Ram Kalbi, PP
                                Mr. Surendra Bishnoi, PP



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment

Judgment Reserved on : 09.9.2024 Judgment Pronounced on : 24.9.2024

[2024:RJ-JD:37849] (2 of 10) [CRLAS-498/2024 & 1303/2022

1. The appellants and three others faced trial in Sessions Case

No.234/2014 (31/2011). The aforesaid trial arises out of FIR

No.599/2010 registered with Nimbahera Police Station vide

Exhibit-25. On 02.8.2022 judgment of conviction was passed

against appellant Basanti Lal, Prakash Dhakad, whereas by the

same judgment co-accused Madan Lal, Jagdish and Pappu Bishnoi

were acquitted. Since appellant Hanuman Ram was absconding at

the time of judgment dated 02.8.2022 and was apprehended later

on, judgment of conviction was recorded against him on

17.02.2024, which are under challenge herein. Appellants were

convicted for offence under Sections 8/15(c) & 8/25 of NDPS Act

and ten years' rigorous imprisonment alongwith a fine of

Rs.1,00,000/- was awarded for both the offences separately and

in default of payment of fine additional one year's rigorous

imprisonment was ordered.

2. Prosecution case as disclosed in the FIR is that on

06.10.2010 in early morning the informant got information from

the Police Informer that contrabands are being carried through the

referred route. At about 5:00 am near Bhagwanpura Road first a

suspicious motor-cycle was stopped and from that motor-cycle

appellant Prakash was apprehended, who informed that

co-accused Pappu who was the pillion rider fled away. The police

also saw someone fleeing from the said motor-cycle. Soon

thereafter a Mini-Truck bearing Regn. No.RJ-01G-3741 was

intercepted and from that truck 37 Jute bags and 03 plastic bags,

each containing suspected Contraband (Poppy Husk) was noticed.

Appellant-Hanuman Ram was driver of the said truck and

[2024:RJ-JD:37849] (3 of 10) [CRLAS-498/2024 & 1303/2022

appellant-Basanti Lal was occupying the side seat. Hanuman and

Basanti disclosed to the police that they are carrying Oil Cakes. In

fact, that was Doda Chura ("Afeem"). Thereafter the police asked

accused persons to get the items searched in presence of the

Magistrate but they agreed for search by the police. Accordingly,

search was made. Each of the bags were opened and 100 Grams

was taken out as sample. Thereafter all the samples were mixed

for forensic examination and the remaining were sealed.

3. During trial prosecution examined altogether 19 witnesses

and certain documents were marked as Exhibits.

4. Perused the materials on record.

5. PW-1 Chothmal & PW-2 Raees Mohd., were member of the

Raiding Team. They have deposed that nothing was recovered

from the motor-cycle or the motor-cycle rider. The samples were

taken from the seized contrabands, which were found in the truck.

PW-3 Dungar Ram has deposed that he had already sold the said

truck to appellant-Hanuman. PW-4 Shankar Lal, who was a

member of Raiding Team made identical statement to that of

PW-1 & PW-2. PW-5 Usman Ghani has deposed that he took the

samples for FSL on 11.10.2010 and got it received thereat on

12.10.2010. PW-6 Chandrakaran Singh and PW-7 Chandmal were

also the members of the police team and they have made

statement like PW-1, PW-2 & PW-4. PW-8 Mahipal is a witness of

compliance of Section 57 of NDPS Act. PW-9 Rajendra Singh has

deposed that he handed-over samples for FSL examination on

11.10.2010. PW-10 Ajay Raj Singh is the Malkhana Incharge,

[2024:RJ-JD:37849] (4 of 10) [CRLAS-498/2024 & 1303/2022

where the seized contraband was kept. PW-11 Veera Ram has

deposed that compliance of Section 42 of NDPS Act was made on

06.10.2010 itself. PW-12 Mohd. Rafique and PW-13 Parvez are

witnesses of seizure and they have deposed that nothing was

seized in their presence nor they had signed on any document.

The witnesses have turned hostile. PW-13 Parvez stated that since

he is a Welder, hence was doing work of the police, therefore, he

signed on the papers. PW-14 Mangilal S/o. Bhura Lal Ji, who is

witness on the site-plan has also turned hostile and has simply

stated that he had signed some papers placed by the police before

him. PW-15 Mangilal S/o. Udai Ram Ji has deposed that on

12.10.2010 appellant-Hanuman had taken the police to the field

from where the contraband was loaded on the vehicle, which was

near the 'Dhani' of acquitted accused Pappu Bishnoi. PW-16 Shiv

Lal is the Investigating Officer of the case. He has simply

supported the investigation done by him. PW-17 Pappa Ram and

PW-19 Irfan have been declared hostile by the prosecution. PW-18

Kapil Bharadiya has deposed that the motor-cycle was in the name

of appellant-Basanti Lal. He said that he could not identify Basanti

Lal. PW-20 Darshan Singh was Police Officer of the concerned

Police Station, who deposed about the compliance of requirement

of Section 52A on 16.1.2017.

6. Learned counsel for the appellant contends that there is non-

compliance of the mandate of law under Section 52A of the NDPS

Act which vitiates the whole trial. Learned counsel next contends

that non-support of factum of search and seizure by the witnesses

of seizure creates further doubt on the prosecution case. Coupled

[2024:RJ-JD:37849] (5 of 10) [CRLAS-498/2024 & 1303/2022

with the aforesaid infirmities, the action of the informant in mixing

the samples together made it doubtful that each of the bag were

containing contraband. If samples taken would have separately

been sent for FSL examination, it could have better ascertained

that each of the bag was containing contraband.

7. Learned counsel for the respondent supports the judgment of

conviction, however, could not explain the aforesaid infirmities in

the prosecution case, which creates doubt on the prosecution

version.

8. There is no dispute that the mandate of Section 52A of NDPS

Act was not complied with at the appropriate stage 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 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

[2024:RJ-JD:37849] (6 of 10) [CRLAS-498/2024 & 1303/2022

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."

9. 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 :-

[2024:RJ-JD:37849] (7 of 10) [CRLAS-498/2024 & 1303/2022

"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.

10. 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

[2024:RJ-JD:37849] (8 of 10) [CRLAS-498/2024 & 1303/2022

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."

[2024:RJ-JD:37849] (9 of 10) [CRLAS-498/2024 & 1303/2022

11. 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."

12. Compliance of the aforesaid is evidently mandatory because

the report prepared after compliance of the provisions 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 the

accused. On failure to comply requirement of law vitiates the

prosecution case. It is not a mere formality to ask the accused

whether he wants compliance of the aforesaid mandates in

presence of a Magistrate. Law requires that the Authority making

search and seizure and taking out samples is bound to ensure

presence of Magistrate before entering into the exercise alongwith

photography.