Rajasthan High Court - Jaipur
Ramchandra S/O Shri Heera Ram vs State Of Rajasthan on 15 September, 2021
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc. Second Bail Application No. 3122/2021
Ramchandra S/o Shri Heera Ram, Aged About 52 Years, R/o
Ward No. 1 Mohalla Nagouri Palasha Mundawa Ps Mundawa Dist.
Nagour Raj. (At Present Confined In Sub Jail Beawar Dist. Ajmer)
----Petitioner
Versus
State of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Shri Vijay Poonia with
Shri Pradeep Bochaliya
For Respondent(s) : Shri M.S. Singhvi, AG with
Shri Siddhant Jain,
Shri R.D. Rastogi, ASG with
Shri Akshay Bhardwaj through VC
Shri Prashant Sharma, PP
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
Judgment Reserved on :: 01/09/2021
Judgment Pronounced on :: /09/2021
This is second bail application of the accused-petitioner under Section 439 Cr.P.C. The first bail application was dismissed as withdrawn vide order dated 5.12.2020. The petitioner has been arrested in connection with FIR No.258/2020, registered at Police Station Vijay Nagar, District Ajmer for the offence(s) under Sections 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity-`the Act of 1985').
The facts in brief are that on 27.8.2020, a car bearing no.DL- 3C-BM-5773 was intercepted by a police party on receipt of an information from the Police Outpost 29 Miles, Police Station, Gulabpura, Bhilwara of its breaking the police barricade. The (Downloaded on 15/09/2021 at 09:49:59 PM) (2 of 26) [CRLMB-3122/2021] present petitioner was driving the Car. On search of the Car, 66.300 kgs of poppy straw was recovered from four plastic bags. During the investigation, the petitioner was arrested. After investigation, charge sheet under Section 8/15 of the Act of 1985 has been filed against him.
Relying on the provisions of Section 52A (2)(c) of the Act of 1985 and the judgment of the Hon'ble Apex Court of India in the case of Union of India vs. Mohanlal & Anr.-(2016) 3 SCC 379, learned counsel for the petitioner submitted that since samples of the contraband were not drawn in presence of the Magistrate, the entire investigation stands vitiated. Learned counsel submitted that the dictum laid down by the Supreme Court in the case of Mohan Lal's case has been followed by various High Courts and referred the judgements of Punjab and Haryana High Court in Bikram Singh vs. State of Punjab in Criminal Miscellaneous No.M- 12946/2017 (O&M) dated 26.05.2017 & Surjit Kumar @ Babbu vs. State of Punjab in CRM-39622-2016 in CRA-S-1338-SB-2015 dated 10.03.2017, judgment of Delhi High Court in Amani Didel Chris vs. Narcotics Control Bureau dated 13.03.2020, judgment of Bombay High Court in Jawed Khan vs. The State of Maharashtra in Criminal Application No.192 of 2020 in Criminal Appeal No.30 of 2020 dated 03.03.2020 & judgment of Patna High Court in Bhairo Singh vs. State of Bihar in Criminal Appeal (DB) No.276 of 2015 dated 06.11.2017.
Shri Poonia submitted that Article 141 of the Constitution of India mandates that any law declared by the Supreme Court shall be binding on all the courts within the territory of India and hence, for violation of the direction given in Mohan Lal's case, the petitioner is entitled to be released on bail. (Downloaded on 15/09/2021 at 09:49:59 PM)
(3 of 26) [CRLMB-3122/2021] He further submitted that the Ministry of Home Affairs, Government of India, Narcotics Control Bureau, New Delhi, has issued a Circular a Circular dated 21.2.2020 laying down SOP on drawal of samples under Section 52A in the presence of the Magistrate which is in conformity with the judgment of the Hon'ble Supreme Court of India in case of Mohan Lal.
Learned counsel for the petitioner submitted that there has been non-compliance of the Standing Instruction No.1/88 issued by the Narcotics Control Bureau in failure in sending the samples to Forensic Science Laboratory (for short-`the FSL') within seventy two hours of the seizure. Relying upon the judgements of this Court in Ashok Kumar vs. State of Rajasthan in SB Criminal Misc. Bail No.1314/2018 decided on 29.11.2018, Dinesh @ Rinku vs. State of Rajasthan in SB Criminal Misc. Bail Application No.3342/2020 decided on 07.09.2020 and the judgement of the Supreme Court in Noor Aga vs. State of Punjab & Anr.-(2008) 16 SCC 417, he submitted that non-compliance of the Standing Order entitles him for bail.
Lastly, learned counsel submitted that as per the inventory report prepared by the Investigating Officer at the time of seizure, weight of the contraband was found to be 66.300 kgs; but, when its inventory was prepared in the presence of the Magistrate for certification, substantial reduction in its weight was noticed. He submitted that it suggests that the recovered contraband was subjected to tempering by the Investigating Agency and hence, it cannot be held that the contraband recovered was of commercial quantity. He, therefore, prayed for release of the petitioner on bail.
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(4 of 26) [CRLMB-3122/2021] Opposing the prayer, Shri M.S. Singhvi, learned Advocate General submitted that the petitioner has been found in possession of the contraband of commercial quantity and in view of prima-facie evidence against him available in the charge-sheet showing his involvement in the offence, he is not entitled for the benefit of bail in view of provisions of Section 37 of the Act of 1985.
Drawing attention of this Court towards the statement of objects and reasons of the Amendment Act 2 of 1989 inserting Section 52A in the Act, learned Advocate General submitted that the provision was incorporated having regard to the hazardous nature of any narcotic drugs and psychotropic substances, their vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration. It authorizes the Central Government, as soon as may be after their seizure, by notification, to provide for disposal of such contraband by the officer and in the manner as may be determined from time to time.
Learned Advocate General drew attention of this Court towards the order dated 03.07.2012 passed by the Hon'ble Supreme Court of India in the case of Union of India versus Mohanlal to show the foundation for issuing direction contained in the judgement dated 28.01.2016. He submitted that ratio of the judgement in Mohanlal's case applies only when pre-trial/pending trial disposal of the contraband recovered is to be done and not otherwise and therefore, the question of sampling at the time of seizure was not framed/considered by the Hon'ble Apex Court.
Shri Singhvi submitted that judgment of a Court cannot be read as a `Euclid Formula' and it has to be read in the context in (Downloaded on 15/09/2021 at 09:49:59 PM) (5 of 26) [CRLMB-3122/2021] which it was given. He, in this regard, relied upon the judgments of Hon'ble Supreme Court of India in the cases of Krishna Kumar vs. Union of India & Ors. and other connected matters-(1990) 4 SCC 207, State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat & Ors. and connected matters-(2005) 8 SCC 534 and Udai Singh Dagar & Ors. vs. Union of India & Ors.-(2007) 10 SCC 306.
Shri Singhvi submitted that Section 52A provides for drawing the representative samples in presence of the Magistrate; whereas, power of the police to take samples of the seized article is intact under Section 55 of the Act and the judgment in Mohanlal's case does not interfere with power of the police under Section 55. Advancing his arguments, learned Advocate General drew attention of this Court towards the notification dated 16.1.2015 issued by the Central Government in exercise of the powers conferred by Section 52A of the Act of 1985 which deals with the disposal of the seized contraband, Clause 4 of which provides as under:
"4. Manner of disposal.-(1) Where any narcotic drug, psychotropic substance, controlled substance or conveyance has been seized and forwarded to the officer- in-charge of the nearest police station or to the officer empowered under section 53 of the said Act or if it is seized by such an officer himself, he shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances as per Annexure 1 to this notification and apply to any Magistrate under sub-section (2) of section 52A of the said Act as per Annexure 2 to this notification within thirty days from the date of receipt of chemical analysis report of seized narcotic drugs, psychotropic substances or controlled substances.
(2) After the Magistrate allows the application under sub-
section (3) of section 52A of the said Act, the officer mentioned in sub-paragraph (1) shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of the seized items to the (Downloaded on 15/09/2021 at 09:49:59 PM) (6 of 26) [CRLMB-3122/2021] Chairman of the Drug Disposal Committee for a decision by the Committee on the disposal, and the aforesaid officer shall send a copy of the details along with the items seized to the officer-in-charge of the godown." With regard to various Circulars issued by the Central Government including the SOP dated 21.02.2020, Shri Singhvi submitted that any inconsistent subordinate legislation, cannot override the provisions of the Act.
Shri Singhvi submitted that if a Statute provides for something to be done in a particular manner, it can be done in that manner alone and all other mode of performances are forbidden. He submitted that it is also a well settled proposition of law that a legislature does not waste "words" and every word used by it is impregnated with a meaning. He submitted that since, Section 52A speaks of `representative samples' and Section 55 permits drawing of samples by a police officer, a distinction has to be drawn in two and it cannot be held that the sample drawn in absence of the Magistrate renders the investigation invalid. Learned Advocate General relied upon the judgement of Hon'ble Supreme Court in the case of Chief Information Commissioner & Anr. vs. State of Manipur & Anr.-(2011) 15 SCC 1 in support of his submission.
With regard to delay in sending the samples to FSL beyond the period of seventy two hours, learned Advocate General submitted that the instructions contained in the Standing Order are not mandatory and have directory effect only. He submitted that even otherwise also, the seizure was effected on 27.08.2020 and 28.08.2020 was a Government Holiday on account of Baba Ramdev Jayanti. He submitted that on 29.08.2020, the SHO of the concerned Police Station requested the Superintendent of Police to (Downloaded on 15/09/2021 at 09:49:59 PM) (7 of 26) [CRLMB-3122/2021] send the samples to FSL and since 30 th August, 2020 was holiday being Sunday, on 31.08.2020, the Superintendent of Police remitted the samples to the Director, FSL along with his letter. On 01.09.2020, samples were not received in the FSL being holiday on account of Anant Chaturdashi and the same were handed over to the FSL on the very next day i.e. on 02.09.2020 and hence, there was no delay in sending the samples to FSL.
With regard to difference in weight of the contraband taken at the time of seizure and at the time of certification in presence of the Magistrate, learned Advocate General submitted that it could be on account of loss of moisture and in any case, it is subject-matter of trial.
Shri R.D. Rastogi, learned Additional Solicitor General submitted that Hon'ble Apex Court of India did not lay down any such proposition in Mohan Lal's case that violation of provisions of Section 52A(2)(c) would render the investigation vitiated. Shri Rastogi, relied upon the judgement of the Hon'ble Delhi High court in case of Arvind Yadav vs. Govt. of NCT, Delhi- MANU/DE/1193/2021, in this regard. Drawing attention of this Court towards the observations made in case of Mohan Lal, he submitted that even therein, the direction has been held to be directory. He submitted that the very purpose of insertion of Section 52A in the Act of 1985 is to ensure that the contraband substance is disposed of under the supervision of the Magistrate and if the Magistrate follows the mandate laid down therein, the certificate issued by him is per se admissible in evidence without production of the contraband. He relied upon a judgement of the Hon'ble Kerala High Court in the case of Pavithran vs. State of Kerala-2018 (1) KLT 517 in this regard.
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(8 of 26) [CRLMB-3122/2021] Learned Additional Solicitor General submitted that Section 37 of the Act of 1985 starts with a non-obstante clause and hence, without satisfaction of the conditions laid down therein, an accused is not entitled for the benefit of bail.
Heard the learned counsels for the parties and perused the record.
Indisputably, the contraband recovered from possession of the petitioner is commercial in quantity. In view thereof, before the petitioner can be extended the benefit of bail, twin pre- requisite mandatory conditions laid down under Section 37(1)(b)
(ii) have to be satisfied. So far as satisfaction of this Court as to existence of reasonable grounds for believing that the petitioner is not guilty of such offence, the material on record speaks otherwise. The petitioner was found driving the Car containing commercial quantity of contraband under suspicious circumstances. He had broken the police barricades at the Police Outpost 29 Miles, Police Station Gulabpura, Bhilwara and the passenger sitting next to him, ran away taking shelter of nearby bushes when the car was intercepted. The Hon'ble Apex Court has, in the case of State of Kerala & Ors. vs. Rajesh and Anr.- (2020) 12 SCC 122, held as under:
"20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the (Downloaded on 15/09/2021 at 09:49:59 PM) (9 of 26) [CRLMB-3122/2021] underlying object of Section 37 that in addition to the limitations provided under the Cr.P.C., or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."
Since, the petitioner fails to meet the aforesaid first pre- requisite as contemplated under Section 37 entitling him for benefit of bail, this Court is not persuaded to accept his plea to release him on bail.
In so far as contention of the learned counsel for the petitioner regarding investigation suffering from the vice of illegality for want of compliance of mandatory provisions contained under Section 52A of the Act of 1985 as well of direction issued in the case of Mohan Lal's case (supra), is concerned, on examination of the scheme of the Act in the backdrop of judgement of the Hon'ble Apex Court of India and as interpreted by the various High Courts, the situation emerges as under:
Section 52A was incorporated by the Amendment Act 2 of 1989 having regard to the hazardous nature of any narcotic drugs and psychotropic substances, their vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration. It authorizes the Central Government to determine the manner of disposal of the contraband by specifying the manner through notification in the official Gazette.
Section 52A of the Act fundamentally speaks of disposal of seized contraband so that it does not get pilfered, misused or recycled into the society for abuse. It is a method given out basically to address the issue of safe up-keeping of the drugs at pre-trial (investigation) and/or trial stage. In the wake of trial taking long time, heavy haul of contraband seized lying at the (Downloaded on 15/09/2021 at 09:49:59 PM) (10 of 26) [CRLMB-3122/2021] Police Stations/Government Offices has potentiality to create an adverse situation and to meet this mischief, the methodology has been coined under Section 52A of the Act. A forensic view of Section 52 of the Act further sheds light on the issue. Section 52 gives out two modes of disposal of articles seized from the person arrested. A person arrested and article seized under warrant issued by a Magistrate under Section 41 (1), shall be required to be forwarded without unnecessary delay to the Magistrate, by whom the warrant was issued. In all other cases, the person arrested and the article seized is to be forwarded without unnecessary delay to the officer in-charge of the nearest Police Station or the officer empowered under Section 53 of the Act.
Therefore, it is more than apparent that only such articles seized are required to be forwarded without unnecessary delay to a Magistrate which are seized in pursuance of a warrant issued by him under Section 41 (1). Had the legislature intended that every article seized should immediately be forwarded to the Magistrate, then, the same would have been incorporated in the above provisions in explicit terms. The rule of interpretation namely, casus omissus provides that what has been omitted in the Statute or in other words, basically a situation not supported under the Statute, cannot be supplied by a court of law by construing the same in the name of interpreting the Statute. If in the name of interpretation of a Statute, the court of law supplies something which is not otherwise stated in the Statute by the Legislature, then it would amount to legislating by the Court in the name of interpretation. In view thereof, Section 52(2) of the Act clearly reveals that the articles seized by the empowered officers under Section 41(2), 42, 43 and 44 of the Act as per personal knowledge (Downloaded on 15/09/2021 at 09:49:59 PM) (11 of 26) [CRLMB-3122/2021] or information received by such officer, are not required to be forwarded to the Magistrate and provisions of Section 52A operate in entirely independent and different scenario i.e. pertaining to safe up keeping of the contraband during the pre-trial and/or trial stage for its disposal. In the case of Chief Information Commissioner (supra), the Hon'ble Apex Court of India held as under:
"40. It is well known that when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. It is a time-honoured principle as early as from the decision in Taylor v. Taylor [(1875) 1 Ch. D. 426 (CA)] that where statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden."
Further, Section 52A (2)(c) speaks of "allowing to draw representative samples of such drugs or substances, in the presence such Magistrate." Such a representative sample is required to be made so that it can be used as primary evidence in the trial to establish the factum of the seized contraband and to done away with the cumbersome exercise of producing the entire contraband before the trial Court during the course of trial. It is important to notice that the word "representative sample" has only been used under Section 52A (2)(c) and not anywhere else in the Act. It is again noteworthy that Section 55 of the Act speaks of taking samples from the contraband seized by a police officer pending the orders of the Magistrate.
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(12 of 26) [CRLMB-3122/2021] Thus, the scheme of the Act of 1985 speaks of drawing of representative samples in presence of the Magistrate and drawing of samples from the seized contraband by a police officer. Through the various Orders and Notifications by the Central Government as also the Field Officer's Handbook issued by the NCB, Ministry of Home Affairs, Government of India wherein, under Chapter-8 dealing with sampling and sealing, it has been laid down that the Drug Law Enforcement Officer is required to take samples from the seized drugs in duplicate in all cases in presence of witnesses and the person from whose possession it has been recovered or the owner/occupier, representative or owner of the premises. As noticed earlier, the representative sample is a primary evidence to be produced before the trial Court in lieu of the entire contraband. As far as sample taken from the contraband for the purpose of establishing as to whether it is contraband or not is concerned, the same is sent to FSL or Chemical Analysis Labs for chemical examination. In the said process, the sample sent to the FSL is even consumed by the Lab to give its report. By nature of the aforesaid activities being distinct, the "representative samples" is counter-distinguishable from the "sample".
Further, Section 51 of the Act of 1985 provides as under:
"51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.-The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."(Downloaded on 15/09/2021 at 09:49:59 PM)
(13 of 26) [CRLMB-3122/2021] The Hon'ble Apex Court has, in the case of Chief Information Commissioner (supra), held as under:
"47. It is well-known that the legislature does not waste words or say anything in vain or for no purpose. Thus, a construction which leads to redundancy of a portion of the statute cannot be accepted in the absence of compelling reasons. In the instant case there is no compelling reason to accept the construction put forward by the respondents."
Thus, the authority and jurisdiction of the Investigating Authority with regard to arrest, searches and seizure as available under the Criminal Procedure Code, 1973 are kept intact under the Act of 1985 also and Section 55 specifically authorises a police officer to draw samples from the seized contraband.
As far as the judgement of the Hon'ble Apex Court in the case of Mohan Lal (supra) is concerned, the issue therein came up while dealing with an appeal by the Union of India against the judgement of acquittal. The Hon'ble Supreme Court was seized of the issue with regard to seizure, storage, disposal, destruction of the contraband. Vide its order dated 3.7.2012, reported in (2012) 7 SCC 712, the Hon'ble Apex court issued some directions pertaining to seizure, storage, disposal/destruction of the contraband Pan India and sought reports in terms thereof. A perusal of the direction does not reveal any issue involved therein with regard to sampling at the time of seizure. On receipt of the report, certain directions were issued on 28.01.2016 reported in (2016) 3 SCC 379. A perusal of the judgement nowhere reveals that issue as to whether non-compliance of Section 52A would render the investigation vitiated or/and would also lead to ipso (Downloaded on 15/09/2021 at 09:49:59 PM) (14 of 26) [CRLMB-3122/2021] facto creating a situation for grant of bail in the teeth of provisions of Section 37 of the Act, was taken up.
It is trite law that judgement of a Court cannot be taken as provisions of Statute. In case of Haryana Financial Corporation & Anr. vs. Jagdamba Oil Mills & Anr.-(2002) 3 SCC 496, it was held as under:
"19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark upon lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at P. 761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
20. In Home Office v. Dorset Yacht Co. (1970 (2) All ER
294) Lord Reid said, "Lord Atkin's speech..is not to be treated as if it were a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe (Downloaded on 15/09/2021 at 09:49:59 PM) (15 of 26) [CRLMB-3122/2021] even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972) 2 WLR 537 Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."
21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
22. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
* * * "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
The Supreme Court of India in the case of Delhi Administration (Now NCT of Delhi) vs. Manohar Lal-(2002) 7 SCC 222, held as under:
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(16 of 26) [CRLMB-3122/2021] "5. We have carefully considered the submissions of the learned counsel appearing on either side. Apparently, the learned Judge in the High Court was merely swayed by considerations of judicial comity and propriety and failed to see that merely because this Court has issued directions in some other cases, to deal with the fact situation in those other cases, in the purported exercise of its undoubted inherent and plenary powers to do complete justice, keeping aside even technicalities, the High Court, exercising statutory powers under the Criminal Laws of the land, could not afford to assume to itself the powers or jurisdiction to do the same or similar things. The High Court and all other courts in the country were no doubt ordained to follow and apply the law declared by this Court, but that does not absolve them of the obligation and responsibility to find out the ratio of the decision and ascertain the law, if any, so declared from a careful reading of the decision concerned and only thereafter proceed to apply it appropriately, to the cases before them. Considered in that context, we could not find from the decisions reported in Sukumaran-1997 (9) SCC 101 (supra) and Santosh Kumar-2000 (9) SCC 151 (supra) any law having been declared or any principle or question of law having been decided or laid down therein and that in those cases this Court merely proceeded to give certain directions to dispose of the matter in the special circumstances noticed by it and the need felt, in those cases, by this Court to give such a disposal. The same could not have been mechanically adopted as a general formula to dispose of, as a matter of routine, all cases coming before any or all the courts as a universal and invariable solution in all such future cases also. The High Court had no justifying reason to disturb the conclusion of the first Appellate Court, in this regard."
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(17 of 26) [CRLMB-3122/2021] The Supreme Court yet again in the case of Punjab National Bank vs. R.L. Vaid & Ors.-(2004) 7 SCC 698 laid down as under:
"5. We find that the High Court has merely referred to the decision in R.K. Jain's case-(1993) 4 SCC 119 without even indicating as to applicability of the said decision and as to how it has any relevance to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in treating the words of a judgment as though they are words in a Legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning, while speaking in the matter of applying precedents. The impugned order is certainly vague."
Various High Courts, while deciding the bail applications, have dealt with the provisions of Section 52A of the Act as also the direction of the Hon'ble Apex Court of India in the case of Mohan Lal (supra). The Hon'ble Delhi High Court, while dealing with the issue in case of Arvind Yadav (supra), held as under:
"12. Section 52A was inserted by the Amendment Act of 1989 w.e.f. 29th May, 1989. The provision relates to the disposal of the seized narcotic drugs and psychotropic substance and Section 52A (1) provides that the Central Government may having regard to hazardous nature of (Downloaded on 15/09/2021 at 09:49:59 PM) (18 of 26) [CRLMB-3122/2021] any narcotic drugs or psychotropic substance, their vulnerability to their substitution, constraints of proper storage space or any other relevant consideration by notification published in the Official Gazette, specify the narcotic drugs or psychotropic substance which may as soon as after their seizure be disposed of by such officer. Thus the provision relates to disposal of the drug after the same is seized so as to rule out substitution, misuse and being hazardous. It is not unknown that applications under Section 52A NDPS Act are also filed at the stage of appeal seeking permission of the Court to dispose of the narcotic drugs and psychotropic substance. The procedure prescribed under Section 52A NDPS Act and as ordained by Supreme Court in Mohan Lal (supra) is required to be mandatorily followed however, the issue in the present case is whether non-compliance of this procedure which is applicable for disposal of the narcotic drugs and psychotropic substances would vitiate the trial in case immediately on seizure samples are drawn in the absence of a Magistrate even before they are deposited in the malkhana for being sent to FSL to seek a report as to the nature of the contraband for the purposes of filing the charge-sheet. The decision in Mohan Lal (supra) does not canvas that the procedure followed by the investigating agencies like the Directorate of Revenue Intelligence which takes samples on the spot resulted in an illegality so as to vitiate the trial. Conscious of the complicity of the matter, Supreme Court in para 18 of the report in Mohan Lal (supra) noted that there is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Supreme Court thus directed the Central Government to re-examine the matter and take suitable steps in the above direction. Needless to note that till date no further (Downloaded on 15/09/2021 at 09:50:00 PM) (19 of 26) [CRLMB-3122/2021] amendments to the statutory provision or by rescinding the Standing Order has been brought out.
13. By this petition, petitioner seeks bail on the ground of non-compliance of Section 52A of the NDPS Act, however, in view of the fact that the trial does not stand vitiated by drawing the samples at the spot in the absence of a Magistrate for being sent to FSL analysis for filing an appropriate charge-sheet before the Special Court for ascertaining the nature of contraband and whether the sanctity of drawing the samples was vitiated for the non- presence of the Magistrate would be an issue to be seen during the course of trial, hence this Court finds no ground to grant bail to the petitioner on this ground."
Similarly, the Hon'ble High Court of Kerala in case of Pavithran (supra) while deciding the claim of the petitioners therein to be enlarged on bail, held as under:
"In that view of the matter, the mere fact that the Investigating Officer has not moved the learned Magistrate under Section 52A will not in any way affect the case of the prosecution in the instant case. The very purpose of Section 52A is to ensure that the contraband substance is disposed of under the supervision of a Magistrate and if the Magistrate follows the mandate under Section 52A, then the certificate issued by him is per se admissible in evidence and it is not necessary for the police or the investigating agency to produce the bulk seized material which is the case property before the Court. In case Section 52A is not complied with and the seized material is not destroyed, then it is the duty of the prosecution to produce the same before the Trial Court during the stage of trial. These petitions are accordingly dismissed."
Recently, the Hon'ble High Court of Uttrakhand vide its judgement dated 8.6.2021 passed in the case of Shakrukh vs. (Downloaded on 15/09/2021 at 09:50:00 PM) (20 of 26) [CRLMB-3122/2021] State of Uttrakhand, Bail Application No.55 of 2020, while dealing with the direction issued by the Hon'ble Supreme Court of India in the case of Mohan Lal, observed as under:
"17. This Court of the view that the said direction was also only regulatory in nature and it was a suggestion which was expressed, and it was not a mandate which was determined at that point of time to be adhered in the NDPS cases, at the stage of arrest, seizure or recovery of the contraband."
This Court is in respectful agreement with the view expressed by various High Courts and in the backdrop of analysis made hereinabove, is unable to persuade itself to hold that the entire investigation against the petitioner stands vitiated for want of compliance of provisions of Section 52A(2)(c) of the Act as well as direction issued by the Hon'ble Apex Court of India in the case of Mohan Lal entitling him for benefit of bail oblivious of the stringent provision contained in Section 37 of the Act.
In this regard, it is also apt to make reference to the following observations of the Constitution Bench of the Hon'ble Supreme Court in the case of Mukesh Singh vs. State (Narcotic Branch of Delhi)-(2020) 10 SCC 120:
"10.4 Investigation includes even search and seizure. As the investigation is to be carried out by the officer in charge of a police station and none other and therefore purposely Section 53 authorises the Central Government or the State Government, as the case may be, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer in charge of a police station for the investigation of offences under the NDPS Act. Section 42 confers power of entry, search, seizure and arrest without warrant or (Downloaded on 15/09/2021 at 09:50:00 PM) (21 of 26) [CRLMB-3122/2021] authorisation to any such officer as mentioned in Section 42 including any such officer of the revenue, drugs control, excise, police or any other department of a State Government or the Central Government, as the case may be, and as observed hereinabove, Section 53 authorises the Central Government to invest any officer of the department of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government....or any class of such officers with the powers of an officer in charge of a police station for the investigation. Similar powers are with the State Government. The only change in Sections 42 and 53 is that in Section 42 the word "police" is there, however in Section 53 the word "police" is not there. There is an obvious reason as for police such requirement is not warranted as he always can be the officer in charge of a police station as per the definition of an "officer in charge of a police station" as defined under the Cr. P.C. 10.5 Therefore, as such, the NDPS Act does not specifically bar the informant/complainant to be an investigator and officer in charge of a police station for the investigation of the offences under the NDPS Act. On the contrary, it permits, as observed hereinabove. To take a contrary view would be amending Section 53 and the relevant provisions of the NDPS Act and/or adding something which is not there, which is not permissible.
11. Now so far as the submission on behalf of the accused that so far as the NDPS Act is concerned, it carries a reverse burden of proof under Sections 35 and 54 and therefore if the informant who himself has seized the offending material from the accused and he himself thereafter investigates the case, there shall be all possibilities of apprehension in the mind of the accused that there shall not be fair investigation and that the officer concerned shall try to prove his own version/seizure and therefore there shall be denial of the "fair investigation"
enshrined under Article 21 of the Constitution of India is concerned, it is required to be noted that whether the investigation conducted by the informant concerned was fair investigation or not is always to be decided at the time of trial. The informant/investigator concerned will be cited as a witness and he is always subject to cross-examination. There may be (Downloaded on 15/09/2021 at 09:50:00 PM) (22 of 26) [CRLMB-3122/2021] cases in which even the case of the prosecution is not solely based upon the deposition of the informant/informant-cum- investigator but there may be some independent witnesses and/or even the other police witnesses. As held by this Court in catena of decisions, the testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principal of law that without corroboration by independent witnesses his testimony cannot be relied upon. [See Karamjit Singh v. State (NCT of Delhi) (2003) 5 SCC 291]. As observed and held by this Court in Devender Pal Singh v. State (NCT of Delhi) (2002) 5 SCC 234, the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor.
11.1 At this stage, reference may be made to illustration (e) to Section 114 of the Indian Evidence Act. As per the said provision, in law if an official act has been proved to have been done, it shall be presumed to be regularly done. Credit has to be given to public officers in the absence of any proof to the contrary of their not acting with honesty or within limits of their authority. Therefore, merely because the complainant conducted the investigation that would not be sufficient to cast doubt on the entire prosecution version and to hold that the same makes the prosecution version vulnerable. The matter has to be left to be decided on a case to case basis without any universal generalisation.
11.2 At this stage, it is required to be noted that in cases where any person empowered under Sections 42, 43 or 44 of the NDPS Act acts vexatiously or maliciously, the statute itself has provided the punishment as per section 58 and it is an offence under section 58 which is a cognizable offence and such an offence is required to be investigated by the "officer in charge of a police station" other than the officer who exercised the power of entry, search, seizure or arrest under Sections 42, 43, or 44 as naturally in such a case he would be a proposed accused and therefore he cannot be permitted to investigate and to be a judge in his own cause. However, so far as the investigation against the accused for the offence under the (Downloaded on 15/09/2021 at 09:50:00 PM) (23 of 26) [CRLMB-3122/2021] NDPS Act is concerned, the same analogy may not apply for the reasons stated hereinabove.
11.3 Now so far as the observations made by this Court in para 13 in Mohan Lal (2018) 17 SCC 627 that in the nature of reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstance that may raise doubt about its veracity, it is to be noted that the presumption under the Act is against the accused as per Sections 35 and 54 of the NDPS Act. Thus, in the cases of reverse burden of proof, the presumption can operate only after the initial burden which exists on the prosecution is satisfied. At this stage, it is required to be noted that the reverse burden does not merely exist in special enactments like the NDPS Act and the Prevention of Corruption Act, but is also a part of the IPC - Section 304B and all such offences under the Penal Code are to be investigated in accordance with the provisions of Cr.P.C. and consequently the informant can himself investigate the said offences under Section 157 Cr.P.C.
12. Therefore, as such, there is no reason to doubt the credibility of the informant and doubt the entire case of the prosecution solely on the ground that the informant has investigated the case. Solely on the basis of some apprehension or the doubts, the entire prosecution version cannot be discarded and the accused is not to be straightway acquitted unless and until the accused is able to establish and prove the bias and the prejudice. As held by this Court in Ram Chandra (2005) 5 SCC 151 the question of prejudice or bias has to be established and not inferred. The question of bias will have to be decided on the facts of each case [See Vipan Kumar Jain (2005) 9 SCC 579].
12.1 At this stage, it is required to be noted and as observed hereinabove, the NDPS Act is a Special Act with a special purpose and with special provisions including Section 68 which provides that no officer acting in exercise of powers vested in him under any provision of the NDPS Act or any rule or order made thereunder shall be compelled to say from where he got any information as to the commission of any offence. Therefore, considering the NDPS Act being a special Act with (Downloaded on 15/09/2021 at 09:50:00 PM) (24 of 26) [CRLMB-3122/2021] special procedure to be followed under Chapter V, and as observed hereinabove, there is no specific bar against conducting the investigation by the informant himself and in view of the safeguard provided under the Act itself, namely, Section 58, we are of the opinion that there cannot be any general proposition of law to be laid down that in every case where the informant is the investigator, the trial is vitiated and the accused is entitled to acquittal."
In the aforesaid circumstances, the judgements relied upon by the learned counsel for the petitioner of Punjab and Haryana High Court in Bikram Singh vs. State of Punjab in Criminal Miscellaneous No.M-12946/2017 (O&M) dated 26.05.2017 & Surjit Kumar @ Babbu vs. State of Punjab in CRM-39622-2016 in CRA- S-1338-SB-2015 dated 10.03.2017, judgment of Delhi High Court in Amani Didel Chris vs. Narcotics Control Bureau dated 13.03.2020, judgment of Bombay High Court in Jawed Khan vs. the State of Maharashtra in Criminal Application No.192 of 2020 in Criminal Appeal No.30 of 2020 dated 03.03.2020 & judgment of Patna High Court in Bhairo Singh vs. State of Bihar in Criminal Appeal (DB) No.276 of 2015 dated 06.11.2017, are of no assistance to him.
So far as entitlement of the petitioner for bail on account of delay in sending the samples drawn to FSL beyond the period of 72 hours from the time of its seizure is concerned, in none of the judgements relied upon by the petitioner, it has been laid down as an absolute proposition of law that whenever there is such delay, an accused has to be enlarged on bail despite non satisfaction of the conditions laid down under Section 37 of the Act of 1985.
In Ashok Kumar's case (supra), the primary consideration which weighed in the mind of the Hon'ble Court while extending (Downloaded on 15/09/2021 at 09:50:00 PM) (25 of 26) [CRLMB-3122/2021] benefit of bail (as appears from the order) was serious discrepancy about police vehicle which was used during patrolling and nakabandi while intercepting and recovery of the vehicle and contraband. In case of Dinesh @ Rinku (supra), the independent witnesses had turned hostile and the facts therein do not reveal as to whether the case was covered under the provisions of Section 37 of the Act. In Noor Aga's case (supra), the Hon'ble Apex Court has laid down a broad proposition that guidelines prescribed in Standing Order cannot be blatantly flouted and the substantial compliance therewith must be insisted upon so that sanctity of physical evidence in such cases remains intact.
Therefore, the aforesaid judgements are of no avail to the petitioner. Even otherwise also, this Court finds substantial force in the submission of the learned Advocate General that in the facts of the circumstances of the case, there was no delay in sending the samples to FSL. The contraband was seized on 27.8.2020. 28.8.2020 was a government holiday being Baba Ramdev Jayanti. On 29.8.2020, the SHO of the concerned Police Station requested the Superintendent of Police to send the samples to FSL and since 30.8.2020 was a holiday being Sunday, the Superintendent of Police remitted the samples to FSL on 31.8.2020 which could be received in the FSL on 2.9.2020 as 1.9.2020 was holiday on account of Anand Chaturdashi. In these circumstances, this Court is prima facie satisfied that there was no delay in sending the samples to FSL. In any case, it is subject matter of trial and the effect and impact of delay, if any, and whether if it was delayed, it prejudiced rights of the petitioner, are to be examined by the learned trial court at the appropriate stage. (Downloaded on 15/09/2021 at 09:50:00 PM)
(26 of 26) [CRLMB-3122/2021] Similarly, the petitioner cannot be extended benefit of bail on the ground that reduction in weight of the contraband seized was noticed at the time of certification by the Magistrate under Section 52A than the weight taken at the time of seizure, since, it could be on account of loss of moisture or in any case, it is subject matter of trial.
Offshoot of the aforesaid discussion is that since the petitioner has been found in possession of the contraband of commercial quantity and in the facts and circumstances of the case, this Court is unable to record a finding that there are reasonable grounds for believing that he is not guilty of such offence, the first mandatory condition requisite for extending him benefit of bail, he is dis-entitled to the benefit of bail. Before closing the judgement, this Court records its special note of appreciation and thanks for Shri M.S. Singhvi, the learned Advocate General and Shri R.D. Rastogi, the learned Additional Solicitor General for extending their valuable help in the matter on the request of the Court.
Resultantly, the bail application is dismissed.
(MAHENDAR KUMAR GOYAL),J RAVI SHARMA /99 (Downloaded on 15/09/2021 at 09:50:00 PM) Powered by TCPDF (www.tcpdf.org)