Allowed

shiv kumar v. State

Himachal Pradesh HC1 Jul 2024CR.A/296/2007

Case brief

AI extract

What is this about?

In this criminal appeal against a conviction and sentence under Section 15 of the NDPS Act, the High Court of Himachal Pradesh set aside the Trial Court's judgment. The High Court held that the conviction was unsustainable as the prosecution failed to prove compliance with Section 52A of the NDPS Act. Specifically, samples were drawn at the spot by police in the presence of a gazetted officer, but

What did the court decide?

Judgment and order of the Trial Court set aside; Appellant acquitted of offence under Section 15 of the NDPS Act; fine amount to be refunded; accused to produce bail bonds.

shiv kumar Vs State — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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( 2022:HHC:16652 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No. 296 of 2007 Reserved on: 14.06.2024 Date of Decision: 01.07.2024

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Shiv Kumar alias Meetu ...Appellant Versus State of H.P. ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No. : For the Appellant Mr. Tara Singh Chauhan, Advocate. For the Respondent : Mr. Jitender Sharma, Additional Advocate General.

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Rakesh Kainthla, Judge

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The present appeal is directed against the judgment dated 2.8.2007, passed by learned Special Judge, Una, District Una, H.P., (learned Trial Court), vide which the appellant (accused before learned Trial Court) was convicted of the commission of offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) and was sentenced to undergo rigorous imprisonment for two years and pay fine of ₹25,000/- and in

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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default of payment of fine, to further undergo simple imprisonment for six months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

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Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 15 of the ND&PS Act. It was asserted that on 18.05.2004 HC Yadvinder (PW14), HC Jagtar (PW2), Constable Jasvinder (PW4), Constable Pushpinder (not examined), LC Saroj (PW5) and other persons were on patrolling duty at Jhalera. Constable Mohinder (PW1) made a statement that he was present at Dera Baba Rudru at 4.30 PM when he received information that Shiv Kumar alias Meethu was bringing the Poppy Husk from Punjab on his motorcycle bearing registration No. HP-20A-6137 for selling it in Una. He had gone to bring Poppy Husk on 18.5.2004 and in case of his search, a huge quantity of Poppy Husk could be recovered. The information (Ex.PW1/A) was reduced into writing, an endorsement was made on the same, and it was sent to the Police Station, Una for the registration of FIR through Constable Jasvinder. HC Yudhbir

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prepared the report (Ex.PW5/A) and sent it to the Superintendent of Police, Una through LC Saroj Kumari. He joined independent witnesses Tarsem Lal (PW3) and Darshan Singh (not examined) and waited for the motorcycle. The motorcycle came from the Amb side at about 6.00 PM. The police stopped the motorcycle. The accused was driving it. He had a carry bag on his back. HC Yudhbir (PW14) told him about the information and gave him an option to be searched before a Magistrate or Gazetted Officer. However, the accused consented to be searched by the police official present on the spot. Memos (Ex.PW1/A and Ex.PW2/B) were prepared. The police party and the witnesses gave their search to the accused. Nothing incriminating was found in their possession. Memo (Ex.PW2/C) was prepared. A search of the carry bag was conducted, during which a plastic bag containing the Poppy Husk was recovered. The police weighed the bag and found its weight to be 11.00 KG. HC Yudhbir drew two samples of 250 grams each on the spot. He put the bulk and the samples in different cloth parcels and sealed the parcels with seal ‘Y’. These were seized with the motorcycle vide memo (Ex.PW2/D). He obtained the seal impression (Ex.PW13/D) on a separate piece of cloth and handed it over to Tarsem Singh after its use. He

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conducted the investigation and prepared the site plan (Ex.PW14/C). Accused was arrested. The arrest information was given to the brother of the accused and a memo (Ex.PW2/E) was prepared. The accused was personally searched and a memo (Ex.PW2/F) was prepared. HC Yudhbir produced the accused and the case property before SI/SHO Surinder Kumar (PW13). He resealed the parcels with seal ‘A’ and filled Columns Nos. 9 to 11 of the NCB-1 form in triplicate (Ex.PW13/C). He obtained the sample seal on a separate piece of cloth (Ex.PW13/D). SI/SHO Surinder Kumar handed over the case property to Rajesh Kumar (PW8) who deposited all the articles in safe condition in Malkhana. The samples were handed over to Constable Kushal Dev (PW9) on 20.5.2004 with a direction to carry them to FSL, Junga vide RC No. 107/2004. A special report (Ex.PW7/A) was prepared and was handed over to Dy.SP, Una, who handed it over to his Reader HC Ishar Singh (PW7). He retained the special report on record. The result of the analysis (Ex.PW13/E) was issued in which it was mentioned that the exhibit contained the contents of Poppy Husk. The statements of witnesses were recorded as per their version and after completion of the investigation, the challan was prepared and presented before the

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Court of learned Chief Judicial Magistrate, Una, who committed it to trial before the learned Sessions Judge, Una, who assigned it to learned Additional Sessions Judge, Una for disposal as per law.

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The accused was charged with the commission of an offence punishable under Section 15 of the ND&PS Act, to which he pleaded not guilty and claimed to be tried.

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The prosecution examined fourteen witnesses to prove its case. Constable Mohinder Kumar (PW1) received the information and disclosed it to HC Yudhbir Singh (PW14). HC Jagtar Singh (PW2) is the witness to recovery. Tarsem Lal (PW3) did not support the prosecution case. Constable Jaswinder Singh (PW4) carried the statement to Police Station. LC Saroj Kumari (PW5) carried the information to the Superintendent of Police, Una. SI Pritam Chand (PW6) was working as a Reader to the Superintendent of Police, Una, who retained the information on record. HC Ishar Singh (PW7) was posted as a Reader to Dy.SP, Una, who proved the information under Section 57 of the ND&PS Act. HC Rajesh Kumar (PW8) was working as MHC, with whom the case property was deposited. Constable Kushal Dev (PW9) carried the case property to FSL, Junga. HC Rajinder Singh (PW10) made the entries in daily diary. (PW11) Navjot Singh

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proved that he had sold the motorcycle to Vikas (PW12). Vikas purchased the motorcycle and further sold it to accused Shiv Kumar. SI/SHO Surinder Kumar (PW13) resealed the parcels. Yudhbir Singh (PW14) conducted the investigation.

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The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he was caught at Bus Stand, Una. He admitted that he was arrested but denied that any parcels were produced before the SHO. No defence was sought to be adduced by the accused.

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Learned Special Judge, Una held that the testimonies of prosecution witnesses corroborated each other. The mere fact that an independent person had turned hostile was not sufficient to discard the prosecution case. All the requirements laid down in the ND&PS Act were complied with. Section 50 of the ND&PS Act did not apply because the recovery was effected from the bag. Hence, the accused was convicted and sentenced as aforesaid.

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Being aggrieved from the judgment and order passed by the learned Trial Court, the accused filed the present appeal asserting that the learned Trial Court had not appreciated the material on record. There were improvements and contradictions in the testimonies of prosecution witnesses. The mandatory

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provisions of the ND&PS Act and Cr.PC was not complied with. The independent witnesses did not support the prosecution case. Darshan Singh was not examined and an adverse inference should have been drawn against the prosecution. The provisions of Sections 42, 50, 52 and 57 applied to the present case. The police had not complied with these provisions and the learned Trial Court erred in believing the prosecution version and convicting the accused. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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I have heard Mr. Tara Singh Chauhan, learned Counsel for the appellant/accused and Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State.

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Mr. Tara Singh Chauhan, learned Counsel for the appellant/accused submitted that the learned Trial Court erred in convicting and sentencing the accused. As per the prosecution case, the samples were drawn on the spot and not in the presence of the Magistrate. Hence, the report of analysis cannot be read in evidence against the accused in the absence of which there is no evidence that the substance recovered from the possession of the accused was Poppy Husk. Hence, he prayed that the present

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appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

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Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with the same.

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I have given considerable thought to the submissions and have gone through the records carefully.

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It was specifically stated by HC Yudhbir Singh (PW14) that he obtained two samples of 250 grams each on the spot. A similar statement was made by HC Jagtar Singh (PW2), who stated that the Investigation Officer took two samples of 250 grams each of the Poppy Husk and sealed the samples and the bulk in separate parcels. Thus, it is an admitted case of the prosecution that samples were drawn on the spot and not in the presence of the Magistrate. 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 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

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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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“8. 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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9. 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 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

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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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10. 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

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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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11. 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) 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

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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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12. 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-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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13. 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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14. 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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15. In Mohanlal's case (2016) 3 SCC 379 , the apex court while dealing with Section 52A of the NDPS Act clearly laid

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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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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 a fine of Rs. 1 lakh and in default of payment of 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 v. Narcotics Control

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Bureau, 2023 SCC OnLine SC 498 , 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

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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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16. 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-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 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

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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.”

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

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This position was reiterated in Mohd. Khalid v. State of

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Telangana, 2024 SCC OnLine SC 213 wherein it was observed:

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“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.”

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Thus, in view of these precedents, the samples are

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required to be taken in the presence of the Magistrate and it is impermissible to take the samples on the spot in the absence of the Magistrate. No reliance can be placed upon the report of analysis obtained after analyzing the samples taken on the spot. In the present case, the samples were not taken in the Magistrate’s presence and the prosecution version that the

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recovered suspected material was Poppy husk has not been established.

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Thus, the learned Trial Court erred in holding that the accused was found in possession of the Poppy Husk. Hence, the present appeal is allowed and the judgment and order passed by the learned Trial Court are set aside. The accused is acquitted of the commission of an offence punishable under Section 15 of the ND&PS Act. The fine amount be refunded after the expiry of the period of limitation in case no appeal is preferred and in case of the appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court.

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The accused will furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount in compliance with the provisions of Section 437-A of Cr.P.C. to the satisfaction of the learned Trial Court within two months from today.

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Records be sent back forthwith. Pending applications, if any, also stand disposed of.

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(Rakesh Kainthla) Judge

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1^st July, 2024 (Chander)

shiv kumar v. State

Case brief

What is this about?

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shiv kumar v. State

Case brief

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