Dinesh Diniya Lala Ram vs State (2024:Rj-Jd:39621) on 24 September, 2024

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Rajasthan High Court - Jodhpur

Dinesh Diniya Lala Ram vs State (2024:Rj-Jd:39621) on 24 September, 2024

2. Both the appellants faced trial in Criminal Case No.200/2016 arising out of FIR No.03/2008 registered at Baytu Police Station for offence under Section 8/15 NDPS Act. Since appellant - Kewal Singh was absconding on the date of judgment, another appellant Dinesh @ Diniya @ Lala Ram was convicted by judgment dated (Downloaded on 25/09/2024 at 08:58:44 PM) [2024:RJ-JD:39621] (2 of 8) [CRLAS-654/2024] 26.09.2019 and was awarded with ten years rigorous imprisonment and fine of Rs.1,00,000/- in default of payment of fine, one year simple imprisonment was ordered. Later on Kewal Singh was also apprehended and he was convicted by the impugned judgment dated 19.01.2024 and same sentence was awarded against him as well.

2. The prosecution case as disclosed in the statement of PW-10 Manish Charan is that on 15.01.2008, he was posted as Officer In- Charge of Baytu Police Station. He along with police party had intercepted a scorpio vehicle bearing Registration No. RJ-14-U- 4559, of which Mr. Mool Singh was driver (Mool Singh is reported dead). Appellant Kewal Singh was sitting beside the driver and appellant Dinesh was seen fleeing from the place of interception of the vehicle. From the said vehicle, seven bags of doda post were recovered. They had no documents in the nature of license, hence, they were arrested. The total weight of doda post was 179 Kgs. PW-10 took out 500 Grms. from each of the bags and sent the same for FSL examination on 17.01.2008. After about seven years of the incident, compliance of Section 52A of NDPS Act was made; as order of the Magistrate for preparation of inventory etc. was obtained on 18.04.2017. Inventory was prepared in the presence of the Magistrate on 18.06.2017. Samples were taken out again on the same day.

3. Learned counsel for the appellants submits that the prosecution examined fifteen witnesses. Most of them were of the police team, which had conducted the raid and seizure and two of them were witnesses of the seizure.

(Downloaded on 25/09/2024 at 08:58:44 PM) [2024:RJ-JD:39621] (3 of 8) [CRLAS-654/2024] Learned counsel contends that there is non-compliance of mandates of Section 52 A of the NDPS Act inasmuch as the bags allegedly containing doda post were opened without ensuring presence of the Magistrate and samples were taken out. No photographs were taken of the aforesaid exercise. The non- compliance creates doubts on the prosecution version. The witness of search PW-2 has stated that no samples were taken in his presence, whereas PW-10 says that samples were taken in presence of the witness. Even if PW-10 is believed, then also it would not make compliance of Section 52 A of the NDPS Act.

4. Learned counsel for the respondent - State contends that the prosecution witnesses have proved the factum of search and seizure. There is no material to suggest that the police had any motive to falsely implicate the appellants. Only for trivial lapse in compliance of law, which was later on complied, the prosecution case cannot be disbelieved.

5. There is no dispute that the mandate of Section 52A of NDPS Act was not complied with 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, (Downloaded on 25/09/2024 at 08:58:44 PM) [2024:RJ-JD:39621] (4 of 8) [CRLAS-654/2024] 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 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 (Downloaded on 25/09/2024 at 08:58:44 PM) [2024:RJ-JD:39621] (5 of 8) [CRLAS-654/2024] certified by the Magistrate, as primary evidence in respect of such offence."

6. 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:-

"4. Sub-section (1) of Section 52A of the NDPS Act facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance. The idea is to create a clear mechanism for such disposal both for the purpose of dealing with the particular case and to safeguard the contraband being used for any illegal purpose thereafter.

5. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non- compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence.

6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his (Downloaded on 25/09/2024 at 08:58:44 PM) [2024:RJ-JD:39621] (6 of 8) [CRLAS-654/2024] approval either for certifying an inventory or for a photograph taken apart from list of samples drawn."

7. 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.

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, (Downloaded on 25/09/2024 at 08:58:44 PM) [2024:RJ-JD:39621] (7 of 8) [CRLAS-654/2024] 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."

8. Yet in Bothilal Vs. Intelligence Officer Narcotics Control Bureau reported in AIROnline 2023 SC 339, the Hon'ble Supreme Court accepted submission of the appellant in para-15 of the judgment, which is being reproduced below:-

"15. Admittedly, PW−2 drew two samples from each of the packets of the contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion is created about the prosecution's case as this action by the PW−2, was contrary to Section 52−A of NDPS Act."

9. In the case on hand, there is apparent non-compliance of the mandates of law. The compliance is for some purpose and not for casual non-compliance of the same, because Sub-section (4) of Section 52A NDPS Act provides that the exercise done in presence of the Magistrate would be taken as primary documentary evidence during trial. In such type of cases, the prosecution is (Downloaded on 25/09/2024 at 08:58:44 PM) [2024:RJ-JD:39621] (8 of 8) [CRLAS-654/2024] bound to prove beyond reasonable doubt the factum of seizure of contraband, for which the legislature requires photographs to be taken to ensure trustworthiness of the exercise, which has not been done in this case. The samples were not taken out in the presence of the Magistrate, therefore, it is doubtful that the samples were taken from the same bags, which were allegedly taken out from the vehicle.

10. Since the prosecution has not complied the mandatory requirements of law under Section 52A of the Act. Hence, conviction of the appellants stands vitiated in law.

11. In the result, the impugned judgments stand hereby set aside and both the criminal appeals are allowed. The appellant - Kewal Singh is in Jail. Let him be set free at once on execution of a bond that in the event of challenge of this judgment, he shall appear before the appellate court and cooperate with the proceeding.

(BIRENDRA KUMAR),J 6-7-nitin/-

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Rajasthan High Court - Jodhpur