Rajasthan High Court - Jodhpur

Hariram Bishnoi vs Union Of India on 26 September, 2024

Author: Birendra Kumar

Bench: Birendra Kumar

[2024:RJ-JD:39816]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Criminal Appeal No. 1142/2024

Hariram Bishnoi S/o Shri Mohanram Bishnoi, Aged About 47
Years, R/o Village Jajiwal Kla, Bishnoiyan, Dist. Jodhpur (At
Present Lodged In Central Jail, Jodhpur)
                                                                      ----Appellant
                                       Versus
Union Of India, Through NCB, Regional Unit Jodhpur.
                                                                    ----Respondent


For Appellant (s)            :     Mr. Mangilal Vishnoi.
For Respondent(s)            :     Mr. Dhanraj Vaishnav, PP.



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment Judgement Reserved on : 09.09.2024

Judgement Pronounced on : 26.09.2024

1. The sole appellant Hariram Bishnoi has challenged his

conviction by judgment dated 30.7.2024 passed in Sessions Case

No. 8/2023 arising out of Narcotics Control Bureau Case No.

269/2014. The learned trial Judge has found the appellant guilty

for offence under Section 8(c) read with Section 18 of NDPS Act

and has awarded 6 years rigorous imprisonment alongwith fine of

Rs.50,000/-. In default of payment of fine 1 month rigorous

imprisonment has been ordered.

2. The prosecution case is that PW.4 Hardevaram got reliable

information through informer that a person is carrying opium and

he might be apprehended near Banad Tiraha. PW.4 reported the

matter to the Senior Officer PW.1 Bishanlal Nayak. Bishanlal Lal

Nayak constituted a team headed by PW.4. On 9.2.2012 at about

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15:00 hours, the team reached near Banad Tiraha and noticed

that a man carrying a handbag was talking with the truck driver

near Maharaja Hotel, on suspicion the man was intercepted and he

disclosed his name as the appellant. From possession of the

appellant 2 kg of opium was seized. There was no explanation

with the appellant for carrying the opium, therefore, appellant was

taken into custody. Two samples were taken out from the seized

contraband at the Narcotics Control Bureau office because at the

spot the crowd had assembled, which was creating hindrance.

After investigation, charge sheet was submitted.

3. Perused the oral and documentary evidences on the record.

4. Learned counsel for the appellant submits that there is non

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

as the seizure and taking out the samples were not done in

presence of the Magistrate as required by the aforesaid law nor

the photography of the exercise was done. Learned counsel next

contends that the prosecution examined two seizure witnesses

PW.2 Narayan Lal and PW.3 Shrawan Kumar. PW.2 deposed that

nothing was seized in his presence and he was declared hostile by

the prosecution. However, PW.3 is not a hostile witness and in the

cross-examination stated that no contraband was recovered in his

presence nor he could identify the appellant. The witness further

disclosed that he is a cleaner in the office of Narcotics Control

Bureau, therefore, the authorities of Narcotics Control Bureau got

his signature in the office itself and the signature was obtained

without reading out the document. Learned counsel contends that

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the prosecution has relied on the testimony of PW.3 Shrawan

Kumar, therefore, cannot take any contrary stand to the aforesaid

statement of PW.3 Shrawan Kumar. Learned counsel next

contends that none of the prosecution witnesses have stated that

the seized narcotics was produced before the Court as material

evidence.

5. Learned counsel for the respondent contends that there is

maximum compliance of the requirement of law including

compliance of Section 42 of the NDPS Act. The appellant has not

alleged any bias on the part of Narcotics Control Bureau

authorities. Even compliance of Section 52-A was made, though

on 27.3.2015, much after sending the samples to FSL examination

which would be evident from the deposition of the Magistrate PW.9

Shalini Maharshi.

6. PW.1 Bishanlal Nayak is Regional Director of Narcotic Control

Bureau as soon as he got information from PW.4 he immediately

constituted a team headed by PW.4. PW.2 and PW.3 are witnesses

of the seizure already discussed above. PW.4 Hardeva Ram is

informant of the case and the Officer who had made seizure. From

his deposition, it is specific that at the time of seizure samples

were taken out, no photography of the aforesaid exercise was

done nor presence of the Magistrate was ensured. PW.5 Yogesh

Kumar Sharma was a member of the team. In the cross-

examination, has admitted that he did not ask the informant to

take services of the Magistrate. PW.6 Rajesh Solanki had taken the

samples for FSL Examination. On 10.2.2012 PW.7 Devanand Jabti

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was a team member, he has supported the search and seizure.

PW.8 Vijay Kumar is Investigating Officer of the case and PW.9

Shalini Maharshi is the Magistrate before whom the inventory was

prepared after 3 years of the incident on 27.3.2015. It is evident

that none of the witnesses have deposed that the seized material

were produced before the Court.

In Vijay Jain Vs. State of M.P. reported in (2013) 14 SCC

527 as well as in Jitendra & Ors. Vs. State of M.P. vide

Criminal Appeal No. 1318-1319/2002 decided on 18.09.2003,

the Hon'ble Supreme Court held that when the seized contraband

were not produced before the court during trial, it was serious

lacuna on the part of prosecution to doubt the prosecution

version.

7. The issue of requirement to comply the provision of Section

52A of NDPS Act was considered by the Hon'ble Supreme Court on

several occasions. The provision of Section 52-A is being

reproduced below:-

"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

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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."

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

9. Prior to that in Union of India Vs. Mohanlal & Anr.,

reported in AIROnline 2016 SC 770 on consideration of the

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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, 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).

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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."

10. 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."

11. It is evident that sub Section 2 of Section 52-A requires that

once the seizure is made it has to be forwarded to the officer

incharge of the nearest police station or to the officer empowered

under Section 53 of the Act. Thereafter, inventory of such narcotic

drugs would be prepared with detailed disclosure to be mentioned

in the inventory. There is requirement of services of Magistrate in

whose presence, the inventory would be prepared and samples

would be taken out. The law further requires of taking

photographs of such exercise. In the case on hand, the

prosecution has not done it immediately, rather after 3 years

which vitiates the entire exercise of investigation and trial.

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12. It is true that only for non support of the prosecution case by

the independent witnesses of the seizure would not be a ground to

discard other reliable material produced by the prosecution.

However, coupled with the aforesaid infirmity of non compliance of

the provisions of Section 52-A of the Act, non support of seizure

fortifies the doubt. In the case on hand, one of the prosecution

witnesses PW.3 has been relied upon by the prosecution, he is not

a hostile witness. Hence, any material coming in his evidence,

which supports the defence would be taken in favour of the

accused. PW.3 has not supported that any seizure was made in his

presence, rather he has given plausible explanation for taking of

his signature on the seizure papers without reading it out to him.

Another witness of the seizure is hostile witness.

13. Thus three serious lacunas are evident in the prosecution

case:-

(i) The prosecution is vitiated due to non compliance of

mandate of Section 52A of the NDPS Act.

(ii) One of the prosecution witness PW.3, who is not a hostile

witness has stated that nothing was seized in his presence nor his

signature was obtained after reading over the document. The

defence can take advantage of this statement of the prosecution

witness which can go in favour of the accused to doubt the

prosecution case.

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(iii) The seized material were not produced before the Court as

material evidence, hence, the same is serious lacuna in view of

the Hon'ble Supreme Court's judgment supra.

14. In the result, judgment of conviction against the appellant

stands hereby set aside and this criminal appeal stands allowed.

15. Let the appellant be set free at once on execution of a bond

that in the event of challenge of this judgment, he shall appear

before the appellate court and cooperate with the proceeding.

16. The suspension of sentence application no. 930/2024 stands

disposed of.

(BIRENDRA KUMAR),J 262- supll. sumer/-