Delhi District Court
State vs Puran Jai Thapa @ Naveen on 10 July, 2024
IN THE COURT OF SH. DHIRENDRA RANA
ADDL. SESSIONS JUDGE: SPECIAL JUDGE (NDPS), NORTH
DISTRICT, ROHINI COURTS : DELHI
In the matter of:-
(Sessions Case No. 222/2019)
CNR No. DLNT01-003485-2019
FIR No. 26/2019
Police Station Crime Branch
Charge sheet filed 20 NDPS Act
Under Section
Charge framed Under 20 NDPS Act
Section
Puran Jai Thapa @ Naveen s/o Sh. Lal
State Vs. Bahadur Thapa r/o Village & PS
Chandrota, District Kapilvastu,
Lumbini, Nepal.
Date of institution 18.04.2019
Arguments concluded on 10.07.2024
Judgment Pronounced on 10.07.2024
Decision Acquitted
JUDGMENT
BRIEF FACTS 1.1 The accused Puran Jai Thapa @ Naveen has been sent to face trial for committing an offence punishable under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').
1.2. The facts of the case in brief as per the charge sheet filed by the prosecution are that the FIR in question was registered on 05.02.2019. The secret information was received on 04.02.2019 at about 09:30 PM by ASI ram SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 1 of 22 PS Crime Branch Niwas through secret informer and it was concerning one person by the name of Puran Jai Thapa r/o Nepal aged about 52 years, carrying Charas, would come Opposite Veer Apartment, Sector-13, Rohini, Japanese Park Side Service Road at about 10:30-11:30 PM to sell the contraband and if raided, he could be apprehended. ASI Ram Niwas verified the said information and shared the information with Inspector Mukesh Antil by producing the informer before him. Thereafter, SHO satisfied himself after verifying the secret information and shared the information with ACP and as per instructions, ASI Ram Niwas was directed to prepared a raiding party. Accordingly, ASI Ram Niwas recorded the said information vide DD no. 36 dated 04.02.2019 in this regard. On the directions of the SHO, one raiding party comprising of ASI Ram Niwas, HC Parveen Dahiya, HC Parveen Kumar and Ct. Arun Kumar was constituted. They left the PS alongwith the secret informer in a private vehicle bearing No. DL8CAN8443 alongwith IO kit bag, laptop, printer, Field Testing Kit and Electronic Weighing Machine.
1.3 They reached at Veer Apartment, Sector-13, Rohini, near Japanese Park Side Service Road, Delhi and at about 11:00 PM, one person carrying a red and black colour bag was seen. On the pointing out of informer, accused was overpowered. Upon inquiry, apprehended person disclosed his name as Puran Jai Thapa s/o Lal Bahadur Thapa r/o Vilalge & PS Chandrota District Kapilvastu, Lumbini, Nepal.
1.4 Accused was informed about his legal rights and information was sent to ACP SOS-1 and request was made to him to reach at the spot. After arrival of ACP at the spot, bag was searched by ASI Ram Niwas and Charas SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 2 of 22 PS Crime Branch was recovered. It was weighed and found to be 1020 grams. The rukka was prepared and FIR was got registered through HC Praveen Dahiya. Thereafter, further investigation was marked to SI Parveen Atri. IO prepared the site plan at the instance of ASI Ram Niwas, arrested the accused, recorded his disclosure statement and seized notice under section 50 NDPS Act, Rs. 400/- cash and one mobile phone recovered during personal search of accused. IO ASI Ram Niwas deposited the case property by producing it before SHO/Crime Branch. Compliance u/s 57 of NDPS Act was got done. The samples were sent to FSL and the result was obtained. The result came out to be positive that recovered contraband was charas (cannabis). After completion of investigation, charge sheet was filed.
CHARGE
2. On the basis of material available on record, vide order dated 08.07.2019 charge u/s 20 NDPS Act was framed against the accused to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. Thereafter, prosecution in support of its case have examined 8 witnesses in all.
4.1 PW1 HC Praveen Kumar, deposed that on 04.02.2019 at around 09:30 PM, ASI Ram Niwas received a secret information regarding accused Puran Jai Thapa, who was resident of Nepal, in trafficking of charas and he would come at Japanese Park side Service road, Opposite Veer Apartment, Sector-13, Rohini, Delhi in between 10:30-11:00 PM to supply charas to some one and he could be apprehended, if raided.
SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 3 of 22 PS Crime Branch 4.2 He further deposed that ASI Ram Niwas shared the secret information with Inspector Mukesh Antil and produced the secret informer before him. Inspector Mukesh Antil made enquiries from secret informer and after satisfying himself, shared the information with ACP Arvind Kumar. He further deposed that after having talks with ACP, Inspector Mukesh Antil instructed ASI Ram Niwas to conduct raid. ASI Ram Niwas lodged the information vide DD No. 36 at 09:50 PM.
4.3 He further deposed that ASI Ram Niwas constituted a raiding party including him, HC Parveen Dahiya, Ct. Arun Kumar and ASI Ram Niwas himself and all the members were briefed about the secret information. He further deposed that thereafter at about 10:10 PM, they left the office in private car bearing No. DL8CAN 8443 alongwith informer. He further deposed that while leaving the office, ASI Ram Niwas had taken laptop, printer, IO bag, field testing kit and electronic weighing scale with him. 4.4 He further deposed that at about 10:30 PM, they reached opposite Veer Apartment, Sector-13, Rohini towards Japanese Park on the Service Road where ASI Ram Niwas requested 2-3 passersby to join the raiding party but none agreed and due to paucity of time, notice was not served upon them. He further deposed that thereafter, ASI Ram Niwas deputed the members of the raiding party around the corner of Japanese Park. At about 11:00 PM, accused was seen coming from Prashant Vihar side and he was having a red and black colour bag on his right shoulder. He halted in front of Veer Apartment towards Japanese Park corner side. The informer pointed out towards the accused and left the spot.
4.5 He further deposed that after some time, at about 11:15 PM, accused tried to return, however, he was overpowered by ASI Ram Niwas with the help of raiding party. ASI Ram Niwas introduced the raiding party to him SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 4 of 22 PS Crime Branch and shared the secret information with him. He further deposed that ASI Ram Niwas informed accused about his legal rights that he might be searched in presence of Magistrate or Gazetted Officer and before conducting his search, ASI Ram Niwas offered the search of police party to the accused. He further deposed that during this period, ASI Ram Niwas telephonically informed ACP Arvind Kumar, who replied that he would reach the spot. He further deposed that after informing about his rights regarding his search, notice under section 50 NDPS Act was prepared by ASI Ram Niwas and served upon accused. Accused refused to exercise his rights and even refused the offer of search of police party and their vehicle.
4.6 In the meantime, ACP Arvind Kumar also reached at the spot and in presence of ACP, search of accused was conducted by ASI Ram Niwas. The bag on the right shoulder of accused having words 'ADIDAS' written on it was checked and it was found containing the black and dark brown colour substance packed in a polythene. He further deposed that IO smelled the same it was found to be charas. The said substance was also tested on the field testing kit and it was found positive for charas and on weighing it was found to be 1020 grams. He further deposed that IO separated two samples of 50 grams each and kept in small poly packs separately and the remaining 920 grams charas was kept in the same polythene and samples were marked as S1 and S2 which is Ex. P2 and remaining charas was marked as A which is Ex. P1. Three cloth pullandas were prepared by IO and sealed with the seal of RN. IO filled FSL form and affixed the same seal on it. He further deposed that seal after use was handed over to him and case property and samples were seized vide seizure memo which is Ex. PW1/A. 4.7 He further deposed that IO prepared rukka and handed over the same to HC Parveen Dahiya alongwith sealed pullanadas and FSL form with SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 5 of 22 PS Crime Branch the directions to hand over the rukka to duty officer and remaining pullandas to SHO.
4.8 He further deposed that at about 02:30 PM, SI Parveen Atri reached at the spot as further investigation was marked to him. ASI Ram Niwas briefed SI Parveen Atri and handed over custody of accused and seizure memo and other documents to him.
4.9 He further deposed that at about 05:20 AM, HC Parveen Dahiya reached with the copy of FIR and thereafter, accused Puran Jai Thapa was arrested by SI Parveen Atri vide arrest memo which is Ex. PW1/B, conducted his personal search vide personal search memo which is Ex. PW1/C. During personal search of accused, notice under section 50 NDPS Act which is Ex. PW1/E, mobile phone and cash of Rs. 400/- were recovered. The copy of notice is Ex. PW1/D. 4.10 During cross examination done on behalf of accused, he stated that no separate inventory about the laptop, printer, IO kit bag, field testing kit, electronic weighing machine was made by the IO in his presence. He stated that neither he nor IO visited the guardroom of the Veer Apartment to ask the guard to join the investigation. He stated that accused was firstly apprehended by IO ASI Ram Niwas and thereafter, they all surrounded the accused. He stated that IO might have checked the phone of the accused but same was not done in his presence. He stated that he returned the seal to IO on the next date and no specific memo was prepared in this regard. He denied that nothing was recovered from the possession of accused and no notice under section 50 NDPS Act was ever served upon the accused. He denied that no handing over memo was prepared for the seal as no such seal was ever handed over to him.
5.1 PW2 Retd. SI Ram Niwas being the Ist IO and member of raiding SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 6 of 22 PS Crime Branch team deposed on the lines of PW1 HC Parveen Kumar.
5.2 In addition, he deposed that at about 07:15-07:20 PM, they reached at PS Crime Branch where HC Parveen typed one intimation under section 57 NDPS Act regarding seizure of 1020 gram charas under his dictation which is Ex. PW2/E. He exhibited DD No. 36 as Ex. PW2/A, DD No. 37 as Ex. PW2/B, rukka which is Ex. PW2/C and site plan prepared by SI Parveen Atri at his instance as Ex. PW2/D. 5.3 During cross examination done on behalf of accused, he stated that no inventory was prepared when he obtained the Kit from the Reader of ACP. He stated that no entry was made while handing over the field testing kit by the Reader of ACP. He stated that no patrolling vehicle was passed during the tenure, they remained at the place of recovery. He stated that he did not call anyone from PS KNK Marg or PS Prashant Vihar to join the investigation. He stated that all the writing work was done while sitting in his private vehicle. Nothing else was recovered except the contraband from the bag of accused. He stated that mobile phone of accused was recovered from his personal search when the same was conducted by 2 nd IO. He stated that he did not prepare any memo when he handed over the seal after use to HC Parveen and he did not prepare any memo when he received the seal back from HC Parveen on next day. He denied that nothing was recovered from the possession of accused and no notice under section 50 NDPS Act was ever served upon the accused. He denied that no disclosure statement was made by the accused and his signatures were forcibly taken on certain blank papers and printed papers which were later on converted into various memos against him.
6.1 PW3 Inspector Parveen Atri, being the IInd IO deposed on the lines of investigation carried out by him. He exhibited disclosure statement of SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 7 of 22 PS Crime Branch accused as Ex. PW3/A, report under section 57 NDPS Act which was forwarded to the office of ACP through Inspector Incharge team as Ex. PW3/B, he exhibited his request to collect FSL result and to file the same in court as Ex. PW3/C, FSL result as Ex. PW3/D and notice under section 50 NDPS Act recovered during jamatalashi of accused as Ex. PW3/E. 6.2 During cross examination done on behalf of accused, he stated that he did not made any separate departure entry while leaving the PS, however, DD entry No. 2 Ex. PW3/DA lodged by SI Yaspal mentioned the same. He stated that after procuring the CDR, contact details of co-accused Roomi was searched but same was not found. He stated that during investigation, the last conversation with co-accused Roomi was not disclosed by the accused. He stated that he did not verify every number of the CDR to which call was made by the accused. He stated that he had not gone through the contents of notice under section 50 NDPS Act recovered from the accused. 6.3 He denied that all the writing work was done while sitting at the office and no disclosure was made by the accused and his signatures were obtained forcibly on certain plain and printed papers which were later on converted into various memos. He denied that no mobile phone was recovered from the accused because of which he had not placed on record any document pertaining to investigation/verification of dialed numbers.
7. PW4 HC Mandeep Rana, deposed that on 06.02.2019, on the instruction of IO SI Parveen Atri, he took one sealed pullanda alongwith FSL form vide RC No.75/21 from MHC(M) HC Jag Narayan and deposited the same in FSL. After deposition, he collected acknowledgment from FSL and handed over the same to MHC(M) which is Ex. PW4/A. SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 8 of 22 PS Crime Branch 8.1 PW5 HC Parveen Kumar, being member of raiding team deposed on the lines of PW1 HC Parveen Kumar, PW2 Retd. SI Ram Niwas and PW3 Inspector Parveen Atri.
8.2 During cross examination done on behalf of accused, he stated that he was present in the room where the secret information was shared by ASI Ram Niwas with Inspector Mukesh Antil. He stated that in his presence,IO did not try to obtain CCTV footage from the CCTV cameras installed at Veer Apartment for the duration they remained there. He stated that second IO already reached at the spot when he came back after registration of FIR. He denied all the suggestions put forth by Ld. Defence counsel.
9.1 PW6 ACP Arvind Kumar deposed that on 04.02.2019 at about 09:45 PM, Inspector Mukesh Antil came to his office and shared secret information with him. He further deposed that he issued authorization to ASI Ram Niwas through Inspector Mukesh Antil to conduct raid. At about 11:45 PM,he received a call from ASI Ram Niwas that he had apprehended the accused and also requested him to reach at the spot to facilitate the search of accused. He further deposed that on the request, he went to the spot i.e., Service Road Opposite Veer Apartment, Sector-13, Rohini where he met ASI Ram Niwas alongwith accused and his team members. He further deposed that he made enquiries from the accused and also apprised the accused about his legal rights of search that he could conduct search of members of raiding party and vehicle of the police party. He further deposed that ASI Ram Niwas already served notice under section 50 NDPS Act upon the accused, therefore, he conducted search of accused. He further deposed that accused was carrying one Adidas shoulder bag on his right shoulder and on checking it was found containing one polythene and on opening the polythene, it was found black and SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 9 of 22 PS Crime Branch brownish material which was checked with field testing kit and found to be charas and weighed about 1020 grams. He further deposed that two samples of 50 grams each were separated and they were given Mark S1 and S2. The remaining case property was again put in the same polythene and given Mark A. Case property as well as samples were converted into parcels and they were sealed with the seal of RN. FSL form was also filled up and sample seal was also affixed on the same. He further deposed that seal after use was handed over to HC Parveen.
9.2 He further deposed that he also received DD having details of secret information. He also received report under section 42 NDPS Act sent by ASI Ram Niwas through Inspector Mukesh Antil which is Ex. PW6/A. He further deposed that he also received report under section 57 NDPS Act sent by ASI Ram Niwas regarding recovery and report under section 57 NDPS Act sent by SI Parveen Atri regarding arrest of accused through Inspector Mukesh Antil.
9.3 During cross examination done on behalf of accused, he stated that he reached at the spot in his official vehicle. He stated that in his presence, IO ASI Ram Niwas did not call any guard to join the investigation. He stated that he did not use his seal at the time of sealing the sample and case property. He stated that he did not take notice whether accused had other belongings except the bag or the bag was containing other articles besides charas.
10. PW7 Ajay Kumar, Nodal Officer, Bharti Airtel Ltd. exhibited Customer Application Form of mobile No. 8130310529 as Ex. PW7/A, call detail record from 04.02.2019 to 05.02.2019 as Ex. PW7/B, certificate under section 65B of Indian Evidence Act as Ex. PW7/C and attested copy of location chart as Ex. PW7/D. SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 10 of 22 PS Crime Branch
11. PW8 Inspector Satender Sangwan deposed that on 05.02.2019 at about 03:00 am, HC Parveen produced three packets and one bag alongwith FSL form and copy of seizure memo. He further deposed that all the packets were sealed with the seal of RN and marked as S1, S2 and A. He affixed his seal of SS and signatures on all the packets. He further deposed that he made enquiries from duty officer about the FIR and after registration of FIR, he wrote FIR number on all the exhibits, FSL form and copy of seizure memo. He further deposed that thereafter, he called MHC(M) ASI Jag Narain alongwith register No.19 and deposited the packets. MHC(M) made entries of all the packet in register No. 19 and he countersigned the entries and DD No. 2A dated 05.02.2019 in this regard was recorded.
12. Vide statement under section 294 CrPC recorded on 27.05.2023, accused admitted genuineness of FIR No. 26/2019, DD No. 1A and 3A dated 05.02.2019, certificate under section 65 of Indian Evidence Act which are Ex. PA1 (colly), Dak register dated 04.02.2019 and 05.02.2019 which are Ex. PA2 (colly), register No. 19 and EC No. 75/201 dated 06.02.2019 and statement under section 161 CrPC dated 05.02.2019 and 10.02.2019 which are Ex. PA3 (colly), DD No. 2 dated 05.02.2019 which is Ex. PA4 and FSL report No. SFSL DLH/1234/CHEM/356/19 dated 28.03.2019 prepared by Kavita Goyal Assistant Director (Chemistry) which is Ex. PA5.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C 13.1 After closure of PE, statements of accused was recorded u/s 313 Cr.P.C. on 15.04.2024, wherein he denied all the incriminating evidences put to him. He stated that witnesses have deposed against him being interested witnesses as he was not arrested from the place and in the manner mentioned SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 11 of 22 PS Crime Branch in the charge sheet. He further stated that he has been falsely implicated in the present case as he had some heated arguments with the police officials. 13.2 He opted to lead defence evidence. However, vide statement dated 01.05.2024, accused stated that he did not want to lead defence evidence and accordingly defence evidence was closed.
14. Thereafter, matter was fixed for final arguments.
ARGUMENTS
15. I have heard Ms. Promila Singh, Ld. Addl. PP for State and Sh. Vipul, proxy counsel of Sh. Ankur Sharma, Amicus Curiae for accused
16. The Ld. Addl PP for the State argued that testimonies of the recovery witnesses i.e PW1 HC Parveen Kumar, PW2 ASI Ram Niwas and PW5 HC Parveen Kumar are clear and unambiguous against the accused that he was found in possession of contraband i.e., Charas weighing upto 1020 grams and case beyond reasonable doubt has been proved by the prosecution. As far as the compliance under section 42 NDPS Act is concerned, the same was duly done by the first IO PW2 ASI Ram Niwas, who recorded the said information vide DD no. 36 Ex. PW-2/A. Compliance of section 50, 52A, 55 and 57 NDPS Act have been done by the IO leaving no scope of confusion that accused has not committed an offence under section 21(b) of NDPS Act.
17. Per contra, Ld. Counsel for the accused argued that the mandatory provisions of section 50, 52(A) and 57 NDPS Act in the present case have not been complied with properly and on these grounds, the accused is liable to be acquitted. IO has violated the Standing Order No. 1/88 after the alleged SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 12 of 22 PS Crime Branch recovery of contraband and samples were extracted on the spot in utter violation of section 52A NDPS Act.
COMPLIANCE UNDER SECTION 50 NDPS ACT
18. Under NDPS Act, notice is prescribed under section 50 NDPS Act by which the person is to be searched is to be informed about his legal and statutory rights to get searched before a nearest gazetted officer or a magistrate. In the present case, the recovery was affected from a bag carried by the accused and it was not necessary to make compliance of section 50 of NDPS Act, since, it was not a personal search of the person. However, once the provision has been resorted to, it is the duty of the investigating officer, to make substantial and meaningful compliance to the same. On perusal of notice issued under section 50 NDPS Act, it is clear that accused was only informed about option to get himself searched before a gazetted officer or a magistrate. and his legal rights were not explained to him. PW2 ASI Ram Niwas did not use word "nearest" in the notice which is of utmost significance as per section 50 of the Act. It has been held by Hon'ble Supreme Court in Vijay Singh Chandubha Jadeja Vs. State of Gujarat AIR 2011 SC 77 that the object with which right under section 50 (1) of the Act, by way of a safeguard, has been conferred on the suspect, to check the misuse of the power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies. It would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a magistrate. The obligation is mandatory and requires strict compliance. Failure to comply with the provision, would render the recovery of illicit article, suspicious and vitiate the conviction. In the present case also investigating officer PW2 ASI Ram Niwas SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 13 of 22 PS Crime Branch had failed to make proper compliance of the provision of section 50 NDPS Act which further creates doubt about the prosecution's version. PW2 ASI Ram Niwas did not use 'nearest' word in the notice which is in violation of section
50. NON-COMPLIANCE OF SECTION 52A NDPS ACT
19. It is admitted case of the prosecution that PW2 Retd. SI Ram Niwas took out the samples of the recovered contraband of his own at the spot itself. The case properties were never produced before the Ld. MM for the purpose of sampling under section 52 A NDPS Act. Out of recovered 1020 grams of Smack, he separated two samples of 50 grams each at the spot only in gross violation of standing order No. 1/88 and Section 52(A) NDPS Act.
19.2 In Union Of India vs Mohanlal & Anr on 28 January, 2016, Hon'ble Supreme Court of India while emphasis upon section 52A of NDPS Act held as under:
"20. To sum up we direct as under:
No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act. The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A, as discussed by us in the body of this judgment under the heading 'seizure and sampling'. The sampling shall be done under the supervision of the magistrate as discussed in paras 13 and 14 of this order."
19.3 In Bothilal v. The intelligence Officer Narcotics Control Bureau, Criminal Appeal no.451 of 2011, decided by Hon'ble Supreme Court of India SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 14 of 22 PS Crime Branch on 26.04.2023, it has been observed/held as under:-
"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.
16. In paragraphs 15 to 17 of the Mohanlal's case, it was held thus:
"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 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 SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 15 of 22 PS Crime Branch 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 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 Mohanlal. This creates a serious doubt about the prosecution's case that the substance recovered was contraband."
19.4 In Simranjeet Singh v. State of Punjab, Criminal appeal No. 1443 of 2023,decided on 09.05.2023 Hon'ble Supreme Court has taken the similar view in respect of non-compliance of Section 52A of NDPS Act on 09.05.2023 and it is held as under in para no. 7, 9 and 10:-
7.We have perused the evidence of PW-7 Hardeep Singh in which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
xxxx xxxxx xxxx
9. Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 16 of 22 PS Crime Branch the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10. Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence."
19.5 In Mangilal v. The State of Madhya Pradesh, 2023 INSC 634, decided by Hon'ble Supreme Court of India on 12.07.2023, it has been held as under:-
" 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 approval either for certifying an inventory or for a photograph taken apart from list of samples drawn. In due SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 17 of 22 PS Crime Branch compliance of Section 52A(1) of the NDPS Act the Ministry of Finance (Department of Revenue) issued a Notification No. G.S.R. 339(E) dated 10.05.2007 which furnishes an exhaustive manner and mode of disposal of drugs ending with a certificate of destruction:
"4. Manner of disposal
1) Where any narcotic drug or psychotropic substances 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 Act, or if it is seized by such an officer himself, he shall prepare an inventory of such narcotic drugs or psychotropic substances as per Annexure 1 to this notification and apply to any Magistrate under sub-section (2) of section 52A as per Annexure 2 to this notification.
2) After the Magistrate allows the application under sub-section (3) of section 52A, the officer mentioned in clause (1) above 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 drug consignments to the Chairman of the Drug Disposal Committee for a decision by the committee on the disposal.
The officer shall send a copy of the details along with the drug consignments to the officer-in-charge of the godown.
XXX XXX XXX
4.2 Mode of disposal of drugs.
(i) Opium, morphine, codeine and thebaine shall be disposed of by transferring to the Government Opium and Alkaloid Works under the Chief Controller of Factories.
(ii) In case of drugs other than the drugs mentioned in clause (i), the Chief Controller of Factories shall be intimated by the fastest means of communication available, details of drug consignments that are ready for SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 18 of 22 PS Crime Branch disposal.
(iii) The Chief Controller of Factories shall indicate within 15 days of the date of receipt of the communication, the quantities of drugs, if any, that are required by him to supply as samples under Rule 67B.
(iv) Such quantities of drugs, if any, as required by the Chief Controller of Factories under clause (iii) shall be transferred to him and the remaining quantities of drugs shall be destroyed as per the procedure outlined in para 4.1.2.
(v) Destruction shall be by incineration in incinerators fitted with appropriate air pollution control devices, which comply with emission standards. Such incineration may only be done in places where adequate facilities and security arrangements exist. In order to ensure that such incineration may not be a health hazard or polluting, consent of the State Pollution Control Board or Pollution Control Committee, as the case may be, should be obtained. Destruction shall be carried out at the presence of the Members of the Drug Disposal Committee.
XXX XXX XXX 4.4 Certificate of destruction.
A certificate of destruction (in triplicate) containing all the relevant data like godown entry number, gross and net weight of the drugs seized, etc., shall be prepared and signed by the chairman and members of the Drug Disposal Committee as per format at Annexure 3. The original copy shall be pasted in the godown register after making necessary entries to this effect, the duplicate to be retained in the seizure case file and the triplicate copy will be kept by the Drug Disposal Committee. Details of disposal of drugs shall be reported to the Narcotics Control Bureau in the Monthly Master Reports."
7. To be noted, the aforesaid notification was in existence at the time of SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 19 of 22 PS Crime Branch the commission of the offence alleged in the case on hand, stood repealed with effect from 23.12.2022 vide Notification No. G.S.R.899(E). In any case a notification issued in derogation of the powers conferred under sub- section (1) of Section 52A of the NDPS Act can never contradict the main provision, particularly sub-Section (2). However, any guideline issued by way of a notification in consonance with Section 52A of the NDPS Act has to be followed mandatorily."
19.6 Applying the ratio of above mentioned judgments to the present case, the act of IO SI Ram Niwas of drawing samples of his own at the spot itself, is fatal to the prosecution's case and accused is entitled to be given benefit of this lacuna.
20. In ordinary circumstances, the above said anomalies when viewed in isolation, would appear to be innocuous, insignificant or inconsequential. However, when viewed as a whole, it raises a question mark upon the credibility of the prosecution witnesses. The doubt becomes even more graver when considered in light of the fact that despite availability, no public witness has been joined in the case at hand. It is a settled proposition of law that a case resting solely and exclusively upon testimony of police witnesses needs a strict judicial scrutiny. Further, harsher the punishment stricter should be judicial scrutiny. Reliance is placed upon the judgment of the Hon'ble Apex Court in the matter of Krishan Chand Vs State of HP: (2018) 1 SCC 222.
21. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 20 of 22 PS Crime Branch the entire distance from 'may have' to 'must have'. If the prosecution version appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused. The alleged recovery was affected outside a residential apartment and there ought to have been CCTV cameras installed at the said apartment. IO did not seize the footage for the reasons best known to him. It is also not the case of the IO that there was no security guard available at the said apartment but he has not been cited him as a witness by the IO. Meaning thereby, the witnesses and evidence which could have been easily brought on record by the IO, are missing and there is no corroboration of the testimony of the police witnesses that accused was apprehended in the fashion claimed by them.
22. Above all, the blunder of extracting samples at the spot and no application under section 52 A NDPS Act before Ld. MM was ever moved by the IO are fatal to the prosecution's case in view of law laid down by Hon'ble Supreme Court starting from Mohan Lal's case (discussed supra). Mohan Lal's judgment was passed in the year 2016 whereas the present FIR was registered in the FIR 2019, therefore, IO was duty bound to follow the mandate of Hon'ble Supreme Court and so not so it is categorically mentioned in Section 52 A of NDPS Act that an application for sampling has to be moved before Ld. MM. This procedural flaw in itself is sufficient enough to decide this case and therefore, I deem it appropriate not to delve upon other grounds pleaded on behalf of accused. So, defective notice, absence of public witnesses, CCTV footage and sampling at the spot are strong enough to demolish the case of the prosecution.
SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 21 of 22 PS Crime Branch CONCLUSION:-
23. Considering the totality of facts and circumstances and discussion made herein above, I am of the considered view that the prosecution has failed to prove its case against the accused beyond a shadow of doubt and the accused deserves the benefit of doubt. Accordingly, accused Puran Jai Thapa is hereby acquitted for offence punishable U/s 20 (C) NDPS Act.Digitally signed by
DHIRENDRA DHIRENDRA RANA RANA Date: 2024.07.10 16:34:56 +0530 Announced in the open court (Dhirendra Rana) on 10.07.2024 ASJ / Special Judge (NDPS) (running in 22 pages) North:Rohini:Delhi SC No. 222/2019, FIR No. 26/2019 State Vs. Puran Jai Thapa @ Naveen Page No. 22 of 22 PS Crime Branch