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 (Downloaded on 24/09/2024 at 09:06:57 PM) [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 (Downloaded on 24/09/2024 at 09:06:57 PM) [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, (Downloaded on 24/09/2024 at 09:06:57 PM) [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 (Downloaded on 24/09/2024 at 09:06:57 PM) [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 (Downloaded on 24/09/2024 at 09:06:57 PM) [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 :-
(Downloaded on 24/09/2024 at 09:06:57 PM)
[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 (Downloaded on 24/09/2024 at 09:06:57 PM) [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." (Downloaded on 24/09/2024 at 09:06:57 PM) [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.
The witnesses of seizure have not supported that the seizure was made in their presence. This adds to the doubt. Further mixing of the samples prior to sending for FSL examination (Downloaded on 24/09/2024 at 09:06:57 PM) [2024:RJ-JD:37849] (10 of 10) [CRLAS-498/2024 & 1303/2022 made difficult to ascertain that each bag was containing contraband. Mixed items could not have been segregated to come to the conclusion that each one of the bag was containing contraband.
13. For the aforesaid infirmities in the prosecution case, which was not considered by learned trial Judge, the judgments of conviction dated 02.08.2022 and 17.02.2024 stands hereby set aside and these appeals are allowed. The appellants in jail be set free at once on execution of bond that in the event of challenge of this judgment they will appear and co-operate before the appellate court.
14. These appeal stands allowed accordingly.
(BIRENDRA KUMAR),J Sanjay/-
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