Madras High Court
Selvam vs State on 14 March, 2024
CRL.A(MD).No.587 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 13.12.2023
Pronounced On : 14.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).No. 587 of 2019
1. Selvam
2. Palpandi ... Appellants/Accused No.1 & 2
Vs.
State, rep. by
The Inspector of Police,
NIB CID,
Theni.
(Crime No.12 of 2018) ... Respondent/Complainant
Prayer : This Criminal Appeal has been filed under Section 374 of Cr.P.C.,
to call for the records in C.C.No.172 of 2018 dated 30.09.2019 on the file
of the Learned Principal Special Court for EC and NDPS Act Cases,
Madurai and set aside the same.
For Appellants : Mr.R.Pon Karthikeyan,
Legal-Aid-Counsel
For Respondent : Mr.T.Senthil Kumar,
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https://www.mhc.tn.gov.in/judis
CRL.A(MD).No.587 of 2019
Additional Public Prosecutor
JUDGMENT
The appellants, who are the Accused No.1 and 2 in C.C.No.172 of 2018 on the file of the Learned Principal Special Court for EC and NDPS Act Cases, Madurai, filed this criminal appeal challenging the conviction and sentence imposed against them by the Learned Principal Special Court for EC and NDPS Act Cases, Madurai. The learned trial Judge has passed the impugned judgment, dated 30.09.2019 and found the appellants guilty, convicted and sentenced them as detailed below:
Sl.No. Convicted under Sentence of
Section Imprisonment/
fine imposed
A1 Section 8(c) r/w 20(b) Rigorous Imprisonment
(ii)(C) of NDPS Act r/w for 10 years and to pay
34 of IPC fine of Rs.1,00,000/- in
default to undergo SI
for six months
A2 Section 8(c) r/w 20(b) Rigorous Imprisonment
(ii)(C) of NDPS Act r/w for 10 years and to pay
34 of IPC fine of Rs.1,00,000/- in
default to undergo SI
for six months
2.The brief facts of the case:
When P.W.3 was working as the Inspector of Police, NIB CID, 2/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 Theni, on 21.05.2018, he received a secret information relating to the transportation of the large quantity of the Ganja in the car bearing registration No.TN 22 AV 7533 from the informer and he reduced the same in writing and sent the same to his Superior officer/P.W.4 through phone and obtained permission. The recorded information was marked as Ex.P.8. As per the instructions of his Superior Officer, P.W.3 along with P.W.1 and other police officials went to the place near Jeyamangalam Diversion on Batlakuntu-Theni Bye Pass road along with necessary equipment and the informer identified the vehicle and the same was intercepted by P.W.3 and his team. The first accused was driving the car and the second accused was sitting on left side. Thereafter, P.W.3 introduced himself and after complying the procedure under Section 50 of NDPS Act, he made a search in the car. The first accused identified two gunny bags and the second accused identified another bag. On opening the same, P.W.3 found Ganja in each bag. Thereafter, P.W.3 and his team measured the quantity of the Ganja in each bags. In the two bags identified by A1, 25 kgs of contraband, ganja was found. A2 identified the bag containing 20 kgs of contraband. In all the three bags, samples were taken and the remaining contraband was properly packed and sealed and the same was recovered under the Athatchi Ex.P.2 and Ex.P.3. A1 and A2 were arrested and they gave confession. 3/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 Thereafter, both the accused were brought to the police station and P.W.3 prepared the detailed report under Section 57 of the NDPS Act and registered a case in Crime No.12 of 2018 for the offence under Section 8(C) r/w 20(b)(ii)(B) of NDPS Act r/w 34 of IPC and he produced the accused for judicial remand along with contraband. The same was submitted to P.W.4 for further investigation. Thereafter, P.W.4 conducted further investigation and filed the final report before the Court after obtaining the chemical analysis report. The same was taken on file in C.C.No.172 of 2018 by the learned Principal Special Court for EC and NDPS Act Cases, Madurai. The learned trial Judge issued summons to the accused and after their appearance, served the copies under Section 207 Cr.P.C. Thereafter, he framed necessary charges and questioned the accused. The accused pleaded not guilty and hence they stood for trial.
3.To prove the case, the prosecution examined P.W.1 to P.W.4 and exhibited 13 documents as Ex.P.1 to Ex.P.13 and produced 5 material objects as M.O.1 to M.O.5. The learned trial Judge thereafter questioned the accused under Section 313 Cr.P.C proceedings by putting incriminating materials available against them. The accused denied the same as false and thereafter, the case was posted for defence evidence. The appellants 4/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 neither produced any documents nor examined any witnesses on their side.
4.The learned trial Judge, on considering the evidence of witnesses, convicted and sentenced the appellants for the offence under Section 8(c) r/w 20(b)(ii)(C) of NDPS Act r/w 34 of IPC. Aggrieved over the same, the appellants preferred this appeal.
5.This case was posted for the final disposal in the monthly list. Thereafter, it came in the regular list from 04.10.2020 onwards. The learned counsel on record sought repeated adjournments and thereafter, on 06.12.2023, he reported no instructions and also filed withdrawal of appearance of memo. Hence, this Court appointed Mr.R.Ponkarthikeyan, as legal aid counsel to argue the matter on behalf of the appellants. The said learned counsel is having experience of the 13 years on the criminal side and more particularly in the NDPS cases. Considering his experience, this Court appointed him as legal aid counsel. The legal aid counsel was also served with all the relevant documents. On perusal of the relevant documents, the learned legal aid counsel on behalf of the appellants made the following submissions:-
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https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 5.1.The learned trial judge failed to consider that there was no proper compliance of Section 42 of the NDPS Act. According to the prosecution, P.W.3 received secret information on 21.05.2018 at 6.40 a.m. The same was informed to the higher official namely P.W.4 through telephone and he also obtained permission. The said information was sent to P.W.4 through a constable. But the same was not properly proved before Court. Hence, the non compliance of Section 42 of NDPS act vitiated the entire prosecution case.
5.2.The learned legal aid counsel further submitted that neither P.W.1 nor P.W.3 properly deposed about the taking of the samples and sealing of the sample as well as the remaining contraband. They simply stated that they measured the contraband. They never stated that who measured the said contraband. Hence, in the said circumstances, there was no clear evidence adduced for the recovery of the contraband.
5.3.The learned legal aid counsel also submitted that the owner of the car/P.W.2 did not support the prosecution case. Hence, the ownership of the vehicle was not properly proved and hence, the foundational facts of the case that the car was taken from the custody of the P.W.2 for the illegal 6/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 transportation of the Ganja was not proved.
5.4.The learned legal aid counsel further submitted that the prosecution has not complied with Section 52(A) of the NDPS Act. He placed reliance on the judgment of the Honourable Supreme Court in Mangilal Vs. The State of Madhya Pradesh reported in 2023 LiveLaw (SC) 549 and Union of India Vs. Mohanlal and Another reported in 2016 (3) SCC 379 and argued that the non compliance of 52(A) of the NDPS Act vitiated the conviction passed against the appellant by the learned trial Judge.
5.5.According to the appellants' counsel, there was a delay in producing the samples before the special Court. Further, the recovered contraband was not clearly spoken about by the P.Ws.1 and 3. Usually the Form 95 was produced and marked by the prosecution to prove the production of the contraband before the concerned Court. In this case, they neither produced Form 95 nor produced any other documents to show the production of the contraband before the Court below at the time of the remand of the accused. Hence, he seeks for acquittal. 7/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 5.6.The learned legal aid counsel further submitted that Exs.P.2 and P3/Athatchi prepared was attested by one Chinnaswamy, who was not examined by the prosecution. Hence, the non examination of the independent witnesses is fatal to the prosecution.
5.7.He further submitted that P.W.3 submitted the joint consent letter to comply Section 50 of the NDPS Act. The said joint consent letter is not admissible and hence, there was no compliance of Section 50 of the NDPS Act.
5.8.Considering the above aspects, the learned legal aid counsel placed reliance on the judgment of the Honourable Supreme Court in the case of Noor Aga Vs. State of Punjab reported in 2008 16 SCC 417 and argued that as per the dictum laid down by the Hon'ble Supreme Court, the prosecution must prove all the ingredients beyond reasonable doubt before taking the shelter under the presumption clause of the NDPS Act. He also relied on the above said judgment to show that there was non compliance of the procedure stated for recovery of the contraband. 8/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019
6.The learned Additional Public Prosecutor appearing on behalf of the first respondent submitted that in this case the recovery was made from the car dicky. Hence, the compliance of Section 50 of NDPS Act, is not necessary. Even otherwise, the compliance made under Section 50 of the NDPS Act, by making the joint consent letter cannot be found fault. The Honourable Supreme Court while interpreting the provisions of Section 50 on various occasions has held that when the recovery is not made from the body of the accused, the requirement of Section 50 of the NDPS Act is not necessary. Therefore, in this case, since recovery was made from the car, the defect in the preparation of the consent letter to comply the requirement of Section 50 of NDPS Act, is not fatal.
6.1.The learned Additional Public Prosecutor further submitted that P.W.3, after receiving the information properly informed to his superior/P.W.4 and also obtained permission from him and he clearly deposed about the the same. Apart from that, Ex.P.8 clearly demonstrated that the same was informed to the officers. The said Ex.P.8 is also sent to the trial Court on the same day at the time of remand. Hence, the compliance of the Section 42 of the NDPS Act is clearly proved. Apart 9/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 from that, the learned Additional Public Prosecutor submitted that the report under Section 57 of the NDPS Act, is also sent to P.W.4 and he also accepted the same and continued the investigation. The report of P.W.2 under Section 57 of NDPS Act, Ex.P.9, reached the same day and he also received the same at the time of remand. In all circumstances, the prosecution proved the compliance of section 42 and 57 of the NDPS Act. The P.Ws.1 and 2 categorically deposed in a cogent manner that they seized the contraband and measured the properties and also took the samples and the same was properly sealed. When the evidences are clear in nature, it is not necessary to prove, who measured the properties. Hence, the argument of the appellants is not legally valid.
6.2.The learned Additional public prosecutor also submitted that in this case, both were travelling in the private car and the car was seized along with the contraband. The contraband was identified by P.Ws.1 and 3 before the trial Court and the samples were properly taken and the same were properly sent to the chemical analysis without any damage of the seal and the seal was intact. In the said circumstances, the learned trial judge correctly concluded that the appellants illegally transported 70Kgs of contraband.
10/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 6.3.The learned Additional Public Prosecutor further submitted that the accused were arrested on 21.05.2018 along with contraband. The same was recovered under the Athatchi and the said contraband was immediately produced before the judicial Magistrate. The said fact was proved through the cross examination of the witnesses P.Ws.3 and 4. It is clearly stated in form 95 and the same was accepted by the learned Judicial Magistrate and returned to deposit the same before the Special Court. The contraband was also produced before the Special Court. In the said circumstances, the remaining contraband and also samples were produced before the Special Court and identified by P.W.1 and 3. They clearly have spoken about the same. Hence, the compliance of Section 52(A) is not applicable in this case. The seized contraband was also produced before the Special Court immediately on the date of occurrence, at the time of remand. Further, the remaining contraband also was produced and marked before the Special Court and the same was not disputed by the appellants. In the said circumstances, the argument of the appellant's counsel that 52(A) is not complied is liable to be rejected.
6.4.The Additional Public Prosecutor also submitted that the non 11/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 examination of the independent witnesses is not fatal to the prosecution, when the evidence of P.W.1 and P.W.3 are cogent and trustworthy. The Honourable Supreme Court held in number of cases, that the non examination of the witnesses is not fatal.
6.5.This Court considered the rival submission and also perused the records and the precedents relied upon by them.
6.6.Now the question in this case is whether the conviction and sentence passed against the appellants by the Court below under Section 8(c) r/w 20(b)(ii)(C) of the NDPS Act, r/w 34 of IPC is in accordance with law?
7.The compliance of Section 42 of NDPS Act:
The P.W.3 specifically deposed that he received the secret information on 21.05.2018 at 6.40 p.m., and he also reduced in writing in the general diary and informed to the DSP/P.W.4 through telephone. After receiving the consent through the telephone, he sent the said written communication through the constable. The same was received by the DSP/P.W.4 and he also gave the consent. To prove the same, the Ex.P.8 12/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 was marked. In the Ex.P.8, the said fact is clearly recorded. The said document also was produced at the time of remand itself on 21.05.2018 before the learned Judicial Magistrate. The evidence of P.W.3, in this aspect, is cogent and hence, the non compliance of the 42 of the NDPS Act, as argued by the learned counsel for the appellant cannot be entertained. There is clear compliance of Section 42 of the NDPS Act.
8.The compliance of Section 50 of NDPS Act:
In this case, the contraband was recovered from the car and not from the body of the appellants. Even otherwise, the same was properly intimated to both the appellants. It is not the case of the appellants that some of the contraband was recovered from their person or physical body.
The recovery was only from the car dickey. Therefore, there was no requirement to comply with Section 50 of the NDPS Act. The counsel submitted that on the basis of the reported judgment in Paramanatham case, the joint consent letter is not in accordance with law. It is to be noted that in State of Punjab v. Baljinder Singh(2019), the Hon’ble Supreme Court has held that non-compliance of Section 50 will not invalidate recovery from a vehicle. This principle was reiterated in the 2021 decision Kallu Khan v. State of Rajasthan. Hence, the submission of the learned counsel for the appellants that there was no compliance of Section 50 of 13/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 the NDPS Act is not accepted.
9.Recovery:
The recovery was proved through the evidence of P.Ws.1 and 3.
P.Ws.1 and 3 have deposed that the recovery was made, even though the owner of the car had not supported the case of the prosecution. There was no contra evidence on the side of the appellants to show that the car along with contraband was illegally linked in this case. Further, the recovered contraband was properly sealed and samples also were properly sealed and the same were immediately sent to the learned Judicial Magistrate. There was no proper explanation, during the course of questioning under Section 313 of Cr.P.C., on the side of the appellants to disbelieve the above evidence of P.Ws.1 and 3. Hence, the prosecution clearly proved the recovery of the contraband from the custody of the A1 and A2 under Ex.Ps.
1 to 7 and 9. In the said circumstances, once recovery is proved through the evidence of the prosecution witnesses, the presumption under Section 54 of NDPS Act automatically comes into play. No evidence was adduced by the appellants to dispel the said presumption as per Section 35 of the NDPS Act. In this case, the conscious possession by the accused was proved. Therefore, in the light of proof of conscious possession, the 14/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 appellants are duty bound to dispel the presumption beyond reasonable doubt as stated in the Section 35 of the NDPS Act, which reads as follows;
35.Presumption of culpable mental state (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation.-- In this section "culpable mental state"
includes intention motive, knowledge of a fact and belief in, or reason to believe, a fact.
(2) For the purpose of this section , a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.
9.1.In view of the above evidence and also as there was no explanation and there was no negative evidence adduced on the side of the appellants, this Court holds that the prosecution proved the case beyond reasonable doubt about the recovery of the contraband. 15/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019
10. Non examination of the independent witness:
The Honourable Supreme Court repeatedly held that when the evidence of the police witness is cogent and trustworthy, the non examination of the independent witnesses is not fatal to the prosecution.
In this aspect, it is relevant to note the law laid down by the Honourable three members of Supreme Court in the case of Surinder Kumar Vs. State of Punjab reported in 2020 2 SCC 563, para 14, 15 reads as follows:
14.......... The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed.
15.The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191] , relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account 16/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 of their official status.
10.1.In this case P.Ws.1 and 3 cogently deposed about the recovery of the contraband and there are no circumstances to disbelieve their versions. Further, nothing was elicited on the side of the appellants during the cross examination of the witnesses. In the said circumstances, the non examination of the independent witnesses is not fatal to the prosecution case. More particularly, in this case, the contraband was recovered and the same was produced before the Jurisdictional magistrate Court on the date of the remand itself along with the appellants without any delay.
11.Plea of the non-compliance of Secton 52A of the NDPS Act caused failure of justice.
11.1.The conjoined reading of Sections 41 to 44, 55 and 57 of the NDPS Act, shows that every authorised officer from the jurisdictional Police Station, the department of Central Excise, Narcotic Customs, Revenue Intelligence or any other department of Central Government etc., has reason to believe from personal knowledge or information given by any person and the same was reduced in writing that any Narcotic drug or Psychotropic substances or controlled substance in respect of which, 17/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 offence punishable under this Act has been committed, they are entitled to search and seize the contraband. They are called “seizure officer”. They shall arrest the accused and produce the accused along with seized contraband to his immediate Superior of nearest police station or officer empowered under Section 53 of the Act. The said officers shall take necessary measure as may be necessary for the disposal, as per Section 52 of the Act. The said report shall be made within 48 hours from the time of either arrest or seizure. Under Section 55, the officer in charge of police station shall take charge of the contraband and keep in safe custody pending orders of the Magistrate. He also shall allow the said seizure officer to take sample of such contraband and seal the said sample with seal of officer in charge of Police Station. The Central Government issued a notification with guidelines to follow the procedure to take the sample from the recovered contraband and to keep the remaining contraband.
11.1.1.That being the arrangement of the Section and the scheme of the Act, the Government have brought amendment in the year 1989 vide Act 2 of 1989 with the following statement of objects and reasons:
Amendment Act 2 of 1989-Statement of Objects and Reasons- In recent years, India has 18/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 been facing a problem of transit traffic in illicit drugs. The spill-over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishments for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drugs offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt.
2.A Cabinet Sub-Committee which was constituted for combating drug traffic and preventing drug abuse, also made a number of recommendations for strengthening the existing law. In the light of the recommendations of the Cabinet Sub-Committee and the working of the Narcotic Drugs and Psychotropic Substances Act, in the last three years, it is proposed to amend the said Act. These amendments, inter alia, provide for the following:-
(i)to constitute a National Fund for Control of Drugs Abuse to meet the expenditure incurred 19/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 in connection with the measures for combating illicit traffic and preventing drug abuse;
(ii)to bring certain controlled substances which are used for manufacture of Narcotic Drugs and Psychotropic Substances under the ambit of Narcotic Drugs and Psychotropic Substances Act and to provide deterrent punishment for violation thereof;
(iii)to provide that no sentence awarded under the Act shall be suspended, remitted or commuted;
(iv)to provide for pre-trial disposal of seized drugs;
(v)to provide death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs;
(vi)to provide for forfeiture of property and a detailed procedure relating to the same ; and
(vii)to provide that the offences shall be cognizable and non-bailable.
11.1.2.Therefore, “to provide for pre-trial disposal of the seized contraband”, the 52 A was inserted on 29.05.1989, which reads as follows:
52A. Disposal of seized narcotic drugs and psychotropic substances.— 20/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 (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 4 [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 sub-section (1) shall prepare an inventory of such 4 [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of 21/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 packing, marks, numbers or such other identifying particulars of the 4 [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 4[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 5 [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 1972) or the Code 22/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the innventory, the photographs of 1 [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.] 11.1.3.Section 52 A aims at “pre trial disposal of seized contraband” with the sole object of avoiding pilferage of contraband and retruning to the marketplace for recirculation as it is vulnerable to theft and substitution, against the normal rule of destruction of the material after conclusion of the trial under Section 452 Cr.P.C., The said provision intends to authorise the post recovery procedure to dispose the seized contraband by the officer mentioned Section 52 to prove the case of the possession of the contraband by taking sample, by preparing inventory in the presence of the judicial Magistrate. Therefore, the prosecution is not prevented to prove the case of the possession of the contraband through legal evidence of the recovery witnesses. Once the possession of the contraband is proved, the legal presumption under Section 54 comes into play. Then, the culpable mental state on the part of the accused can be 23/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 pressed into service under Section 35 of the Act. Therefore, in a similar contention raised before the Hon'ble Supreme Court in the case of State of Punjab v. Makhan Chand, reported in (2004) 3 SCC 453, the Hon'ble Supreme Court has rejected the same with the following findings:
“9. Learned counsel for the respondent-
accused relied on certain standing orders and standing instructions issued by the Central Government under Section 52-A(1) which require a particular procedure to be followed for drawing of samples and contended that since this procedure had not been followed, the entire trial was vitiated.
10. This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with “disposal of seized narcotic drugs and psychotropic substances”.
Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the 24/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 procedure prescribed in sub-sections (2) and (3) of Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.” 11.1.4.In the case of Kallu Khan v. State of Rajasthan, reported in 2021 SCC OnLine SC 1223 it has been held as follows:
“13. At this state, the argument advanced by the appellant regarding non-production of contraband in the court due to which benefit of doubt ought to be given to accused, is required to be adverted to.
In the case of State of Rajasthan v. Sahi Ram, (2019) 10 SCC 649, this Court held that when the seizure of material is proved on record 25/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 and is not even disputed, the entire contraband material need not be placed on record. It is not a case in which the appellant has proved beyond reasonable doubt that while sending the samples for forensic tests, seals were not intact or the procedure has been materially not followed by protecting the seized substance or was not stored properly, as specified in the case of Mohan Lal (supra) in which case the directions were given to be followed on administrative side. However, in the facts of the case, the said judgment is not of any help to appellant.
9.10. The Hon'ble Supreme Court held that even non-production of the entire contraband before the Court is not fatal when the seizure was proved and the sample taken from the said seized contraband is proved. In this aspect, it is relevant to the judgment of the Hon'ble Supreme Court in Than Kunwar v. State of Haryana, (2020) 5 SCC 260: (30. The Court also went to hold in Sahi Ram [State of Rajasthan v. Sahi Ram, (2019) 10 SCC 649 : (2020) 1 SCC (Cri) 85] that if seizure is otherwise proved on record and it is not even doubted or disputed, it need not be placed before the Court. The Court further held that if the seizure is otherwise proved what is required to be 26/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 proved is the fact that samples taken out of a contraband are kept intact. This Court held as follows : (SCC pp. 657-58, paras 15-16 & 18) “15. It is true that in all the aforesaid cases submission was advanced on behalf of the accused that failure to produce contraband material before the court ought to result in acquittal of the accused. However, in none of the aforesaid cases the said submission singularly weighed with this Court to extend benefit of acquittal only on that ground. As is clear from the decision of this Court in Jitendra [Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004 SCC (Cri) 2028] , apart from the aforesaid submission other facets of the matter also weighed with the court which is evident from paras 7 to 9 of the decision. Similarly in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC (Cri) 547] , the fact that there was no explanation where the seized substance was kept (para 11) and the further fact that there was no evidence to connect the forensic report with the substance that was seized (para 12) were also relied upon while extending benefit of doubt in favour of the accused. Similarly, in Vijay Jain [Vijay Jain v. State of M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276] , the fact that the 27/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 evidence on record did not establish that the material was seized from the appellants, was one of the relevant circumstances. In the latest decision of this Court in Vijay Pandey [Vijay Pandey v. State of U.P., (2019) 18 SCC 215] , again the fact that there was no evidence to connect the forensic report with the substance that was seized was also relied upon to extend the benefit of acquittal.
16. It is thus clear that in none of the decisions of this Court, non-production of the contraband material before the court has singularly been found to be sufficient to grant the benefit of acquittal.
***
18. If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kg that it may not be possible and feasible to produce the entire bulk before the court. If the seizure is otherwise proved, what is 28/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out.”
31. In the facts of this case, no doubt the contraband article weighed 6 kg 300 gm. A perusal of the judgment of the trial court does not appear to suggest that the appellant had taken the contention regarding non-production of the contraband before the trial court.
11.2.From the above discussion, it is clear that Section 52 A of the NDPS Act deals with disposal of the seized contraband and it is not related to the seizure from the scene of the occurrence. Therefore, this Court is unable to accept the submission of the learned counsel for the appellant that the failure on the part of the investigating agency to destruct the contraband as per the procedure contemplated under Section 52A of the NDPS Act is a ground to acquittal without going into the legal evidence 29/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 available to prove the possession of the contraband, seizure of the contraband, the arrest of the accused, taking of the samples,forwarding of the samples and the remaining contraband along with accused immediately after the arrest to the Court and the production of the remaining samples, chemical analysis report and the remaining contraband physically as a material object. Once the above facts are proved through the evidence, the presumption under the Act will come. Therefore, the interpretation to Section 52 A of the NDPS Act, is made to achieve the object of NDPS Act.
11.3..The drugs are made to cure the illness and the diseases and to alleviate the pain during ailment. But, the People misused the same for illegitimate purpose and therefore, drug abuse has become a social problem. The NDPS Act was originally brought in the year 1985. Subsequently, to make it stringent, an amendment was brought in the year 1989 with the object stated supra.
11.4.According to the data, 1.58 Crores children aged between 10 to 17 years are addicted to drugs. The effect of the drug abuse includes disease transfusion, criminal behaviour, social disorder and even death and suicide. According to the data, the suicide as a result of a drug abuse has 30/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 increased to unimaginable and alarming percentage.
Year Number of suicide
due to drug abuse
2011 3658
2016 5199
2017 6705
2018 7193
2019 7860
2021 10560
ie., As per the data available from the NCRB, death by suicide attributed to drug abuse and alcohol addiction continue to increase at the rate of atleast one death in every hour. Further, as per the data, in the year 2018, due to the drug over dose, 875 deaths has occurred and in the year 2019, 704 deaths. Therefore, there is an alarming situation, which required immediate action. Therefore, Government brought in Section 52A with object of disposal of a drugs immediately after the seizure. Therefore, Section 52 A should be so interpreted to avoid unworkable or impracticable results. The said principle was fortified in the case of Sheffield City Council vs. Yorkshire Water Services Ltd., reported in (1991) 1 WLR 58 : (1991) 2 All ER 280] , WLR at page No.71, and held as follows:
“Parliament is taken not to intend the carrying out of its enactments to be unworkable or 31/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 impracticable, so the court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by judges in developing the common law. ‘… the common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society’.” 11.4.1. The Hon'ble three benches of Supreme Court reiterated the said principle by interpreting Section 50 of the Act in the case of the State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 : 2005 SCC (Cri) 943 : 2005 SCC OnLine SC 714 at page 363
18. There is another aspect of the matter, which requires consideration. Criminal law should be absolutely certain and clear and there should be no ambiguity or confusion in its application. The same principle should apply in the case of search or seizure, which come in the domain of detection of crime. The position of such bags or articles is not static and the person carrying them often changes the manner in which they are carried. People 32/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 waiting at a bus-stand or railway platform sometimes keep their baggage on the ground and sometimes keep in their hand, shoulder or back. The change of position from ground to hand or shoulder will take a fraction of a second but on the argument advanced by learned counsel for the accused that search of bag so carried would be search of a person, it will make a sharp difference in the applicability of Section 50 of the Act. After receiving information, an officer empowered under Section 42 of the Act, may proceed to search this kind of baggage of a person which may have been placed on the ground, but if at that very moment when he may be about to open it, the person lifts the bag or keeps it on his shoulder or some other place on his body, Section 50 may get attracted. The same baggage often keeps changing hands if more than one person are moving together in a group. Such transfer of baggage in the nick of time when it is about to be searched would again create practical problem. Who in such a case would be informed of the right that he is entitled in law to be searched before a Magistrate or a gazetted officer? This may lead to many practical difficulties. A statute should be so interpreted as to avoid unworkable or impracticable results. In Statutory 33/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner:
“The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong.”
20. As pointed out in State of Punjab v. Baldev Singh [(1999) 6 SCC 172 : 1999 SCC (Cri) 1080] drug abuse is a social malady.
While drug addiction eats into the vitals of the society, drug trafficking not only eats into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. It has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. Reference in the said decision has also been made to some United Nations Conventions Against Illicit Trafficking in Narcotic Drugs, which the Government of India has ratified. 34/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 It is, therefore, absolutely imperative that those who indulge in these kind of nefarious activities should not go scot-free on technical pleas which come handy to their advantage in a fraction of a second by slight movement of the baggage, being placed to any part of their body, which baggage may contain the incriminating article.
11.5.Before the implementation of the Narcotic Drugs and Psychotropic Substance (Seizure, Storage, Sampling and disposal) Rules 2022 which commenced from 23 December 2022, not even Section 52A of the NDPS Act demanded taking of samples at the spot. The Notification No.1/1989 prescribed procedure to take samples, seizure and the disposal. The authorities has strictly followed the procedure during the course of taking samples, seizure and produced before the Court. Therefore, considering the drug menace which has been causing pernicious effect to large Sections of society namely, life of the youths and innocent persons, the unworkable interpretation has to be avoided. Hence, this Court holds that when physical production of the contraband and sealed samples are duly made before the Court, the Court has to take into account the same without going into the issue of the non-compliance of the post seizure 35/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 procedure, which is intended for avoidance of re-circulation, in order to convict the accused for the possession of the contraband against the law.
11.6.From the above reading of the “Mohanlal case” I II III, it is clear that Section 52 A prescribed procedure to be followed post seizure of the contraband to ensure prompt destruction of the contraband so that seized materials may not be misused. The said direction has been issued only on considering the submission of the prosecution that seized contraband were disposed of without taking samples and preserving the remaining contraband as per the Central Notification No.1/89 ie., on the basis of the specific observation in Paragraph No.13 of Mohanlal case III that “except Directorate of Revenue Intelligence, most the States, however claim that no samples are drawn at the time of the seizure. The DRI alone claims that sample are drawn at the time of seizure.” 11.6.1.The Hon'ble Supreme Court in Paragraph No.12 of the Mohanlal Case (mohanlal III- reported in 2016 (3) SCC 379) has held as follows:
Seizure and sampling
12. Section 52-A(1) of the NDPS Act, 1985 36/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government has in exercise of that power issued Standing Order No. 1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10-5-2007 and the other dated 16-1-2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of Standing Order No. 1 of 1989 states that samples must be taken from the seized contraband on the spot at the time of recovery itself. It reads:
“2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.” 37/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019
13. Most of the States, however, claim that no samples are drawn at the time of seizure.
Directorate of Revenue Intelligence is by far the only agency which claims that samples are drawn at the time of seizure, while Narcotics Control Bureau asserts that it does not do so. There is thus no uniform practice or procedure being followed by the States or the Central agencies in the matter of drawing of samples. This is, therefore, an area that needs to be suitably addressed in the light of the statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case the same are proved. We propose to deal with the issue no matter briefly in an attempt to remove the confusion that prevails regarding the true position as regards drawing of samples.
11.6.2.The original facts of Mohanlal Case (Mohanlal Case -I reported in 2012 (7) SCC 712), have made it clear that the Union of India has preferred appeal against the acquittal. The High Court dismissed the appeal on the ground that the prosecution failed to prove the seizure of the contraband beyond reasonable doubt and hence, the prosecution case of 38/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 destruction of the contraband without taking sample as per Section 52A of NDPS Act, cast doubt over the prosecution case. In the said appeal, considering the re-circulation of the seized contraband, the Hon'ble Supreme Court called the States to furnish the details of the seizure, storage, disposal/destruction particulars. Before issuing the said direction, the Hon'ble Supreme Court has observed as follows in Paragraph No.11 of the judgment in the case of Union of India v. Mohanlal reported in 2012 7 SCC 712 at page 715
11. We find considerable merit in the submissions made by Mr Sinha. The problem is both widespread and formidable. There is hardly any State in the country today which is not affected by the production, transportation, marketing and abuse of drugs in large quantities. There is in that scenario no gainsaying that the complacency of the Government or the officers dealing with the problem and its magnitude is wholly misplaced. While the fight against production, sale and transportation of the narcotic drugs and psychotropic substances is an ongoing process, it is equally important to ensure that the quantities that are seized by the police and other agencies do not 39/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 go back in circulation on account of neglect or apathy on the part of those handling the process of seizure, storage and destruction of such contrabands. There cannot be anything worse than the society suffering on account of the greed or negligence of those who are entrusted with the duty of protecting it against the menace that is capable of eating into its vitals. Studies show that a large section of the youth are already victims of drug abuse and are suffering its pernicious effects. Immediate steps are, therefore, necessary to prevent the situation from going out of hand.
11.6.3. Thereafter, after considering the data, the Hon'ble Supreme Court issued a direction in the case of Union of India v. Mohanlal, reported in (2016) 3 SCC 379, which reads as follows:
31.1. No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application 40/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading “seizure and sampling”. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order.
11.7.The above direction contains two parts:
(i)No sooner the seizure of any narcotic drugs and psychotropic and controlled substances and conveyances is effected, the same shall be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the Act.
(ii)The officer concerned shall then approach the Magistrate with an application under Section 52-A(2) of the Act, which shall be allowed by the Magistrate as soon as may be required under sub-section (3) of Section 52-A, as discussed by us in the body of this judgment under the heading “seizure and sampling”. The sampling shall be done under the supervision of the Magistrate as discussed in Paras 15 to 19 of this order.41/53
https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 11.8.Both the directions relate to the procedure to be followed after the seizure. The said direction was issued on finding that there was no compliance of the procedure of taking sample at the occurrence place at the time of the seizure as per the Central Government Notification No. 1/1989. Therefore, the intention of the guidelines issued by the Hon'ble Supreme Court is that in case of failure to take sample and to prove the case of the seizure, the prosecution has final opportunity to produce the entire contraband and take the sample in the presence of the learned Judicial Magistrate upon making the application and cause destruction of the contraband. From the above, it is clear that the compliance of the above direction issued by the Mohanlal Case No.II, to take inventory is the post seizure procedure to prevent the recirculation of the contraband. In the said circumstances, in the case wherever the contraband was seized after taking the samples as per the Notification No.1/1989 and forwarded to the competent officer as per Section 52 and the accused along with the seized contraband are produced before the competent Court and the competent Court received the contraband and issued a direction to keep the contraband in proper custody and the same has been properly supervised and the same has been also produced before the trial Court at the time of 42/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 the trial as a material object, as a physical evidence, the same cannot be brushed aside on the ground that the investigating agency violated the second part of the direction of the Mohanlal Case No.II, by not disposing of the seized contraband by making the application under Section 52A of NDPS Act.
11.9.The Mohanlal Case, is applicable only to the cases where there is a failure of physical production of the contraband as a material object and not in all circumstances. The same was considered by the Hon'ble Supreme Court before and after the Mohanlal case and the Hon'ble Supreme Court has held that the said non-compliance is not fatal to the prosecution when the prosecution proved the factum of seizure of the contraband beyond reasonable doubt and also proved the seized materials by producing the same before the trial Court as a material object and identified the same, through the material witnesses as per law.
11.10.Now this Court adverts to the facts of the present case whether the prosecution proved the possession of the contraband, seizure and production of the contraband before the Court in accordance with the provision of the NDPS Act and the Notification No.1/1989 ? 43/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 11.11.To address the issues, it is relevant to extract the various provisions of the NDPS Act:
Section 52 of the NDPS Act Section 55 of the NDPS Act Disposal of persons arrested and articles Police to take charge of articles seized seized.—(1) Any officer arresting a person and delivered.— under section 41, section 42, section 43 or An officer-in-charge of a police station section 44 shall, as soon as may be, inform shall take charge of and keep in safe him of the grounds for such arrest. custody, pending the orders of the (2) Every person arrested and article Magistrate, seized under warrant issued under sub- all articles seized under this Act within the section (1) of section 41 shall be local area of that police station and which forwarded without unnecessary delay to may be delivered to him, the Magistrate by whom the warrant was and shall allow any officer who may issued. accompany such articles to the police (3) Every person arrested and article station or who may be deputed for the seized under sub-section (2) of section 41, purpose, to affix his seal to such articles or section 42, section 43 or section 44 shall to take samples of and from them and all be forwarded without unnecessary delay to samples so taken shall also be sealed with — (a) the officer-in-charge of the nearest a seal of the officer-in-charge of the police police station, or (b) the officer station. empowered under section 53.
(4) The authority or officer to whom any person or article is forwarded under sub-
section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.
From the reading of Section 52 of the NDPS Act, it is clear that the Investigating officers shall arrest and seize the contraband. The arrestee and the seized contraband shall be forwarded to the Magistrate without unnecessary delay. The arrestee and the seized articles should also be forwarded to the officer in charge of nearest police station or the officer 44/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 empowered under Section 53 of the NDPS Act. The said police officers to whom the arrestee and the seized articles are forwarded are the officers under Sub Sections 2 and 3 of Section 52 of the NDPS Act, who have to take change of and take such measures as may be necessary for the disposal according to law of such persons or article. Disposal of the arrestee has been made through the remand by the Magistrate. The disposal of the seized article has been made through entrusting the custody to the officer mentioned in Section 55 of the NDPS Act.
11.11.1.The officer who has received the seized article from the officer mentioned in the NDPS Act is to act as per Section 55 of the NDPS Act and should take charge of the said seized articles and keep in the safe custody either by affixing the seal to such articles or allow to take samples of and from them and all sample so taken shall also be sealed with a seal of office in charge of police station, till the orders of the Magistrate. Therefore, from the reading of Sections 52 and 55 of the NDPS Act, the disposal of the seized articles by the ground level officers ends with entrustment of the same with the officer mentioned in Section 55 of the NDPS Act. The officer mentioned in Section 55 of the NDPD Act, is duty bound to keep safe custody of the properties till the orders of the 45/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 Magistrate. This original position of the Act before the incorporation of Section 52A of the NDPS Act, ie., 29.05.1989, is that the Union Government had issued the notification No.1/1989, in the form of instruction to the investigating officer to follow the procedures during the course of the arrest and seizure of the articles with the accused person.
11.12.Since the question of the compliance of the procedure is factual aspect and only in the case of the non compliance which cause failure of justice and creates doubt over the prosecution case over the recovery, this Court is duty bound to consider the same. On perusal of the entire material and other records and careful appreciation of the deposition of the witnesses and the explanation furnished by the appellant during the course of the questioning under Section 313 of Cr.P.C., this Court finds that the appellant never raised the said plea during the entire course of the trial. But, the learned counsel argued that the non-compliance amounts to failure of justice, and this Court is duty bound to see any failure of justice has occurred.
12.In this case, the prosecution never took the plea that the recovered contraband are to be disposed without following the procedure as stated in 46/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 the Mohanlal case and claimed any lame excuse for non-production of the contraband. Section 52A of the NDPS Act deals only with the disposal of the seized contraband and not related to the seizure from the scene of occurrence. The Hon’ble Supreme Court in Mohanlal’s case issued directions to follow the procedure for disposal of the sized contraband by taking the inventory before destruction. The said directions were issued only on considering the submissions of the prosecution that the seized contraband were disposed off without taking the samples and preserving the remaining contraband as per the Central Government notification 1/89 on the basis of the specific observation in Paragraph 13 that “except Directorate of Revenue Intelligence, most the States, however claim that no samples are drawn at the time of the seizure. The DRI alone claims that samples are drawn at the time of seizure.” But in the State of Tamilnadu, the officers follow the Standing Order 1/89 of the Central Government taking samples with the proper packing and sealing and packing the remaining contraband also with seal. Thereafter they prepare the inventory under Form 91 and produce the samples as well as the remaining contraband at the time of initial remand before the learned Judicial Magistrate without any delay and the learned Judicial Magistrate also verify the same and direct the prosecution to produce the same before the 47/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 Special Court. After that, the sample is sent through the Special Court for chemical analysis and the remaining contraband is under the periodical supervision of the Special Court and the same is produced as physical evidence during trial and marked as Material Objects. Section 52A of the NDPS Act deals only with the disposal of the seized contraband and it is not related to seizure from the scene of occurrence. When the prosecution has taken a stand that the samples were taken at the spot and the samples along with the remaining contraband were produced before the Court as physical evidence, Section 52A of the NDPS Act is not applicable. In this case as stated above, sample was taken at the spot and both samples and remaining contraband were produced before the learned Judicial Magistrate at the time of initial remand and the same was produced before the trail Court at the time of trial and same was identified by the witnesses P.W.1 to P.W.3. The relevant portion of the evidence of P.W.3 and P.W.4 as follows:
“P.W.3: gbtk; 95I vOjpaJ fhtyh;
<];tud; Mth;. ePjpj;Jiw eLtuhy; to be produced along with the property vd;W gbtk;
95 jpUg;gg;gl;Ls;sJ vd;why; rhpjhd;.48/53
https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 P.W.4: gbtk; 95I ehd; ghh;itapl;Nld;
gbtk; 95y; nrhj;Jld; jhf;fy; nra;AkhW ePjpj;Jiw eLth; jpUg;gpAs;shh; vd;why;
rhpjhd;.” Therefore, Section 52A of the NDPS Act is not applicable to the facts of the case. Hence, this Court is not inclined to accept the plea of the violation of Section 52A of the NDPS Act .
13.The learned counsel also submitted the argument on the basis of the judgment of the Honourable Supreme Court in the case of Noor Aga Vs State of Punjab and Another reported in 2008 16 SCC 417, wherein the Apex Court held that the number of the procedures has not been followed and hence, the prosecution case lost its credibility. In the said Noor Aga judgment, number of procedures were not followed. Hence, the Honourable Supreme Court held that even though the procedure stated by the Central Government Notification 1/89 is not mandatory, cumulative non compliance of the entire procedure stated in the notification is to be 49/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 considered in the case of the grave charges of the NDPS Act. This Court is unable to accept the argument of the learned legal aid counsel appearing for the appellants for the reason that in this case, as per the notification 1/89, the sample was taken at the spot and the same was properly sealed and the remaining contraband was also properly packed and sealed and immediately produced before the learned Judicial Magistrate and subsequently, produced before the Special Court and the same was marked during the course of the trial and identified by the witnesses P.Ws.1 and 3. The learned trial Judge also, in the final portion of the judgment in Paragraph No.30 has directed to take steps for the destruction of the contraband after the appeal period is over. Therefore, the argument of the legal aid counsel on the basis of the judgment of the Hon'ble Supreme Court reported in 2023 Live Law SC 549 and 2023 Live Law SC 570 is misconceived and the facts of the said case is entirely different from the present facts of the case. In the above cases, the specific stand of the prosecution is that the entire contraband was destructed and hence, the Court took a view along with the other circumstances that the prosecution has not proved the case beyond reasonable doubt. Therefore, this Court in inclined to confirm the conviction and sentence passed by the Special Court.
50/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019
14.Accordingly, this Criminal Appeal is dismissed and the conviction and sentence passed in C.C.No.172 of 2018 dated 30.09.2019 on the file of the Learned Principal Special Court for EC and NDPS Act Cases, Madurai is confirmed.
15.Mr.R.Pon Karthikeyan, legal aid counsel made detailed submission. This Court records its appreciation for his valuable assistance. The High Court Legal Services Committee is directed to pay the remuneration of Rs.7,500/- (Rupees Seven Thousand and Five Hundred Only) to him.
14.03.2024 NCC : Yes /No Index : Yes / No Internet : Yes / No vsg 51/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 To
1. The Learned Principal Special Judge for EC and NDPS Act Cases, Madurai.
2. The Inspector of Police, NIB CID, Theni.
3.The Superintendent of Police, Central Prison, Madurai.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
5. The Section Officer, Criminal Section (Records), Madurai Bench of Madras High Court, Madurai.
52/53 https://www.mhc.tn.gov.in/judis CRL.A(MD).No.587 of 2019 K.K.RAMAKRISHNAN,J.
vsg CRL.A(MD).No. 587 of 2019 14.03.2024 53/53 https://www.mhc.tn.gov.in/judis