Mohammad Abid Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No.268 of 2024

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Mohammad Abid S/o Mohammad Yusuf, aged about 24 years, Resident of Village Maudaha, Police Station Maudaha, District Hamidpur (U.P.) & Present Add. Sagar Ahmad House, Farid Nagar, Nizami Chowk, P.S. Supela, District Durg (CG)

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---- Appellant (In Jail) Versus

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State of Chhattisgarh Through its Station House Officer, Police Station Supela, District Durg (CG)

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---- Respondent

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For Appellant: Mr.Amrito Das, Advocate For Respondent/State: Mr.Shailendra Sharma, Panel Lawyer

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H on'ble Shri Ramesh Sinha, Chief Justice and Hon'ble Shri Ravindra Kumar Agrawal, Judge

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Judgment on Board

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Per Ramesh Sinha, C.J.

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05/07/2024

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This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment dated 30.10.2023 passed by the Special Judge (NDPS Act), Durg in Special Case NDPS No.26/2022 by which the appellant has been convicted for offence under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') and sentenced him undergo rigorous imprisonment for 12 years and fine of Rs.1,00,000/-, in default of payment of fine to

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further undergo rigorous imprisonment for 6 months.

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Case of the prosecution, in brief, is that Sub Inspector Pramod Shrivastava of Police Station Kumhari received a secret information on 10.07.2022 that the accused is searching for customers for keeping drugs in Farid Nagar, Nizami Chowk Bhilai and selling them illegally. On receiving the above information, entry was made in Sanha log number 11 (Ex.P-32) by Constable Vikas Tiwari and decision was taken to summon two independent witnesses to join the proceedings, which was recorded in journal number 12 (Ex.P-33). Constable Vikas Tiwari Yadav brought two witnesses namely Ajay Verma and Rambabu to the police station, which was recorded in Sanha log number 13 (Ex.P-35). After this, the witnesses present were asked to attend the proceedings. Notice of Section 160 of the IPC was given as Exs.P-01 and 34. Thereafter, the informant information panchnama Ex.P-36 was prepared in presence of the witnesses and thereafter the panchnama of not obtaining the warrant (Ex.P-37) was prepared.

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After that they proceeded to the incident site along with witnesses. According to the said informer’s information, after reaching the said spot of incident, Nizami Chowk Farid Nagar the accused was surrounded, caught and interrogated, the accused gave information about his name and address, after this, informer information verification panchnama (Ex.P-2) was prepared in presence of the witnesses and to search the

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accused notice under Section 50 of the NDPS Act was given as Ex.P-3 and consent letter for separate search by the accused was given as Ex.P4. After that, the investigating officer, companion staff and witnesses were searched by the accused, in which no objectionable item was found. Panchnama (Ex.P-5) was prepared in this regard. Thereafter the accused searched in presence of the witnesses. During the search, drug tablets i.e. Nitrozepam tablet IP 70 leaves of Nitrovate-10, 30–30 tablets each, total 2100 tablets weighting 1150 grams worth Rs.14385/-, cash amount of Rs.1620/- and one mobile ME were found, of which search panchnama (Ex.P-6) was prepared. Recovery panchnama (Ex.P-7) of the drugs from the accused was prepared.

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The Drug Inspector was issued letter (Ex.P-25) and called to the spot for identification of the drug. The Drug Inspector identified the recovered drugs as banned drugs and gave him the identification panchnama (Ex.P-8) and after investigation by the drug inspector, physical test report regarding its ingredients and quantity was given as Ex.P-26. After this, notice (Ex.P-9) was given to the accused to produce the documents in relation to the recovered drugs, in which it was written that the accused did not have any license in relation to the drugs. Thereafter, verification panchnama (Ex.P-10) of the battery operated machine brought to weigh the recovered drugs and prepared. By weighing the contraband in presence of the witnesses, weighing panchnama

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(Ex.P-11) was prepared. Samples were taken out of the recovered drugs for chemical testing and and separation of sample panchnama (Ex.P-13) was prepared. The recovered narcotic drugs were marked with article number A-1, B-1 and the remaining drugs were marked with article A and B and sealed in presence of the witnesses with a cash amount of Rs.1620/- and tablets separated for chemical testing, which were sealed in the seizure memo (Ex.P15). Sample seal panchnama (Ex.P-14) of the seal which was used to seal the seized drugs and sample packet was prepared. Panchnama (Ex.P-17) was prepared to explain the reason for arrest of the accused. Thereafter the memorandum regarding the receipt of drugs from the accused was taken as per Ex.P-16. After sufficient evidence was found against the accused, he was informed about the reasons for his arrest and arrest was made as per arrest panchnama Ex.P-18. Dehati nalishi No.0/2022 (Ex.P-41) was recorded.

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After completion of proceeding from the spot, the investigating officer came back to Supela Police Station and entry of his return after complete proceeding was made in Sanha log number 44 (Ex.P-43). On the basis of said report, FIR in Crime No.636/22 was registered against the accused vide Ex.P-31 and copy of which has been forwarded to the Magistrate vide Ex.P-41. Seized sample packet A-1 and B-1 were sent to FSL for chemical examination and as per FSL report (Ex.P-47), the drug recovered from the accused was found to be NITRAZEPAM.

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After completion of investigation, charge-sheet was filed against the appellant/accused before the Special Judge under NDPS Act. The appellant abjured the guilt and entered into defence.

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In order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 47 documents Exs.P-1 to P- 47 in support of case of the prosecution. The appellant has neither examined any witness in his defence nor exhibited any document.

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The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 30.10.2023, convicted the appellant for offence under Section 21(C) of the NDPS Act and sentenced him as mentioned herein-above in opening paragraph of this judgment, against which, this criminal appeal has been preferred.

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Mr.Amrito Das, learned counsel for the appellant submits that the learned trial Court failed to appreciate that the mandatory provisions of Section 42 of the NDPS Act was not followed by the investigating officer. Learned trial Court failed to appreciate that the mandatory provision of Section 55 of the NDPS Act which mandate that the seized contraband must be handover to the concerned jurisdictional Station House Officer, Police Station. In this case, Pramod Shrivastava (PW-13) is not the Station House Officer of the Police Station Supela, but he is SubInspector of the said Police Station and therefore, the entire

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proceeding done by him is vitiated. He further submits that the learned trial Court failed to appreciate that the mandatory proceeding under Section 52-A of the NDPS Act was not done by the concerned investigating officer and no inventory was prepared and alleged contraband was not produced before any Magistrate. Therefore, there was a blatant violation of the statutory provisions. He also submits that no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), 3 and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. Once there is no primary evidence available, the trial as a whole stands vitiated. Hence, in absence of the same, conviction is vitiated and deserves to be set aside. He relied upon the judgments of the Supreme Court in the matters of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379 and Yusuf @ Asif v. State (Criminal Appeal No.3191/2023), decided on 13.10.2023).

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On the other hand, Mr.Shailendra Sharma, learned Panel Lawyer appearing for the respondent/State, would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt and the learned trial Court

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after considering the material available on record and evidence adduced by the prosecution has convicted the appellant for offence under Section 20(C) of the NDPS Act, in which no interference is called for.

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We have heard the learned appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.

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A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be hollow promise if the investigation in a NDPS case were not to be fair or raises serious question about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the Police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided.

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The investigation in a criminal offence must be free from

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objectionable features or infirmities which may legitimately lead to a grievance on part of the accused was noticed by the Supreme Court in Babubhai v. State of Gujarat reported in (2010) 12 SCC 254 as follows:

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“32. The investigation into criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer ‘is not merely to bolster up a prosecution case with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth.”

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In State of Bihar v. P.P. Sharma reported in AIR 1991 SC 1260, the Supreme Court has held as under:

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“57…. Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism... Therefore, before

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countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the Court, not only to insist upon making specific and definite allegations of personal animosity against the Investigating Officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the Court.

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Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power…

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An Investigating Officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.”

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14.In the present case, the prosecution has examined the investigating officer Pramod Shrivastava as PW-13. He has stated on 10.07.2022 he had received a secret information that accused Mo. Abid is searching for customers to sell drugs illegally by keeping it in Farid Nagar, Nizami Chowk, Bhilai. On receiving the information, he recorded Roznamcha Ex.P-32. Constable Vikas Tiwari came to the police station along with two witnesses Ajay Verma and Rambabu. After the presence of the witnesses, he asked the witnesses to remain present in the

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proceedings. In para 5 of his statement he has stated that he along with staff and witnesses reached the spot of incident, Nizami Chowk, Farid nagar, where the accused was surrounded, caught and interrogated, who told his name as Mo. Abid. After that, he served the search notice to the accused (Ex.P-3). The consent for search was given to him by the accused vide Ex.P-4 and thereafter seized 2100 Nitrozepam tablets IP from the accused and vide recovery panchnama was prepared vide Ex.P-7. In para 21 of his cross-examination, he admitted that the accused was caught and brought by Crime Branch. He also admitted that the Magistrate was not called on the spot to seal the seized contraband. He has denied that the arrest panchnama (Ex.P-18) is not in his handwriting. He admitted that he did not present the seized contraband before the Station House Officer and get it sealed, he automatically stated that it was sealed with his seal. He also admitted that as per the informer’s information, he had caught a person of similar appearance from the spot as the suspect was found. He also admitted that the appearance of the accused is not shown in the arrest panchnama as it was described by the informer, there is a difference between the two.

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15.In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A(2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material,

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forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.

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For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:-

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"52A. Disposal of seized narcotic drugs and psychotropic substances.-

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(1) .......

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

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to any Magistrate for the purpose of

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

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

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(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.

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

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(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 subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."

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A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing,

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numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.

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Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.

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It is an admitted position on record that the samples from the seized substance were not drawn by the police in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.

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In the matter of Mohanlal (supra), the Supreme Court while dealing with Section 52A of the NDPS Act has held as under:-

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“15. It is manifest from Section 52-A(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.

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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.

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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

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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.”

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Recently, the Supreme Court in the matter of Yusuf @ Asif (supra) has held as under:-

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“ 16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.

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17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.”

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Considering the submissions advanced by the learned counsel for the parties, material available on record, further considering the fact that no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while

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making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate, no evidence has been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate and applying the principle of law laid down by the Supreme Court in Mohanlal (supra) and Yusuf @ Asif (supra), we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in convicting and sentencing the appellant for offence under Section 21(C) of the NDPS Act. As such, the judgment impugned deserves to be set aside.

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For the foregoing reasons, criminal appeal filed on behalf of appellant- Mohammad Abid is allowed and the impugned judgment dated 30.10.2023 passed by the Special Judge (NDPS Act), Durg in Special Case NDPS No.26/2022 is set-aside. The appellant is acquitted of the charge under Section 21(C) of the NDPS Act. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case.

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24.The appellant is directed to file personal bond and two sureties in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973.

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Let a copy of this judgment and the original record be transmitted

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to the trial court concerned forthwith for necessary information

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and compliance.

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Sd/- Sd/( Ravindra Kumar Agrawal ) ( Ramesh Sinha ) Judge Chief Justice

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Bablu

Mohammad Abid v. State of Chhattisgarh

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Mohammad Abid v. State of Chhattisgarh

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