1 Criminal Appeal (SJ) No.112 OF 2010 - - - - Against the judgment of conviction dated 14.12.2009 and order of sentence dated 16.12.2009 passed by the District and Sessions Judge-cum- Special Judge, Gopalganj, in Trial No.1 of 2004/Trial No. 82 of 2009. - - - - GIRISH PRASAD son of Sri Prahlad Prasad, resident of Village Baluhi Bazar, P.s. Manjhagarh, District Gopalganj … … Appellant. Versus THE UNION OF INDIA … … Respondent For the appellant: Shri Shakeel Ahmad Khan,Sr.Adv. For the Union of India: Shri Md. Abu Haider, CGC P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The solitary appellant Girish Prasad was put on trial by the learned Sessions Judge-cum- Special Judge, Gopalganj, after being charged of the offences punishable under Sections 22 and 23 of the Narcotic Drugs and Psychotropic Substances Act( „the Act‟ for short) in Trial No.1 of 2004/Trial No. 82 of 2009 arising out of Govt. official Complaint No.7 of 1995. By the judgment dated 14.12.2009, he was held guilty of committing both the offences and after being heard on 16.12.2009 under Section 235 Cr.P.C. the appellant was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees one lac, else, to suffer rigorous imprisonment for a further period of one year under section 23 of the N.D.P.S.Act. No sentence was passed under Section 22 of the Act. 2 2. The prosecution case, in brief, was that the complainant, who was the Inspector of Customs, received a confidential information on 4.5.1995 that someone was carrying Nepali Charas from Nepal into India and will go to Uttar Pradesh by a bus. A preventive party comprising of Superintendent of Customs, Shri P.K.Ghosh, P.W.4 and others was formed and it started checking the vehicles. At about 6 P.M. a bus was seen coming from Muzaffarpur which was going to Siwan and that was also checked. A man who was sitting in a seat was suspected to be the person carrying narcotic drugs and, as such, his luggage was searched and, ultimately, 1.5 K.Gs. of Charas was recovered. A panchnama was prepared before the two witnesses and the statement of the appellant was also recorded in presence of the witnesses in which he confessed to his guilt and revealed that a case was also pending against him in Delhi. 3. Samples of the recovered article were drawn in triplicate and the same were packed and sealed in three small packets and the same were sent for chemical examination. The arrested accused, i.e., the appellant, was forwarded to court and a complaint petition was filed. 3 4. As may appear from Ext.8, which is the report of the Assistant Chemical Examiner, Chemical Laboratory, Customs House, Calcutta, the sampled articles which was the greenish brown mass was responding to the trace of resinous extract from plant cannabis sativa(charas). This is how the above noted complaint petition went on to trial which, ultimately, ended in the impugned judgment. 5. Shri Shakeel Ahmad Khan, learned Senior counsel appearing for the appellant took me through the evidence of the witnesses and submitted that it could not be ascertained as to where the search of the bag of the appellant was made and charas was recovered from it. It was further contended that witnesses were contradicting each other not only on the place of search and seizure but were also making variant statements as regards the possession of the bag by the appellant. It was further contended that some of the mandatory provisions along with the obligatory ones were not complied with while conducting search or seizure or other aspect of the enquiry or investigation, specially of storage, preparation of inventory, drawl of samples and destruction of the recovered articles 4 which go to the very root of the prosecution story and creates a serious doubt about the manner in which the enquiry was carried out and this makes the whole prosecution charge suspect. It was, as such, contended that on these very scores, the Court must acquit the appellant. 6. While arguing, the learned Senior counsel was referring to Sections 52,52A,53 and 55 of the N.D.P.S. Act besides referring to the decision of the Supreme Court in Gurbax Singh Vs. State of Haryana reported in AIR 2001 SC 1002 in which it was held that the provision might be obligatory and may not be necessary to be complied with, but when it comes to appreciation of evidence in the light of the provisions particularly of obligatory nature, then the Court has to consider the effect thereof on the whole investigation or enquiry. 7. Learned counsel appearing on behalf of the respondent has supported the judgment and has submitted that the recovery of 1.5 K.Gs. charas from the possession of the appellant could not be said to be untrustworthy. However, as regards the compliance of the provision, there might have been some deficiencies in producing the evidence of the trial court. 5 8. As regards the evidence of the witnesses, there is some variance definitely appearing as regards the place of search and manner of recovery and seizure of the narcotic substance. P.W. 1 in paragraph 1 of his evidence, i.e., in the examination in chief has stated that the search was made inside the bus and it was found that the appellant was carrying a leather bag inside which there were many articles including some food materials and three packets of charas were also found kept inside the bag which weighed 1.5 K.G. However, P.W.4 in paragraph 10 of his evidence stated that after being found inside the bus with a bag, the appellant was brought down from the bus and further brought to the Customs Office for search and the seizure list was prepared in the office itself. Similar is the evidence of P.W.2 in paragraph 1 which is contradicted by P.W. 3 in paragraph 2 when he was also stating like P.W. 1 in paragraph 16 that the appellant was sitting inside the bus and search was also made inside the bus whereafter the three packets were recovered and the same were seized by preparing seizure memo. Thus, what appears from the evidence of the witnesses is that the evidence on place of conducting search and recovering the three packets 6 appears quite anomalous. On the evidence which I have just indicated one could not reach a conclusion as to what was the place where the appellant or his bag was searched and the recovery was made as claimed by the prosecution. 9. But, in spite of the above frailties which afflict the prosecution case, even assuming for the sake of argument that search was made of the bag of the appellant and recovery as claimed by the prosecution was also made, the Court has to examine whether the provisions of N.D.P.S. Act which are contained in Sections 52 and 52A have been complied with. Section 52 requires that as soon as a person is arrested and some articles are seized which are narcotic substance or prohibited article declared by the Act, the person arrested and the articles seized shall without unnecessary delay be handed over to the Officer-in-charge of the nearest Police Station or the Officer empowered under Section 53 of the Act. It may not be necessary to go into the details as to who could be the Officers who could be Officers empowered under Section 53 of the Act as the very provision of Section 42 classifies the Officers who could be empowered Officers under Section 53 of the Act as it has put down certain exceptions 7 by excluding some categories of employees of different departments who could not be treated as authorized Officers. The Officers superior in rank to the peon, Sepoy and a constable could be the only Officers authorized who could enter into any premises, etc. to make search, recovery and seizure. Thus, any Officer who is above the rank of above three ranks as indicated in the provision of Section 42 of the Act could be deemed to have been statutorily authorized to act under Sections 41,42 and 43 of the Act. But that is not going to have the effect on condone the compliance of other provisions of the Act, like, Section 52A which reads as under: “52-A. 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 8 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 of 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 psychotropic substances and any list of samples drawn under sub- section(2) and certified by the 9 Magistrate, as primary evidence in respect of such offence.]” As may appear from the above provision, as soon as articles seized are delivered into the custody of the authorized Officer who has been notified as Officer-in-charge of the Police Station under Section 53 of the Act, he is required to prepare an inventory of such narcotic drugs or psychotropic substance containing such details as indicated by sub-section(2) to the above provision. Not only that, the Officer-in-charge has also to ensure that the delivered article was properly secured so that any chance of pilferage, substitution, etc. was completely eliminated. Ensuring compliance of the above provision has been made as may appear from sub-section(2) to seek a deputation of a Magistrate for the purpose of certifying( i) the list of inventory prepared and (ii) taking in presence of such Magistrate, the photograph of such article and certifying that the photographs of such substance were taken in his presence and finally (iii) allowing drawl of representative samples of such drugs and substance certifying that in his presence it was drawn as per the list of sampling done. The mandatory nature of compliance of the provision is indicated by the language in which sub-section(3) to Section 52A has been framed which requires an 10 application to be made and the Magistrate as soon as the application is made, has to allow the application. Thus, the provision overrules any obstruction to any such application regarding the deputation of a Magistrate for the above purposes. Besides the above features, what further appears from Section 52A is that the normal rule of evidence that the report could be admitted in evidence only when the author of the document is examined, has been waived and mere presentation of the report prepared by the Magistrate before the court has been directed to be treated as the primary evidence of the contents thereof. 10. Thus, what one could find from the provision of Section 52A is that the section contains mandatory provisions both on procedure as also on rule of evidence. Not only that, it has waived certain rules of evidence and procedure so much so that the Magistrate is not required to apply his judicial mind to an application which is filed before him for deputation of a Magistrate for carrying out the purpose of sub-section(2) and he has merely to allow the application. This may alone indicate as to what could be the ramification of framing such provision of such importance ad import. This is the reason that I have been holding 11 a view that if any deficiency or lack is there on compliance with the provision of Section 52A of the Act, the Magistrate‟s evidence of drawl of samples, destruction of the seized article or claim of search could be suspect giving rise to doubt the very veracity of the prosecution evidence. If there is lack of evidence on certification of the sampling and taking photographs then the Court must presume that there is no chemical analysis of the article allegedly seized. If there is no report of the Magistrate that representative samples were drawn in his presence and those were really true and correct samples of the seized articles, then also the prosecution has to be viewed with suspicion that there may be a possibility that the real seized articles might have been substituted by any other article for presenting a fool-proof evidence. What I want further to add is that the provision of Section 52A and provision of Section 55 of the Act are in two different fields. Section 52A relates to enquiry or investigation which are carried out by Officers of departments other than police. Whereas the provision of Section 55 is applicable only to the case where search and recovery has been reported by a police officer. As such, the provision of Section 55 of the Act 12 requires the compliance of almost the same nature in a different way by seeking sampling to be done both by the Officers who had searched and recovered the articles and the Officer-in-charge of the Police Station. Both the Officers have to put their respective seals over the container of the sampled articles. I simply want to distinguish that the fields are different for operation of the two Sections. But, the impact of non-compliance remains the same as regards the two provisions, i.e., Section 52A and 55, that the whole evidence on search, sampling and sealing has to be treated with suspicion if the provisions have not been complied with. 11. Coming to the evidence in the present case, there is no evidence on record, firstly, that after being seized what was the place where it was stored or to whom they were delivered to for storage. There is no evidence further that any inventory was prepared by getting a Magistrate deputed. There is complete lack of evidence also on the part of the compliance of the provision of Section 52A that any photograph was taken and taking of photograph was certified by the Magistrate and likewise there is no evidence coming either from the prosecution witnesses or from any relevant source that the 13 Magistrate was present at the time of drawl of the sample and he had certified it being drawn in his presence. Besides, there was no evidence that the recovered articles were destroyed or the same were disposed of in his presence and the Magistrate was certifying the destruction. These are some of the important evidence which were required to be produced by the prosecution so as to satisfying the judicial conscience that charas weighing 1.5 K.G. allegedly recovered from the appellant was properly sampled and sent securely to prevent any pilferage or substitution of the substance. In absence of the evidence which I have just pointed out, it could not be said with certainty that there could not have been any chance that the real article had been substituted by some other article which was sent to the chemical analyst so as to obtaining a report in favour of the prosecution case. 11. When I consider the Forensic Science Laboratory‟s report I find that the report is not exactly stating that the substances put to analysis by the Assistant Chemical Examiner was charas. What was stated by the Chemical Examiner was “it responds to the tests for resinous extract from plant cannabis sativa(charas.” Nothing is further stated as regards the character of constituents of 14 the resinous material. Responding to test could not be enough to satisfy the judicial conscience that the material which was sampled and which was tested by the Chemical Analyst was really charas. The report also appears quite inconsistent with to the requirement of law. On that basis also, in my opinion, the appellant ought to have been acquitted. 12. In the result, the appeal succeeds and the same is allowed. The conviction of the appellant both under Sections 22 and 23 of the N.D.P.S. Act as also the sentence passed upon him are hereby set aside and the appellant is acquitted. 13. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 18th May, 2011 Kanth/A.F.R.