Criminal Appeal (SJ) No.681 of 2010 Against the judgment of conviction dated 16.06.2010 and order of sentence dated 21.06.2010 passed by 7th Additional District & Sessions Judge, Muzaffarpur in D.R.I.Case No.07 of 2004. 1. MD.SALAUDDIN @ MD.SALAUDDIN KHAN @ PERVEZ & 2. CHANDAN KUMAR PANDEY........ APPELLANTS VERSUS THE UNION OF INDIA.... .... RESPONDENT For the Appellants : Sri N.A.Shamsi, Advocate For the Union of India : Mr. Md.Abu Haider,Advocate P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J Bending the rules or disregarding the law for launching a prosecution, which could not be tenable under law or under the prevailing state of Rules or procedures is what could be illustrated by the present appeal, which arises out of the judgment of conviction dated 16.06.2010 passed in D.R.I.Case No.07 of 2004 by the learned 7th Additional Sessions Judge-cum- Special Judge, Muzaffarpur. By the impugned judgment, the learned trial Judge held the two appellants guilty of committing offences under 2 Sections 20, 23 and 25 of the Narcotic Drugs and Psychotropic Substances Act(the Act in short) and after hearing them on sentence on 21.06.2010 directed each of the two appellants to suffer rigorous imprisonment for ten years on each of the three counts. The sentences were directed to run concurrently. In additional to the substantive sentence of imprisonment, the learned trial Judge also imposed upon the two appellants a consolidated fine in the sum of Rs.1,00,000/- each, else to suffer imprisonment for one year each under each of the three counts. 2. The facts of the case are very brief. 3. A truck bearing registration no.WB- 11-6135, which was a container carrier, was intercepted by the complainant P.W.3. Appellant no.1 was driving the truck. Appellant no.2 was its cleaner. The truck was searched in presence of the two witnesses and as per the allegation 49 packets were found inside it which were ultimately found containing ganja, total weight 3 of which amounted to 380 K.G. The complainant stated that the appellants did not legally account for the possession of the huge quantity of ganja and as such were appearing committing offences under Sections 20, 23 and 25 of the Act. The interception of the truck and its search was carried out on 16.04.2004 and for the above offence the complaint petition was placed before the Sessions Judge, Muzaffarpur on 12.10.2004. The two appellants had already been arrested and forwarded with a copy of the seizure memo to the court of Sessions and they were in custody on the day of filing of the complaint. 4. The learned Sessions Judge proceeded to take cognizance of the offences and further to take the case to trial in the above noted case, during which course six witnesses were examined which included Indradeo(P.W.1) a Hawaldar, in the Directorate of Revenue Intelligence(D.R.I.) and P.W.2 Rakesh Ranjan who was the I.O. in the same office. The other witnesses were Anil Kumar and 4 Surendra Kumar who were the witnesses to documents, like the preparation of the seizure memo and recording of the self statement. 5. After considering the evidence of witnesses, the trial court recorded the verdict of guilt against the two appellants. 6. The appellants were pleading innocence and their false implication as may appear from their statements recorded under Section 313 Cr.P.C. 7. While convicting the appellants the learned trial Judge was relying upon the evidence of the witnesses as also the evidence submitted by the Chemical Examiner of Customs House, Kolkata(Ext-6) which indicated that the sampled article had the characteristics of ganja. This report Ext-6 was dated 18.05.2004. The date of occurrence being 16.04.2004. The representative samples as may appear from Ext-5, were drawn on 17.04.2004, i.e., on the very next day of the occurrence. 5 8. Contentions have not been many. I have already noted that disregard for law and disobedience to procedure could be one of the aspects of the present appeal. Without wasting further time and space, I could simply refer to some of the provisions of the Act to drive home the point, I had formulated in the very first line of the present judgment. 9. Section 52 of the Act relates to disposal of persons arrested and articles seized and that requires that every person arrested and articles seized shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. It could be applicable as may appear from the very provision if the accused was not in custody and warrant of arrested had been issued by a court for his apprehension, but when in a case the accused has already arrested, then what is to be done as per that particular provision, i.e., Section 52(2)of the Act is that the arrested accused has to be produced before 6 the Magistrate, which may be the authority empowered by the act to pass remand orders and that authority undisputedly could be the special court and the Judge of that particular court. Sub-Section-3 of Section-52 further requires, that in case the seizure has been made after the search being conducted by a police officer then the seized article has to be forwarded without unnecessary delay to the officer-in-charge of the nearest police station and if it has been done by officers of departments other than the police department, then to the officer empowered under Section 53 of the Act. If one peruses the provisions of Section 53 of the Act then what comes out of it is that if the search has been conducted and seizure has been made then the officer-in-charge under Section 53 of the Act to whom the seized articles have to be delivered could be notified by the central government in consultation with the State Government and that could be applicable to a case which has been 7 handled by any other department than the police department. 10. After having said the above, I want simply to reproduce the provisions of Section 52- Aof the Act:- “Disposal of seized narcotic drugs and psychotropic substances.- (1)The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, 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 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 an 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 orgin 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 8 (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 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.” 11. On consideration of the above provision what appears is that the disposal of seized narcotic drugs or psychotropic substances has to be ordered by such officer which has been authorized in that behalf by the central government but when one considers the provisions of Sub-Section-(2) one could find that after the property seized is delivered to the officer-in- charge who has been vested with that power under Section 53 of the Act then he has, firstly, to prepare an inventory of such narcotic drugs or substance containing details as are indicated by 9 that provision of the Act and, thereafter, has to make an application to any Magistrate for the purposes of certifying the correctness of the inventory so prepared. It may further appear that photographs of the seized article have also to be taken in presence of the Magistrate, besides the representative samples are also to be drawn in presence of the Magistrate and in all these respects the Magistrate has to satisfy about the taking of the photograph or drawl of the representative samples and further that the Magistrate is ordained to make a report regarding the above steps in performance of his duty or compliance about the provisions of law and those reports are to be deemed as primary evidence to be accepted as such of the above acts of the Magistrate during trial in respect of such offence. From the perusal of 52-A(1) it appears that as soon as the article which has been seized by an officer either under Sections 41, 42 or 43 of the Act, the same on being delivered to the 10 officer vested with the powers of an officer-in- charge, he has to take steps to secure the drugs from the vulnerability of theft, substitution and as such ensure that the drug was properly secured and stored and has also to notify the manner of its disposal or destruction by a particular officer by notifying these details in the official gazette. 12. Thus, what appears from the above discussion is that an officer who had made an entry and search of a vehicle, receptacle, etc and has recovered some narcotic substances or drugs has necessary to comply with the provisions of Section 52-A which are mandatory in nature simply because of the reason that steps have to be undertaken on the compliance of the provisions by seeking the deputation of a Magistrate and obtaining his presence as regards the certification of the correctness of the inventory, the taking of photographs of the seized article or drawl of representatives 11 samples out of the seized article. These provisions are mandatory because of one reason which is indicated by Section 52-A(4)of the Act as regards making of a report by the Magistrate on compliance of the above provisions of the Act which has to be treated as primary evidence of compliance of the provision of Section 52A and in that case the application of the provision of the Indian Evidence Act have been waved. 13. Coming to the present case, what I find is that Ext-7 is the certification by the Magistrate, while inspecting the store of the customs department so as to examining the correctness of the inventory. The Magistrate did not find anything mentioned in the inventory records. As such, he was not finding any ganja stored as per the inventory of the department. The Magistrate has recorded ‘not mentioned’ in the relevant column as regards entry no.1 of Ext- 7 in respect of ganja which as per the provision was kept in 49 packets and was weighing 380 K.G. 12 The Magistrate only found the truck bearing registration no.WB-11-6135 and, accordingly, he was certifying the entry in that respect in the relevant records and was putting his signature. I have already discussed the provisions of Section 52-A(2) which requires the certification by the Magistrate on the drawl of the representative samples. What does it direct is that at the time of drawing the sample, the presence of the Magistrate is a mandate of law and thereby he has to make a report that the samples were drawn in his presence and as per the rules or provision of the Act. 14. As per the claim of the department the sample of the seized article was drawn on 17.04.2004 and the same was dispatched on the same day, i.e., on 17.04.2004. The certification(Ext-7) issued by the Magistrate is dated 13.12.2004, i.e., eight months after the samples had been drawn. The provision of Section 52-A which applies only to cases which have been 13 enquired into by any officer of a department other than of the police department requires that the samples should be drawn in presence of the Magistrate. This is how the complaint P.W.3 showed his disregard for the procedure which was mandatory in nature. He was simply not careful or rather caring, about the existence of the provision which was requiring the presence of the Magistrate at the time of drawl of the representative sample so that he could certify that it was done in his presence. What I see further from the other angle is that probably the officer who was the complainant of the present case was treating himself above law as such was attempting to dupe the Judicial Magistrate to fell into his trap so as to getting a certification issued illegally and on a later date for the act which had already been performed the eight months prior to 13.04.2004. The certification has to be done only on the day on which the delivery of the substance is made into 14 the custody of the officer-in-charge who has been vested with that power under Section 53 of the Act. It could not be done eight months after the article could be claimed stored. Not only that what I further find is that the disposal of the seized property has to be done in presence of a Judicial Magistrate but the officers who were associated with that particular stage of the case, appear caring little for that particular provision and were sitting together as may appear from Ext-10 and was ordering the disposal of the property without the presence of the Judicial Magistrate who was the officer as may appear from the very format in which Ext-10 was prepared. 15. These are the reasons upon which I was noting at the very outset that bending of rules or disregarding the procedure of law could be illustrated by the present case. I find the mandatory provisions of Section 52-A was not complied with and the ganja which was allegedly seized was never stored in the manner as was 15 required to be stored by that particular provision. There was always a doubt lingering in my mind indicating as if records were created so as to justifying probably the illegal and unconstitutional act of the complainant in arresting two innocent persons and slapping upon them such a serious charge of being found in possession of 380 K.G. of ganja kept in 49 packets. The officer was probably doing all these things because he felt that there was a provision in the Act contained in Section-69 which was protecting his illegal act, but he forgot to read the provision correctly. The provision of Section-69 protects the acts of an officer of Central Government or of different governments only when it has been done in good faith. If the act appears from the very records of a case done in bad faith or with quite some amount of impropriety then the protection of Section 69 could not be available to any such officer. Hence, I could recommend to the concerned high 16 ups of the department of Directorate of Revenue Intelligence to examine the records in respect of complaint petition bearing no.D.R.I.7 of 2004 dated 16.04.2004 and proceed against the officer, P.W.3 Rajesh Kumar Srivastava who appears responsible for disobeying the law or not obeying it in its letter and spirit and to have proceeded to lodge a complaint against two innocent persons. 16. The conviction of the two appellants appears completely illegal based on basically no material and as such the appeal is allowed. The conviction and sentences passed upon the two appellants are hereby set aside. If the appellants have not yet been released from custody, both of them shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 1st day of August 2011 Brajesh Kumar/AFR. ( Dharnidhar Jha,J.)