Bhag Singh alias Bagga vs State Of H.P.

Rakesh Kainthla, J

The present appeal is directed against the judgment and order dated 6.8.2005, vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS Act) and was sentenced to undergo rigorous imprisonment of 10 years, pay a fine of ₹1.00 lac and in default of payment of fine, to undergo further simple imprisonment for two and half years. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of an offence punishable under Section 15 of the ND&PS Act. It was asserted that ASI Harbans Lal (PW19), HC Sarabjeet Singh (PW16), HC Nardev Singh (PW18), Constable Upnesh Kumar (PW3), Constable Jaswinder Singh, Constable Somnath, Constable Suresh Kumar and LC Suresh Kumari (PW10) were present at Laluwal border for patrolling on 29.01.2004. HHC Sher Bahadur (PW14) told Harbans Lal (PW19) at 2:35 PM that he had received a secret information that accused Bhag Singh and Avtaar Singh were selling opium poppy husk near Kaku Poultry farm. A huge quantity of poppy husk could be recovered in case of search. Statement of HHC Sher Bahadur (Ex.PW3/A) was reduced into writing and was sent to the Police Station, Una, for registration of FIR through Constable Upnesh Kumar. Harbans Lal prepared information under Section 42 of the ND&PS Act and handed it over to Constable Suresh Kumar (PW4) with a direction to carry it to the Superintendent of Police, Una. Constable Suresh Kumar handed over the information under Section 42 of the ND&PS Act to Dy. Superintendent of Police Anupam Sharma on 29.01.2004, who handed it over to his Reader HC Ishar Singh (PW12). ASI Harbans Lal associated witnesses Rajinder Singh (PW1) and Manoj Kumar (PW2), and proceeded towards the Kaku poultry farm. He found the accused, Bhag Singh, standing near the road with a plastic bag (Ex. P17). Harbans enquired his name and address and told Bhag Singh that he had a suspicion regarding the possession of poppy husk and he had a right to be searched before the Gazetted Officer or the Magistrate. The accused consented to be searched by the police vide memo (Ex.PW6/A). Harbans Lal and other police officials gave their personal search to the accused, and nothing incriminating was found in their possession. Memo (Ex.PW4/A) was prepared. Harbans Lal checked the bag of the accused and found that it contained poppy husk and a small tin box. Its weight was found to be 15 kg. Two samples of 200 grams each were taken out, which were put in different plastic bags. These were wrapped in separate cloth parcels. The bulk parcel was sealed with one seal of impression ‘A’, and two samples were sealed with three seals of impression ‘A’. These were seized vide memo (Ex.PW16/B). Harbans Lal prepared the site plan (Ex.PW19/B). He arrested the accused, Bhag Singh, vide memo (Ex.PW6/C). He searched the accused and prepared a memo (Ex.PW16/D). Bhag Singh made a statement under Section 27 of the Indian Evidence Act (Ex.PW16/E) that he had also kept 14 bags of poppy husk in the cattle shed of Avtar Singh. He took the police and the witnesses to the cattle shed of Avtar Singh. Avatar Singh was standing in the courtyard, but he ran towards the jungle after seeing the police. The police tried to apprehend him, but they failed to do so. Bhag Singh took out the key concealed under the bricks and opened the lock of the cattle shed. He got recovered 14 bags of poppy husk (Ex. P3 to Ex. P16) concealed amongst the wheat husk and maize fodder. Each bag was found to contain 40 kgs. of poppy husk. Two samples of 200 grams each were taken from each bag. Each sample was put in a cloth parcel, and each parcel was sealed with three seals of seal ‘A’. Each bag of remaining poppy husk was also sealed with three impressions of seal ‘A’. The sample seal (Ex.PW1/A) was taken on a separate piece of cloth. NCB-1 Forms (Ex.PW8/C and Ex.PW8/D) were prepared. A seal impression was put on the Form. FIR (Ex.PW8/A) was registered in the Police Station. ASI Harbans Lal conducted the investigation. He prepared the site plan (Ex.PW19/C) and recorded the statements of witnesses as per their version. He produced the accused and the case property before Surender Sharma (PW15), SHO Police Station, Una. Surender Sharma (PW15) resealed the gunny bags, plastic bags and 30 sample parcels with two seals of seal impression ‘N’. He put the seal impression ‘N’ on the NCB-1 Forms (Ex.PW8/C and Ex.PW8/D). He filled columns No.9 and 11 of the NCB-1 Forms and obtained the sample seal (Ex.PW8/B) on a separate cloth parcel. He handed over the case property to MHC Ved Parkash (PW8), who made an entry in register No. 19 and deposited all the articles in Malkhana. He sent the samples and other articles to CTL, Kandaghat, through Constable Jagan Nath (PW11) vide R.C. No. 21/2004. Harbans Lal prepared the special report (Ex.PW12/A) and sent it to the Superintendent of Police, Una. Dy. Superintendent of Police Anupam Sharma handed over the special report to his Reader, HC Ishar Singh, on 29.01.2004. HC Ishar Singh made an entry in his register and retained the special report on record. The accused, Bhag Singh, made a disclosure statement (Ex.PW1/A) on 31.01.2004 in the presence of Harpal Kumar (PW7) and Constable Som Nath (PW5) that he had concealed one bag of poppy husk in his cattle shed and he could get it recovered. Accused Bhag Singh took the police party and the witnesses to his cattle shed and got recovered one gunny bag containing 20 kg of poppy husk. Two samples of 200 grams each were separated from the bag, which were sealed in separate cloth parcels with seal impression ‘O’. The remaining poppy husk was sealed in the same bag with three seals of seal impression ‘O’. Sample seal ‘O’ (Ex.PW5/B) was taken on a separate piece of cloth. HC Nardev filled NCB-1 Form (Ex.PW8/E). The seal was handed over to Harpal Singh after the use. The bag and the sample seals were seized vide memo (Ex.PW5/C). The site plan (Ex.PW18/A) was prepared, and statements of witnesses were recorded as per their version. The case property was produced before Sher Singh (PW9), Additional SHO, who re-sealed the gunny bag and the sample parcels with two seals of seal ‘B’. He obtained the sample seal ‘B’ (Ex.PW8/F) and put the seal impression on the NCB-1 Form. He deposited the gunny bag and the parcels with HC Ved Parkash (PW8) on 31.01.2004, who deposited them in Malkhana. He sent the sample parcels along with other articles to CTL, Kandaghat, through Constable Ramesh Chand vide R.C. No. 23 of 2004 for chemical analysis. All the articles were deposited in a safe condition at CTL, Kandaghat, and the receipt was handed over to Ved Parkash after use. The results of the analysis (Ex.PW15/A to Ex. PW15/C) were issued in which it was mentioned that samples contained Meconic Acid and Morphine, and the samples were of poppy husk. The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, a challan was prepared and presented before the learned Additional Chief Judicial Magistrate, Court No.1, Una, who committed it to learned Sessions Judge, Una, H.P., who assigned it to learned Additional Sessions Judge, Una (learned Trial Court).

The learned Trial Court charged the accused with the commission of an offence punishable under Section 15 of the ND&PS Act, to which they pleaded not guilty and claimed to be tried.

The prosecution examined 19 witnesses to prove its case. Rajinder Kumar (PW1), Manoj Kumar (PW2) and Harpal (PW7) are the independent witnesses, who have not supported the prosecution case. Constable Upnesh Kumar (PW3) carried the statement to Police Station, Una, for registration of FIR. Constable Suresh Kumar (PW4) carried the information under Section 42 of the ND&PS Act to Dy. Superintendent of Police, Una. Constable Som Nath (PW5) is the witness to the disclosure statement. Satnam Singh (PW6) is the witness to the arrest of accused Avtar Singh. Ved Prakash (PW8) was working as MHC, with whom the case property was deposited. SI Sher Singh (PW9) and Surinder Sharma (PW15) were discharging the duties of SHOs who resealed the case property and the parcels. LC Saroj Kumari (PW10) and Constable Jagan Nath (PW11) are the official witnesses to recovery. HC Ishar Singh (PW12) was posted as a Reader to Dy. Superintendent of Police, Una, to whom the special report and information under Section 42 of ND&PS were handed over. HHC Ramesh Chand (PW13) carried the sample to CTL Kandaghat. Sher Bahadur (PW14) received the information and disclosed it to Harbans Lal. Saravjeet Singh (PW16) is the witness to recovery. ASI Darshan Singh (PW17) conducted the partial investigation. HC Nardev (PW18) is the witness to the recovery and the disclosure statement. Harbans Lal (PW19) headed the police party and effected the recovery.

The accused in their statements recorded under Section 313 of Cr.P.C., denied the prosecution case in its entirety. They did not provide any evidence in defence.

The learned Trial Court held that the testimonies of police officials were consistent. The accused, Bhag Singh, made a disclosure statement and got the poppy husk recovered. The mere fact that independent witnesses did not support the prosecution case was not sufficient to discard it. The witnesses admitted their signatures on various documents. The burden shifted upon the accused to prove that his possession was not conscious. Failure to produce the key before the Court was not fatal. However, the involvement of accused Avtar Singh was not proved. Hence, the accused, Bhag Singh, was convicted and sentenced as aforesaid, whereas Avtar Singh was acquitted.

Being aggrieved from the judgment and order passed by the learned Trial Court, the accused filed the present appeal asserting that the learned Trial Court erred in convicting and sentencing the accused. Learned Trial Court acquitted Avtar Singh and convicted the accused, Bhag Singh, on the same evidence, which is impermissible. The disclosure statement was not believable. The police were inimical to the accused and had falsely implicated him on two occasions previously. Therefore, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

A Division Bench of this Court acquitted accused Bhag Singh alias Bagga vide judgment dated 19.9.2008 after holding that the reports submitted by the chemical examiner did not prove that the samples tested were of poppy husk.

Being aggrieved from the judgment passed by this Court, the State filed an appeal before the Hon’ble Supreme Court, which was accepted by the Hon’ble Supreme Court. Hon’ble Supreme Court held that in view of the judgment in State of H.P. Vs. Nirmal Kumar alias Nimo (2022) SCC Online1462, once it is proved that seized material contained Morphine and Meconic Acid, it is sufficient to hold that the seized material fell within the definition of Section 2(xvii) of ND&PS Act. Hence, the matter was remanded to this Court for disposal as per the law.

We have heard Mr. Vinay Thakur, counsel for the appellant/accused and Mr. S.D. Vasudeva learned Deputy Advocate General for the respondent/State.

Mr. Vinay Thakur, learned counsel for the appellant/accused, submitted that the learned Trial Court erred in convicting the accused. Samples were taken on the spot in the absence of a learned Magistrate, and the result of analysis received after the analysis of such samples is meaningless. There is no evidence to hold that the recovered substance is poppy husk. Therefore, he prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.

Mr. S.D. Vasudeva, learned Deputy Advocate General for the respondent/State, supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with them.

We have given considerable thought to the submissions made at the bar and have gone through the records carefully.

It is undisputed that the samples were taken on the spot. This fact was specifically mentioned in the seizure memos (Ex.PW5/C, Ex.PW16/B and Ex.PW16/F). The reports of analysis (Ex.PW15/A to Ex.PW15/C) also show that samples were analysed, and it was concluded after their analysis that the samples were of poppy husk and contained Meconic Acid and Morphine. It was laid down by the Hon’ble Supreme Court in Simarnjit Singh v. State of Punjab, 2023 SCC OnLine SC 906 that Section 52A (3) requires the officer to approach the Magistrate to seek permission to draw representative samples. The samples will then be enlisted, and the correctness of the list of samples so drawn will be certified by the Magistrate. It means that the entire exercise has to be carried out before the Magistrate, which has to be certified by him to be correct. It is not permissible to draw samples on the spot. It was observed: -

“8. We have perused the evidence of PW-7 Hardeep Singh, in which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.

In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case (2016) 3 SCC 379, it was held thus:

“15. It is manifest from Section 52-A(2) that upon seizure of the contraband, the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53, who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

Sub-section (3) of Section 52-A requires that the Magistrate shall, as soon as may be, allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is, in law, duty-bound to approach the Magistrate for the purposes mentioned above, including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing samples has to be in the presence and under the supervision of the Magistrate, and the entire exercise has to be certified by him to be correct.

The question of drawing samples at the time of seizure, which, more often than not, takes place in the absence of the Magistrate, does not, in the above scheme of things, arise. This is so especially when, according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the trial. Suffice it to say that there is no provision in the Act that mandates the taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.”

Hence, the act of PW-7 of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by this Court in the case of Mohanlal 2016 (3) SCC 379. This creates serious doubt about the prosecution's case that the substance recovered was contraband.” (emphasis supplied)

This position was reiterated in Yusuf v. State 2023 SCC OnLine SC 1328, wherein it was observed: -

“10. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the 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 under the NDPS Act.

For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:

“52A. Disposal of seized narcotic drugs and psychotropic substances.-

(1) —

(2) Where  any  [narcotic  drugs,  psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or the officer empowered under section 53, the officer referred to in sub-section (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 subsection (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 the correctness of the inventory so prepared or

(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] 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 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 Criminal Procedure Code, 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 sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or 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.

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 sub-sections (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. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate, and the list of the samples so drawn was certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance with the mandate of sub-section (2) of Section 52A of the NDPS Act.

It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer 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.

In Mohanlal's case (2016) 3 SCC 379, the apex 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 the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.

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.

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 a fine of ₹ 1 lakh and in default of payment of fine to undergo further imprisonment of one year, is hereby set aside.” (Emphasis supplied)

A similar view was taken in Bothilal v. Narcotics Control Bureau, 2023 SCC OnLine SC 498, wherein it was observed: -

“15. Admittedly, PW-2 drew two samples from each of the packets of contraband found in the hotel room and kept them in two separate plastic covers. These covers were sealed, and the remaining contraband was also sealed. Thus, the prosecution claims that the samples were prepared even before the packets were sent to the Station House Officer. The submission of the learned senior counsel appearing for the appellant in Criminal Appeal 451 of 2011 was that a grave suspicion was created about the prosecution's case as this action by the PW-2 was contrary to Section 52-A of the NDPS Act.

In paragraphs 15 to 17 of Mohanlal’s case(2016) 3 SCC 379, it was held thus:

“15. It is manifest from Section 52-A(2), includes (supra), that upon seizure of the contraband, the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be, allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is, in law, duty-bound to approach the Magistrate for the purposes mentioned above, including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing samples has to be in the presence and under the supervision of the Magistrate, and the entire exercise has to be certified by him to be correct.

The question of drawing samples at the time of seizure, which, more often than not, takes place in the absence of the Magistrate, does not, in the above scheme of things, arise. This is so especially when, according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-sections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates the taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure.”

Thus, the act of PW-2 of drawing samples from all the packets at the time of seizure is not in conformity with what is held by this Court in the case of Mohanlal(2016) 3 SCC 379. This creates serious doubt about the prosecution's case that the substance recovered was contraband. (Emphasis supplied)

This position was reiterated in Mohd. Khalid v. State of Telangana, (2024) 5 SCC 393: (2024) 2 SCC (Cri) 650: 2024 SCC OnLine SC 213 wherein it was observed at page 402:

“26. Admittedly, no proceedings under Section 52-A of the NDPS Act were undertaken by the investigating officer PW 5 for preparing an inventory and obtaining samples in the presence of the jurisdictional Magistrate. In this view of the matter, the FSL report (Ext. P-11) is nothing but a waste of paper and cannot be read in evidence. The accused A-3 and A-4 were not arrested at the spot.”

Therefore, the samples were required to be taken in the presence of the learned Magistrate, and it is impermissible to take samples on the spot in the absence of the learned Magistrate. No reliance can be placed upon the reports of the analysis (Ex.PW15/A to Ex.PW15/C) obtained after analysing the sample taken on the spot.

The learned Trial Court did not have the advantage of the judgment pronounced by the Hon’ble Supreme Court and was led to hold that the result of the analysis was sufficient to establish that the samples of analysis were sufficient to conclude that the substance was poppy husk. No such conclusion could have been drawn based on the samples taken in the absence of the learned Magistrate.

Thus, the accused is entitled to acquittal on this ground alone. Hence, the present appeal is allowed, and the judgment and order dated 6.8.2005, passed by the learned Trial Court, are set aside. The accused is acquitted of the commission of an offence punishable under Section 15 of the ND&PS Act. The fine amount, if deposited, will be refunded after the expiry of the period of limitation, and in case of appeal, the same will be dealt with as per the orders of the Hon’ble Supreme Court.

In view of the provisions of Section 437-A of the Code of Criminal Procedure (Section 481 of Bhartiya Nagarik Suraksha Sanhita, 2023), the appellant is directed to furnish bail bonds in the sum of ₹25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court within four weeks, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.

A copy of this judgment along with the record of the learned Trial Court be sent back forthwith. Pending applications, if any, also stand disposed of.