Allowed

Aruna Shankar Puri v. State

Himachal Pradesh HC18 Dec 2024CR.A/500/2008

Case brief

AI extract

What is this about?

The High Court allowed a criminal appeal against conviction under Section 20(b)(ii)(B) of the NDPS Act for possession of 400 grams of charas. The court held that the prosecution failed to comply with Section 52A of the NDPS Act, as representative samples were drawn on the spot by police without a magistrate's presence or certification. Relying on Supreme Court precedents (Mohan Lal, Simarnjit Sing

What did the court decide?

Conviction and sentence set aside; appellant acquitted of offence under Section 20 NDPS Act; fine refunded if deposited; bail bonds of ₹25,000 with surety directed for six months pending appeal.

Aruna Shankar Puri Vs State — Narcotics (NDPS) | Himachal Pradesh HC (2024)

¶1

2024:HHC:14821

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

Cr. Appeal No. 500 of 2008 Reserved on: 12.12.2024 Date of Decision: 18.12.2024

¶4

Karuna Shankar Puri ...Appellant. Versus State of H.P. ...Respondent.

¶5

Coram

¶6

Hon’ble Mr Justice Vivek Singh Thakur, Judge.

¶7

Hon’ble Mr Justice Rakesh Kainthla , Judge.

¶8

Whether approved for reporting?¹ Yes. : For the Appellant Ms. Prajwal Busta, Advocate, LegalAid Counsel for the appellant. : For the Respondent Mr. J.S. Guleria, Deputy Advocate General.

¶9

Rakesh Kainthla, Judge

¶10

The present appeal is directed against the judgment and order dated 30.5.2008, vide which, learned Special Judge Presiding OfÏcer, Fast Track Court, Mandi, District Mandi, H.P. (learned Trial Court) convicted the appellant (accused before the learned Trial Court) for the commission of an offence punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act (ND&PS Act) and sentenced him to undergo rigorous imprisonment of 3 years, pay a fine of Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2024:HHC:14821

₹10,000/- and in default of payment of fine, to undergo further simple imprisonment for three months. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

¶15

Briefly stated, 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 20 of the ND&PS Act. It was asserted that HC Dharam Chand (PW9), HC Bhim Singh (PW1), HHC Param Dev and Constable Vijay Kumar (PW2) were present in the ofÏcial vehicle bearing registration No. HP-33-6973, being driven by Nand Lal, 02 kilometres ahead of Kufardhar Jhatingri towards Tinu nallah on 10.6.2007. They saw the accused going towards Jhatingri. He got frightened after seeing the police. The police apprehended him based on suspicion. The accused revealed his name as Karuna Shankar Puri. The place was lonely and deserted, and no person was available there. The police waited for 15-20 minutes, but no person or vehicle arrived on the spot; hence, HC Bhim Singh (PW1) and Constable Nand Lal were associated as witnesses. HC Dharam Chand (PW9) asked the accused whether he wanted to be searched in the presence of a

¶16

¶17

2024:HHC:14821

¶18

Magistrate or a Gazetted OfÏcer. The accused consented to be searched by the police vide memo (Ex.PW1/L). The police gave their search to the accused. No incriminating substance was found in their possession. Memo (Ex.PW1/A) was prepared. The search of the bag (Ex. P2) being carried by the accused was conducted. One green bag (Ex. P3) containing blue polythene (Ex. P4) and pink polythene (Ext. P5) having black sticks was recovered during the search. The police found the sticks to be cannabis. The police found certificates (Ex. PW1/B and Ex. PW1/D), election identity card (Ex. PW1/C), two passbooks of Union Bank of India (Ex.PW1/F), one passbook of State Bank of Saurashtra (Ex.PW1/G), chunni, janeu, blue pen, nail cutter, three beads and one packet of khaini etc. The police weighed the charas and found its weight to be 400 grams. The police separated two samples of 25 grams each from the recovered charas and sealed them in separate cloth parcels with seal ‘T’. The remaining 350 grams of charas was put in polythene, the polythene was put in the packet, and the packet was put in the bag in the same manner in which they were taken out of the bag. The bag was put in a cloth parcel, and the parcel was sealed with six seal impressions of seal ‘T’. HC Dharam Chand (PW9) filled the NCB-I Form

¶19

¶20

2024:HHC:14821

¶21

(Ex.PW10/C) and put the seal impression on the form. The sample seal ‘T’ was taken on a separate piece of cloth (Ex.PW9/C), and the seal was handed over to HC Bhim Singh after the use. The parcels, NCB-I Form, passbooks, identity cards, etc., were seized vide memo (Ex.PW1/H). The accused was also carrying another bag which was searched, but nothing incriminating was found in it. Memo (Ex.PW1/J) was prepared. A rukka (Ex.PW9/D) was prepared and sent to the Police Station through Constable Vijay Kumar. FIR (Ex.PW10/B) was registered in the police station. The personal belongings of the accused were returned to him vide memo (Ex.PW9/C). The site plan (Ex.PW9/E) was prepared. A memo of identification (Ex.PW1/B) was prepared. The accused was arrested vide memo (Ex.PW1/K). The case property was produced before SI/SHO Kapoor Chand (PW10), who resealed all the parcels with three seals of impression ‘K’. He filled out Columns No.9 to 11 of the NCB-I Form and put the seal impression on the form. He obtained the sample seal (Ex.PW10/D) on a separate piece of cloth and prepared the reseal memo (Ex.PW9/H). He handed over all the articles to MHC Mangat Ram (PW5), who made an entry in his register No. 19 at Serial No. 768 (Ex.PW5/A) and deposited them

¶22

¶23

2024:HHC:14821

¶24

in malkhana. HC Mangat Ram handed over the sample parcel (Mark-A1), NCB-I form, related documents, and sample seals ‘T’ and ‘K’ to Constable Bhagat Ram (PW3) with a direction to carry them to the Forensic Science Laboratory, Junga, for chemical analysis vide Road Certificate No. 45/07. Constable Bhagat Ram deposited all the articles in FSL, Junga and handed over the receipt to HC Mangat Ram on his return. The special report (Ex.PW6/A) was prepared and handed over to HC Raj Kumar (PW6) on 12.6.2007. HC Raj Kumar produced the special report before SDPO Surender Sharma (PW7) on 13.6.2007. Surender Sharma (PW7) made an endorsement on the special report. HC Raj Kumar made an entry in his register at Serial No. 3/07. The accused made a statement on 12.6.2007 that he could show the place from where he had purchased 400 grams of charas for ₹5400/-. Memo (Ex.PW4/A) was prepared. The result of analysis (Ex. PX) was issued in which it was shown that the exhibit was a sample of charas, which contained tetrahydrocannabinol and cystolithic hair. The statements of witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before learned Special

¶25

¶26

2024:HHC:14821

¶27

Judge, Mandi, who assigned it to learned Presiding OfÏcer (Fast Track Court), Mandi, H.P., (learned Trial Court).

¶28

The learned Trial Court charged the accused with the commission of an offence punishable under Section 20 of the ND&PS Act, to which he pleaded not guilty and claimed to be tried.

¶29

The prosecution examined ten witnesses to prove its case. Bhim Singh (PW1) and Constable Vijay Kumar (PW2) are the ofÏcial witnesses to recovery. Constable Bhagat Ram (PW3) carried the case property to FSL, Junga. Constable Mohinder Singh (PW4) is the witness to the disclosure statement made by the accused. HC Mangat Ram (PW5) was working as MHC, with whom the case property was deposited. HC Raj Kumar (PW6) was posted as a Reader to SDPO Surender Sharma (PW7), to whom the special report was handed over. HHC Dalip Singh (PW8) proved the entry in the daily diary. HHC Dharam Chand (PW9) effected the recovery and conducted the investigation. SI Kapoor Chand (PW10) was working as SHO, who resealed the case property and prepared the challan.

¶30

The accused, in his statement recorded under Section 313 of Cr.P.C., denied the prosecution case in its entirety. He

¶31

¶32

2024:HHC:14821

¶33

stated that witnesses deposed falsely against him. He stated that

¶34

he wanted to lead defence evidence, but no evidence was led.

¶35

The learned Trial Court held that the testimonies of the prosecution witnesses corroborated each other, and there were no material contradictions in them. It was duly proved on record that the police party recovered one bag containing black sticks from the accused. The sticks were found to be charas after the analysis. The integrity of the case property was duly established. The testimonies of the police ofÏcials could not be doubted simply because they happened to be police ofÏcials. No reason was assigned by the accused in the cross-examination as to why the police should have falsely implicated him. Hence, the accused was convicted and sentenced as aforesaid.

¶36

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 failed to properly appreciate the evidence led before it. The prosecution case was not believable. As per the prosecution, the left arm of the accused was amputated from the elbow. It was highly improbable that he was carrying one bag on his left shoulder and one bag on his right shoulder. All police ofÏcials were interested in the success

¶37

¶38

2024:HHC:14821

¶39

of their case. They failed to associate any independent witness despite availability and opportunity. There were material contradictions in the statements of ofÏcial witnesses. Learned Trial Court erred in relying upon the prosecution case. Hence, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

¶40

We have heard Ms. Prajwal Busta, Advocate, LegalAid Counsel for the appellant/accused, and Mr. J.S. Guleria, learned Deputy Advocate General for the respondent/State.

¶41

Ms Prajawal Busta, learned Legal Aid Counsel for the appellant/accused, submitted that the prosecution had not complied with the requirements of Section 50 of the ND&PS Act. The prosecution witnesses admitted that a third option to be searched before the police was given to the accused, which is contrary to the provisions of Section 50 of the ND&PS Act. There were major contradictions in the statements of ofÏcial witnesses. Learned Trial Court erred in relying upon the discrepant statements of the prosecution witnesses. The Investigating OfÏcer took the samples on the spot without associating learned Magistrate. No reliance can be placed upon the samples taken in the absence of a learned Magistrate. She relied upon the

¶42

¶43

2024:HHC:14821

¶44

judgment of the Hon’ble Supreme Court in Mohan Lal Vs. UOI (2016) 3 SCC 379 in support of her submission. Hence, she prayed that the present appeal be allowed and the judgment and order passed in the learned Trial Court be set aside.

¶45

Mr. J.S. Guleria, learned Deputy Advocate General for the respondent/State, supported the judgment and order passed by the learned Trial Court and submitted that no recovery was effected from the personal search of the accused but recovery of charas was effected from the bag being carried by the accused. The contradictions were minor and bound to come with time. The judgment of Mohan Lal (supra) was delivered in the year 2016 and applies prospectively. It cannot be applied to the present case because, in the present case, the search was conducted in 2007. He prayed that the present appeal be dismissed.

¶46

We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

¶47

Bhim Singh (PW1) stated that the accused was given the option to be searched before the Magistrate, Gazetted OfÏcer or the police. This is not permissible. It was laid down by the

¶48

¶49

2024:HHC:14821

¶50

Hon’ble Supreme Court in Ranjan Kumar Chadha v. State of H.P., 2023 SCC OnLine SC 1262: AIR 2023 SC 5164 that giving the third option to the accused is violative of Section 50 of ND&PS Act. It was observed: -

¶51

“27. We have no hesitation in recording a finding that Section 50 of the NDPS Act was not complied with as the appellant could not have been offered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted OfÏcer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told whether he would like to be searched before a police ofÏcer or a Gazetted OfÏcer or Magistrate?

¶52

28. This Court in State of Rajasthan v. Parmanand, (2014) 5 SCC 345 , held that it is improper for a police ofÏcer to tell the accused that a third alternative is also available, i.e. the search before any independent police ofÏcer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section 50…..

¶53

Thus, from the oral evidence on the record as discussed above, it is evident that Section 50 of the NDPS Act stood violated for giving a third option of being searched before a police ofÏcer.”

¶54

However, this infirmity will not make any difference

¶55

because the recovery was effected from the bag being carried by

¶56

the accused. It was held in Ranjan Kumar (supra) that when the

¶57

bag and the person of the accused was searched, but no recovery

¶58

was effected from the personal search of the accused, there is no requirement to comply with the provisions of Section 50 of

¶59

¶60

2024:HHC:14821

¶61

ND&PS Act and any violation of Section 50 of ND&PS Act will not be fatal to the prosecution case. Thus, the submission that the prosecution case is to be rejected due to violation of Section 50 of the ND&PS Act is not acceptable.

¶62

It is an admitted case of the prosecution that two samples of 25 grams each were drawn on the spot. This fact was mentioned in the memo (Ex.PW1/H) and Rukka (Ex.PW9/D). HC Bhim Singh (PW1) stated in his examination-in-chief that the Investigating OfÏcer took two samples of 25 grams of each from the recovered charas and sealed them in different parcels. Constable Vijay Kumar (PW2) also stated in his examination-inchief that recovered charas was weighed, and its weight was found to be 400 grams, out of which two samples of 25 grams each were drawn and packed in separate parcels. HC Dharam Singh (PW9) stated in his examination-in-chief that out of recovered charas, 25 grams of charas was weighed and separated as a sample. The result of the analysis (Ex.PX) also shows that one sealed parcel containing 24.812 grams of charas was analysed in the laboratory.

¶63

It was laid down by the Hon’ble Supreme Court in Simarnjit Singh v. State of Punjab, 2023 SCC OnLine SC 906 that

¶64

¶65

2024:HHC:14821

¶66

Section 52A (3) requires the ofÏcer 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 will 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, and it is not permissible to draw samples on the spot. It was observed: -

¶67

“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.

¶68

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

¶69

“15. It is manifest from Section 52-A(2) that upon seizure of the contraband, the same has to be forwarded either to the ofÏcer-in-charge of the nearest police station or to the ofÏcer 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.

¶70

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 ofÏcer-in-charge of the police station or the ofÏcer

¶71

¶72

2024:HHC:14821

¶73

empowered, the ofÏcer 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 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.

¶74

The question of drawing 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 trial. SufÏce 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.”

¶75

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 .” (emphasis supplied)

¶76

This position was reiterated in Yusuf v. State 2023 SCC

¶77

OnLine SC 1328 , wherein it was observed: -

¶78

“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

¶79

¶80

2024:HHC:14821

¶81

photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognised as the primary evidence in connection with the offences alleged under the NDPS Act.

¶82

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

¶83

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

¶84

(1) —

¶85

(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the ofÏcer-in-charge of the nearest police station or the ofÏcer empowered under section 53, the ofÏcer 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 ofÏcer 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-

¶86

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

¶87

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

¶88

(c) allowing to draw representative samples of such drugs or substances in the

¶89

¶90

2024:HHC:14821

¶91

presence of such Magistrate and certifying the correctness of any list of samples so drawn.

¶92

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

¶93

(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.”

¶94

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 ofÏcer so mentioned under Section 53, the ofÏcer 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.

¶95

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 was certified by the Magistrate. The mere fact that the samples were drawn in

¶96

¶97

2024:HHC:14821

¶98

the presence of a gazetted ofÏcer is not sufÏcient compliance with the mandate of sub-section (2) of Section 52A of the NDPS Act.

¶99

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 ofÏcer 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 .

¶100

15. 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 ofÏcer-in-charge of the nearest police station or to the ofÏcer 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.

¶101

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.

¶102

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 ₹ 1 lakh and in default of payment of fine to undergo further

¶103

¶104

2024:HHC:14821

¶105

imprisonment of one year, is hereby set aside.” (Emphasis supplied)

¶106

A similar view was taken in Bothilal v. Narcotics Control

¶107

Bureau, 2023 SCC OnLine SC 498 , wherein it was observed: -

¶108

“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 OfÏcer. 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.

¶109

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

¶110

“15. It is manifest from Section 52-A(2), includes (supra), that upon seizure of the contraband, the same has to be forwarded either to the ofÏcer-in-charge of the nearest police station or to the ofÏcer 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.

¶111

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 ofÏcer-in-

¶112

¶113

2024:HHC:14821

¶114

charge of the police station or the ofÏcer empowered, the ofÏcer 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 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.

¶115

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)

¶116

The question of drawing 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. SufÏce 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.”

¶117

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

¶118

Telangana, (2024) 5 SCC 393: (2024) 2 SCC (Cri) 650: 2024 SCC

¶119

OnLine SC 213 wherein it was observed at page 402:

¶120

¶121

2024:HHC:14821

¶122

“ 26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating ofÏcer 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 (Ext. P-11) is nothing but a waste of paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot.”

¶123

Therefore, the samples were required to be taken in

¶124

the presence of the learned Magistrate, and it is impermissible to

¶125

take samples on the spot in the absence of the learned Magistrate; hence, no reliance can be placed upon the report of the analysis (Ex. PX).

¶126

Mr. J.S. Guleria, learned Deputy Advocate General, submitted that the judgment of Mohan Lal (supra) was delivered in the year 2016, whereas the samples were taken in the present case on 10.6.2007. Hence, this judgment does not apply to the present case. This submission is not acceptable. The judgment of Mohammad Khalid (supra) shows that the search was conducted on 8.5.2009. Similarly, in Yusuf (supra), a search was conducted on 28.3.2000 and in Bothilal (supra), a search was conducted on 16.5.2002, much before the judgment of Mohan Lal (supra). When the Hon’ble Supreme Court had itself applied the judgment of Mohan Lal to the cases arising before the delivery of the judgment in Mohan Lal (supra), it cannot be said that the

¶127

¶128

2024:HHC:14821

¶129

judgment of Mohan Lal (supra) will not apply to the search conducted before 2016.

¶130

Once it is held that the prosecution cannot rely upon two samples taken on the spot, there is no evidence that the accused was in possession of the charas because the samples analysed cannot be used for concluding that the recovered substance was charas and the accused cannot be convicted of the commission of an offence punishable under Section 20(b)(ii)(B) of the ND&PS Act.

¶131

The learned Trial Court did not have the advantage of the judgments noticed by us above, and the learned Trial Court erred in convicting and sentencing the accused based on the report of the analysis. Hence, the judgment and order passed by the learned Trial Court are not sustainable.

¶132

Consequently, the present appeal is allowed, and the judgment and order passed by the learned Trial Court are ordered to be set aside. The accused is acquitted of the commission of an offence punishable under Section 20 of the ND&PS Act.

¶133

The fine amount, if deposited, be refunded after the expiry of the period of limitation for filing the appeal in case no

¶134

¶135

2024:HHC:14821

¶136

appeal is preferred, and in case of appeal, the same be dealt with as per the orders of the Hon’ble Supreme Court.

¶137

In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

¶138

A copy of this judgment along with the record of the learned Trial Court be sent back forthwith. Pending applications, if any, also stand disposed of.

¶139

(Vivek Singh Thakur) Judge

¶140

( Rakesh Kainthla) Judge

¶141

18^th December, 2024

¶142

(Chander)

Aruna Shankar Puri v. State

Case brief

What is this about?

What did the court decide?

Aruna Shankar Puri v. State

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Hp Vs Ajay Bahadur Kharka

State of Hp Vs Prem Roqa

The Hpsebl Vs Neel Kanth Dutta

Ramesh Bahadur Vs State of Hp

Dherender Singh Vs State of Hp

Jagdev Vs Nisha Devi