Rajasthan High Court - Jodhpur
Raja Ram vs Central Bureau Of Narcotics on 20 November, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:43619]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Criminal Appeal (Sb) No. 377/2022
1. Raja Ram S/o Shri Bhairu Lal Meghwal, Aged About 40
Years, R/o Village Pipaliya Jodha, Police Station
Narayangarh, Tehsil Malhargarh, District Mandsaur
(Madhya Pradesh) (At Present Lodged In Central Jail,
Udaipur)
2. Karu Das S/o Shri Heera Das Bairagi, Aged About 35
Years, R/o Village Akyabika, Police Station Narayangarh,
Tehsil Malhargarh, District Mandsaur (Madhya Pradesh)
(At Present Lodged In Central Jail, Udaipur)
3. Dashrath Singh S/o Shri Udai Singh, Aged About 47
Years, R/o Village Aardi, Police Station Narayangarh,
Tehsil Malhargarh, District Mandsaur (Madhya Pradesh)
(At Present Lodged In Central Jail, Udaipur)
----Appellants
Versus
Central Bureau Of Narcotics, Chittorgarh Through PP
----Respondent
For Appellant(s) : Mr. Vijay Raj Bishnoi
Mr. Birbal Ram
For Respondent(s) : Mr. K.S. Nahar, Special PP for CBN
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Judgment Judgment Reserved on : 21.10.2024 Judgment Pronounced on : 20.11.2024
1. The appellants and one Govind Ram (since acquitted) faced trial in Sessions Case No. 02/2019 (06/2017). On 09.03.2022 judgment of conviction was passed against appellants Raja Ram, Karu Das and Dashrath Singh. Appellants Raja Ram and Karu Das were convicted for offences under sections 8/18 (b) & 8/29 NDPS Act and appellants Dashrath Singh was convicted for offences (Downloaded on 20/11/2024 at 09:54:52 PM) [2024:RJ-JD:43619] (2 of 9) [CRLAS-377/2022] under sections 8/25 & 8/29 NDPS Act. The learned trial Judge has sentenced the appellants with 15 years' rigorous imprisonment plus fine of Rs. 2 Lacs and in default of payment of fine, 1 year rigorous imprisonment has been ordered.
2. In brief, the prosecution case is that Sudhir Yadav (PW-4), Superintendent of Police and Banwarilal Meena (PW-2), Sub- Inspector received secret information that on 21.07.2016 between 6:00 a.m. and 10:00 a.m., appellant no. 3 was going to send appellant Nos. 1 and 2 to Ajmer via Chittorgarh route in his Maruti Swift Dzire car, bearing registration No. RJ 09 CA 9704, to deliver about 10 - 20 kg opium (Afeem) to a smuggler. Thereafter, a preventive team was formed on 21.7.2016 itself. At around 8.30 am, the preventive team got stationed in front of a filling station at Chittorgarh- Bhilwara Road, Chittorgarh. There, Banwarilal Meena (PW-2) asked Ratanlal Bairwa (PW-1) and Rakesh Garg (not produced) to become independent witnesses of the incident. At around 8.35 am, a white Swift Dzire Car was seen coming from Nimbahera, having referred registration number. When the police personnel intercepted the car, 3 yellow bags of 5kg each, containing suspected contraband opium (afeem) were found. The car was allegedly of appellant no. 3, driver of the said vehicle was appellant No. 2 and co-passenger was appellant no. 1 herein.
3. The total weight of the bags was 15 Kg. The police team took two mixed samples of 25 gm each from each of the seized bags and the rest were sealed separately. For the incident aforesaid, complaint case No. 1/2016 was registered at CBN, Chittorgarh. (Downloaded on 20/11/2024 at 09:54:52 PM) [2024:RJ-JD:43619] (3 of 9) [CRLAS-377/2022]
4. During trial prosecution examined altogether 6 witnesses and several documents were exhibited; relevant whereof would be referred hereinafter. Relying on the evidence of the prosecution witnesses and documents, the learned trial judge has recorded conviction.
5. The defence has examined two witnesses. DW-1 Badrilal has deposed that Appellant No. 3 had already sold his car to Appellant No. 2. DW-2 Unkarlal has also supported the aforesaid fact.
6. Learned counsel for the appellants contends that it is an admitted case of the prosecution that the seized material was not sealed in presence of the Magistrate nor the samples were taken out in presence of the Magistrate nor photography of the entire exercise was made. This would be evident from the testimony of PW-2, therefore, there is non-compliance of the mandate of Section 52A of the NDPS Act. As a result whereof the whole trial stands vitiated and the learned trial Judge has not considered this infirmity.
7. Learned counsel for the appellants contends that seizure witness Ratanlal Bairwa (PW-1) has turned hostile and another independent witness Rakesh Garg was not produced, which adds to the doubt on the prosecution case.
8. Learned counsel for the appellants contends that as per the mandate of Section 102(3) Cr.P.C., every Police Officer is bound to forthwith report seizure to the Magistrate having jurisdiction. In the case on hand, no such reporting was made to the Magistrate. (Downloaded on 20/11/2024 at 09:54:52 PM) [2024:RJ-JD:43619] (4 of 9) [CRLAS-377/2022]
9. Learned counsel for the respondent - NCB contends that the learned trial Judge has taken note of requirements of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 as well as the other requirements while passing the impugned judgment. No motive is alleged on the part of police for false implication of the appellants.
10. There is no dispute that the mandate of Section 52A of NDPS Act was not complied with at the appropriate stage in this case. On several occasions the requirement of compliance of the mandate of Section 52A of NDPS Act was considered by Hon'ble Supreme Court in the past. Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as follows :-
"52A. Disposal of seized narcotic drugs and psychotropic substances.
-- (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, the officer referred to in subsection (1) shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances or conveyances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the (Downloaded on 20/11/2024 at 09:54:52 PM) [2024:RJ-JD:43619] (5 of 9) [CRLAS-377/2022] narcotic drugs, psychotropic substances, controlled substances or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs, psychotropic substances, controlled substances or conveyances in any proceedings under this Act and make an application, to any Magistrate for the purpose of--
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of such drugs, substances or conveyances and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
"4. Sub-section (1) of Section 52A of the NDPS Act facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance. The idea is to create a clear mechanism for such disposal both for the purpose of dealing with the particular case and to safeguard the contraband being used for any illegal purpose thereafter.
5. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking (Downloaded on 20/11/2024 at 09:54:52 PM) [2024:RJ-JD:43619] (6 of 9) [CRLAS-377/2022] drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lac11. The aforesaid provision was considered by Hon'ble Supreme Court in Mangilal Vs. The State of Madhya pradesh reported in 2023 INSC 634. Para-
4, 5 & 6 of the judgment are being reproduced below :-king any inventory, photograph or list of samples would not constitute primary evidence.
6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn.
11. Prior to that in Union of India Vs. Mohanlal & Anr., reported in AIROnline 2016 SC 770 on consideration of the requirement of Section 52A of NDPS Act, the Hon'ble Supreme Court observed in para 15, 16 & 17 as follows :-
"15. It is manifest from Section 52− A(2)include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer−in−charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate Criminal Appeal No.451 of 2011 and certifying the correctness of the list of samples so drawn.(Downloaded on 20/11/2024 at 09:54:52 PM)
[2024:RJ-JD:43619] (7 of 9) [CRLAS-377/2022]
16. Sub−section (3) of Section 52−A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer−in− charge of the police station or the officer empowered, the officer concerned is in law duty−bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52−A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub−sections (2) and (3) of Section 52−A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act Criminal Appeal No.451 of 2011 that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure." (emphasis added).
Thus, the act of PW−2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal2. This creates a serious doubt about the prosecution's case that the substance recovered was contraband."
12. Yet in Bothilal Vs. Intelligence Officer Narcotics Control Bureau reported in AIROnline 2023 SC 339, the Hon'ble Supreme Court accepted submission of the appellant in para-15 of the judgment, which is being reproduced below :-
"15. Admittedly, PW−2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the (Downloaded on 20/11/2024 at 09:54:52 PM) [2024:RJ-JD:43619] (8 of 9) [CRLAS-377/2022] samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution's case as this action by the PW−2, was contrary to Section 52−A of NDPS Act."
13. Evidently, the seizure was made on 21.07.2016, whereas, inventory before the Magistrate was prepared on 18.11.2016. In the meantime, the entire exercise of taking out samples and sending the same for FSL etc. were already exhausted. Sub- section (4) of section 52 A NDPS Act is clear that when exercise has been made in the presence of the Magistrate, it would be primary evidence. Once there is no primary evidence available, the trial as a whole stands vitiated.
14. In view of the conclusions reached above, this court does not find any substance in the submission of the learned counsel of NCB that compliance of sec. 52 A NDPS Act is not needed in the matter of taking out samples for forensic examination, rather, the same is confined to taking out representative samples.
15. As has been held by the Hon'ble Supreme court, reason behind the provision is to inject fairplay in the process of investigation.
16. In the case on hand, there is flagrant violation of the mandate of the aforesaid provision. The entire exercise of search, seizure and taking out of samples were made at the spot at the time of search and without ensuring presence of the Magistrate while allowing to draw representative samples. The prosecution case is fit to be discarded for this lapse alone. (Downloaded on 20/11/2024 at 09:54:52 PM)
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17. The learned trial Judge has failed to consider that the prosecution failed to prove compliance of the mandate of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 or the mandate of law under the Code of Criminal Procedure, 1973 as referred above.
18. In the result, conviction of the appellants is hereby set aside. The appellants have already remained in jail for more than 8 years. Let the appellants be set free at once on execution of bond by the appellants that in the event of challenge of this order they shall appear before the appellate court.
19. This appeal stands allowed accordingly.
(BIRENDRA KUMAR),J Sanjay/-
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