Chandrashekhar Vs the State of Karnataka

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 04/07/2016 AND ORDER OF SENTENCE DATED 08/07/2016 FOR THE OFFENCES PUNISHABLE UNDER SECTION 20(B)(II)(B) OF THE NDPS ACT, PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI IN SPL. CASE NO.64/2012 AND ACQUIT THEM OF THE CHARGE FOR THE SAID OFFENCE IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY)

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Accused Nos.1 and 2 are before this Court in this

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appeal filed under Section 374(2) of Cr.P.C. with a prayer to set-aside the judgment and order of conviction dated 04.07.2016 and order on sentence dated 08.07.2016 passed in Special Case No.64/2012 by the Court of II Additional District and Sessions Judge, Belagavi, for offences punishable under Section 20(b)(ii)(B) of the NDPS Act, 1985.

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Heard the learned counsel for the parties.

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It is the case of the prosecution that PW5 - Anil

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Kumar received credible information on 02.11.2011 at about 02.15 p.m. that accused were holding a bag containing contraband article allegedly ganja and were trying to sell the same near a mango garden at Jaganur Village within the jurisdiction of Chikkodi Police Station. PW5, therefore, after obtaining necessary permission from his higher officers had conducted a raid to the alleged spot along with the staff and independent panchas and

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apprehended accused Nos.1 and 2 from the alleged spot and from their possession, contraband article allegedly ganja totally weighing 1 kg 500 grams was seized under panchanama. On enquiry, the accused allegedly admitted that they had grown ganja plants in their property and therefore, a raid was subsequently conducted to the property of the accused and 11 ganja plants totally weighing 37 kgs 550 grams was seized under a common panchanama – Ex.P2. Thereafter, apprehended accused and seized contraband articles were brought to police station and FIR was registered in Crime No.356/2011 by Chikkodi Police Station.

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After completing investigation charge sheet was filed against the appellants for the aforesaid offences and since appellants had claimed to be tried before the Trial Court for the charge-sheeted offences, the prosecution in order to prove its case had examined 11 witnesses as PW1 to PW11 and got marked 24 documents as Exs.P1 to P24. On behalf of defence, no oral evidence was led nor was any document got marked. Three material objects were marked

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on behalf of the prosecution as MO Nos.1 to 3. The Trial Court vide the impugned judgment and order of conviction dated 04.07.2016 convicted the appellants for the offence punishable under Section 20 (b)(ii)(B) of the NDPS Act, 1985 and had acquitted them for the offence punishable under Section 20(a)(i) of the NDPS Act, 1985 and by order dated 08.07.2016, accused Nos.1 and 2 were sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.50,000/- each and in default to undergo imprisonment for a period of six months. Assailing the aforesaid judgment and the order of conviction and sentence, the appellants are before this Court.

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The material on record would go to show that based on the credible information received by the first informant Anil Kumar/PW5, a raid was conducted to the alleged spot where the appellants, who were allegedly carrying contraband article ganja were making attempts to sell the same. After the appellants were apprehended by PW5 and his staff, on 02.11.2011, from their possession contraband article allegedly ganja totally weighing 1 kg 500 grams

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which they were carrying in a bag was recovered. It is alleged that accused Nos.1 and 2 had confessed that they had grown ganja plants in their property and therefore, a raid was also conducted on the very same day to the property of accused Nos.1 and 2 and from the said property, PW5 and his staff had recovered wet ganja plants totally weighing 37 kgs 550 grams. Ex.P2 is the panchanama, under which the aforesaid two recoveries were seized.

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Perusal of Ex.P2 would go to show that 500 grams of contraband article allegedly ganja was collected as sample from 1 kg 500 grams of ganja which was initially recovered from appellants and from 37 kgs 550 grams of ganja plant, 1 kg of ganja plant was collected as sample. Ex.P13 is the application filed by PW5 before the jurisdictional Magistrate in compliance of the requirement of Section 52A of the NDPS Act and Ex.P14 is the Certificate issued by the Magistrate under Section 52A(3) of the NDPS Act.

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From a perusal of the proceedings under Section 52A of the NDPS Act before the jurisdictional Magistrate, it is

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found that sample of the contraband article has not been collected in the present case in the presence of the jurisdictional Magistrate. Ex.P23 is the Certificate issued by the Forensic Science Laboratory and from perusal of the said document, it is found that 500 grams of ganja and 1 kg of ganja which were collected as samples at the time of raid on the date of registration of FIR under the panchanama Ex.P2, were forwarded to the Forensic Science Laboratory for the purpose of examination.

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Sub-section (2), (3) and (4) of Section 52A of the NDPS Act provides for the procedure and manner of seizing, preparing of inventory of the seized contraband article, drawing of sample and getting inventory certified by the Magistrate etc. Section 52A of the NDPS Act reads as follows :

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

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(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs,

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psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.

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(2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances has been seized and forwarded to the officerincharge of the nearest police station or to 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 3 [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 sub-section (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, 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 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs, psychotropic substances, controlled substances or conveyances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

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In the present case, there is absolutely no

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compliance of the aforesaid provisions of law. Section 52(A) of the NDPS Act deals with seizure of contraband article, forwarding the seized contraband article and obtaining certification from the relevant Magistrate. Section 52(A) of the NDPS Act considers that the certified inventory of seized substance along with any list of seized samples as primary evidence in the trial.

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From a reading of the aforesaid provisions, it is clear that, whenever a contraband article is seized the officer referred to in Sub-section (1) of Section 53 of the NDPS Act, shall prepare the inventory of the seized contraband articles in detail and the description of the seized

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contraband article, mode of packing, identify marks and quantity in each pack shall be mentioned and thereafter an application shall be filed to the jurisdictional Magistrate for the purpose of certifying the correctness of the inventory and also for allowing to draw samples of the contraband article in the presence of the Magistrate for forwarding the same to the Forensic Science Laboratory for chemical examination.

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In the present case, sample of contraband article was not at all drawn in the presence of the jurisdictional Magistrate. Mere fact that the sample was drawn in the presence of a Gazetted Officer is not sufficient compliance of the mandate under Sub-section (2) of Section 52A of the NDPS Act. Therefore, the samples which were drawn under Ex.P2 and the FSL report obtained as per Ex.P23 cannot be considered as primary evidence and in the absence of primary evidence, the trial gets vitiated.

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In the case of Mangilal vs. State of Madhya

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Pradesh reported in 2023 INSC 634 , the Hon’ble Supreme Court has observed Section 52A of the NDPS Act

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is a mandatory rule of evidence. In paragraph No.5 and 6

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of the said judgment, it is observed as follows:

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“5. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence.

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6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn.”

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In the case of Mohammed Khalid and

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Another vs. State of Telangana reported in 2024 INSC

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158 , the Hon’ble Supreme Court in paragraph No.22 has observed as follows:

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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 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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Section 52(A)(2) is introduced in the statute with an object to give some sanctity for the seizure made and also to prevent any mischief at the hands of the police officers or any other officer investigating the cases under the provisions of the NDPS Act. The punishment for the offences under the provisions of the NDPS Act depends upon the quantity of the contraband article seized and therefore, to rule out any foul play during the course of investigation, necessity of preparing the inventory and getting the same certified by the jurisdictional Magistrate within a reasonable time and drawing of sample from the seized contraband article becomes mandatory.

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In the case of Yusuf @ Asif vs. State reported

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in 2021 INSC 912 , the Hon’ble Supreme Court in

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paragraph Nos.15, 16 and 17 has observed as follows:

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“5. In Mohanlal’s case, 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 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

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rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.”

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In the case on hand, there is absolutely no compliance of the requirement of Section 52A of the NDPS Act and therefore, it is apparent that the seized contraband article and the samples drawn from the same would not be a valid piece of primary evidence and no reliance can be placed either on the seizure mahazar at Ex.P2 or on the FSL report at Ex.P23. Under the circumstances, the impugned judgment and order of conviction and sentence passed by the Trial Court cannot be sustained. Accordingly, the following:-

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ORDER

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(i) The Criminal Appeal is allowed.

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(ii) The judgment and order of conviction dated 04.07.2016 and order on sentence dated 08.07.2016 passed by the II Addl. District and Sessions Judge, Belagavi, in Special Case No.64/2012, is hereby set-aside. The

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