Himachal Pradesh High Court
Lalman vs State Of Himachal Pradesh on 8 August, 2024
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
Neutral Citation No. ( 2024:HHC:6596 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 158 of 2021 .
Reserved on: 30.07.2024 Date of Decision: 8th August, 2024 Lalman ....Petitioner Versus State of Himachal Pradesh ....Respondent Coram Hon'ble Mr Justice Tarlok Singh Chauhan, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? Yes.
For the Petitioner : Mr. G.R. Palsra, Advocate.
For the Respondent : Mr. I.N. Mehta, Mr. Y.W.S. Chauhan, Sr. Additional Advocates General with Ms Sharmila Patial, Mr Navlesh Verma, Additional Advocates General and Mr Raj Negi, Deputy Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 28.04.2021 passed by learned Special Judge-III, Mandi, District Mandi (learned Trial Court) vide which, the appellant (accused before learned Trial Court) was convicted of the commission of an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act (in ____ Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 2 Neutral Citation No. ( 2024:HHC:6596 ) short 'NDPS Act') and was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of ₹1,00,000/- and in .
default of payment of the fine to further undergo simple imprisonment for one year. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan before the learned Trial Court for the commission of an offence punishable under Section 20 of the NDPS Act. It was asserted that SI-Roop Lal (PW14), HC-
Balbir, HHC Khem Singh, HHC Chunni Lal, HHC Nanak Chand, and Constable Dinesh Gir (PW4) were present at Banala on 30.01.2018 with Investigation Officer kit for detection of the narcotics cases.
They received a secret information at 4:30 pm that the accused Lalman was running a shop in the name and style of Radhika General Store at Takoli Bazaar. He was bringing liquor from Chandigarh and selling it in his shop. In the case of a search, a huge quantity of liquor could be recovered. The information was credible.
The delay in procuring the search warrant could have led to the destruction of the case property. Hence, the police party went to the ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 3 Neutral Citation No. ( 2024:HHC:6596 ) Radhika General Store. They reached the store at 5:15 pm. They found Him Singh (PW3) and Vishal (PW2) outside the shop. They .
were associated with the police. All of them went inside the shop.
SI-Roop Lal (PW14) showed his identity card and introduced the members of the raiding party. He disclosed the information received by him and expressed an intention to search the shop. The accused revealed his name as Lalman on inquiry. The search of the shop was conducted during which, the police found one carton containing coconuts and bundles of beedi. They also found one carry bag tied with a knot. The police checked the carry bag and found a transparent blue polythene containing a stick-like substance wrapped with the polythene. The police checked the sticks and found them to be cannabis. The cannabis was weighed on an electronic weighing scale and its weight was found to be 1.128 kg.
The photographs of the proceedings (Ext. P1 and P2) were taken.
The cannabis was put in the polythene, the polythene was put in a carry bag and the carry bag was put in a cloth parcel. The parcel was sealed with 9 impressions of seal 'T'. Seal Impression (Ext. PW12/B) was taken on a separate piece of cloth. NCB-I form (Ext. PW12/D) was filled. A seal impression was taken on the form. The seal was handed over to witness Vishal after the use. The cannabis was ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 4 Neutral Citation No. ( 2024:HHC:6596 ) seized vide seizure memo (Ext. PW14/C). A rukka (Ext. PW12/A) was prepared and handed over to Constable Dinesh Gir with a direction .
to carry it to the police station. Constable Dinesh Gir handed over the rukka to Virender Chauhan (PW12), who got the FIR (Ext.
PW12/B) registered in the police station and made the endorsement on the rukka. Constable Dinesh Gir also brought the parcel along with the sample seal 'T', a Copy of the seizure memo and form NCB-I in triplicate. Virender Chauhan (PW12) filled columns No.9 to 11 of the NCB-I form and resealed the parcel with the seal impression 'W'. He put the seal impression 'W' on the NCB-I form (Ext. PW12/D). Inspector Virender Chauhan prepared the re-sealing certificate (Ext. PW10/D) and handed over the case property along with the sample seal and NCB-I form to MHC-Umeshwar Singh (PW10). MHC-Umeshwar Singh made the entry in the Malkhana Register at Sr. No.227 (Ext. PW10/A) and deposited the case property in the Malkhana. He also put his signatures on the re-
sealing certificate (Ext. PW10/D). SI-Roop Lal (PW14) conducted the investigation on the spot. He prepared the site plan (Ext.
PW14/D) and recorded the statements of the witnesses as per their version. He interrogated and arrested the accused vide memo of arrest (Ext. PW14/E). He prepared the special report (Ext. PW9/B) ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 5 Neutral Citation No. ( 2024:HHC:6596 ) and handed it over to Dy.S.P.-Brahm Dass (PW-11) in his office at Kullu. Brahm Dass made an endorsement on the special report (Ext.
.
PW9/B) and handed it over to his Reader HC-Usha (PW9). HC Usha retained the special report on record. HC-Umeshwar Singh (PW10) handed over the case property to constable Anil Kumar (PW8) on 02.02.2018 along with sample seal 'T' and 'W', NCB-I form in triplicate, seizure memo and relevant documents with a direction to deposit them at FSL, Junga. Constable Anil Kumar deposited all the articles in a safe condition at FSL Junga and handed over the receipt to MHC Umeshwar Singh on his return. The result of the analysis (Ext. PW14/J) was issued, in which it was shown that the exhibit was an extract of cannabis and a sample of charas. It contained 30.60% w/w resin in it. Constable Anil Kumar brought the case property sealed with FSL-II at four places and handed them over to HC-Umeshwar Singh (PW10) on his return. HC-Umeshwar Singh (PW10) made an entry in the Register No.19 and deposited it in Malkhana. The case property was produced before the learned Judicial Magistrate, First Class-IV for compliance with Section 52A (3) of the NDPS Act. The Court certified the inventory and passed an order (Ext. PW14/K). The statements of the remaining witnesses were recorded as per their version. Entries in the daily diaries were ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 6 Neutral Citation No. ( 2024:HHC:6596 ) taken in possession and after the completion of the investigation, the challan was prepared and presented before the Court of learned .
Special Judge, who assigned it to learned Special Judge-III, Mandi for disposal as per the law.
3. Learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the NDPS Act. The accused pleaded not guilty and claimed to be tried.
4. The prosecution examined 14 witnesses to prove its case.
Renu Arora (PW1) is the owner of the building, where the accused was running the shop. Vishal (PW2) and Hem Singh (PW3) are the independent witnesses to the recovery, who have not supported the prosecution case. Constable Dinesh Gir (PW4) is the official witness to the recovery, who had also taken the rukka and case property with him to Police Station Bharari. HHC Dalip Singh (PW5) was working as Malkhana Incharge, with whom the case property was deposited. HC-Om Raj (PW6) was posted as MHC in District Malkhana, with whom the case property was deposited after the completion of the proceedings. HC-Ajay Singh (PW7) took the case property to the Court of learned Judicial Magistrate First Class-IV, Mandi for the certification of the inventory. Constable Anil Kumar ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 7 Neutral Citation No. ( 2024:HHC:6596 ) (PW8) carried the case property to FSL Junga and brought it from FSL Junga after the analysis. HC-Usha (PW9) was working as a .
Reader to Dy. S.P. to whom the special report was handed over. HC-
Umeshwar Singh (PW10) was posted as MHC in the police station, Bharari with whom the case property was initially deposited.
Brahm Dass (PW11) was posted as Dy.S.P. to whom the special report was handed over. Virender Chauhan (PW12) was working as SHO who signed the FIR and re-sealed the case property. DSP-
Mukesh Kumar (PW13) prepared the challan. SI-Roop Lal (PW14) conducted the investigation and effected the recovery.
5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that police officials made false statements to implicate him in a false case. He was innocent. No defence was sought to be adduced by the accused.
6. The learned Trial Court held that the testimonies of the police officials corroborated each other. The mere fact that independent witnesses had turned hostile is not sufficient to discard the prosecution case. The secret information was received regarding the sale of the liquor from the shop and there was no ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 8 Neutral Citation No. ( 2024:HHC:6596 ) requirement of compliance with the provision of Section 42 of the NDPS Act. Once the possession was proved, the burden to establish .
that it was not conscious was upon the accused. The accused had failed to discharge the burden; hence, he was convicted and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the appellant/accused has filed the present appeal asserting that the learned Trial Court erred in concluding that the accused had committed the offence. The evidence led by the prosecution did not inspire confidence. There was a violation of Section 42(2) of the NDPS Act. The police received the secret information but failed to reduce it into writing. The personal search of the accused was also conducted but no option was given to him whether he wanted to be searched in the presence of the Magistrate or the Gazetted Officer. The integrity of the case property was not established. There were major contradictions in the statements of official witnesses, which were ignored by the learned Trial Court.
Link evidence is missing. The ownership of the shop was also not proved. The rent deed was not brought on record to show that the accused was the tenant of the shop. There was a violation of Section 52A of the NDPS Act. The police had not recovered the coconut and ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 9 Neutral Citation No. ( 2024:HHC:6596 ) bundles of beedi. The prosecution case was suspect. Therefore, it was prayed that the present appeal be allowed and the judgment .
passed by the learned Trial Court be set aside.
8. We have heard Mr. G.R. Palsra, learned counsel for the appellant/accused, Mr I.N. Mehta, Mr Y.W.S. Chauhan, learned Senior Additional Advocates General with Ms Sharmila Patial & Mr. Navlesh Verma, learned Additional Advocate General and Mr Raj Negi, learned Deputy Advocate General, for the respondent/State.
9. Mr. G.R. Palsra, learned counsel for the appellant/accused submitted that the learned Trial Court erred in convicting and sentencing the accused. The police had prior information regarding the availability of charas in the shop but they failed to comply with the requirements of Section 42 of the NDPS Act, which is mandatory. The case property was not produced before the Court and it was destroyed without the order of the learned Magistrate. The prosecution case was highly suspect. He prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
10. Mr. Y.W.S. Chauhan, learned Senior Additional Advocate General for the respondent/State supported the judgment and order ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 10 Neutral Citation No. ( 2024:HHC:6596 ) passed by the learned Trial Court and submitted that no interference is required with the same.
.
11. We have given considerable thought to the submissions made at the bar and have gone through the records carefully.
12. SI-Roop Lal (PW14) stated that a secret information was received that Lalman was running a general store in the name and style of Radhika General Store at Takoli Bazaar. The accused indulged in the illegal business of liquor in his shop by purchasing the liquor from Chandigarh and selling it in his shop. The information was authentic and it was difficult to obtain the search warrant from the Court. Hence, he went to Takoli in a private vehicle and associated two independent witnesses, who disclosed their names as Hem Singh and Vishal. The police party went inside the shop and found the accused sitting on the chair, who introduced himself as Lalman on inquiry. The police party gave their search to Lalman and prepared the memo (Ext. PW14/A). He stated in his cross-examination that the memo (Ext.PW14/A) was scribed by HC Balbir on his instruction on the spot. Except for the FIR number which was written in red ink, the remaining portion of the memo (Ext. PW14/A) was written in one go. The sale of illicit liquor was ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 11 Neutral Citation No. ( 2024:HHC:6596 ) not mentioned in the memo (Ext. PW14/A) and it was prepared to comply with the provisions of Cr.P.C.
.
13. Constable Dinesh Gir (PW4) also made a similar statement regarding the receipt of information, proceeding towards the shop of the accused, joining the independent witnesses, and preparing the memo of the search of the witnesses and the police officials. He stated in his cross-examination that the Investigating Officer had himself prepared the memo in his presence. He did not remember whether the whole of the memo was written by the Investigating Officer with one pen from top to bottom. He clarified that the Investigating Officer wrote the whole memo in one go from top to bottom except for the FIR number which was written with red ink. He did not know whether the information regarding the NDPS Act was sent to the superior officer by the Investigating Officer before or after the preparation of the memo of personal search.
14. Thus, both the prosecution witnesses have consistently stated that the memo (Ext. PW14/A) was written on the spot and the FIR number was written subsequently. This memo starts with the ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 12 Neutral Citation No. ( 2024:HHC:6596 ) words Police Station CID, Bharari, District Shimla case FIR No.02/18 dated 30.01.2018 under Section 20 of NDPS Act.
.
15. The police officials consistently stated that this document was prepared before the search of the shop when the police had specific information regarding the availability of liquor inside the shop. The document does not mention the liquor anywhere rather it mentions Section 20 of the NDPS Act, which deals with the charas. Thus, the fact that this document mentioning charas was prepared before the search of the shop can only lead to an inference that police had prior information regarding the presence of charas in the shop of the accused or that this document was prepared not before the search of the shop but after the recovery of the charas.
16. Both these possibilities are fatal to the prosecution case.
If the police had information that the shop might have charas in it and it was definite information as stated by SI-Roop Lal, the police were bound to comply with the requirement of Section 42 of the NDPS Act. The police had to reduce the information into writing, mention the grounds of belief as to why the search warrant could not be obtained and send it to the superior officer. It was laid down ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 13 Neutral Citation No. ( 2024:HHC:6596 ) by the Hon'ble Supreme Court in Najmunisha v. State of Gujarat, 2024 SCC OnLine SC 520 that the officer receiving the information .
regarding the narcotics is bound to record the same and send it to the superior officer and failure to do so will vitiate the trial. It was observed:
"31. From the perusal of provision of Section 42(1) of the NDPS Act 1985, it is evident that the provision obligates an officer empowered by virtue of Section 41(2) of the NDPS Act 1985 to record the information received from any person regarding an alleged offence under Chapter IV of the NDPS Act 1985 or record the grounds of his belief as per the Proviso to Section 42(1) of the NDPS Act 1985 in case an empowered officer proceeds on his personal knowledge. While the same is to be conveyed to the immediate official superior prior to the said search or raid, in case of any inability to do so, Section 42(2) of the NDPS Act provides that a copy of the same shall be sent to the concerned immediate official superior along with grounds of his belief as per the proviso hereto. This relaxation contemplated by virtue of Section 42(2) of the NDPS Act 1985 was brought about through the Amendment Act of 2001 to the NDPS Act of 1985 wherein prior to this position, Section 42(2) mandated the copy of the said writing to be sent to the immediate official superior "forthwith".
32. The decision in Karnail Singh v. State of Haryana, (2009) 8 SCC 539: (2009) 3 SCC (Cri) 887 has been extensively referred by the learned Counsel for the Appellants and at the cost of repetition, it is observed that absolute non-compliance of the statutory requirements under the Section 42(1) and (2) of the NDPS Act 1985 is verboten. However, any delay in the said compliance may be allowed considering the same is supported by well-reasoned explanations for such delay. This position adopted by the instant 5-Judges' Bench of this Court is derived from the ratio in the decision in State of Punjab v.
::: Downloaded on - 08/08/2024 20:32:18 :::CIS 14Neutral Citation No. ( 2024:HHC:6596 ) Balbir Singh, (1994) 3 SCC 299 which is a decision by a 3- Judges' Bench of this Court.
33. Another 3-Judges' Bench while dealing with compliance .
of Section 42 of the NDPS Act 1985 in Chhunna alias Mehtab v. State of Madhya Pradesh, (2002) 9 SCC 363 dealt with criminal trial wherein there was an explicit non- compliance of the statutory requirements under the NDPS Act 1985. It was held that the trial of the Petitioner-Appellant therein stood vitiated. For a better reference, the judgment is quoted below as:
"1. The case of the prosecution was that at 3.00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate.
2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3.00 a.m. This being the position, the proviso to Section 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search warrant nor authorisation was obtained nor were the grounds for a possible plea that if an opportunity for obtaining a search warrant or authorisation is accorded the evidence will escape indicated. In other words, there has been non-compliance with the provisions of the proviso to Section 42 and therefore, the trial stood vitiated.
3. The appeals are, accordingly, allowed."
34. In Dharamveer Parsad v. State of Bihar, (2020) 12 SCC 492, there was non-examination of the independent witness without any explanation provided by the prosecution and even the panchnama or the seizure memo was not prepared on the spot but after having had reached police station only. Since the vehicle was apprehended and contraband was seized in non-compliance of the Section 42 of the NDPS Act 1985 - conviction and sentence of the appellant therein was ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 15 Neutral Citation No. ( 2024:HHC:6596 ) set aside. Apart from the said reasons there were various suspicious circumstances that inspired the confidence of the Court to set aside the conviction affirmed by the High Court .
therein. Paragraph numbers 05 and 06 are reiterated below for reference:
"5. In the present case PW 1, who is the investigating officer, in his deposition has stated that the information i.e. the contraband was being carried from the Indo-Nepal border identified in a vehicle, details of which had also been provided, had been received in the evening of 2-7- 2007. PW 1 has further stated that on receipt of this information, he had formed a team and had moved to Raxaul from Patna, which place they had reached by 2.00 a.m. in the morning of 3-7-2007. The vehicle in question had been apprehended and the contraband seized at about 6.00 a.m. of 3-7-2007. No explanation has been offered why the statement had not been recorded at any anterior point of time and the same was so done after the seizure was made.
6. Even if we were to assume that the anxiety of the investigating officer was to reach Raxaul which is on the international border and therefore, he did not have the time to record said information as per requirement of Section 42 of the Act, the matter does not rest there. There are other suspicious circumstances affecting the credibility of the prosecution case. Though the investigating officer stated that he had moved to Raxaul along with a team and two independent witnesses, the said independent witnesses were not examined. No explanation is forthcoming on this count also. That apart from the materials on record it appears that no memos including the seizure memo were prepared at the spot and all the papers were prepared on reaching the police station at Patna on 4-7-2007."
17. Thus, the provision of Section 42 of the NDPS Act is mandatory and its violation will vitiate the trial. Therefore, the ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 16 Neutral Citation No. ( 2024:HHC:6596 ) possibility that the police had prior information regarding the presence of charas in the shop of the accused and they had not .
complied with the requirement of Section 42(2) of the NDPS Act will vitiate the trial.
18. In case, the document was prepared after the search of the shop, the credibility of the police officials would be suspect.
They would be shown to be lying regarding the most important aspect of the prosecution case that the police officials had given their search before searching the shop of the accused. When two independent witnesses have not supported the prosecution case and the police officials are shown to be lying regarding their search and fabricating the documents, reliance cannot be placed on their testimonies.
19. In Manjit Singh vs. State 2001(2) Cur. L.J. (HP) 106 the FIR number was written on the memo with the same pen and ink. It was held by the Division Bench of this Court that the same will make the prosecution case doubtful. It was observed:
"34. In view of the FIR number finding mention in the aforesaid documents "in fact, three inferences are possible, viz.(i) either the F.I.R. had been recorded before the search and seizure, or (ii) the FIR number had been inserted therein after the FIR was recorded, or (iii) the documents were prepared only after the investigating officer received the ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 17 Neutral Citation No. ( 2024:HHC:6596 ) number of the F.I.R. from the police station. In case the FIR had been lodged before the recovery but contains details of search and recovery the only inference would be that the .
recovery was planted/fake and will cut at the root of the case entitling the accused to acquittal. In case the documents regarding search and recovery are prepared only after receipt of the FIR number from the police station, it will suffer from the vice of delay in preparing such documents which must be prepared immediately after the action taken and as a result thereof the recovery will be rendered doubtful. However, in case of insertion of the number of the FIR on the documents which had been prepared immediately after the search and recovery will not necessarily be rendered illegal or doubtful."
20. This position was reiterated in State of H.P. vs. Gurdeep Lal Latest HLJ 2002(2) 1018 (HPHC) wherein it was observed:
12. A perusal of Ext. PD shows that F.I.R. No is mentioned on the top of this memo. It is not known as to how the F.I.R.
came to be recorded on this memo. A reading of the memo itself shows that the case had not been registered by that time and only a Rooka for the registration of the case had been sent. It appears that Ext. PD came to be prepared only after the registration of the case and much after the search alleged to have been carried out.
13. A Division Bench of this Court in Gabriel Vs. State of H.P 1989 (1) Sim. L.C. 78. Where the seizure memo. Contained F.I.R. number, has held that in no circumstances the memo. Could contain the number of the F.I.R. as it does, because the F.I.R. was recorded in the police Station only on the receipt of the report. The investigation, therefore, was found to be not above board. To a Similar effect a learned Single judge of the Delhi High Court in Mohd. Hashim Vs. State (2000 Cri. L.J. 1510) and Zofar Vs, State (2000 Cri. L.J. 1589) has held the preparation of the memo, to be doubtful.
14. If the memo. Ext. PD is held to be doubtful, then the statement of the Investigation Officer with regard to the compliance of the provisions of section 50 of the NOPS Act, in ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 18 Neutral Citation No. ( 2024:HHC:6596 ) view of the specific statement made by Pw-10, cannot be accepted. It may be mentioned that the other independent witness to the recovery, namely, Shadi Lal has not been .
examined and was given up as unnecessary."
21. A similar view was taken in State of H.P. vs. Dinesh Kumar 2017 (Supp) Shim. LC 78 wherein it was observed:
"26. In the documents, i.e. sample seal impression of 'H' on cloth Ext. PW6/C, site plan Ext. PW7/B and arrest memo Ext. PW7/C, the number of FIR on the top has been filled in in such a manner so as to reflect that it was filled in. After preparation of the document on getting the number of FIR at 10.30 p.m. However, perusal of consent memo Ext. PW6/A and memo of personal search of Investigating Officer Ext.
PW6/B indicates that the number of FIR has been filled in by preparing the documents in one go from top to bottom. Not only this, Ext. PW5/C is a sample seal impression of seal 'K' used for resealing. At the time of preparing this document, the number of FIR was available with the police party and SI Om Chand, but in this document, the number of FIR has been reflected to have been entered later on by reflecting the same in a manner so that it appears that it was inserted in the document later on.
27. The documents which were prepared before lodging the FIR contain the number of FIR in a manner as it has been written in one go at the time of preparation of documents whereas the documents prepared after having the number of FIR reflect the number of FIR purported to have been inserted later on. It appears that the entire proceedings were taken at a place other than the spot, to say at the police station, and the sequence of preparation of these documents was also not in the manner as it should have been or has been alleged in the prosecution story. All this strengthens doubt in the prosecution case."::: Downloaded on - 08/08/2024 20:32:18 :::CIS 19
Neutral Citation No. ( 2024:HHC:6596 )
22. Therefore, the fact that Section 20 of the NDPS Act was mentioned in the memo of personal search (Ex. PW-14/A) will make .
the prosecution case suspect.
23. HC-Umeshwar Singh (PW10) stated that on 15.09.2018 after conducting the proceedings under Section 52A, a Committee was constituted for the destruction of the remaining contraband except the sample. The remaining contraband was destroyed. SI-
Roop Lal (PW14) stated in his cross-examination that the parcel, which he had prepared was not shown to him in the Court. He volunteered to say that the sample of the same was shown to him in the Court. He admitted that there was no order regarding the disposal of the case property. He volunteered to say that a separate Committee is formed for the disposal of the case property after obtaining an inventory order from the Court. He admitted that the Committee disposes of the case property after obtaining the order from the Court and he had not seen any order regarding the disposal of the case property.
24. Thus, it is apparent that the case property was not produced before the learned Trial Court as it was stated to have been disposed of as per the order of the Committee. However, no ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 20 Neutral Citation No. ( 2024:HHC:6596 ) such order was produced before the Court. In Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028: 2003 SCC OnLine SC .
1038 the independent witnesses turned hostile and the case property was not produced. It was held that the conviction of the accused could not be sustained. It was observed:
6. In our view, the view taken by the High Court is unsustainable. In the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-
examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non- examination of the investigating officer and the non- production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched."
25. It was held in Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748: 2008 SCC OnLine SC 1026 the case ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 21 Neutral Citation No. ( 2024:HHC:6596 ) property can be destroyed as per the order of the competent Magistrate and the non-production of the case property will create .
a serious dent in the prosecution case. It was observed:
"92. Omission on the part of the prosecution to produce evidence in this behalf must be linked with a second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in court. The respondents contended that the same had been destroyed. However, on what authority it was done is not clear. The law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time had any prayer been made for the destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1-B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory, etc. The same does not contain within its mandate any direction as regards destruction.
93. The only course of action the prosecution should have resorted to is to obtain an order from the competent court of the Magistrate as envisaged under Section 52-A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder make an application for any or all of the following purposes:
"(a) Certifying correctness of the inventory so prepared;
or ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 22 Neutral Citation No. ( 2024:HHC:6596 )
(b) Taking, in the presence of such Magistrate, photographs of substances 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."
Sub-section (3) of Section 52-A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason wherefore such a provision is made would be evident from sub-section (4) of Section 52-A which reads as under:
"52-A. Disposal of seized narcotic drugs and psychotropic substances.--*** (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) 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 or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence."
Concededly neither was any such application filed nor was any such order passed. Even no notice has been given to the accused before such alleged destruction.
94. We must also notice a distinction between Section 110(1- B) of the 1962 Act and Section 52-A(2) of the Act as sub- section (4) thereof, namely, that the former does not contain any provision like sub-section (4) of Section 52-A. It is of some importance to notice that Para 3.9 of the Standing Order requires pre-trial disposal of drugs to be obtained in terms of Section 52-A of the Act. Exhibit PJ can be treated as nothing other than an order of authentication as it is a certificate under Section 110(1-B) of the 1962 Act as the aspect of disposal clearly provided for under Section 52-A of the Act is not alluded to. The High Court in its judgment purported to have relied upon an assertion made by the ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 23 Neutral Citation No. ( 2024:HHC:6596 ) prosecution with regard to the prevalence of a purported general practice adopted by the Customs Department to obtain a certificate in terms of the said provision prior to the .
destruction of case property, stating:
"To a specific query put to Mr Guglani by the Court with regard to the aforesaid arguments, he fairly states that the general practice adopted by the Customs Department is that before destroying the case property, a certificate is obtained under Section 110(1-B) of the Customs Act. He states that in this regard, a sample as per the provisions contained in sub-clause (c) to clause (1-B) is also drawn for the purposes of certification of correctness so that at a later stage, the identity of the case property is not disputed.
Maybe, in my view, some irregularities were committed in this case by the Customs Department while obtaining the order, Exhibit PJ from the court for the reason that if the case property was to be destroyed, at least a notice should have been given to the accused on the application moved under Section 110(1-B) of the Customs Act or at least a specific request in this regard should have been made in the application, but at the same time, the aforesaid irregularity cannot be said to be a vital flaw in the case of the prosecution from which the appellant can derive any benefit, especially under the circumstances when confessional statements made by the appellant are held to be made voluntarily as observed by me hereinabove....
Similarly, non-production of cardboard carton is also not fatal to the prosecution."
The question which arises for our consideration is as to whether it is permissible to do so. Evidently, it is not. Firstly, because taking recourse to the purported general practice adopted by the Customs Department is not envisaged in regard to prosecution under the Act. Secondly, no such general practice has been spoken of by any witness. A statement made at the Bar as regards the existence of such a purported general practice, to say the least, cannot be a substitute of evidence whereupon only the court could rely.
::: Downloaded on - 08/08/2024 20:32:18 :::CIS 24Neutral Citation No. ( 2024:HHC:6596 ) Thirdly, the High Court failed to take into consideration that a certificate issued under Section 110(1-B) of the 1962 Act can be recorded as a certificate of authentication and no more;
.
authority for disposal would require a clear direction of the court in terms of Section 52-A of the Act. Fourthly, the High Court failed and/or neglected to consider that physical evidence being the property of the court and being central to the trial must be treated and disposed of in strict compliance with the law.
95. The High Court proceeded on the basis that the non- production of physical evidence is not fatal to the prosecution case but the fact remains that a cumulative view with respect to the discrepancies in physical evidence creates an overarching inference which dents the credibility of the prosecution. Even for the said purpose the retracted confession on the part of the accused could not have been taken recourse to."
26. It was held in Ashok v. State of M.P., (2011) 5 SCC 123:
(2011) 2 SCC (Cri) 547: 2011 SCC OnLine SC 570 that in the event of non-production of the case property before the Court, the report of the Forensic Analysis cannot be connected to the case. It was observed:
"12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its non- production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused."
27. It was held in Vijay Jain v. State of M.P., (2013) 14 SCC 527:
(2014) 4 SCC (Cri) 276: 2013 SCC OnLine SC 500 that non-production ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 25 Neutral Citation No. ( 2024:HHC:6596 ) of the case property will not establish the seizure from the accused.
It was observed:
.
"10. On the other hand, on a reading of this Court's judgment in Jitendra case [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028], we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC (Cri) 547] this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as a material exhibit and there was no explanation for its non-production and this Court held that there was, therefore, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.
Xxxx
12. We are thus of the view that as the prosecution has not produced the brown sugar before the Court and has also not offered any explanation for non-production of the brown sugar alleged to have been seized from the appellants and as the evidence of the witnesses (PW 2 and PW 3) to the seizure of the materials does not establish the seizure of the brown sugar from the possession of the appellants, the judgment of the trial court convicting the appellants and the judgment of ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 26 Neutral Citation No. ( 2024:HHC:6596 ) the High Court maintaining the conviction are not sustainable.
28. It was held in Gorakh Nath Prasad v. State of Bihar, (2018) .
2 SCC 305: (2018) 1 SCC (Cri) 711: 2017 SCC OnLine SC 1505 that where the independent witnesses had not supported the prosecution case and the case property was not produced before the Court, the prosecution case was not proved. It was observed:
"6. In the facts of the present case, the independent witnesses with regard to the search and seizure, PW 2 and PW 3, having turned hostile deposing that their signatures were obtained on blank paper at the police station, the mere fact of an FSL Report (Ext. 8), being available is no confirmation either of the seizure or that what was seized was ganja, in the absence of the production of the seized item in court as an exhibit. The non-production of the seized material is therefore considered fatal to the prosecution case. The issue whether there has been compliance with Sections 42 and 50 of the NDPS Act loses its relevance in the facts of the case.
7. The remaining prosecution witnesses being police officers only, it will not be safe to rely upon their testimony alone, which in any event cannot be sufficient evidence by itself either with regard to recovery or the seized material being ganja. No explanation has also been furnished by the prosecution for the non-production of the ganja as an exhibit in the trial. The benefit of the doubt will, therefore, have to be given to the appellant and in support of which learned Senior Counsel Shri Rai has relied upon Jitendra v. State of M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028] and reiterated in Ashok v. State of M.P. [Ashok v. State of M.P., (2011) 5 SCC 123: (2011) 2 SCC (Cri) 547] as follows: (SCC pp. 126-27, paras 12-13) "12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 27 Neutral Citation No. ( 2024:HHC:6596 ) appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence to connect .
the forensic report with the substance that was seized from the possession of the appellant or the other accused.
13. It may be noted here that in Jitendra v. State of M.P. [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028], on similar facts, this Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra [Jitendra v. State of M.P., (2004) 10 SCC 562: 2004 SCC (Cri) 2028], the Court observed and held as under: (SCC pp. 564-65, paras 5-6) '5. The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW 7), Angad Singh (PW 8) and Sub-Inspector D.J. Rai (PW 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect them with the samples sent to the forensic science laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the forensic science laboratory were taken from the drugs seized from the possession of the accused. ...
6. ... The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 28 Neutral Citation No. ( 2024:HHC:6596 ) lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have .
turned hostile so the panchnama is nothing but a document written by the police officer concerned."
29. It was held in Union of India v. Jarooparam, (2018) 4 SCC 334 : (2018) 2 SCC (Cri) 465: 2018 SCC OnLine SC 204 that where no application for the destruction of the case property was filed and the case property was not produced before the Court, the prosecution case cannot be relied upon. It was observed:
"9. From the above proceedings, it is crystal clear that the remaining seized stuff was not disposed of by the Executive Magistrate. The contraband stuff as also the samples sealed as usual were handed over physically to the Investigating Officer Harvinder Singh (PW 6). Also, the trial court in its judgment specifically passed instructions to preserve the seized property and record of the case in safe custody, as the co-accused Bhanwarlal was absconding. The trial court more specifically instructed to put a note with red ink on the front page of the record for its safe custody. In such a situation, it assumes importance that there was nothing on record to show as to what happened to the remaining bulk quantity of contraband. The absence of a proper explanation from the prosecution significantly undermines its case and reduces the evidentiary value of the statements made by the witnesses.
10. Omission on the part of the prosecution to produce the bulk quantity of seized opium would create doubt in the mind of the Court on the genuineness of the samples drawn and marked as A, B, C, D, E, F from the allegedly seized contraband. However, the simple argument that the same had been destroyed, cannot be accepted as it is not clear that on what authority it was done. The law requires that such an ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 29 Neutral Citation No. ( 2024:HHC:6596 ) authority must flow from an order passed by the Magistrate. On a bare perusal of the record, it is apparent that at no point of time, any prayer had been made by the prosecution for the .
destruction of the said opium or disposal thereof otherwise.
The only course of action the prosecution should have resorted to is for its disposal is to obtain an order from the competent court of Magistrate as envisaged under Section 52-A of the Act. It is explicitly made under the Act that as and when such an application is made, the Magistrate may, as soon as may be, allow the application (see also Noor Aga v. State of Punjab [Noor Aga v. State of Punjab, (2008) 16 SCC 417: (2010) 3 SCC (Cri) 748] ).
11. There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material nor was any such order passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial court appears to have believed the prosecution story in haste and awarded conviction to the respondent without warranting the production of a bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence."
30. This position was reiterated in Mangilal v. State of M.P., 2023 SCC OnLine SC 862 wherein it was observed:
"8. Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 30 Neutral Citation No. ( 2024:HHC:6596 ) that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of physical evidence would lead .
to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play such as the deposit of the seal, numbering the containers in seriatim wise and keeping them in lots preceded by compliance with the procedure for drawing samples....
Xxxxx The record would also indicate that an order was passed by the trial Judge permitting the prosecution to keep the seized materials within the police station, to be produced at a later point of time. This itself is a sufficient indication that the mandate of Section 52A has not been followed. There is no explanation either for the non-production of the seized materials or the manner in which they are disposed of. No order passed by the Magistrate allowing the application, if any, filed under Section 52A of the NDPS Act. P.W.10, Executive Magistrate has deposed to the fact that he did not pass any order for the disposal of the narcotics substance allegedly seized. Similarly, P.W.12 who is in charge of Malkhana also did not remember any such order having been passed. On the issue of disposing of narcotic substances in derogation of the compliance contained in Section 52A of the NDPS Act"
31. The prosecution has relied upon the order dated 24.03.2018 (Ext. PW14/K), vide which the application was moved by the police seeking certification and the correctness of the inventory of seized narcotic cannabis. The learned Magistrate observed that the parcel was weighed and samples were taken. Four impressions of JMIC Court No.4 were put on each sample. Photographs of the ::: Downloaded on - 08/08/2024 20:32:18 :::CIS 31 Neutral Citation No. ( 2024:HHC:6596 ) drugs and substances were taken in the presence of the learned Magistrate. The sample seal was taken on a separate cloth. The .
cloth was handed over to SI-Roop Lal (PW14) and the inventory was certified.
32. The order does not show that the destruction of the case property was authorized. Learned Magistrate had only certified the correctness of the inventory and the order (Ext. PW14/K) would not help the prosecution.
33. SI-Roop Lal (PW14) and HC Umeshwar Singh (PW10) stated that the case property was destroyed as per the order of the Drug Disposal Committee, however, no such order was placed on record. Hence, the version that the case property was destroyed by the order of the Competent Authority has not been established on record. In these circumstances, the failure to produce the case property before the Court is fatal.
34. The learned Trial Court had not adverted to these aspects and was swayed by the consistency in the statements of the official witnesses. Hence, the judgment and order passed by the learned Trial Court deserve to be interfered with.
::: Downloaded on - 08/08/2024 20:32:18 :::CIS 32Neutral Citation No. ( 2024:HHC:6596 )
35. In view of the above, the present appeal is allowed. The judgment and order passed by the learned Trial Court are set aside.
.
The accused is acquitted of the commission of an offence punishable under Section 20 of the NDPS Act. He be released forthwith from custody, if not required in any other case. The fine amount be refunded to the accused if no appeal is preferred and in case of appeal, the same be dealt with as per the orders of the Hon'ble Supreme Court. The accused will furnish the bail bonds in the sum of ₹ 50,000/- within one month to the satisfaction of the learned Trial Court undertaking to appear before the Hon'ble Supreme Court in case of receipt of any notice as required under Section 437A of Cr.P.C. and Section 481 of Bharatiya Nagarik Suraksha Sanhita, 2023.
36. The record of the learned Trial Court be returned with a copy of this order for the information of the learned Trial Court.
(Tarlok Singh Chauhan) Judge (Rakesh Kainthla) Judge 8th August, 2024 (Saurav pathania) ::: Downloaded on - 08/08/2024 20:32:18 :::CIS