Rajasthan High Court - Jodhpur

Dinesh Diniya Lala Ram vs State (2024:Rj-Jd:39621) on 24 September, 2024

Author: Birendra Kumar

Bench: Birendra Kumar

[2024:RJ-JD:39621]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Appeal (Sb) No. 654/2024

Kewal Singh S/o Sh. Bakhtavar Singh, Aged About 60 Years, B/c
Rajput, R/o Bhurtiya, Police Station Baytu, District Barmer.
Presently Naharsingh Ki Dhani, Police Station Sadar, Barmer. (At
Present Lodged In Central Jail, Barmer)
                                                                   ----Appellant
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent
                               Connected With
               S.B. Criminal Appeal (Sb) No. 1414/2019
Dinesh @ Diniya @ Lala Ram S/o Shri Dungara Ram, Aged About
32 Years, By Caste Jat, R/o Village Bhurtiya, Baitu Police Station,
District Barmer. (Lodged In District Jail Barmer).
                                                                   ----Appellant
                                    Versus
State, Through P.p.
                                                                 ----Respondent


For Appellant(s)           :    Mr. Vijay Raj Bishnoi
                                Mr. Bhanwar Lal Dudy
For Respondent(s)          :    Mr. Dhan Raj Vaishnav, PP



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

24/09/2024

1. Heard the parties.

2. Both the appellants faced trial in Criminal Case No.200/2016

arising out of FIR No.03/2008 registered at Baytu Police Station

for offence under Section 8/15 NDPS Act. Since appellant - Kewal

Singh was absconding on the date of judgment, another appellant

Dinesh @ Diniya @ Lala Ram was convicted by judgment dated

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26.09.2019 and was awarded with ten years rigorous

imprisonment and fine of Rs.1,00,000/- in default of payment of

fine, one year simple imprisonment was ordered. Later on Kewal

Singh was also apprehended and he was convicted by the

impugned judgment dated 19.01.2024 and same sentence was

awarded against him as well.

2. The prosecution case as disclosed in the statement of PW-10

Manish Charan is that on 15.01.2008, he was posted as Officer In-

Charge of Baytu Police Station. He along with police party had

intercepted a scorpio vehicle bearing Registration No. RJ-14-U-

4559, of which Mr. Mool Singh was driver (Mool Singh is reported

dead). Appellant Kewal Singh was sitting beside the driver and

appellant Dinesh was seen fleeing from the place of interception of

the vehicle. From the said vehicle, seven bags of doda post were

recovered. They had no documents in the nature of license, hence,

they were arrested. The total weight of doda post was 179 Kgs.

PW-10 took out 500 Grms. from each of the bags and sent the

same for FSL examination on 17.01.2008. After about seven years

of the incident, compliance of Section 52A of NDPS Act was made;

as order of the Magistrate for preparation of inventory etc. was

obtained on 18.04.2017. Inventory was prepared in the presence

of the Magistrate on 18.06.2017. Samples were taken out again

on the same day.

3. Learned counsel for the appellants submits that the

prosecution examined fifteen witnesses. Most of them were of the

police team, which had conducted the raid and seizure and two of

them were witnesses of the seizure.

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Learned counsel contends that there is non-compliance of

mandates of Section 52 A of the NDPS Act inasmuch as the bags

allegedly containing doda post were opened without ensuring

presence of the Magistrate and samples were taken out. No

photographs were taken of the aforesaid exercise. The non-

compliance creates doubts on the prosecution version. The

witness of search PW-2 has stated that no samples were taken in

his presence, whereas PW-10 says that samples were taken in

presence of the witness. Even if PW-10 is believed, then also it

would not make compliance of Section 52 A of the NDPS Act.

4. Learned counsel for the respondent - State contends that

the prosecution witnesses have proved the factum of search and

seizure. There is no material to suggest that the police had any

motive to falsely implicate the appellants. Only for trivial lapse in

compliance of law, which was later on complied, the prosecution

case cannot be disbelieved.

5. 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,

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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.

(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

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certified by the Magistrate, as primary evidence in respect of such offence."

6. 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- 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

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approval either for certifying an inventory or for a photograph taken apart from list of samples drawn."

7. 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 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,

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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."

8. 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."

9. In the case on hand, there is apparent non-compliance of the

mandates of law. The compliance is for some purpose and not for

casual non-compliance of the same, because Sub-section (4) of

Section 52A NDPS Act provides that the exercise done in presence

of the Magistrate would be taken as primary documentary

evidence during trial. In such type of cases, the prosecution is

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bound to prove beyond reasonable doubt the factum of seizure of

contraband, for which the legislature requires photographs to be

taken to ensure trustworthiness of the exercise, which has not

been done in this case. The samples were not taken out in the

presence of the Magistrate, therefore, it is doubtful that the