Fateh Ram vs State Of Himachal Pradesh

Sandeep Sharma, J

Instant Criminal appeal filed under Section 374 of the CrPC lays challenge to judgment dated 10.9.2021 passed by the learned Special Judge, Mandi, District Mandi, Himachal Pradesh, in Sessions Trial No. 32 of 2015, titled State of Himachal Pradesh v. Fateh Ram, whereby Court below while holding the appellant/accused (hereinafter referred to as “accused”), guilty of his having committed offence punishable under Section 20(b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act (in short “Act”), convicted and sentenced him to undergo rigorous imprisonment for a period of six years and pay compensation to the tune of Rs. 60,000/-.

Precisely, the facts of the case, as emerge from the record are that SHO Chet Singh (PW10), HC Nand Lal (not examined), HC Rajesh Kumar (PW4), Constable Khem Chand (not examined) and Constable Ramji Dass (not examined), present at Nagchala in the official vehicle being driven by Constable Devender Kumar (not examined) in connection with the theft of Raghunath temple saw the accused coming from Bagla to Nerchowk on foot. Since after having seen police, accused attempted to run away, police apprehended him on the basis of suspicion. Having noticed conduct of the accused coupled with the fact that he was carrying bag Ext.P2, police thought at the first instance, made an attempt to associate independent witnesses, but since none was found, it proceeded to conduct search of the accused by associating HC Rajesh Kumar and C. Khem Chand as witnesses. Police also gave personal search to the accused, but no incriminating substance was found during the personal search of the police and in that regard, memo (Ex.PW4/A) was prepared. However, police recovered one plastic bag (Ex.P-7), containing black coloured stick like substance (Ex.P-8) wrapped with transparent polythene from the bag of the petitioner. Police after having smelled the substance found the same to be cannabis and accordingly with the help of an electronic weighing scale, weighed the same, which was found to be 600 grams. The cannabis was put in the carry bag in the same manner in which it was recovered and thereafter, the carry bag was again tied. All the articles and carry bag were put in the bag in the same manner in which they were recovered. The bag was put in a cloth parcel (Ex.P-1) and the parcel was sealed with 12 impressions of seal 'M'. SHO Chet Singh, conducted the investigation and filled the NCB-1 form (Ex.PW10/C) in triplicate and obtained the seal impression on the NCB-1 form. Sample seal (Ex.PW4/B) was taken on a separate piece of cloth and thereafter, seal was handed over to HC Rajesh Kumar, after the use. The parcel, NCB-1 form in triplicate and sample seals were taken in possession vide memo (Ex.PW4/C), which was signed by HC Rajesh Kumar, C.Khem Singh and accused Fateh Ram. Besides handing over seizure memo to the accused free of cost, SHO Chet Singh sent the rukka (Ex.PW10/A) through HC Rajesh Kumar. HC Rajesh Kumar handed over the rukka to PW7 HC Rohit Thakur and thereafter SHO Chet Singh conducted the investigations at the spot. He after having prepared the site plan (Ex.PW10/B) also recorded the statements of the witnesses as per their versions. Since no plausible explanation came to be rendered on record by the accused qua the possession of the aforesaid quantity of contraband, police arrested the accused and prepared a memo (Ex.PW4/D). After completing necessary codal formalities on the spot, police brought the accused and case property to the police station and thereafter, the case property was handed over to HHC Raj Kumar (PW1), who made an entry at serial no. 1018/2014. (Ex.PW1/A). Afore HHC Raj Kumar deposited the parcel, NCB-1 form, copy of FIR and seizure memo in the Malkhana. Subsequently after HHC Raj Kumar sent entire contraband to FSL Junga on 12.12.2014 for chemical analysis through HC Vikas Thakur PW5 vide RC No. 325/14 (Ex.PW1/B). HC Vikas Thakur deposited all the articles in FSL Junga and handed over the receipt to MHC on his return. Besides above, a special report (Ex.PW3/A) was prepared and was handed over to PW6 Vijay Singh with the direction to take it to Additional S.P. Mandi, who handed over the special report to the reader of Addl. S.P. Mandi, Shri Kuldeep Chand Rana. Additional S.P. made an entry on the special report and handed it over to his reader ASI Balam Ram (PW3) with direction to make an entry in his register. PW3 ASI Balam Ram made an entry at serial No. 92 (Ex.PW3/A). Kuldeep Chand Rana also executed an affidavit (Ex.PW3/B) regarding this fact. HC Samad brought the parcel sealed with 12 impressions of seal 'M' and 4 impressions of seal 'FSL' along with a report of chemical analysis and handed them over to MHC Rajesh Kumar, who thereafter, made an entry in the register and deposited the case property in Malkhana. The result of chemical analysis (Ex. PW10/B) disclosed that the exhibit was the extract of cannabis and a sample of charas, which contained 28.53% w/w resin in it. After completion of investigation, police presented challan in the competent Court of law.

Being fully convinced that prima-facie case is made out against the accused, Court below proceeded to frame charge against him under Section 20(b) (ii) (B) of the NDPS Act, to which, he pleaded not guilty and claimed to be tried.

Prosecution with a view to prove its case examined as many as ten witnesses, whereas despite sufficient opportunity, accused failed to lead evidence in defence.

In his statement recorded under Section 313 CrPC, he denied the case of the prosecution in toto. He stated that false case was made against him and witnesses deposed against him falsely, however, as has been noticed herein above, no evidence in defence was ever led on record.

Learned Court below on the basis of totality of evidence adduced on record before it, proceeded to hold the accused guilty of his having committed offence punishable under Section 20(b) (ii) (B) of the NDPS Act and accordingly convicted and sentenced him as per description given hereinabove. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting aside judgment of conviction and order of sentence recorded by the Court below.

Precisely, the grouse of the accused, as has been highlighted in the appeal and further canvassed by Mr. G.R. Palsra, learned counsel representing him, is that there is no compliance of Section 52A of the Act, whereby it was incumbent upon the investigating agency to produce the entire contraband before the Magistrate for preparation of the inventory and drawing of represented samples. While making this Court peruse records, especially challan filed under Section 173 CrPC, Mr. Palsra, vehemently argued that Investigating Officer straightaway sent the entire bulk of contraband allegedly recovered from the ac used to the FSL for chemical analysis, which has rendered the case of the prosecution doubtful with regard to recovery.

While making this Court peruse Section 52A of the Act, Mr. Palsra, vehemently argued that aforesaid provision of law was introduced with a specific object to avoid misuse, substitution and tampering of the contraband allegedly recovered by the investigating agency. Mr. Palsra, stated that Section 52A(2) makes it mandatory for investigating agency to prepare the inventory of the seized articles including the contraband and thereafter, procedure has be followed by supplying an application to the Magistrate for the purpose of certifying the correctness of the inventory so prepared, taking photographs in presence of the Magistrate, and certifying the inventory as true or taking samples in presence of Magistrate with due certification . He stated that since aforesaid provision of law never came to be complied with in the case at hand, there was no occasion, if any, for the learned Court below to hold the accused guilty of his having committed offence punishable under Section 20(b) (ii) (B) of the NDPS Act. To substantiate his aforesaid argument, Mr. Palsra, invited attention of this Court to the judgments passed by the Hon’ble Apex Court in Mangilal v. State of Madhya Pradesh 2023 SCC OnLine SC 862 and Mohammed Khalid and Anr. v. The State of Telangana, Criminal Appeal No. 1610 of 2023 (alongwith connected matter), wherein it has been categorically held that compliance of Section 52A is mandatory and omission, if any, on the party of the investigating agency, is fatal to the case of the prosecution. In case titled Mohammed Khalid (supra), Hon’ble Apex Court has held that in case no proceedings Section 52A of the Act are undertaken by the Investigating Officer for preparing inventory and obtaining samples in the presence of the Judicial Magistrate, FSL report is nothing but a waste paper and cannot be read in evidence. Besides above, Mr. Palsra, further argued that bare reading of the statements given by the prosecution witnesses, nowhere proves the case of the prosecution, rather (PW4) HC Rajesh Kumar and (PW10) SHO Chet Singh, who are the witnesses of recovery, nowhere supported the case of the prosecution. While making this Court peruse statements made by the afore witnesses, Mr. Palsra submitted that there are material inconsistencies and contradictions because Chet Singh (PW10), stated on oath that all the documents with regard to seizure were written by the Constable Rajesh Kumar, whereas Rajesh Kumar while deposing before the Court below contradicted the aforesaid version of Chet Singh and stated that all the documents including the aforesaid documents were prepared by the Chet Singh (PW10).

While supporting the impugned judgment of conviction and order of sentence recorded by the Court below, Mr. Rajan Kahol, learned Additional Advocate General, vehemently argued that since entire bulk of contraband allegedly recovered from the conscious possession of the accused was sent to the FSL, there is no question of tampering, rather report of FSL itself suggests that it after having received the entire bulk of contraband, drew the representative samples which were subsequently found to be samples of cannabis. While making this Court peruse Section 52A of the Act, learned Additional Advocate General attempted to argue that Section 52A(1) of the Act deals with disposal of the narcotics property and as such, omission, if any, on the part of the investigating agency to produce the contraband before the Magistrate before drawing representative samples may not be fatal to the case of the prosecution, especially when FSL gave its report after drawing the representative samples from the entire bulk of the contraband made available to it. Mr. Kahol, further submitted that there may be minor contradictions in the statements of PW4 and PW10, but if same are read in conjunction, it clearly proves the case of the prosecution that on the date of the alleged incident, police after having recovered the contraband from the conscious possession of the accused, completed all the necessary codal formalities on the spot, but since no plausible explanation ever came to be rendered on record at the behest of the accused qua possession of the contraband, he was arrested that too after lodging of FIR.

Having heard learned counsel for the parties and perused the material available on record vis-à-vis reasoning assigned in the judgment impugned in the instant proceedings, this Court finds merit in the contention of Mr. Palsra, learned counsel appearing for the accused that at no point of time, application under Section 52A of the Act was ever submitted before the Magistrate concerned for preparation of the inventory, as a result thereof, representative samples of contraband were also not drawn in the presence of the Magistrate. Similarly, on account of non-filing of the application as per Section 52A, photographs of the contraband, were also not clicked in the presence of the Magistrate. As per Mr. G.R. Palsra, learned counsel appearing for the accused, it was mandatory for the investigating agency to file an application under Section 52A of the Act to Magistrate for certification of inventory so prepared by the investigating agency and representative samples for chemical analysis could only be drawn in the presence of the Magistrate, however, such plea of his has been refuted by the learned Additional Advocate General on the ground that since entire bulk of contraband was sent to FSL for chemical analysis and FSL submitted report qua the nature of substance sent to him after drawing representative sample from the entire bulk of contraband, omission, if any, to prepare inventory and production of same before the Magistrate, may not be of much consequence. To support his aforesaid submission, learned Additional Advocate General invited attention of this Court to the judgment passed by the Hon’ble Apex Court in case titled State of Himachal Pradesh v. N.S. God 2013 (3) SCC 594, (already taken note by the Court below, at page 34 of the judgment), wherein it has been held that where no prejudice is caused to the accused on account of procedural lapse on the part of the prosecution, such lapse is not fatal to the case of prosecution case.

Before ascertaining the correctness of the aforesaid rival submissions made by the learned counsel for the parties, this Court deems it fit to take note of Section 52A of the Act, which read as under:

“52A. Disposal of seized narcotic drugs and psychotropic substance

2[(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 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.]

Bare perusal of aforesaid provision of law clearly reveals that the Central Government, 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, prescribed for specific procedure to be followed by the investigating agency after recovery of the contraband. As per aforesaid provision of law, where any narcotics substance is seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, he shall prepare an inventory of such narcotic substance, containing such details relating to its description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic substance and make an application, to any Magistrate for the purpose of certifying the correctness of inventory so prepared.

As per aforesaid provision of law, photographs of the contraband shall also be clicked in the presence of the Magistrate, who will certify the same. Most importantly, representative samples of contraband would be drawn in the presence of the Magistrate, who would further certify the list of samples so drawn. It is only after certification of samples drawn in the presence of the Magistrate, I.O. would send the samples to the FSL for chemical analysis.

Admittedly, in the case at hand, procedure as envisaged under Section 52A of the Act, never came to be complied with, rather as per own case of the prosecution, investigating agency after recovery of the contraband, sent the entire bulk, firstly, to Malkhana and thereafter to FSL for chemical analysis. There is nothing to suggest that contraband allegedly recovered from the conscious possession of the accused was made homogenous before sending it to the FSL. Though report of FSL reveals that it before conducting chemical analysis, drew representative samples, but that may not be of much consequence for the reason that samples were never drawn in the presence of the Magistrate in terms of Section 52A of the Act. As has been noticed herein above, Section 52A came to be incorporated w.e.f. 29.5.1989, with a specific object to prevent theft, substitution and tampering of contraband and after coming to operation of the aforesaid provision of law, it became mandatory for the investigating officer to prepare the inventory after recovery of the contraband as well as other relevant material and present the same before the Magistrate by way of filing appropriate application under the aforesaid provision of law. Magistrate after receipt of the aforesaid application would certify the correctness of the inventory so prepared and would also authorize clicking of photographs of the contraband. Most importantly, as per the aforesaid provision of law, representative samples of such drugs would also be drawn in the presence of the Magistrate and thereafter, it can only be sent to the FSL for sampling. In the instant case, aforesaid provision never came to be complied with.

Now, the question which needs to be determined in the instant proceedings is whether entire case of the prosecution would fail if there are some procedural irregularities which have caused no prejudice to the accused?

Mr. Rajan Kahol, learned Additional Advocate General specifically placed reliance upon the judgment passed by the Hon’ble Apex Court in case titled State represented by Inspector of Police Chennai v. N.S. Gnaneswaran, (2013) 3 SCC 594, to state that procedural irregularity on the part of the prosecution is not fatal to the prosecution case, especially when there is nothing to suggest that on account of the same, no prejudice, if any, has been caused to the accused. However, having perused the aforesaid judgment, this Court has no hesitation to conclude that same has no application in the present case and learned Court below ignoring objection raised by the learned counsel for the accused during trial with regard to non-application of Section 52 A of the Act, wrongly applied the aforesaid judgment passed by Hon’ble Apex Court. If the aforesaid judgment is read in its entirety, it does not specifically deal with case under the NDPS Act, rather in the aforesaid case, FIR against the accused was registered under Section 120-B read with Sections 420, 467, 468 and 471 of the IPC. In the afore case, accused approached the High Court under Section 482 Cr.P.C. to seek quashment of FIR on the ground that requirement in Section 154(2) CrPC, for issuing a copy of such information recorded was mandatory, however, Hon’ble Apex Court rejected the aforesaid plea on the ground that in case prosecution is able to show that no prejudice, if any, has been caused to the accused on account of non supply of information under Section 154(2) of the CrPC, inaction on the part of investigating agency to supply copy of FIR, may not be fatal of the case of the prosecution.

Needless to say, in the case at hand, case has been registered under the NDPS ACt, which is a special enactment. Since under the Act, specific procedure has been laid down for dealing with the contraband after its recovery and it is mandatory for the investigating agency to prepare inventory of contraband as well as other articles recovered from the conscious possession of the accused, failure on the part of the investigating agency to comply with aforesaid procedure can be said to be fatal to the case of the prosecution because very non-compliance of the aforesaid provision of law renders the story of the prosecution doubtful. As has been noticed herein above, very purpose and object of Section 52A of the Act is to prevent theft, substitution and tampering of the contraband. Central Government while inserting aforesaid provision of law made it mandatory for the investigating agency to prepare the inventory of the seized contraband as well as other material and place it before Magistrate for certification. Very object of certification of the inventory so prepared by the Investigating Officer and Magistrate is to ensure that no tampering takes place and only such samples, which are drawn in the presence of the Magistrate, are sent for chemical analysis.

As per aforesaid provision of law, such application is to be submitted before the Magistrate at the first instance so that no delay is caused in drawing the samples as well as identification of the contraband allegedly recovered from the conscious possession of the accused. Very purpose of clicking photographs in terms of the aforesaid provision of law is to ensure that contraband is not subsequently substituted or tampered with. However, in the case at hand, entire procedure as envisaged under Section 52A, never came to be complied with.

Hon’ble Apex Court in Mangilal and Mohammed Khalid cases (supra) had an occasion to deal with Section 52A of the Act. In both the judgments, Hon’ble Apex Court, categorically held that compliance of Section 52A of the Act, is mandatory and non-compliance thereof, render the story of the prosecution totally doubtful and without there being compliance of Section 52A of the Act, case of the prosecution is bound to fail. Most importantly, in case titled Mohammad Khalid (supra) Hon’ble Apex Court has categorically held that in case, Investigating Officer failed to prepare the inventory in terms of Section 52A of the Act and samples were not obtained in the presence of the jurisdictional Magistrate, report of FSL, if any, is nothing, but a waste paper and cannot be read in evidence.

Relevant para of the judgment passed by the Hon’ble Apex Court in Mangilal case (supra), reads as under:

“12. We further find that memorandum under Section 27 of the Act, as witnessed by the two witnesses, P.W.3 and P.W.4 would be of no value in evidence as there is no discovery of new fact involved. Be that as it may, these witnesses also turned hostile. 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 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 narcotic substance in derogation of the compliance contained in Section 52A of the NDPS Act, this Court in Union of India v. Jarooparam, (2018) 4 SCC 334 has held as follows:

“8. What transpires from the abovequoted paragraph is that after taking out two samples of 30 gm each, the Executive Magistrate returned the entire remaining seized property to the investigating officer PW 6. To further ascertain the same, we have also carefully perused the exact content of the proceedings dated 14-10-2004 (Annexure P-5) recorded by the Executive Magistrate, Singoli Tappa. The proceedings recorded as far as the respondent herein is concerned, read thus: Proceedings 14-10-2004: Case submitted. Shri Harvinder Singh, Inspector (Investigating Officer), Narcotics Bureau, Singoli has submitted three sealed packets of seized stuff in Crime No. 1 of 2004 under Sections 8/18 and 8/29 of the NDPS Act, 1985. These packets were marked A, B and C and the details are given as under:

1-A: On the packet marked “A” it was indicated that packet contains 7.200 kg opium seized from Jaroopram, s/o Ganga Ram Bishnoi. On opening the packet, transparent polythene bag was found, in which again two polythene packets were found. One polythene indicated 4.000 kg and the second one 3.200 kg opium, respectively. A composite sample of 30-30 gm each have been taken from the two packets and kept in a small plastic polythene and marked A-3 and A-4 and sealed. The remaining seized stuff and samples sealed as usual are handed over to the presenting officer Shri Harvinder Singh, Inspector.

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 proper explanation from the prosecution significantly undermines its case and reduces the evidentiary value of the statements made by the witnesses.

Omission on the part of the prosecution to produce the bulk quantity of seized opium would create a 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. Law requires that such an 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 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, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748).

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 a haste and awarded conviction to the respondent without warranting the production of 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.

Turning to the other discrepancies in the prosecution case, PWs 1 and 2 the independent witnesses portrayed by the prosecution have turned hostile and did not support its case. It is manifest from the record that they had simply put their signatures on the papers at the whims of the investigating agency. Another aspect that goes in favour of the accused is that, the version of prosecution that the respondent voluntarily made the confessional statement cannot be believed in the light of admission by Narcotics Officer (PW 5), a key prosecution witness, that the statement of the respondent-accused under Section 67 of the Act was recorded while he was in his custody and the time was not mentioned on the statements. This fact further gets corroborated with the statement of PW 6 also that the statement of the accused was recorded after arrest and while in custody. Thus, it cannot be said that the statement of the accused confessing the crime was voluntarily made under the provisions of the Act.” (emphasis supplied)”

Relevant para of the Mohammed Khalid case reads as under:

“22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-5 for preparing an inventory and obtaining samples in presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Exhibit P-11) is nothing but a waste paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot. The offence under Section 20 (b) (ii) (c) deals with production, manufacture, possession, sale, purchase, transport, import or export of cannabis. It is not the case of the prosecution that the accused A-3 and A-4 were found in possession of ganja. The highest case of the prosecution which too is not substantiated by any admissible or tangible evidence is that these two accused had conspired sale/purchase of ganja with A-1 and A-2. The entire case of the prosecution as against these two accused is based on the interrogation notes of A-1 and A-2.”

At this juncture, it is also apt to take note of the judgment passed by the three Judges Bench of the Hon’ble Apex Court in Union of India v. Mohan Lal and Anr., (2016) 3 SCC 379, wherein Hon’ble Apex Court while holding that inventory prepared under Section 52A of the Act is primarily evidence, has held as under:

“11. Similarly, regarding the steps taken at the time of destruction to determine the nature and quantity of the substance being destroyed, the reports submitted by the State Governments give varying answers. There is no uniformity in the procedure adopted by those associated or in charge of the process of destruction. The reports suggest as if adequate steps are taken to prevent damage, loss, pilferage and tampering/substitution of the narcotic drugs and psychotropic substances from the point of search to the point of destruction but there is no uniformity or standard procedure prescribed or followed in that regard. Having said that we must mention that we are in these proceedings concerned with the following three issues only for the present:

(i)Seizure and sampling of the Narcotic drugs and Psychotropic substances,

(ii) their storage, and

(iii) their destruction

Seizure and sampling:

Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government have in exercise of that power issued Standing Order No. 1/89 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10.05.2007 and the other dated 16.01.2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. Para 2.2 of the Standing Order 1/89 states that samples must be taken from the seized contrabands on the spot at the time of recovery itself. It reads:

“2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot.”

Most of the States, however, claim that no samples are drawn at the time of seizure. Directorate of Revenue Intelligence is by far the only agency which claims that samples are drawn at the time of seizure, while Narcotics Control Bureau asserts that it does not do so. There is thus no uniform practice or procedure being followed by the States or the Central agencies in the matter of drawing of samples. This is, therefore, an area that needs to be suitably addressed in the light of the statutory provisions which ought to be strictly observed given the seriousness of the offences under the Act and the punishment prescribed by law in case the same are proved. We propose to deal with the issue no matter briefly in an attempt to remove the confusion that prevails regarding the true position as regards drawing of samples.

Section 52A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads:

“Section 52A : Disposal of seized narcotic drugs and psychotropic substances.

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

(2) Where any narcotic drug or psychotropic substance 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 narcotic drugs or psychotropic substances 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 the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of-

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

or

(b) taking, in the presence of such Magistrate, photographs of such drugs or 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.

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

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

It is manifest from Section 52A (2)(c) (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.

Sub-section (3) of Section 52- A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

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-section (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.”

Though during proceedings of the case, learned counsel for the petitioner-accused has been also able to point out certain discrepancies and inconsistencies in the statements made by prosecution witnesses, especially which are related to recovery, timing and place of occurrence, but since this Court is convinced that there is total non-compliance of Section 52A of the Act, which is fatal for the case of the prosecution, there appears to be no need to go into aforesaid aspect of the matter.

Consequently, in view of the above, this Court finds merit in the present appeal and accordingly, same is allowed and accused is acquitted of the charges framed against him. Accused is ordered to be released forthwith. In the aforesaid terms, present appeal is disposed of alongwith pending applications, if any.

Registry is directed to prepare and send the release warrants of the accused to the Superintendent of Jail, Model Central Jail, Nahan, District Sirmaur, Himachal Pradesh, forthwith, enabling said authority to release the accused, if not required in any other case.