Dismissed

Narcotic Control Bureau v. Tashi Tandup Alias Rajender Thakur

Himachal Pradesh HC4 Jul 2024CR.A/127/2014

Case brief

AI extract

What is this about?

This appeal against acquittal under the NDPS Act was dismissed. The High Court upheld the acquittal, finding the trial judge's conclusions plausible and noting a total non-compliance of procedural mandates under Section 52-A regarding sample collection, which further supported the acquittal.

What did the court decide?

The appeal was dismissed with costs, and the acquittal of the respondent was upheld.

Narcotic Control Bureau Vs Tashi Tandup Alias… — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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2024:HHC:4506

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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Cr. A. No. 127 of 2014

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Reserved on: 02.07.2024

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Date of decision: 04.07.2024

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Narcotic Control Bureau

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…Appellant

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Versus

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Tashi Tandup alias Rajender Thakur Co ram

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…Respondent

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon’ble Mr. Justice Sushil Kukreja, Judge.

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Whether approved for reporting? No.

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For the Appellant: Mr. Ashwani Pathak, Sr. Advocate with Mr. Dev Raj, Advocate.

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For the Respondent: Mr. Adarsh Sharma, Advocate.

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Tarlok Singh Chauhan, Judge

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Aggrieved by the acquittal of the respondent under Section 20 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (for short ‘NDPS Act’), the Narcotic Control Bureau (for short ‘NCB’) has filed the instant appeal.

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In brief, the case of the prosecution before the learned Special Judge was that on 19.4.2012, Intelligence Officer, NCB PW7 Virender Singh received a secret information that one person was carrying some contraband in vehicle No. DL-2CM5063 from Kullu side. He reduced the information into writing and put the same before Shri Kuldip Sharma, Superintendent,

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NCB, Mandi, who directed I.O Virender Singh to constitute a team and to proceed towards Bajaura district Kullu for laying a ‘Naka’.

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Accordingly, a team was constituted under the supervision of Superintendent Kuldip Sharma and the team left Mandi at 9.30 a.m. and reached Bajaura at 11.30 a.m. At Bajaura, two independent witnesses Manohar Lal and Sher Singh were associated and notices were served upon them in this regard. After some time at about 12.30 p.m. vehicle No. DL-2CM5063 reached forest check post, Bajaura, which was being driven by the respondent. The NCB team asked the respondent to stop the vehicle and on inquiry the respondent revealed his name as Tashi Tandup alias Rajender Thakur. The I.O. introduced himself to the respondent and expressed his intention to search the vehicle. Before that NCB officer asked the respondent to carry out his personal search which respondent refused.

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The car of respondent was searched and from the cavity made on the lower side of the back seat, seven packets wrapped with dark brown tape were recovered. Said packets were opened and chapatti and round shaped charas wrapped in newspaper and polythene was recovered. The said charas was weighed and found to be 3.500 kilograms which was taken into possession vide seizure memo. A notice under Section 67 of the NDPS Act was served upon the respondent .

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Thereafter, NCB team along with accused came to Mandi, where I.O. Virender Singh took two samples from the bulk charas and the same were sealed in two different parcels with four-four seals of NCB-CHD-4 and marked as Lot A-1 and A-2. The remaining bulk charas was separately sealed in one packet with three seals of NCB-CHD-4 and it was marked as Lot-A. The seal after use was handed over to Shri R.L.Negi. A Panchnama was prepared and test memos in triplicate were also prepared by the I.O. The accused was arrested and got medically examined at Civil Hospital Kullu. The I.O. prepared inventory of the contraband and recorded statements of witnesses.

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In the intervening night of 20/21 April 2012 I.O. deposited the case property with NCB malkhana/godown at Chandigarh. Shri Ganesh Balooni, In-charge of NCB malkhana/godown issued a receipt in this regard to the I.O. Then said case property was sent to CRCL Pusa Road, New Delhi by Ganesh Balooni through HC Brij Bhushan for chemical analysis and Chemical Examiner's report was received. On the conclusion of the investigation, the complaint was filed before the learned Trial Court

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After perusing the documents attached with the complaint, learned Special Judge found sufficient material to

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proceed against the respondent and accordingly he was summoned.

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Finding a prima facie case, charge under Section 20 of the NDPS Act was framed against the respondent to which he pleaded not guilty and claimed trial.

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In order to prove its case, the prosecution examined as many as seven witnesses. Thereafter, statement of the respondent was recorded under Section 313 Cr.P.C. wherein he pleaded his innocence and claimed false implication. An opportunity was afforded to the respondent to lead defence evidence, however, he did not lead any evidence in his support. 10. Learned Special Judge after considering the documentary evidence on record, acquitted the respondent, constraining the NCB to file the instant appeal.

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It is vehemently argued by Shri Ashwani Pathak, learned Senior Advocate assisted by Shri Dev Raj, learned Advocate, that the findings recorded by the learned Court below are totally perverse and, therefore, deserve to be set aside.

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On the other hand, Shri Adarsh Sharma, learned Advocate for the respondent would vehemently urge that since there is no perversity in the findings recorded by the learned Special Judge and the same in turn being based on evidence warrants no interference beyond the fact that now there is a

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double presumption of innocence upon the acquittal of the respondent and such findings need not be interfered with.

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We have given a thoughtful consideration to the submissions made at the Bar and have also gone through the record of the learned Special Court, more particularly, the evidence on record.

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First of all, we would reiterate the principles laid down by the Hon’ble Apex Court, governing the scope of interference by the High Court in an appeal filed by the State for assailing the acquittal of the accused upon the findings recorded by the learned trial Court.

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In Rajesh Prasad vs. State of Bihar and another (2022) 2 SCC 471 , the three Judge Bench of the Hon’ble Apex Court encapsulated the legal position governing the field and after considering various earlier judgments held as under:-

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“28. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court

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should not disturb the finding of acquittal recorded by the trial court.”

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Further, in case titled as H.D. Sundara and others vs. State of Karnataka (2023) 9 SCC 58 1 , the Hon’ble Apex Court summarized the principle governing the exercise of Appellate jurisdiction, while dealing with an appeal against acquittal under Section 378 Cr.P.C. The relevant paragraphs No. 8 to 10 of the judgment are reproduced as under:-

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“8. In this appeal, we are called upon to consider the legality and validity of the impugned judgment rendered by the High Court while deciding an appeal against acquittal under Section 378 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’). The principles which govern the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of Cr.P.C. can be summarised as follows: -

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8.1. The acquittal of the accused further strengthens the presumption of innocence;

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8.2. The Appellate Court, while hearing an appeal against acquittal, is entitled to re-appreciate the oral and documentary evidence;

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8.3. The Appellate Court, while deciding an appeal against acquittal, after re-appreciating the evidence, is required to consider whether the view taken by the Trial Court is a possible view which could have been taken on the basis of the evidence on record;

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8.4. If the view taken is a possible view, the Appellate Court cannot overturn the order of acquittal on the ground that another view was also possible; and

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8.5. The Appellate Court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.

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Normally, when an Appellate Court exercises appellate jurisdiction, the duty of the Appellate Court is to find out whether the verdict which is under challenge is correct or incorrect in law and on facts. The Appellate Court normally ascertains whether the decision under challenge is legal or illegal. But while dealing with an appeal against acquittal, the Appellate Court cannot examine the impugned judgment only to find out whether the view taken was correct or incorrect. After re-appreciating the oral and documentary evidence, the Appellate Court must first decide whether the Trial Court's view was a possible view. The Appellate Court cannot overturn acquittal only on the ground that after re-appreciating evidence, it is of the view that the guilt of the accused was established beyond a reasonable doubt. Only by recording such a conclusion an order of acquittal cannot be reversed unless the Appellate Court also concludes that it was the only possible conclusion. Thus, the Appellate Court must see whether the view taken by the Trial Court while acquitting an accused can be reasonably taken on the basis of the evidence on record. If the view taken by the Trial Court is a possible view, the Appellate Court cannot

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interfere with the order of acquittal on the ground that another view could have been taken.

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There is one more aspect of the matter. In many cases, the learned Trial Judge who eventually passes the order of acquittal has an occasion to record the oral testimony of all material witnesses. Thus, in such cases, the Trial Court has the additional advantage of closely observing the prosecution witnesses and their demeanour. While deciding about the reliability of the version of prosecution witnesses, their demeanour remains in the back of the mind of the learned Trial Judge. As observed in the commentary by Sarkar on the Law of Evidence, the demeanour of a witness frequently furnishes a clue to the weight of his testimony. This aspect has to be borne in mind while dealing with an appeal against acquittal.”

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Thus, it is beyond the pale of doubt that the scope of interference by an Appellate Court for reversing the judgment of acquittal rendered by the learned trial Court has to be exercised within the four corners of the following principles:-

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a) That the judgment of acquittal suffers from patent perversity;

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b) That the same is based on misreading/omission to consider material evidence on record;

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c) That no two views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

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d) The Appellate Court in order to interference with the judgment of acquittal would have to record pertinent findings on the above factors, if it is

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inclined to reverse the judgment of acquittal rendered by the trial Court.”

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Equally settled is the proposition that it is not the duty of the Appellate Court when it agrees with the view of the trial Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court, expression of general agreement with reasons given by the Court, the decision of which is under repeal, would ordinarily suffice ( Refer: Girijanandini Devi vs. Rabindernandini Choudhary AIR 1967 SC 124 ).

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The learned Special Judge after thoroughly going through the evidence and evaluating the same has recorded the following reasons for acquitting the respondent:-

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(i) Firstly, even though the I.O. stated that he had received a secret information that one person was coming in the vehicle No. DL-2CM-5063 with contraband from Kullu side, but there was no explanation in the statement of the I.O. as also the other witnesses examined as to why NCB team laid a Nakka at Bajaura at Kullu given the fact that I.O. had not stated that as per the secret information the aforesaid vehicle was coming towards Bajaura side from National Highway. According to the learned

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Special Judge, this aspect of the case was important because the respondent had denied that he was driving Car No. DL-2CM-5063, which was intercepted by the NCB team. The respondent had further denied that the charas had been recovered from his Car. As per the statement of the I.O. he had carried out personal search of the respondent vide memo Ext. PW-7/F and recovered one mobile phone, one ATM card of Punjab National Bank, Registration Certificate (RC) and insurance papers of the aforesaid vehicle but strange enough the prosecution had not produced any evidence i.e. the RC and insurance papers in order to establish the ownership of the vehicle and thus it was not proved that the aforesaid car was owned by the respondent and in case the same was owned by someone else, then it was incumbent upon the prosecution to prove how the said car came into possession, of the respondent and how, the respondent was found driving the said car on 19.04.2012 at the given place at 12:30 p.m. (ii) The second circumstance taken against the prosecution is that the learned Special Judge observed that as per the prosecution case one mobile

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phone and one ATM card had been recovered from the possession of the respondent but there is nothing in the prosecution evidence to explain to whom the mobile number had been issued by the concerned telecom company and further there was no evidence regarding the ownership of the ATM card. These were the best evidences to specifically prove that the mobile as well as ATM card was owned by the respondent. Therefore, in absence of any specific evidence regarding the ownership of the mobile phone and ATM card as well as the car, it would not be safe to hold that in fact it was the respondent who was intercepted by the NCB team at Bajaura and was driving the aforesaid car .

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(iii) Thirdly, the learned Special Judge noted that as per the prosecution case, the NCB party had gone to Bajaura in an official vehicle and laid nakka at forest check post, however, PW-6 Kuldip Sharma, who was allegedly present on the spot being member of the raiding party had stated that NCB team had parked their vehicles towards Kullu side of the check post, but the I.O. PW-7 Virender Singh had deposed that they had parked the vehicles towards Mandi side on

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the forest check post and faces of the two vehicles of the NCB team were towards Manali. The learned Special Judge concluded that there was material contradictions in the statements of the important prosecution witnesses and they failed to state the same facts regarding the presence of the official vehicles on the spot. So due corroboration from independent witnesses in such circumstances was absolutely necessary.

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(iv) Fourthly, as per the prosecution story two independent witnesses, namely, Manohar Lal and Sher Singh were associated in the NCB raiding party. The prosecution had examined Sher Singh as PW-2, who had deposed that no recovery had been effected in his presence from the respondent. This witness was declared hostile and cross-examined at length but his credibility could not be shattered. This witness denied that it was in his presence that Car No. DL-2CM-5063 driven by the respondent was stopped by the NCB team and from the vehicle of the respondent the charas had been recovered. He denied that said charas was taken into possession on the spot by the NCB team. It needs to be observed here that as per

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the prosecution story, the NCB team had proceeded from the spot to Mandi and it was only at Mandi that sample of charas was drawn and stated to be sealed in the presence of the independent witnesses. But, PW-2 Sher Singh denied that on 19.04.2012 he had gone to Mandi with NCB team. He in fact explained that his signatures had been obtained by the NCB team at Bajaura. He also denied that he alongwith other witnesses was taken to Mandi by NCB team. Learned Special Judge observed that there was nothing to disbelieve the statement of this witness so it had not been proved beyond reasonable doubt that in fact respondent was intercepted by NCB team with car No. DL-2CM-5063 at Bajaura and from his car the charas in question had been recovered.

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(v) Fifthly, as per the prosecution case, both independent witnesses were associated at Bajaura and both the witnesses admittedly were residents of Bajaura, then why NCB team brought both of them to Mandi and conducted the further proceedings of sampling and sealing of charas at Mandi was not at all forthcoming. After all, such exercise ought to have normally been done at the spot at Bajaura in the

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presence of the independent witnesses. Further, it was extremely difficult to believe that the two residents of Bajaura had agreed to go to Mandi to fulfill those formalities, which casts a serious doubt in the prosecution story.

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(vi) Sixthly, as per the prosecution witnesses, they left Mandi at 9:30 a.m and reached Bajaura between 11:30 am to 12:00 noon, however, there was no departure report to prove this fact and further the prosecution had also not brought any evidence like log book of the vehicle on record in which the NCB team had been shown to have gone to Bajaura. The learned Special Judge further observed that the conduct of the NCB official on the spot was also not free from reasonable doubt given the fact that the I.O. had not produced in evidence the documents of the vehicle to show the ownership of the vehicle and at the same time to show the ownership of the ATM Card and Mobile phone that were taken into possession. According to the learned Special Judge, there was no specific evidence to prove the presence of the respondent on the spot alongwith the vehicle in question and further there was no explanation in this

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regard from the prosecution witnesses and, therefore, their statements did not inspire confidence.

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(vii) Seventhly, the learned Special Judge also found link evidence missing in the case, as firstly there was no explanation on record why the charas in question was not sealed at the spot at Bajaura and secondly the said charas remained in the possession of the I.O. till he deposited the same with Malkahana at Chandigarh in the intervening night of 20/21.4.2012.

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The view taken by the learned Special Judge is possible one and his findings otherwise do not suffer from any perversity. Learned Special Judge has also held that it has not been specifically proved that sample of charas which was allegedly recovered from the car No. DL-2CM-5063 of the respondent was not sent for chemical analysis.

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Having perused the record, we find that the learned Special Judge has given cogent reasons to arrive at such conclusion. However, we may additionally observe that there has been a total non-compliance of provisions of Section 52-A of the NDPS Act in the instant case and, therefore, also the findings of the acquittal as recorded by the learned Special Judge are not required to be interferred with.

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As per the prosecution case, the NCB officers had searched the car No. DL-2CM-5063 of the respondent and from the cavity made in the lower side of the back seat, they recovered seven dark brown coloured packets with brown coloured chapatinuma substance wrapped in transparent polythene, while other packets were filled with round shaped dark brown substance wrapped in newspaper. The charas was weighed and found to be 3.500 kgs. The small portion of suspected material from the entire stuff was taken out separately and test was conducted with the help of drug detection test and on testing, the test answered positive for charas. The material was taken into custody by the I.O. and when weighed found to be 3.500 kgs, then the material and vehicle No. DL-2CM-5063 were seized, however, due to traffic rush and heavy crowd, the I.O. moved the NCB office, Mandi alongwith the NCB team for completion of remaining formalities where small portion from some chapatis and round shaped substance from suspected material was taken out at random and two representative samples of 25 grams each were drawn from the suspected material and packed in polythene pouches and were heat sealed and then placed in separate white paper envelopes.

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Thus, as per the complaint the samples taken on the spot were taken at Bajaura by the I.O. whereas the same in terms of Section 52A(3) were required to be drawn by a Magistrate for which purpose the officer was required to approach the Magistrate to seek permission to draw representative sample. The sample was then to be enlisted and correctness of the list of the sample so drawn was required to be certified by the Magistrate.

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The issue has been considered in detail by this Court in Cr. A. No. 4024 of 2013, titled as NCB vs. Kanwar Singh @ Kumar and others . It shall be apt to reproduce the relevant observations as contained in paras 23 to 26, which read as under:-

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However, in the present case, the Intelligence Officer had taken the sample on the spot. Virender Singh (PW1) specifically stated that the Investigating Officer separated two samples of 25 grams each by taking the contraband randomly from the stick-shaped and ball-shaped substance. R.L. Negi (PW4) stated that he separated two samples of 25 grams each by taking small pieces of charas out of some sticks and some balls. Kuldeep Sharma (PW5) also stated that the Investigating Officer drew the samples and put them in separate parcels. Thus, as per the complainant, the samples were taken on the spot in the presence of the Gazetted Officer Kuldeep Sharma. This is impermissible. It was laid down by the Hon’ble Supreme Court in Simarnjit Singh v. State of Punjab, 2023 SCC OnLine SC 906 that Section 52A(3) requires the Officer to approach the

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Magistrate to seek permission to draw representative samples. The samples will then be enlisted and the correctness of the list of samples so drawn would be certified by the Magistrate. It means that the entire exercise has to be carried out before the Magistrate, which has to be certified by him to be correct. It is not permissible to draw samples on the spot. It was observed:-

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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.

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In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case (2016) 3 SCC 379, it was held thus:

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“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-incharge 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

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effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law dutybound 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 subsections (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 the 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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Hence, the act of PW-7 of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal 2016 (3) SCC 379. This creates serious doubt about the prosecution's case that the substance recovered was contraband.

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This position was reiterated in Yusuf v. State 2023 SCC OnLine SC 1328, wherein it was observed:-

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“10. 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, 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 the officer empowered under section 53, the officer referred to in sub-section (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)

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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, 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 Criminal Procedure Code, 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.”

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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 the officer so mentioned under Section 53, the officer so referred to in sub-

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section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, 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 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. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance with the mandate of sub-section (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 drawn by the police in the presence of the gazetted officer and not 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 Mohanlal's case (2016) 3 SCC 379, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.

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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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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 a fine of Rs. 1 lakh and in default of payment of

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fine to undergo further imprisonment of one year, is hereby set aside.” (Emphasis supplied)

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A similar view was taken in Bothilal (supra), wherein it was observed: -

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“15. Admittedly, PW-2 drew two samples from each of the packets of 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 was created about the prosecution's case as this action by the PW-2, was contrary to Section 52-A of the NDPS Act.

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In paragraphs 15 to 17 of Mohanlal's case (2016) 3 SCC 379, it was held thus:

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“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.

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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 officerin-charge of the police station or the officer empowered, the officer concerned is in law dutybound 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-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 the 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.”

¶136

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 (2016) 3 SCC 379 . This creates serious doubt about the prosecution's

¶137

¶138

case that the substance recovered was contraband. (Emphasis supplied)

¶139

This position was reiterated in Mohd. Khalid v. State of Telangana, 2024 SCC OnLine SC 213 wherein it was observed:

¶140

“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 the 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.”

¶141

Thus, what can be authoritatively held on the basis of the aforesaid enunciation of law is that the sample was required to be taken in the presence of the Magistrate and it was impermissible to I.O. to take sample on the spot at Bajaura or at Mandi in the absence of the Magistrate.

¶142

Therefore, in the given facts and circumstances, no reliance could have been placed albeit for a different reason than the one assigned by the learned Special Judge on the report of analyst which is only a waste paper.

¶143

In view of the aforesaid discussion, we have no doubt in our mind that the view taken by the learned Special Judge to acquit the respondent is a plausible and possible view and therefore warrants no interference.

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