Dharmdev Kumar Das v. State of Chhattisgarh Through - Police Station - Gurur, District

and lodged FIR against the appellant.

4. After completion of investigation, charge-sheet was filed against the appellant and based upon which trial Court framed the charge under Section 20(b)(ii)(B) of the NDPS Act.

5. In order to prove guilt of appellant, prosecution examined total 13 witnesses and their statements were recorded. However, no defence witnesses was examined. Statements of appellant (accused) was recorded under Section 313 CrPC in which he pleaded innocence and false implication.

6. After completion of trial, trial Court convicted and sentenced the appellant as mentioned in paragraph -1 of this judgment. Hence, this appeal.

7. Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court is illegal, perverse and contrary to the evidence/material available on record, hence, liable to be set aside. Trial Court has failed to appreciate the fact that the seizure witnesses (PW-1/Rajuram & PW-2/Roshanlal) have turned hostile and have not supported the case of prosecution. The alleged contraband ganja has not been seized from the conscious possession of the appellant/accused. Apart from this, general procedure for sampling provided in Standing Order No.01 of 1989 dated 13.06.1989 has not been complied with by the prosecution. There are major contradictions and omissions in the statement of Investigation Officer, which cannot be relied upon. Trial Court has wrongly appreciated that the investigation has been done properly and mandatory provisions of the NDPS Act have been complied with. The learned trial Court failed to appreciate that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. There is serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. The learned trial Court failed to appreciate that the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act provides for the procedure and manner of seizing, preparing 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 in the NDPS Act. In the present case, it is evident from evidence of Investigating Officer that the procedure as prescribed under Section 52A(2), (3) and (4) of the NDPS Act was not followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has been brought on record that the samples were drawn in presence of the Magistrate and the lists of samples so drawn were certified by the Magistrate. Mere fact that the samples were drawn in presence of the witnesses and/or Gazette Officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. In the present case, it is an admitted position on record that the samples from the alleged seized substance were drawn in presence of the alleged witnesses 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. The learned trial Court failed to appreciate that in absence of any material on record to establish that the samples of the seized contraband were drawn in 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. Hence, in absence of the same, conviction of appellant under the NDPS Act is vitiated and deserves to be set aside. Learned Counsel further submits that the learned trial Court has not considered that the seized material was not sampled and deposited in time by the investigation agency. It is a clear violation of Section 55 of the NDPS Act with regard to safe custody of the seized articles and the samples drawn for sending for chemical analysis to FSL. There are several discrepancies in the prosecution case which makes the custody of the seized articles and sampling extremely doubtful. As such, the criminal appeals deserve to be allowed and the impugned judgment deserve to be set aside.

8. On the other hand, learned counsel for the State supporting the impugned judgment would submit that the investigating officer at the time of effecting search and seizure proceedings has substantially complied with all the mandatory provisions of the NDPS Act. Learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellant which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed.

9. Heard learned counsel for the parties and perused the record of the trial Court including the impugned judgment.

10. Trial Court in para 10 of its judgment has held that Arun Kumar Sahu (PW-13), who was posted as Sub-Inspector at the time of the incident, has stated in his examination-in-chief that the mixed drug ganja was filled in a blue coloured plastic bag and when it was weighed along with the bag, it was found to be 16.350 kg of ganja and the weight of the bag was found to be 50 grams. Thereafter, a weighing panchnama (Exhibit P-12) was prepared in front of the accused. After weighing, 100-100 grams of mixed drug ganja was separately filled in polythene for FSL and two packets were separately sealed in yellow coloured paper packets and the remaining drug ganja of 16.100 kg was kept in a blue coloured plastic bag and sealed. Sample panchnama (Exhibit P-14) and seal sample panchnama (Exhibit P-15) were prepared in front of the accused.

11. In order to test the above facts and submissions/evidences, it would be appropriate to refer to the mandatory provisions of the NDPS Act.

12.Relevant Sections of the NDPS Act read as under :- “52A. Disposal and psychotropic substances.- seized narcotic 1…… drugs, (2)…...Where psychotropic [narcotic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (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 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 (a) certifying inventory so prepared; or the correctness of (b) taking, the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or allowing (c) 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 subsection (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 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 subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence.

55. Police to take charge of articles seized and delivered.— An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in- charge of the police station."

13. As per provision of Section 52A(2), (3) & (4) of the NDPS Act when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.

14.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 subsections (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.

15.In the matter of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379, the Supreme 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-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and thereof on being certified alone would constitute primary evidence for the purposes of the trial.

16.Recently, the Supreme Court in the matter of Yusuf @ Asif versus State (Criminal Appeal No.3191/2023), decided on 13.10.2023, has held as under:- “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.

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

17.The Supreme Court in the matter of Sanjeet Kumar v. State of C.G. reported in 2022 SCC OnLine (SC) 1117, has held as under:- “18. But if the Court has - (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats.

31. Therefore, it is clear that the I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in those documents.

32. In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. But unfortunately, both the Special Court and the High Court went by the law in theory, without applying the same to the facts of the case.”

18.The Supreme Court in the matter of State of Rajasthan versus Bher Singh reported in (2009) 16 SCC 293 has held as under:- “2. We have perused the evidence of PW 7 who seized the opium in question, as also the evidence of PW 9 who was the officer in charge of the malkhana and from their evidence, we find that it is not possible to hold that the seal allegedly put by PW 7 while taking the sample opium remained intact right through the time it reached the forensic science laboratory. This being a mandatory requirement to establish the fact that the seized goods was in fact a prohibited drug under the NDPS Act, we agree with the High Court on facts of this case that the prosecution has failed to establish this part of its case, hence, we find no reason to interfere in this appeal. Therefore, we dismiss the same.”

19.Standing Order No.01 of 1989 dated 13.06.1989 provides that the police was required to draw a sample from each packet allegedly recovered with the help of field testing kit. The mixing of the material from all the packets and then drawing of representative sample is not provided in the Standing Order, as if, such a course is adopted the sample would seize to be representative sample of the corresponding packet. In the present case, on the date of alleged incident during search 11 packets (containing 16.350 kg) of illicit contraband (ganja) was seized from vehicle on which the appellant was travelling. However, only two sample packets containing 100 grams each were prepared for testing out of 11 packets of contraband. The samples were not taken in each of the packets by the Investigating Officer Arun Kumar Sahu (PW-13) and before taking samples, IO has mixed-up all the 11 packets of contraband. At this point of time, it cannot be ascertained whether all 11 packets contained the alleged contraband of ganja or not. There is no evidence available on record that the representatives samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. There is no certificate with regard to the correctness of the inventory as no photographs were taken in the presence of Magistrate. Thus, it is clear that there is breach of general procedure for sampling prescribed in Standing Order No.01 of 1989 and complete non-compliance of mandatory provision of Section 52(A) of the NDPS Act.

20.Considering facts of case, submissions advanced by the learned counsel for the parties, material/evidence available on record, particularly the fact that seizure witnesses (PW-1/Rajuram & PW-2/Roshanlal) have turned hostile and have not supported the case of prosecution, further considering the mandatory provisions of NDPS Act and the principle of law laid down by the Supreme Court in Mohanlal (supra), Yusuf @ Asif (supra), Sanjeet Kumar (supra) & Bher Singh (supra), I am of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in convicting and sentencing the appellant for the aforementioned offence. As such, the judgment impugned deserves to be set aside.

21.Accordingly, the Criminal Appeal is allowed. Impugned judgment of conviction and sentence dated 24.11.2023 passed by learned Special Sessions Judge, (NDPS Act), Balod, (CG) in Special Session Trial No.111/2022, is hereby set-aside. The appellant is acquitted of the charge under Section 8 read with Section 20(b)(ii)(B) of the NDPS Act. He is reported to be in jail, therefore, he shall be set at liberty forthwith if no longer required in any other criminal case.

22.The appellant is directed to file personal bond of Rs.5,000/- with one surety in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure,

23. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. J/- Sd/- (Arvind Kumar Verma) Judge