Dismissed

State v. Lal Babu Chaudhary

Himachal Pradesh HC8 Jul 2024CR.A/515/2012

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed the State's appeal against the acquittal of the respondent convicted under the NDPS Act. The Court held that the High Court rightly acquitted the respondent due to fatal procedural non-compliance regarding Section 50 (right to be searched before a Magistrate) and non-conversion of seizure property into primary evidence under Section 52A (failure to obta

What did the court decide?

The appeal was dismissed, affirming the acquittal of the respondent by the Special Judge due to inadmissible primary evidence and violation of statutory safeguards.

State Vs Lal Babu Chaudhary — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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( 2024:HHC:4753-DB )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No. 515 of 2012 Reserved on: 3.07.2024 Date of Decision: 08.07.2024

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State of H.P.

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...Appellant. Versus

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Lal Babu Chaudhary ...Respondent

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Coram Hon’ble Mr Justice Tarlok Singh Chauhan, Judge. Hon’ble Mr Justice Sushil Kukreja , Judge. Whether approved for reporting?¹ No For the Appellant : Mr. I.N. Mehta, Senior Additional Advocate with Mr. Navlesh Verma, Ms. Sharmila Patial, Additional Advocates General, Mr. J.S Guleria & Mr. Raj Negi, Deputy Advocates General. For the Respondent : Mr. Rajesh Mandhotra, Advocate.

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Tarlok Singh Chauhan, Judge

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The present appeal has been directed against the judgment dated 20.03.2012, passed by learned Special Judge (III), Kangra, at Dharamshala, District Kangra, H.P., vide which the respondent was acquitted of the charges of the commission of offence punishable under Section 21/65/85 of

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

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the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the Act’).

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In brief, the prosecution story is that on 18.12.2008 at about 11:30 p.m, ASI Yoginder Pal alongwith other police officials left the police post Panchrukhi for Andretta/Machyal Chowk and laid a Nakka. On 19.12.2008 at about 04:15 a.m, the police party saw the respondent coming from Chadhiar side and noticed that he was having one bag with him. On suspicion, the respondent was intercepted, as he tried to run away after seeing the police party. The respondent disclosed his name and identity. The ASI asked the respondent as to what he had kept in the bag. Since there was no independent witnesses on the spot, as such, the ASI associated HHC Ravinder Kumar and HC Khem Chand as witnesses. At the initial stage, the police officials got themselves searched and thereafter personal search of the respondent was carried out but nothing incriminating was found on recovery. Thereafter, the bag of the respondent was searched, out of which square shaped black substance was recovered. The Investigating Officer smelt the same and found it to be charas. It was weighed on the spot and found to

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be 1.750 grams. The Investigating Officer drew two samples of 25 grams each from the bulk charas and both the samples were separately sealed in two parcels. The bulk charas was also separately sealed in another parcel. From the personal search of the respondent, his voter I.D. card was recovered and the same was taken into possession. Regarding the recovery of the charas , the police prepared the necessary memos. The NCB form in triplicate was also filled in on the spot. Rukka was prepared and sent to the police station for registration of the case, upon which relevant FIR was registered. The site plan of the spot was prepared. The sealed parcels of bulk charas and samples alongwith NCB form were produced by the Investigating Officer before the then Additional SHO, Police Station Palampur, SI Ashok Kumar for re-sealing the same. The SHO re-sealed the same with his seal ‘V’ and deposited all the sealed parcels alongwith sample seal with the MHC. The MHC sent the sealed parcels of sample alongwith sample seal and NCB forms to the FSL Junga. During investigation of the case, the FSL report was received, which confirmed that the substance recovered from the respondent was charas .

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3. On 19.12.2008, the Investigating Officer produced special report of this case before the Dy. S.P., Palampur. On the conclusion of the investigation, challan was prepared and presented in the Court. Thereafter, a prima-facie case was made out against the respondent. The respondent was charged under Section 20 of the NDPS Act, to which he pleaded not guilty and claimed to be tried.

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The prosecution, in support of its case, examined 10 witnesses in all. After prosecution evidence, statement of the respondent under Section 313, Cr.P.C was recorded, wherein he pleaded innocence. An opportunity was given to the respondent to lead defence evidence but he did not lead the same.

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The Special Judge after recording the evidence and evaluating the same has acquitted the respondent constraining the State to file the present appeal.

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Mr. I.N. Mehta, learned Senior Additional Advocate General has vehemently argued that the findings recorded by the learned Special Judge are absolutely perverse and, therefore, deserves to be set-aside. Consequently, the respondent is required to be convicted and sentenced for

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being in conscious possession of commercial quantity of charas .

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7. On the other hand, Sh. Rajesh Mandhotra, learned counsel for the respondent would contend that the findings recorded by the Court below are based on evidence and the same warrants no interference.

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At the outset, it needs to be noticed that the learned Special Judge has acquitted the respondent on the following grounds:-

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“1) Rapat Ex-PW 7/A showing the departure of the police raiding party on 18.12.2008 at 11:30 p.m. has not been proved.

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2) There is non-compliance of Section 55 of the Act.

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3) There is non-compliance of Section 50 of the Act.”

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As regards the first two grounds, even the learned counsel for the respondent has not been able to support the said findings recorded by the learned Special Judge. Even otherwise, we find from the record that the Rapat Ex-PW7/A has been duly proved on record. The official witnesses have, in one voice, stated about the departure of the police party from the police station and recording of the Rapat Ex.PW7/A.

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Moreover, this question had otherwise lost its relevance given the fact that this report was recorded on

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18.12.2008 at about 11.30 p.m, whereas the respondent was apprehended on the next date on 19.12.2008 at 4.15 a.m. The prosecution has clearly and categorically established the presence of the respondent on 19.12.2008 at the given time and place, obviously, the aforesaid rapat had lost its sheen and would therefore hardly be of any relevance for the case.

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As regards non-compliance of Section 55 of the Act, the same, in terms of the judgment rendered by the Hon’ble Supreme Court in State of Punjab Vs. Leela, (2009) 12 SCC 300, is only directory in nature.

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Even otherwise, the prosecution has duly complied with the provisions of Section 55 of the Act, as is evident from the testimony of the official witnesses including PW/9 SI Ashok Singh, who at the relevant time was posted as Additional SHO, Police Station, Palampur and has categorically deposed as under:-

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“Stated that I remained posted as Addl. SHO P.S Palampur in the year 2008-2009. On 19.12.2008 I was working as SHO P.S Palampur. At 06.30 a.m. I received rukka Mark X through Constable Desh Raj upon which I put my endorsement Ex.PW9/A and registered the FIR Ex.PW9/B. At 2.15 p.m. ASI Yoginder Pal had produced before me three sealed parcels of charas containing seal A alongwith NCB forms in triplicate and sample seal. I

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had resealed the aforesaid parcels with Seal V. I had drawn the impression of seal V vide Ex.PW9/C. I had filled in column No.9 to 11 of NCB forms one of which is Ex.PW4/C. Today I have seen the bulk sealed parcel Ex.P-1 and sample seal parcel Ex.P-5. Thereafter I had deposited the parcels of case property alongwith NCB forms and sample seal with the MHC Ranjit. The FSL Report Ex.PX was also received by me. On the conclusion of investigation I have prepared the Challan in this case on 25.2.2009.”

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In this background, his cross-examination is also

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reproduced, which reads as under:-

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“It is correct that I did not receive any recovery memo, search memo etc. with the Rukka. It is incorrect that on 19.12.2008 at 6.30 a.m. no rukka was received by me in the police station. It is correct that I did not produce the case property before Ilaqua Magistrate. It is incorrect that I did not fill in the relevant column of NCB forms on 19.12.2008. It is incorrect that being a police official I am deposing falsely.”

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A perusal of the cross examination would go to

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show that even the respondent had no doubt regarding the compliance of Section 55 of the Act or else the relevant question should have been put to this witness.

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Now, adverting to the third ground regarding non-compliance of Section 50 of the Act, Section 50 of the Act reads as under:-

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“50. Conditions under which search of persons shall be conducted—

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(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

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(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

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(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

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(4) No female shall be searched by anyone excepting a female.

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(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

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(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”

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It is the case of the prosecution that even though

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the charas was recovered from the bag of the respondent but prior to effecting such recovery, the personal search of the respondent was also carried out and from his possession, the police had recovered his voter I.D card, Ext. PW/4. This goes to establish that personal search of the respondent was also carried out earlier and in such circumstances no fault can be found with the findings regarding non-compliance of Section 50 of the Act in its letter and spirit.

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In taking this view, we are duly supported by the judgment of the Hon’ble Supreme Court in Dilip and another vs. State of M.P, (2007) 1 SCC 450, wherein Hon’ble Supreme Court has held as under:-

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“12. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with.

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In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done.”

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18. In State of Rajasthan Vs. Parmanand and anr.,

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(2014) 5 SCC 345, the Hon’ble Supreme Court held as under:

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“15. Thus, merely a bag carried out by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried out by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also carried out. Therefore, in light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.”

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It is no longer res-integra that Section 50 of the Act

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is mandatory and thus must be completely complied with. It is imperative on the part of the police officer to apprise the person intended to be searched of his right under Section 50 of the Act to be searched only before a Gazetted Officer or a Magistrate. It has been held that it is equal mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is altogether a different matter that the suspect person may or may not choose to exercise the right

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provided to him under Section 50 of the NDPS Act, but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate.

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Since there is non-compliance of Section 50 in the instant case, obviously, in such circumstances, the learned Special Judge had no other option but to acquit the respondent.

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In addition to the aforesaid, we find that there has been totally non-compliance of Section 52A of the Act. As per the admitted case of the prosecution, the total alleged recovery of the contraband was 1750 grams and out of which, the Investigating Officer had drawn two samples of 25 grams each from the bulk charas and both the samples were separately sealed in two parcels. The bulk charas was also separately sealed in another parcel. It is also not in dispute that only the sample of 25 grams of charas was sent by the prosecution for analysis, whereas the bulk charas was neither produced before the Magistrate, as was otherwise required under Section 52A of the Act, nor the same was sent for analysis.

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22. This Court had the occasion to consider the fact of

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non-compliance of Section 52A of the Act in Cr.Appeal No.4024 of 2013 titled as Narcotic Control Bureau Vs. Kanwar Singh @ Kumar Singh and anr , wherein like in the instant case, only 25 grams of charas had been sent for analysis holding non-compliance of Section 52A to be fatal and the Court observed as under:-

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“23. 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 stickshaped 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 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,

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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-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

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sooner the seizure is effected and the contraband forwarded to the officer-incharge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.

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The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with 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 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 subsections 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]

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has been seized and forwarded to the officer-incharge 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 sub section (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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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 subsection (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

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(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 down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-incharge 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

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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 (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

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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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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 officerin-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

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Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above

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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.”

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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 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 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 recovered suspected material was charas has not been established.”

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In view of the aforesaid discussion and for the reasons

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stated above, we find no merit in this appeal. Accordingly, the same is dismissed.

State v. Lal Babu Chaudhary

Case brief

What is this about?

What did the court decide?

State v. Lal Babu Chaudhary

Case brief

What is this about?

What did the court decide?

What the court decided

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