Raghuvar Prasad Patel & Ors. v. The State of Bihar & Ors.

including Mr. H.C. Jha, the Superintendent customs, Customs Division, Muzaffarpur, actively participated in the alleged raid conducted for the 4 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 purpose of verifying the information received by the complainant in respect of smuggling of the contraband „charas‟ by two unknown persons. The aforesaid forwarding report dated 19.1.2006 also contains the seizure memo, statements of the appellants, panchnama, arrest memo and Form-F (seizure report of Opium and other Drugs and Psychotropic Substances).

5. Later on, Mr. S. Satyarthi, filed a complaint case on

15.6.2006 in the court reiterating most of the facts narrated in the forwarding report. In addition to the contents of the forwarding report it has also been stated in the complaint that six representative samples of 10 gms each were drawn from each packet of seized charas for examination and were sent to the Government Laboratory at Ghazipur, U.P. (For short “the Laboratory”). On the basis of the complaint, cognizance of the offence was taken and in due course, the trial court framed charge against the appellants under Section 20(b)(ii)(C) of the NDPS Act, to which, they pleaded not guilty and claimed to be tried.

6. In course of trial, in order to prove the charge, the prosecution examined altogether seven witnesses. P.W. 1, H.C. Jha, Superintendent Customs, stated that on 18.1.2006 his team proceeded towards Sadatpur on NH-28 for taking preventive measures. At about

3.30 p.m., a bus bearing registration no. BR 06P-4555 coming from Raxaul, was intercepted by the members of the raiding team. Out of 5 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 suspicion, two persons were brought down from the bus. On search, it was noticed that they were tying something suspicious around their waist. On inquiry, they disclosed their names as Raghuvar Prasad Patel and Shiv Nashan Das. Both of them were brought to the Customs Office, Muzaffarpur. In the Customs Office, the suspected articles tied around waist of the appellants were seized in presence of two independent witnesses. On weighment, 2 kgs of „charas‟ from each of the accused kept in four packets each were recovered. Accordingly, the seizure lists were prepared by the complainant, Sri S. Satyarthi, the Inspector Customs in presence of independent witnesses. He has proved his signature over the seizure memo, which has been marked as Ext. 1. He has also proved his signature on two separate sheets of paper over which, the confessional statement of the appellant no. 1, R.P. Patel, has been recorded, which have been marked as Ext. 2 & 2/1 respectively. He has also proved his signature on the two sheets of paper over which the confessional statement of appellant no. 2 Shiv Nashan Das has been recorded which have been marked as Ext. 3 & 3/1 respectively. He further proved his signature on Panchnama, which has been marked as Ext. 4. He stated that the seizing officer took samples of the seized „charas‟ in his presence and sent the same to the Laboratory for chemical examination. In cross-examination, he failed to give any detail of the driver or khalasi of the bus. He admitted that no other passenger 6 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 of the bus was questioned by the members of the raiding team. He admitted that within ten minutes of interception of the bus, both the accused persons were taken down from the bus in question and the bus was allowed to proceed towards its destination. According to him, several persons assembled near the place of occurrence and out of them, two persons were asked to be witness to the search and seizure. He also admitted that both the accused persons were formally searched at the place of occurrence itself but, the search, in accordance with law, was conducted when they were taken to the Customs Office at Muzaffarpur. He also admitted that prior to the search of the appellants the members of the raiding team did not offer themselves to the searched by the witnesses.

7. P.W. 2, Mr. S. Satyarthi, the Inspector Customs, Muzaffarpur, stated that on 18th January, 2006, a confidential information was received pursuant to which the raiding team went to the place of occurrence and intercepted the bus in question at about 3.30 p.m. The raiding team apprehended two persons on suspicion inside the bus. They were brought down from the bus and searched in presence of two independent witnesses. In course of search, each of them was found in possession of 2 kgs of „charas‟. They had kept the „charas‟ in polythene packets and further kept them in cloth bags and had concealed the same beneath their armpit. The accused persons were 7 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 thereafter taken to the Customs Office, Muzaffarpur where the seizure list was prepared in presence of independent witnesses. He has further stated that prior to search, the accused persons were asked as to whether they wanted to be searched before the Magistrate or the Superintendent of Customs and as the accused persons opted to be searched before the Superintendent of Customs, they were searched before him. He further stated that at the time of search and seizure the samples of the contraband were drawn and sent for chemical examination to the Laboratory. He has proved the seizure memo which has been marked as Ext. 5. He has also proved the examination report of the sample and its forwarding report issued under the signature of Mr. M. Mistri, the Chemical Examiner-cum-Joint Director, Government Opium and Alkaloide Works, Gazhipur (U.P.), which have been marked as Ext. 7 & 6 respectively. He has proved the Panchanama in the writing of one Rahul Kumar (not examined) which has been marked as Ext. 8. He proved the memo of complaint case filed in the court, which has been marked as Ext. 9. He has also proved confessional statements of the appellants, which have been marked as Ext. 10 & 10/1 respectively.

8. P.W. 3, Awadhesh Kumar Pandey, Havildar, Customs, P.W. 4, Shushil Kumar Singh, Contable, Customs, P.W.5, Deep Narain Mishra, Constable, Customs, P.W. 6, Har Narain Jha, Inspector, Customs and P.W. 7, Baijnath Prasad Yadav, constable, 8 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 Customs are the other witnesses who have been examined by the prosecution in course of trial. All of them were members of the raiding team. They all have consistently stated that the accused persons were searched at the place of occurrence itself. According to them, both the accused were wearing Jacket and the packets of charas were recovered from the respective jackets worn by them. The two seizure list witnesses have not been examined in course of trial. There is no explanation as to why they were not examined in course of trial.

9. The seizure memo (Ext 5), would reveal that the same was prepared at 8.30 p.m. on 18.1.2006 at the Customs Division Office, Muzaffarpur. Apparently, as per seizure memo and the forwarding report, 8 packets of „charas‟ weighing 2 kgs and 4 packets of charas weighing 2 kgs were recovered from appellant nos. 1 & 2 respectively. However, from the examination report of the contraband, it would appear that only one sealed envelop containing two samples marked as Ext. A & B was received in the Laboratory. It would further reveal from the report that the sample marked as „A‟ relates to the recovery of contraband from the possession of appellant no. 1 whereas the sample marked as „B‟ relates to the recovery of contraband from the appellant no. 2. The net weight of the sample marked „A‟ was 3.720 gm whereas the net weight of the sample marked „B‟ was 3.460 gm. The Chemical Examiner has opined in his report that the samples under 9 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 reference were „charas‟ (cannabis) within the meaning of the NDPS Act.

10. From the oral and documentary evidences adduced on the behalf of the prosecution, it has to be seen as to whether the prosecution has been able to prove its case beyond reasonable doubts. In the complaint, it is stated that on questioning the accused persons, confessed at the place of occurrence itself that each of them was in possession of 2 kgs of charas upon which, they were asked as to whether they wanted to be searched before the Magistrate or the Gazetted Officer of Customs. Since both of them opted to be searched before the Gazetted Officer of Customs, they were brought to the Customs Division Office and were searched in presence of P.W. 1, H.C. Jha, the Superintendent customs, Muzaffarpur. However, when the complainant was examined in court, he has completely changed his version. He has stated that the accused persons were searched at the place of occurrence itself and recoveries were also made from them in presence of the witnesses at the place of occurrence but the seizure memo was prepared in the Customs Office. This clearly shows that the complainant has contradicted his own version made in the complaint in material particulars.

11. At this stage, it would be relevant to mention that P.W. 1 H.C. Jha, the Superintendent Customs, has also admitted that the 10 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 appellants were searched in presence of witnesses at the place of occurrence itself. All other witnesses have also stated that the appellants were searched at the place of occurrence itself.

12. Thus, it is apparent from the evidence of the complainant and other witnesses that the appellants were not informed of their right to be searched in presence of a Magistrate and/or a Gazetted Officer. The preparation of seizure memo after five hours of the alleged search and seizure in presence of the Superintendent Customs, who himself was a member of the raiding team, cannot be accepted as compliance with the requirement of Section 50 of the NDPS Act. The failure to inform the appellants about the existence of their right to be searched before a Gazetted Officer or nearest Magistrate has certainly caused prejudice to them. The complainant has apparently tried to cover up the illegality done by him in this regard while filing the complaint but, while being examined in court he has clearly stated that the search and seizure of „charas‟ from the person of the appellants were made at the place of occurrence itself.

13. Furthermore, the complainant could not have confined the option of search before a Gazetted Officer of Customs by informing the appellants that, if they so wish, they may be searched before the Superintendent of Customs. Such an option given by the complainant cannot be deemed to be a proper compliance with the 11 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 provision of Section 50 of the NDPS Act.

14. As noted above, the complainant has contradicted his own version made in the forwarding report and the complaint in material particulars and the other witnesses examined by prosecution have contradicted the complainant in material particulars.

15. The two independent witnesses to the search and seizure have not been examined in the court. P.W. 1 & 2 stated that the charas was tied by the appellants on their bodies whereas the other witnesses stated that the packets of charas were recovered from the respective Jackets worn by them.

16. I would also like to point out that the complainant has stated that on receipt of confidential information, the raiding team proceeded towards the place of occurrence along with the two independent witnesses. However, when P.W. 1 was examined in court he stated that after the search and seizure made at the place of occurrence two persons from among the people who had assembled there were requested to be witness to the search and seizure, to which, they agreed. Thus, I find that P.W. 1 has materially contradicted the complainant in this regard.

17. I further find that the complainant has stated in the complaint that six respective samples of 10 gms each were drawn from all the packets of the seized „charas‟ for chemical test and were sent to 12 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 the Government Laboratory. However, the examination report of the sample shows that only two samples containing less than 4 gms each were received in one sealed envelop in the Laboratory. It is not known what happened to the other samples drawn and sent to the Laboratory. It is also not known as to how the two samples containing 10 gms each of the „charas‟ got reduced to less than 4 gms in sealed condition. It has rightly been said that a man can lie but the documents do not.

18. I further find from the record that as per seizure memo and the forwarding report, 8 packets of „charas‟ weighing 2 kgs were recovered from the possession of the appellant no. 1 Raghuvar Prasad Patel whereas 4 packets of charas weighing 2 kgs were recovered from the possession of the appellant no. 2 Shiv Nashan Das. However, P.W. 1, H.C. Jha, in course of trial clearly stated that 2 kgs of charas from each of the accused kept in four packets each were recovered.

19. I further find that neither the driver nor the khalasi nor any other passenger of the bus in which the appellants are alleged to be traveling at the time of occurrence has been examined in course of trial. The members of the raiding team also failed to offer themselves to be searched prior to effecting search upon the appellants.

20. Apart from the aforesaid factual deficiencies in the prosecution case there are several other legal infirmities which make the 13 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 prosecution case unreliable.

21. I find from the evidence on record that the complainant proceeded to the place of occurrence with the raiding team on receipt of a confidential information. He had enough time to reduce the information in writing and report the same to the immediate superior officer. There is nothing on record to suggest that any such information was ever written or communicated to any superior officer.

22. At this stage, it would be relevant to refer to Section 42 of the NDPS Act, which reads as under:- “42. Power to entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs, control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person 14 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a)enter into an search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and if he thinks proper, 15 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 arrest and person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso to his immediate official superior.”

23. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat since reported in (2002) 2 SCC 513, a three Judge Bench of the Apex Court held that compliance with Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith send a report to immediate superior officer would cause prejudice to the accused. In Sajan Abraham v. State of Kerala since reported in (2001) 6 SCC 692, a three Judge Bench of the Apex Court held that Section 42 was not mandatory and substantial compliance was sufficient. The conflicting opinions regarding the scope and applicability of Section 42 of the NDPS Act is no more res integra and stand answered by a Constitution Bench judgment of the Apex Court in 16 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 Karnail Singh v. State of Haryana since reported in (2009) 8 SCC

539. In the said judgment, the Apex Court noticed, if there is total non- compliance with requirements of sub-sections (1) and (2) of Section 42, the same would be impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. The Apex Court in paragraph-35 of the judgment in Karnail Singh (supra) held as under: “35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a)The officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the mover either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the 17 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, 18 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with amendment to section 42 by Act 9 of 2001.”

24. From the evidence as discussed, hereinabove, apparently, there is absolute non-compliance with the provisions of Section 42 of the NDPS Act and in view of Constitution Bench judgment of the Apex Court in case of Karnail Singh (supra), the conviction of the appellant would clearly be unsustainable on this ground alone.

25. I further find from the record that there is absolute non-compliance with the provision of Section 50 of the Act in the 19 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 present case. Sub-Section (1) of Section 50 of the Act provides that when the Empowered Officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purposes.

26. Under Sub-Section (2) of Section 50 of the Act, it is laid down that if such request is made by the suspected persons, the officer who is to take the search may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the Gazetted Officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the Gazetted Officer or the Magistrate, as the case may be.

27. Sub-Section (3) of Section 50 of the Act lays down that when the person to be searched is brought before such Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made. The mandate of Section 50, thus, is that if the person intended to be searched, expresses to the authorized officer his desire to be taken to the nearest Gazetted Officer or the Magistrate, he cannot be searched till the Gazetted Officer or the Magistrate, as the case may be, 20 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 directs the authorized officer to do so.

28. In case of State of Punjab v. Baldev Singh, since reported in (1999) 6 SCC 172, the Constitution Bench of the Hon‟ble Apex Court has held that the provisions of Sub-section (1) of Section 50 make it imperative for the Empowered Officer to „inform‟ the person concerned (suspected) about the existence of his right that if he so requires he shall be searched before a Gazetted Officer or a Magistrate; failure to „inform‟ the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before the Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit articles suspect and vitiate the conviction and sentence of a accused where the conviction has been recorded only on the basis of the possession of illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the N.D.P.S. Act.

29. The scope of the provisions of Section 50 of the NDPS Act is no more res integra. In Vijaysinh Chandubha Jadeja v. State of Gujarat, since reported in (2007) 1 SCC 433, a three Judge Bench of the Apex Court had taken the view that the accused must be informed of his right to be searched in presence of a Magistrate and/or a Gazetted Officer, but in the light of some other judgments of the Apex Court, the matter was referred to a larger Bench and, accordingly, a 21 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 Constitution Bench was constituted in order to give an authoritative pronouncement on the interpretation of the provision of Section 50 of the NDPS Act.

30. The Constitution Bench of the Apex Court in Vijaysinh Chandubha Jadeja v. State of Gujarat since reported in (2011) 1 SCC 609 formulated the question to be answered in para 1 of the judgment which reads as under: “The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) casts a duty on the empowered officer to “inform” the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section?”

31. The Constitution Bench of the Apex Court after discussing the provision of section 50 of the NDPS Act in detail answered the question in paras 29, 31 and 32 of the judgment which read as under: “29. In view of the foregoing discussions, we are of the firm opinion that the object with which the 22 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 right under section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding insofar as obligation of the authorized officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.

31. We are of the opinion that the concept of “substantial compliance” with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of Sub Section (1) of Section 50 nor it is in consonance 23 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.

32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency creditworthiness to the entire proceedings, in the instance, an endeavour should be produce suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen prosecution as well.”

32. In view of the judgment of the Constitution Bench in Vijaysinh Chandubha Jadeja (Supra), I have no reason to doubt that the alleged search of the appellants in presence of P.W. 1, the Superintendent of Customs and a member of the raiding team can not be regarded even in remotest way to be compliance with the mandate of section 50 of the NDPS Act.

33. However, before I conclude, I would like to deal 24 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 with the other relevant provisions of the NDPS Act governing the procedure to be followed by the officer arresting a person under Section 42, Section 43 or Section 44 of the NDPS Act. Such procedures are to be found in Sections 52, 52A, 53, 55 and 57 of the NDPS Act. The arresting officer cannot totally ignore those provisions and, as such, failure will have bearing on appreciation of evidence regarding the arrest of the accused on seizure of the article.

34. Section 52-A of the NDPS Act has been inserted by Act 2 of 1989 with effect from 29.5.1989 which reads as follows:- “52-A. Disposal of seized narcotic drugs and psychotropic Substance.- (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances 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. (2) Where any narcotic drug or psychotropic substances has been seized and forwarded to the 25 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances 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 or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a)certifying the correctness of the inventory so prepared; or (b)taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (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. (3) Where an application is made under sub- section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the 26 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 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 or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

35. Section 52-A of the NDPS Act comes into play after recovery of the contraband item. What is curious to note in the present case is that the guidelines given under the Act have been given a complete go-bye by the prosecuting agency. Neither any inventory of the seized articles was prepared under Section 52-A of the NDPS Act nor the recovered contraband was ever produced before the trial court at the time of trial.

36. It was necessary for the prosecution to establish by cogent evidence that the alleged quantity of „charas‟ was seized from possession of the accused persons. The best course would have been that the seized materials ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to the recovery of „charas‟ and production of the seizure lists would not discharge the heavy burden which lies on the prosecution particularly where the evidence is punishable with stringent sentence under the Act.

37. In these facts and circumstances, for failure to 27 Patna High Court CR. APP (SJ) No.414 of 2012 dt.05-04-2013 comply with the provisions of Sections 42, 50 and 52A of the NDPS Act, the appellants are entitled to an order of acquittal and consequently, the appeal is allowed and the judgment of conviction and order of sentence recorded against the appellants are set aside. Since the appellants are in jail, they are directed to be released forthwith, if not required in any other case. The Patna High Court The 5th April, 2013 Sanjeet/NAFR (Ashwani Kumar Singh, J.)