IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Chapter VIII, Rule 32(2) (b) Description of case First Bail Application No. 1428 of 2007 Baldev Singh. …Applicant Versus State of Uttarakhand. …. Respondent Mr. U.K. Uniyal, Senior Advocate with Mr. Sandeep Kothari, Advocate for the applicant. Mr. Nandan Arya, Asst. Government advocate for the State. Date of Judgment: 09.09.2008 A.F.R. (Approved for Reporting) __________________________ Not Approved fro Reporting Date: 09.09.2008 Initials of Judge Note: bench Reader will attach this at the top of first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Original Jurisdiction Dated: Nainital : the 9th day of September, 2008 First Bail Application No. 1428 of 2007 Order on the Bail Application: CRIMINAL SIDE Baldev Singh …. Applicant/Petitioner Versus State of Uttarakhand … Respondent Arising out of Case Crime No. 6856 of 2007 Under Section: 8/21 of N.D.P.S. Act Police Station: Yatayat Nagar, Haldwani District: Nainital Hon’ble V.K. Gupta, C. J. Mr. U.K. Uniyal, learned Senior Advocate with Mr. Sandeep Kothari, Advocate for the petitioner. Mr. Nandan Arya, learned Assistant Government Advocate for the respondent-state. Heard the learned counsel for the parties. A very short but interesting question of law is involved for consideration, adjudication and determination in this bail application. On 24th October, 2007, three persons were apprehended on the basis of information received that contraband was being carried by them. One of them was petitioner Baldev Singh from whose possession, as per the allegations in the First Information Report, 400 gms. Of smack was recovered. It is undisputed case of the parties that 400 gms. Of smack is a commercial quantity. Any amount which is below 250 gms. is non- commercial quantity. The prosecution case is that out of recovered 400 gms. Of the substance, 20 gms. (net wet) was sent for chemical examination to the Forensic Science Laboratory, Dehradun. As per the report of the chemical examination, the sample received in the Laboratory gave a positive test for Diacetyl Morphine. In layman’s language, the said sample gave a positive test for smack in chemical and chromatographic analysis. In the Report sent by the Laboratory, the description of the sample read thus: Parcel No. Seal & Impression Description One packet containing suspected material wrapped in cloth One cloth packet sealed with “ phQ eqaflQ eftLVªsV gY}kuh izFke Js.kh** impression A white polythene packet containing suspected material. Gross weight – 35.6 (Approx) with packing. Net weight of suspected material 12.1 gms (Approx) marked as exhibit 1. According to learned counsel appearing for the petitioner, the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (1985 Act for short) were not followed in the case insofar as the weighing of the recovered substance as well as the drawing of the representative sample are concerned. On a question of fact, it is admitted case of the respondent-State before this Court in various affidavits filed as well as during the course of arguments that neither the recovered substance, claiming to be 400 gms. Was weighed, either at the time of recovery or at any time thereafter, nor the representative sample before being sent to the Laboratory was ever weighed. Under Section 52 of 1985 Act, after every article is seized under sub- section (2) of Section 41 or under Sections 42, 43 and 44, it shall be forwarded without unnecessary delay to the Officer-in-charge of the nearest police station or the Officer empowered under Section 53 of 1985 Act. Section 52 for ready reference is reproduced hereunder, which reads thus: “52. Disposal of persons arrested and articles seized. – (1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the magistrate by whom the warrant was issued. (3) Every person arrested and article seized under sub- section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to – (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article.” Whether any narcotic drug or psychotropic substance has been seized and forwarded to an officer-in-charge of the nearest police station, or to the officer empowered under Section 53 of 1985 Act, the concerned officer is under a mandatory obligation to prepare an inventory of the seized narcotic drug or psychotropic substance. The inventory so prepared shall, amongst others, contain the following details:- (1) Description of the article seized, (2) The quality as well as the quantity of the article seized (quantity undoubtedly would include the weight of the article seized), (3) The mode of packing, (4) Marks or numbers or any other identifying particulars of the seized article as well as packing, etc., (5) The country of origin, (6) Other particulars as the concerned officer may consider relevant to establish and maintain the identity of the substance seized. Sub-section (2) of Section 52A also enjoins upon the concerned officer the mandatory duty make an application to a Magistrate for the purposes of certifying the correctness of the aforesaid inventory as prepared and drawn up, as well as to allow the concerned officer to draw representative sample of the substance seized, the drawing of the representative sample to be made in the presence of the Magistrate, who also has to certify about the correctness with respect to the sample drawn. Section 52A is reproduced hereunder for ready reference. It reads thus:- “[52A. 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 substance 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 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 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 substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence].” In the case of Khet Singh versus Union of India reported in 2002 SCC (Cri) 806, while dealing with the issue relating to the weighing of the recovered sample or the representative sample drawn, their Lordships held as under:- “10. The instructions issued by the Narcotics Control Bureau, New are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the NDPS Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer- in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance of recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at the later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot or recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody.” The drawing up of the inventory, taking of the photographs of psychotropic drugs seized or the drawing up of any sample or the list of samples, etc. are treated as primary evidence, which aspect has been clearly indicated In the following observations of their Lordships of the Supreme Court in the case of State of Punjab versus Makhan Chand reported in (2004) 3 SCC 453, wherein it has been h led as under: “10. This contention too has no substance for two reasons. Firstly, Section 52-A as the marginal not indicates, deals with “disposal of seized narcotic drugs and psychotropic substances”. Under sub-section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-section (2) and (3) of Section 52-A is complied with and upon an application, the magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs or narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A (1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.” What emerges from a bare reading of Section 52A of the 1985 Act in the light of the aforesaid very pertinent observations of their Lordships of the Supreme Court in the aforesaid judgments is that the weighing of the articles seized is a mandatory requirement of law, whether the weighing is done at the time and place of seizure or, if the seizing party is not in possession of or does not have access to a weighing scale, at the nearest police station in the shortest possible time. Apart from the mandatory requirement of the seized substances being weighed on a weighing scale, there is another mandatory requirement and that is that the representative sample required to be sent to a laboratory for testing has not only to be weighed on a weighing scale in the similar manner as the recovered article has to be weighed but before drawing up a representative sample, the concerned Police officer has to make an application to a Magistrate for granting to him the permission to draw the representative sample as also at the same time enjoining a duty upon the Magistrate to ensure that the sample is drawn in his presence and he certifies about the correctness of the sample so drawn. Undoubtedly, this stringent procedure has been incorporated in section 52A to ensure that the weighing of the representative sample as well as the drawl of the sample conform to all legal requirements so that there is no chance of any foul play by the police as well as it does not cause any prejudice to the accused. The search and seizure of the contraband article as also its being weighed at the time or recovery or soon thereafter and the sending of representative sample form out of the seized contraband article for examination in a laboratory to determine its correctness are very serious aspects because these not only ensure the fairness of the procedure to conform to statutory safeguards but also to obviate any likely prejudice to the accused. Whether the search and seizure were properly effected, whether the seized contraband was properly weighed, whether the representative sample was properly drawn and sent to the laboratory and What is the report of the laboratory are aspects which cannot be dealt with lightly because any violation of any single aspect is likely to cause and create prejudice to the accused and may also result in miscarriage of justice. It is with this in mind that their Lordships of the Supreme Court made the following pertinent observations about the aforesaid aspects in the case of Khet Singh versus Union of India (supra):- ‘5. It is true that the search and seizure of contraband article is a serious aspect in the matter of investigation related to offences under the NDPS Act. The NDOS Act and the Rules framed thereunder have laid down a detailed procedure and guidelines as to the manner in which search and seizure are to be effected. If there is any violation of these guidelines, the courts would take a serious view and the benefit would be extended to the accused. The offences under the NDPS Act are grave in nature and minimum punishment prescribed under the statute is incarceration for a long period. As the possession of any narcotic drug or psychotropic substance by itself is made punishable under the Act, the seizure of the article from the appellant is of vital importance.” This Court has come across various cases in the past in the State of Uttarakhand, in fact, a large number of them, where the seized article at the time of the apprehension of the accused and its recovery from his person was not at all weighed, either at that time or at any time thereafter and the stand of the prosecution about the weight of the seized article is always relatable to the bald statement of the accused made at the time of his apprehension as well as the recovery of the article. It is a pity as well as a shame that the police relies upon the bald, uncorroborated and un- confirmed statement of the accused about the weight of the seized article and carries on with this assumption till the end of the trial, without itself weighing the article either at the time of the recovery or soon thereafter. Non-weighing of the article by the police is a flagrant violation of law. The weighing of the article by the police itself is a mandatory requirement of law. Similarly the drawing up of the representative sample has to be done strictly in accordance with sub-section (2) of Section 52A of 1985 Act as mentioned hereinabove. In the present case what I find is that neither the representative sample was drawn in accordance with the procedure prescribed in sub- section (2) of section 52A (supra) nor on the own showing of the prosecution in the present case was the representative sample weighed at any time. This is evident from the averment contained in para (5) of the supplementary counter affidavit filed by Shri A.A. Khan, sub Inspector, P.S. Kotwali, Haldwani on 2nd July, 2008. Para (5) of the supplementary counter affidavit reads thus:- “5. That after the recovery of the said contravent the Police party prepare a recovery memo and about 20 gram (without weight) taken a sample from the above 400 gram smack and both the packet were sealed cover on the spot. The Investigating Officer after the recovery of the said contravent he sent the sample for chemical examination report to the Forensic Science Laboratory, Uttarakhand, Dehraudn.” It is in the aforesaid background that a discrepancy has occurred about the description of the representative sample sent to the laboratory because the stand of the respondent in this Court is that 20 gms. Of the substance was sent for chemical examination. The report on the other hand clearly indicates that what was received by it for chemical examination was 12.1. gms. Apparently, therefore, the mandatory provision of law has not been followed. What effect this will have on the trial is a different matter (about which I am not expressing any opinion) but as far as the consideration of the bail application of the petitioner I s concerned, I am fully convinced that a case is made out for his being released on bail The petition is allowed. The petitioner is directed to be released on bail o n his executing a bail bond with two sureties in t he like amount to the satisfaction of the Chef Judicial Magistrate, Nainital. A copy of this judgment shall be sent to the Director General of Police, Uttarakhand for information as well as necessary action. (V.K. Gupta, C.J. Avneet.