Rajasthan High Court - Jodhpur

Premkumar vs State (2024:Rj-Jd:40309) on 27 September, 2024

Author: Birendra Kumar

Bench: Birendra Kumar

[2024:RJ-JD:40309]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR

                     S.B. Criminal Appeal No. 89/2017


Premkumar S/o Harbanslal, Age 43, R/o Ward No.4, Ravi Chowk,
Purani Aabadi, Sriganganagar, Rajasthan (At present lodged in
Central Jail, Sriganganagar)

                                                                     ----Appellant
                                      Versus
State of Rajasthan
                                                                   ----Respondent


For Appellant(s)            :     Ms. Anita Gehlot
For Respondent(s)           :     Mr. Urja Ram Kalbi, PP



            HON'BLE MR. JUSTICE BIRENDRA KUMAR

Order

27/09/2024

1. Heard the parties.

2. The sole appellant has challenged his conviction in Sessions

Case No.46/2011, arising out of FIR No.212/2011 registered with

Police Station Purani Aabadi, Bikaner for offences under Section

8/21 and 8/22 NDPS Act.

3. By the impugned judgment dated 29.11.2016, the learned

trial judge has awarded ten years' rigorous imprisonment along

with fine of Rs.1,00,000/- for offence under Section 8/21 NDPS

Act and in default of payment of fine to further undergo one year's

rigorous imprisonment. Five years' rigorous imprisonment along

with fine of Rs.50,000/- has been awarded for offence under

Section 8/22 NDPS Act and in default of payment of fine to further

undergo six months' rigorous imprisonment.

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4. Ms. Anita Gehlot, learned amicus curiae submits that there is

non-compliance of the mandate of Section 52A of the NDPS Act

inasmuch as neither service of the Magistrate was ensured before

taking out samples from the seized contraband at the spot nor

photographs were taken to ensure credibility on the part of

search and seizure.

Learned counsel next contends that PW-1 Rambahadur and

PW-3 Vikram Singh, who are witnesses of the search and seizure

have turned hostile and they have not supported the search and

seizure. Moreover, the seized contraband was not produced during

trial before the court. Conjoint effect of the aforesaid lapses would

be rejection of the trustworthiness of the prosecution case.

5. Learned counsel for the respondent - State contends that

during trial, prosecution has examined altogether 13 witnesses

and these witnesses have consistently supported each and every

minute details of the exercise including sending the seized

substance for forensic examination and obtaining the report.

Learned counsel contends that the appellant has got criminal

antecedent. He submits that there is no motive on the part of the

police to falsely implicate the appellant.

6. PW-1 Rambahadur has stated that nothing was recovered

from the appellant in his presence. PW-2 Rajpal was in-charge of

the Police Malkhana on 25.07.2011. He has supported the fact

that seized articles were kept in Malkhana. Malkhana register was

also produced for perusal of the court. PW-3 Vikram Singh has

deposed that nothing was recovered from the possession of the

appellant before him. PW-4 Sukha Singh was a constable and he

deposed that he had taken out the samples for FSL examination

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on 26.07.2011. PW-5 Narayan Singh deposed that he had

inspected the place of recovery at the instance of Vikram Singh.

As noted above, Vikram Singh has not supported this fact. PW-6

Dharamveer son of Mohar Singh was jeep driver and constable at

the time search was made by the police team and he has

supported the prosecution case. PW-7 Dharamveer Singh son of

Madho Singh is another constable of the police, who was also a

member of the team, which made the search and seizure. PW-8

Rakesh Kumar was also a member of the police team which made

the search and recovery of the contraband. This witness deposed

that the samples were taken out at the place of incident and

separately sealed. The witnesses have admitted that the local

inhabitants though available were not made witness to the search.

PW-9 Kailash Dan was SHO of the police station concerned and

was a member of the search team. He has also admitted that

samples were taken out at the spot for forensic examination.

7. The record reveals that twice the seized materials were

placed before the FSL for re-examination. There is no material to

substantiate about the sanctity of the seized substance during

movement from the FSL to police station and again back for re-

examination. PW-10 Rampal was posted in the SP office and he

had obtained permission of the concerned SP for forensic

examination of the seized narcotics. PW-11 Inder Vyas had

prepared forwarding letter for FSL examination. PW-12 Avdhesh

Sandhu has sent the samples for FSL examination through Inder

Vyas. PW-13 Roopram was Malkhana in-charge, who handed over

the samples to Inder Vyas for carrying it to FSL lab.

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8. From the aforesaid discussion, it is evident that compliance

of mandate of Section 52A NDPS Act was not made. The witnesses

of the search have not supported the prosecution case and the

seized contraband was not produced before the court.

09. 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.

10. The issue of requirement to comply with 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 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

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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."

11. The aforesaid provision was considered by Hon'ble Supreme

Court in Mangilal Vs. The State of Madhya pradesh reported in

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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.

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 :-

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"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).

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

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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."

14. Thus, it is evident that the prosecution case suffers from

three material discrepancies/lapses, which create doubt on

trustworthiness of the prosecution case are as under :-