Chhotu Lal vs State Of Himachal Pradesh

Sandeep Sharma, J

Since, common question of law is involved in these petitions, same were taken up together for hearing and are being disposed of vide this common order.

By way of CrMP(M) No. 1381 of 2024 filed under S.439 CrPC, prayer has been made on behalf of the petitioner namely Chhotu Lal, who is behind the bars since 17.12.2023, for grant of regular bail in FIR No. 137, dated 17.12.2023, under S.20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter, ‘Act’) registered at Police Station Banjar, District Kullu, Himachal Pradesh. Similarly, by way of CrMP(M) No. 1389 of 2024, bail petitioner Gian Chand, who is behind the bars since 17.1.2024, has prayed for grant of regular bail in FIR No. 16, dated 17.1.2024 under Ss. 20 and 29 of the Act, registered at Police Station Bhunter, District Kullu, Himachal Pradesh.

Respondent-State has filed status reports in both the cases.

Perusal status report filed in CrMP(M) No. 1381 of 2024, reveals that on 17.12.2023, at 11.30 am, a police party, which at the relevant time was going towards PWD Guest House Sojha, saw a person sitting alone near link road on a stone, who was having two crutches and one white carry bag and a red carry bag. Since aforesaid person was sitting alone, SI/SHO stopped his vehicle and went to that person, who, on seeing the police got perplexed and tried to hide the carry bag by slipping the same behind the stone. Police, on suspicion of possession of contraband by said person, associated independent witnesses, ascertained identify of the said person and conducted search of his person and carry bag and allegedly recovered 3.01 kg charas. Since no plausible explanation ever came to be rendered on record qua possession of aforesaid quantity of contraband, police, after having completed necessary codal formalities, lodged FIR, detailed herein above and took the above said person i.e. present bail petitioner into custody on 17.12.2023 and since then, he is behind the bars. Since Challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court, for grant of regular bail, on the ground that there is non-compliance of S.52A of the Act, inasmuch as representative samples were not drawn, rather, entire bulk was sent for chemical analysis.

Perusal of status report filed in CrMP(M) No. 1389 of 2024, reveals that the bail petitioner Gian Chand came to be booked for possession of 1.302 kg charas.

Mr. Yadvinder Gupta and Mr. Bhupinder Singh Ahuja, Advocates, appearing for the petitioners, in both the cases, while making this Court peruse order passed by Magistrate under S.52A of the Act, vehemently argued that though the investigating officers produced entire bulk allegedly recovered from the bail petitioner before the Magistrate., enabling him to prepare an inventory and certify the quantity of contraband, but since no representative samples were drawn in terms of S.52A of the Act, rather entire bulk was sent to Forensic Science Laboratory for chemical analysis, no substantial compliance of S.52A of the Act, can be said to have been made, as such, prosecution case is bound to fail in all probabilities. While making this Court peruse the judgments passed by Hon'ble Apex Court in Union of India v. Mohanlal and others, (2016) 3 SCC 379 and Mangilal v. State of M.P., Cr. Appeal No. 1651 of 2023, decided on 12.7.2023, learned counsel for the petitioner vehemently argued that the procedure elucidated in S.52A of the Act is not ‘directory’, rather ‘mandatory’ and as such, non-compliance thereof, vitiated the criminal proceedings against the petitioner, on the ground that said provision was not followed as per mandate of law. Learned counsel for the petitioner further argued that the procedure for seizure, sampling and disposal is spelt out in the relevant rules and Notifications, therefore, there is no occasion for the investigating agency to work outside the mandatory provisions of law. He further stated that specific procedure has been provided under the statute for sampling, as such, there was no occasion for the Magistrate to permit the investigating officer to send the entire bulk for chemical analysis.

In nutshell, the case of the petitioner, as projected in the petition and further canvassed by learned counsel for the petitioner is that on account of non-compliance of S.52A of the Act, prosecution case is bound to fail and as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars rather, his prolonged incarceration in jail, amounts to pre-trial conviction, which is not permissible in law.

While referring to S.37 of the Act, learned counsel for the petitioner further argued that bare perusal of the aforesaid provision of law nowhere suggests that court is estopped from considering prayer for grant of bail in case involving commercial quantity of contraband, especially, when it is satisfied that the accused named in the FIR has been falsely implicated and there is no likelihood of his indulging in trade of narcotics, if he is ordered to be enlarged on bail. Learned counsel for the petitioner submitted that since on account of law laid down by Hon'ble Apex Court in judgment supra, prosecution case is bound to fail and further incarceration of the petitioner in jail, besides being violative of Art. 21 of the Constitution of India would amount to pre-trial conviction of the petitioner, which is also not permissible in law, prayer made on behalf of the bail petitioner, for grant of bail, deserves to be allowed.

While fairly acknowledging the factum of filing of Challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General stated that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and his prayer for grant of bail, deserves outright rejection. Mr. Kahol, learned Additional Advocate General, further argued that there is overwhelming evidence available on record suggestive of the fact that on the date of alleged incident, bail petitioner was in the process of transporting commercial quantity of contraband as such, it cannot be said that he has been falsely implicated, rather, there is ample evidence on record that the bail petitioner is a drug-peddler and in the event of being enlarged on bail, he may not only flee from justice, but may again indulge in such activities. Mr. Kahol, learned Additional Advocate General further argued that there is no dispute that before sending entire bulk for chemical analysis, inventory as envisaged under S.52 of the Act was prepared and entire bulk was sent for chemical analysis after necessary permission granted by the Magistrate.

At this stage, it would be apt to take note of S.52 of the Act as under:

“[52A. Disposal of seized narcotic drugs and psychotropic substances.—

[(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.]

(2) Where any 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the 3[narcotic drugs, psychotropic substances, controlled substances] or conveyances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 3[narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of--

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such magistrate, photographs of 4[such drugs, substances or conveyances] and certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 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 5[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]

While referring to judgment passed by a Division Bench of this Court in Narayan Singh v. State of H.P., Cr. Appeal No. 385 of 2018, decided on 25.8.2023, Mr. Kahol, learned Additional Advocate General submitted that the Division Bench of this Court having taken note of judgments pressed into service by learned counsel for the petitioner, has categorically held that entire contraband sent for chemical analysis can be primary evidence for the purpose of trial, especially when same is sent for chemical analysis immediately after its recovery. He also placed reliance upon judgment passed by Division Bench of this Court in Sandeep Kumar v. State of Himachal Pradesh, Cr. Appeal No. 63 of 2017 alongwith connection matters, decided on 30.3.2022, wherein, Division Bench of this Court having taken note of judgment passed by Hon'ble Apex Court in Mohanlal supra, categorically held that the Apex Court did not lay down the law that non-compliance of S.52A of the Act is fatal to the prosecution case.

Lastly, Mr. Kahol, learned Additional Advocate General submitted that otherwise also, question of non-compliance of S.552A as well as its effect on the trial cannot be gone into by this Court, while considering bail petition filed under S.439 CrPC, because, any finding qua applicability of S.52A may have a direct bearing on the trial, which is yet to be concluded by learned trial Court, on the basis of evidence led on record by the prosecution.

While refuting the oral submission made on behalf of learned counsel for the petitioner(s), that the prayer made on behalf of the bail petitioner(s) for grant of bail deserves to be allowed, on the ground of inordinate delay in conclusion of trial, Mr. Kahol, learned Additional Advocate General further submitted that the petitioners are behind the bars for less than one year and there is no denial qua the fact that the Challan stands filed in the competent court of law and prosecution is in the process of examining prosecution witnesses. While referring to judgments pressed into service by learned counsel for the petitioner(s) with respect to inordinate delay in trial, Mr. Kahol, learned Additional Advocate General submitted that in all the cases pressed into service, it has been held that prayer made on behalf of an accused for grant of bail on the ground of inordinate delay can be considered by the court, if the bail petitioner has already undergone substantive sentence, which may be imposed in case he is held guilty, after trial, under relevant provisions of law.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that commercial quantity of contraband came to be recovered from the bail petitioner in the presence of independent witnesses, as such, this Court is not persuaded to agree with learned counsel for the petitioner that the bail petitioner has been falsely implicated. Primarily, prayer for grant of bail has been made on behalf of the petitioner on the ground that there is no substantial compliance of S.52A of the Act, which besides providing procedure for destruction of contraband, also lays down provision for making an inventory of confiscated contraband and certification of contraband by Magistrate as well as sampling.

As per S.52A(2), investigating officer, after recovery of contraband is under obligation to move an application to Magistrate, for the purpose of (a) certifying the correctness of the inventory so prepared; (b) taking, in the presence of such magistrate, photographs of 4[such drugs, substances or conveyances] and certifying such photographs as true; and (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.

S.52A(4) further provides that 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 innventory, the photographs of 5[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.

In the case at hand, specific allegation of the petitioner herein is that though investigating officer made an application under S.52A of the Act before the Magistrate concerned, enabling him to ascertain correctness of inventory so prepared by investigating officer of the contraband allegedly recovered from the bail petitioner, but he wrongly permitted the investigating officer to send entire bulk to the Forensic Science Laboratory, for chemical analysis whereas, as per provisions of S.52A, investigating officer ought to have drawn representative sample in the presence of Magistrate and same could only be sent to Forensic Science Laboratory for chemical analysis. It is pleaded on behalf of the petitioner(s) that on account of non-compliance of S.52A of the Act, prosecution is bound to fail, as such, bail petitioner(s) deserve(s) to be enlarged on bail. In support of aforesaid submission, reliance has been placed upon following judgments passed by Hon'ble Apex Court:

(i) Union of India v. Mohanlal and others, (2016) 3 SCC 379

(ii) Mangilal v. State of M.P., Cr. Appeal No. 1651 of 2023, decided on 12.7.2023

(iii) State of Kerala v. Kurian Abrahan P. Ltd. (2008) 3 SCC 582

(iv) Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1

(v) Noor Aga v. State of Punjab, (2008) 16 SCC 417

(vi) State of UP v. Shinghara Singh and Ors. AIR 1964 SC 358

(vii) Chandra Kishore Jha v. Mahavir Prasad and Ors. (1999) 8 SCC 266

(viii) Union of India v. Mahender Singh, Civil Appeal No. 4807 of 2022

(ix) Ghanshyam alias Sanjay Kumar v. State of H.P and Ors. CWP No. 470 of 2017

(x) Mohammad Khalid and Anr. v. The State of Telangana, Cr. Appeal No. 116 of 2023

The question which needs to be determined at this stage is, ‘whether it would be appropriate for this Court, in the present petition, to go into the question of non-compliance of S.52A of the Act, by Magistrate concerned, while drawing samples, especially, when guilt, if any, of the bail petitioner is yet to be established on record by prosecution by leading cogent and convincing evidence?”

Another question, which has cropped up before this Court is that, “even, if for the sake of arguments, it is presumed that the Magistrate concerned, while permitting the investigating officer to send the entire bulk, for chemical analysis to Forensic Science Laboratory, violated mandatory provision of drawing representative samples in terms of S.52A of the Act, whether such omission, if any, can be a ground for this court to enlarge the bail petitioner on bail, is a question, that needs to be determined at the first instance?”

This Court is persuaded to agree with Mr. Kahol, learned Additional Advocate General that any finding with regard to non-compliance of S.52A by Magistrate, while permitting the investigating officer to send the entire bulk for chemical analysis might have a direct bearing upon the trial, which is yet to be concluded by learned trial Court, on the basis of evidence adduced on record by prosecution, since all the grounds/submissions raised by the petitioner with regard to non-compliance of S.52A can be raised by bail petitioner at the time of trial and trial court shall have the opportunity to consider the same inter alia other evidence on record adduced by the prosecution, this court is of the view that it may not be appropriate, at this stage, to return finding qua the effect of non-compliance, if any, of S.52A of the Act.

Similarly, judgments passed by Hon'ble Apex Court, pressed into service by learned counsel for the petitioner, can also be dealt with by learned trial Court, while adjudicating the trial. Needless to say, by now, it is well settled that while considering prayer for grant of bail, court considering prayer for grant of bail, is not expected to touch the merits of the case, because, that may prejudice the mind of trial judge, who otherwise is expected to decide the trial in the totality of evidence adduced on record by prosecution as well as accused.

Though, having taken note of recent judgments passed by Hon'ble Apex Court, which have been pressed into service by learned counsel for the petitioner as well as the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 (hereinafter, ‘Rules, 2022’), there appears to be merit in the contention of learned counsel for the petitioner that the investigating officer has failed to draw samples in terms of provisions contained under S.52A as well as the Rules 2022, notified by Government of India, but whether non-adherence/compliance of S.52A and Rules framed thereunder, can lead to acquittal of the accused, is a question to be determined by trial Court but certainly, such question cannot be considered and decided in bail petition, which is otherwise required to be decided within defined parameters viz. gravity of offence, likelihood of repeating such offence, tampering of evidence etc.

No doubt, once court is satisfied that in totality of evidence adduced on record by prosecution as well as law on the point, prosecution case is bound to fail, it can proceed to quash the proceedings but certainly not in a petition filed under S.439 CrPC, rather, for that purpose, appropriate remedy for the bail petitioner(s) may be a petition under S.482 CrPC (now, S.528 BNSS), if so advised.

Similarly, had the question of non-compliance of S.52A of the Act as well as Rules, 2022, come for consideration before this Court in a criminal appeal, this Court would have proceeded to examine correctness of the submissions made in that regard by learned counsel for the petitioner, but certainly, any finding rendered qua the same, in the instant proceedings, would materially affect the trial, which is yet to be concluded by the trial Court.

Hence, for the afore reasons, this Court does not find cases at hand to be fit cases, where prayer made on behalf of the bail petitioners for grant of regular bail, can be allowed on account of non-compliance, if any, of S.52A of the Act as well as Rules, 2022.

Though, no specific ground has been raised in the instant proceedings with regard to grant of bail, on account of inordinate delay in conclusion of trial, but learned counsel for the petitioner(s) orally submitted that prayer made on behalf of the bail petitioner(s) deserves to be considered on the ground of inordinate delay in conclusion of trial and in that regard, he placed reliance upon judgment passed by Hon'ble Apex Court in Javed Gulam Nabi Shaikh v. State of Maharashtra and another, Cr. Appeal No. 2787 of 2024 (arising out of SLP(Crl) No. 3809 of 2024) decided on 3.7.2024.

In the cases at hand, this Court is not persuaded to consider the oral prayer for grant of regular bail, on the ground of inordinate delay in conclusion of trial, for the reason that the bail petitioners are behind the bars for less than a year and, during this period, trial Court has framed charge and cases have been listed before learned trial Court, for recording the statements of prosecution witnesses.

No doubt, in Javed Gulab Nabi Shaikh, Hon'ble Apex Court has held that if the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. But, if aforesaid judgment is read in its entirety, petitioner in that case was enlarged on bail, on the ground of inordinate delay after incarceration for more than four and a half years.

In the instant cases, however, bail petitioners are behind the bars for less than a year i.e. bail petitioner Chhotu Lal is behind the bars since 17.12.2023 and bail petitioner Gian Chand is behind the bars since 17.1.2024, and charge against them already stands framed, as such, prayer made on behalf of the bail petitioners, for grant of bail, on the ground of delay in conclusion of trial, cannot be considered at this stage, rather, such prayer can be considered at a later stage, if the prosecution fails to examine considerable number of witnesses, within a reasonable time.

There is yet another aspect of the matter that commercial quantity of contraband came to be recovered in both the cases, therefore, rigours of Section 37 of the Act are attracted. Though, aforesaid provision does not bar the court from considering prayer for grant of bail, but yet while considering prayer for grant of bail, in cases involving commercial quantity of contraband, court has to tread with caution, inasmuch there is every possibility that the accused involved in such cases cannot be termed to be a victim of drug, rather there is strong apprehension that such a person is a drug-peddler and therefore, ordering release of such a person, may not only send a wrong message in society but may also cause serious prejudice to the public at large, as such, this Court is not inclined to grant bail to the petitioners in these cases.

Consequently, in view of detailed discussion made herein above, this court finds no merit in the present petitions and the same are dismissed. Liberty is reserved to the bail petitioners to file fresh applications for bail at an appropriate stage, if so advised.

Before parting, this Court wishes to observe that since the bail petitioners are behind the bars for around one year coupled with the fact that charge stands framed against them, this Court hopes and trusts that trial Courts would conclude the trials expeditiously, failing which bail petitioners would be at liberty to approach this Court, for grant of bail on the ground of inordinate delay in conclusion of trial.