Narcotic Control Bureau vs Kanwar Singh @ Kumar Singh & Anr.

Tarlok Singh Chauhan, J, Rakesh Kainthla, J

The present appeal is directed against the judgment dated 26.2.2013, passed by learned Special Judge, Mandi, District Mandi, H.P. (learned Trial Court) vide which the respondents (accused before learned Trial Court) were acquitted of the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the Narcotics Control Bureau (complainant) filed a complaint against the accused for the commission of offences punishable under Sections 20 & 29 read with Section 8 of the NDPS Act. It was asserted that R.L. Negi (PW4) was posted as Intelligence Officer in the Narcotics Control Bureau, Sub Zone, Mandi. Kuldeep Sharma (PW5) was posted as Superintendent of the Narcotics Control Bureau, Sub-Zone, Mandi. He was an empowered officer under Section 41(2) of the ND&PS Act, 1985. R.L. Negi (PW4), received secret information (Ex.PW4/A) on 13.3.2012 that two persons, namedy Kanwar alias Kamar Singh and Tolu Ram were involved in the drug trafficking and they would carry a huge consignment of charas. The information was reduced to writing and conveyed to the Superintendent of the Narcotics Control Bureau. Kuldeep Sharma (PW5) authorized R.L. Negi (PW4) to constitute a team in writing vide his endorsement (Ex.PW4/B). R.L. Negi (PW4) constituted a team consisting of himself, Arvind Sharma, Virender Singh (PW1), Manohar Lal, Brahma Nand, HC Hem Raj (PW3), Constable Manohar Singh and driver Tilak Raj. The team proceeded towards Baridhar at about 7.00 AM. They associated two independent witnesses namely Hans Raj and Rishi (PW2). R.L. Negi (PW4) requested them verbally as well as by serving notices (Ex.PW4/C and Ex.PW4/D) to join the investigation. The NCB Team reached Baridhar-Katindi-Mandi road at 7.30 PM and set up a Naka. Accused persons came towards them at about 8.00 AM. One of them had worn a black jacket. He had a black bag on his shoulder. When the NCB Team tried to stop them, they ran away. They were apprehended. One person, carrying the bag, revealed his name as Kanwar Singh and the other person revealed his name as Tolu Ram. R.L. Negi (PW4) introduced himself, members of the team and the witnesses. He disclosed the information received by him. He served notices (Ex.PW4/E & Ex. PW.4/F), upon Kanwar Singh and Tolu Ram respectively under Section 50 of the ND&PS Act. He apprised them that they had a right to be searched before a Magistrate or Gazetted Officer. He also apprised them that Shri Kuldeep Sharma was a Gazetted Officer with them. Kanwar Singh and Tolu Ram stated that they had no objection to being searched in the presence of Kuldeep Sharma. They made an endorsement to this effect upon the notices served upon them. Kanwar Singh took out the bag from his shoulder and opened it. A white cotton bag was found in the bag. A transparent polythene pack filled with suspected material was found in the bag. Kanwar Singh opened the bag and it was found to contain dark brown/black finger-shaped suspected material having a pungent smell. Kanwar Singh and Tolu Ram revealed that the substance was charas. A small portion of the suspected material was taken out of the polythene envelope and it was tested with the help of a Drug Detection Kit. Tests were found to be positive for charas/hashish. R.L. Negi (PW4) seized the material. He weighed it on an electronic weighing machine and found its weight to be 5.500 kilograms. He prepared the recovery-cum-seizure memo (Ex.PW4/G), which was signed by the accused and the witnesses. R.L. Negi (PW4) separated two samples of 25 grams each by taking small pieces of charas out of some sticks and some balls. The samples so drawn were put in separate polythene pouches, which were heat-sealed. These were put in separate envelopes. A white paper slip was pasted towards the opening of each envelope. The samples were marked A-1 and A-2. The remaining bulk material weighing 5.450 Kg. was packed in a polythene packet. The packet was heat sealed and was kept in a markine cloth bag. The cloth bag was marked as Lot A. R.L. Negi (PW4) prepared memos (Ex.PW3/B and Ex.PW4/H). He obtained a seal bearing the words ‘NARCOTICS CONTROL BUREAU, CHD-4’ from Arvind Sharma and affixed four seal impressions on each sample packet A-1, A-2 and three seal impressions on ‘Lot-A’. The packing material namely a black bag, white cotton bag and transparent polythene used for packing were separately kept in a polythene. The polythene was heat sealed and it was put in a markine cloth bag. The markine cloth bag was marked as ‘Lot-X’. The opening side of ‘Lot-X’ was sewed properly and three seals were affixed on it. The seals were so affixed on the packets that the packets could not be opened without breaking the seals. Accused (Kanwar Singh and Tolu Ram), witnesses (Rishi & Hans Raj) and R.L. Negi (PW4) placed their signatures on sample packets (A-1 and A-2), Lot A and Lot-X. Panchnama (Ex.PW4/J) was prepared. The seal was handed over to Arvind Sharma after the completion of the process. Notices (Ex.PW4/K & Ex. PW4/L) were served upon accused Kanwar Singh and Tolu Ram, respectively. Kanwar Singh and Tolu Ram made statements (Ex.PW4/M & Ex. PW4/N) before Arvind Sharma, Intelligence Officer under Section 67 of the NDPS Act. Accused Kanwar Singh and Tolu Ram were arrested vide memos (Ex.PW4/O & Ex. PW4/P). Jamatalashi of the accused was conducted and the memos of Jamatalashi (Ex.PW4/Q & Ex. PW4/R)) were prepared. Information about the arrest of the accused (Ex.PW4/S & Ex.PW4/T) was given. Notices (Ex.PW4/U & Ex. PW4/V) were served upon Hans Raj and Rishi. Rishi made a statement (Ex.PW4/W) and Hans Raj made a statement (Ex.PW4/X) before Kuldeep Sharma. The case property was handed over to Kuldeep Sharma, Superintendent, NCB, who sent the parcel (A1) to CRCL for chemical examination through Hem Raj with a letter (Ex.PW3/A). Hem Raj (PW3) deposited the sample at CRCL in a safe condition and obtained the receipt (Ex.PW3/C). The report under Section 57 of the ND&PS Act (Ex.PW4/Y) was handed over to Kuldeep Sharma. The Chemical Examiner, CRCL issued a report stating that the sample under reference was charas based on the colour test, microscopic, chemical and chromatographic examination. Hence, a complaint was filed before the Court against the accused for the commission of offences punishable under Sections 20 and 29 of the ND&PS Act read with Section 8 of the Act.

Learned Special Judge, Mandi charged the accused Kanwar Singh and Tolu Ram with the commission of offences punishable under Sections 20 and 29 of the ND&PS Act. They pleaded not guilty and claimed to be tried.

The complainant examined five witnesses to prove its case. Virender Singh (PW1), Intelligence Officer is the witness to recovery. Rishi (PW2) is an independent person who has not supported the prosecution case. Hem Raj (PW3) witnessed the recovery and also carried the sample to CRCL. R.L. Negi (PW4) received the information and effected the recovery. Kuldeep Sharma (PW5) is the Superintendent, who was the empowered officer before whom the search was conducted.

The accused in their statements recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. They stated that they were innocent and were falsely implicated.

Learned Trial Court held that there was insufficient evidence regarding compliance of Section 42(2) of the ND&PS Act. Independent witness did not belong to the area where the recovery was effected. He stated that he had put his signatures in the NCB Office, which falsifies the testimonies of NCB Officials. The statement under Section 67 of the ND&PS Act was inadmissible as there was no evidence to show that the accused were apprised of their right to remain silent. The result was not as per the judgments of this Court in Sunil Vs. State of H.P., 2010 Latest HLJ HP 207 and State of H.P. Vs. Prakash Chand 2010 (1) HimLR 598. Hence, the accused were acquitted.

Being aggrieved from the judgment passed by the learned Trial Court, the complainant filed the present appeal asserting that the learned Trial Court erred in acquitting the accused. The expert had specifically stated that the sample was of charas and this report could not have been ignored. The independent witnesses had admitted their signatures which shows that the recovery was effected in their presence. Learned Trial Court erred in discarding the statements under Section 67 of the ND&PS Act. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

We have heard Mr. Ashwani Pathak, learned Senior Advocate assisted by Mr. Dev Raj, learned Counsel for the complainant/appellant and Mr. G.R. Palsra, learned Counsel for the respondents/accused.

Mr. Ashwani Pathak, learned Senior Counsel for the appellant/complainant submitted that the learned Trial Court erred in acquitting the accused. The NCB officials corroborated the testimonies of each other. The independent witness admitted his signatures on the seizure memo. The judgment of Sunil has been overruled by this Court. The complainant has proved its case beyond reasonable doubt and the learned Trial Court erred in acquitting the accused. He prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside.

Mr. G.R. Palsra, learned Counsel for the respondents/accused supported the judgment passed by the learned Trial Court and submitted that no interference is required with the same.

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

The present appeal has been filed against a judgment of acquittal. The Hon’ble Supreme Court laid down the parameters for deciding an appeal against acquittal in Jafarudheen v. State of Kerala, (2022) 8 SCC 440, as under: -

“Scope of Appeal filed against the Acquittal:

While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:-

“15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police(2012) 10 SCC 383 whereunder it came to be held as follows:

“33. The expressions “erroneous”, “wrong” and “possible” are defined in the Oxford English Dictionary in the following terms:

“erroneous.— wrong; incorrect.

wrong.—(1) not correct or true, mistaken.

(2) unjust, dishonest, or immoral.

possible.—(1) capable of existing, happening, or being achieved.

(2) that may exist or happen, but that is not certain or probable.”

It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.”

It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636: AIR 2010 SC 589 it has been held by this Court as under:

“14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so.

The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed.

In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227, it has been held by the Privy Council as under:

But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as:

1) The views/opinion of the trial judge as to the credibility of the witnesses;

2) The presumption of innocence in favour of the accused;

3) The right of the accused to the benefit of any doubt; and

4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.

This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect:

“42. From the above decisions, in our considered view, the following general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal emerge:

(1) An Appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law.

(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an Appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an Appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An Appellate court, however, must bear in mind that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate court should not disturb the finding of acquittal recorded by the trial court.”

The present appeal has to be adjudicated in the light of the judgments of the Hon'ble Supreme Court.

The learned Trial Court held that there was non-compliance with Section 42(2) of the ND&PS Act which is fatal to the prosecution case. This finding is not sustainable. It is the specific case of the complainant that the accused were found walking on the road and coming towards the NCB officials. Thus, there was no search inside the building, conveyance or enclosed place mentioned in Section 42 of the ND&PS Act. It was laid down by the Hon’ble Supreme Court in S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal 2018 (9) SCC 708 that Section 42 does not apply to the search made of a person walking in an open space. It was observed: -

An empowered officer under Section 42(1) is obligated to reduce to writing the information received by him, only when an offence punishable under the Act has been committed in any building, conveyance or an enclosed place, or when a document or an article is concealed in a building, conveyance or an enclosed place. Compliance with Section 42, including recording of information received by the empowered officer, is not mandatory when an offence punishable under the Act was not committed in a building, conveyance or an enclosed place. Section 43 is attracted in situations where the seizure and arrest are conducted in a public place, which includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.

The appellant was walking along Picnic Garden Road. He was intercepted and detained immediately by the raid-ing party in front of Falguni Club, which was not a build-ing, conveyance or an enclosed place. The place of occur-rence was accessible to the public and fell within the ambit of the phrase “public place” in the explanation to Section 43. Section 42 had no application.”

Thus, there was no requirement of compliance with the provisions of Section 42 of the ND&PS Act and the prosecution case cannot be doubted due to non-compliance of Section 42 of the ND&PS Act.

The learned Trial Court also held that the statement of the accused under Section 67 of the ND&PS Act could not be relied upon because there was no evidence that the accused were told of their right of silence. It is undisputed that Kuldeep Sharma was an empowered officer. This fact was specifically asserted in para 2 of the complaint. It was laid down by the Hon’ble Supreme Court in Bothilal v. Narcotics Control Bureau, 2023 SCC OnLine SC 498 that the statement made by the accused to the officer empowered under Section 53 of ND&PS Act is not admissible in view of the bar contained in Section 25 of the Indian Evidence Act. It was observed: -

Though the two independent witnesses were not examined before the Court, their statements were marked as Exhibits P-19 and P-71. A perusal of the impugned judgment of the High Court shows that it was held that the conditions prescribed by Section 53A of the NDPS Act were not fulfilled and therefore, these two statements were inadmissible. The High Court believed the testimony of PW-2 and PW-4 to PW-7 and held that the confessional statements of the accused could be taken as corroboration for the evidence of official witnesses.

Paragraphs 158.1 and 158.2 of the majority view in Tofan Singh's case (2021) 4 SCC1, read thus:

“158. We answer the reference by stating:

158.1. That the officers who are invested with powers under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account to convict an accused under the NDPS Act.

158.2. That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”

Admittedly, the confessional statements were made by the accused to an officer empowered under Section 53 of the NDPS Act and hence, in view of the bar of Section 25 of the Evidence Act, the confessional statements will have to be kept out of consideration.”

Hence, the statements made by the accused under Section 67 of the ND&PS Act are inadmissible and the learned Trial Court had rightly rejected them.

The learned Trial Court rejected the report of the analysis on the ground that it was in violation of the judgment of this Court in Sunil (supra) followed in Prakash Chand (supra). The matter was subsequently referred to the Full Bench of this Court in State of H.P. Vs. Mehboon Khan 2013 SCC Online HP 4080 and this judgment was overruled. It was held: -

Our Opinion:

(a) After taking into consideration Section 293 of the Code of Criminal Procedure, Sections 45 & 46 of the Indian Evidence Act and the Law laid down by the apex Court as well as various High Courts discussed in detail hereinabove, we conclude that on account of non-consideration of the same by the Division Bench, which has rendered the Judgment in Sunil's case, correct law on the Expert Opinion and the Reports assigned by the Scientific Expert after analyzing the exhibit has not been laid down.

(b) We further conclude that on account of non-consideration of various Reports of the United Nations Office on Drugs and Crime including the Single Convention on Narcotic Drugs, 1961 and to the contrary placing reliance on the textbooks, which are on Medical jurisprudence, the Division Bench in Sunil's case failed to assign correct meaning to ‘Charas’ and ‘Cannabis resin’, the necessary constituents of an offence punishable under Section 20 of the NDPS Act.

(c) In view of the detailed discussion hereinabove, the Division Bench while deciding Sunil's case supra has definitely erred in taking note of the percentage of tetrahydrocannabinol in three forms of Cannabis i.e. Bhang, Ganja and Charas and hence, concluded erroneously that without there being no reference of the resin contents in the Reports assigned by the Chemical Examiners in those cases, the contraband recovered is not proved to be Charas, as in our opinion, the Charas is a resinous mass and the presence of resin in the stuff analyzed without there being any evidence qua the nature of the neutral substance, the entire mass has to be taken as Charas.

(d) There is no legal requirement for the presence of a particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample is that of Charas. The law laid down by the Division Bench in Sunil's case that ‘for want of percentage of tetrahydrocannabinol or resin contents in the samples analyzed, the possibility of the stuff recovered from the Accused persons being only Bhang i.e. the dried leaves of Cannabis plant, possession of which is not an offence, cannot be ruled out’, is not a good nor any such interpretation is legally possible. The percentage of resin contents in the stuff analyzed is not a determinative factor of small quantity, above smaller quantity and less than commercial quantity and the commercial quantity. Rather, if in the entire stuff recovered from the Accused, the resin of Cannabis is found present on analysis, the whole of the stuff is to be taken to determine the quantity i.e. smaller, above smaller but less than commercial and commercial, in terms of the Notification below Section 2 (vii a) & (xxiii a) of the Act.

(e) We have discussed the Single Convention on Narcotic Drugs, 1961 in detail hereinabove and noted that resin becomes Cannabis resin only when it is separated from the plant. The separated resin is Cannabis resin not only when it is in ‘purified’ form, but also when in ‘crude’ form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in ‘crude’ form is also Charas within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the Cannabis plant. Once the Expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as Charas is a resinous mass and after conducting tests if in the opinion of the Expert, the entire mass is a sample of Charas, no fault can be found with the opinion so expressed by the Expert nor would it be appropriate to embark upon the admissibility of the Report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample.

(f) We are also not in agreement with the findings recorded by the Division Bench in Sunil's case that “the mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of Charas is not an indicator of the entire stuff analyzed to be Charas” for the reason that the statute does not insist for the presence of percentage in the stuff of Charas and the mere presence of tetrahydrocannabinol along with cystolithic hair in sample stuff is an indicator of the same being the resin of Cannabis plant because the cystolithic hair is present only in the Cannabis plant. When after observing the presence of tetrahydrocannabinol and cystolithic hair, the Expert concludes that the sample contains the resin contents, it is more than sufficient to hold that the sample is of Charas and the view so expressed by the Expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from the Cannabis plant cannot be treated as the resin of the Cannabis plants. The resin rather must have been obtained from the Cannabis plants and may be in ‘crude’ form or ‘purified’ form. In common parlance, Charas is a handmade drug made from the extract of the Cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of Cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for ‘Charas’ under the Act.

(g) We further hold that in any case the Judgment in Sunil's case is a Judgment in personam and not a Judgment in rem and as such its universal application in later Judgment rendered by this Court and also by the Trial Courts, without appreciation of the given facts and circumstances of each case and the evidence available on record, was not legally permissible.

(h) The anxiety expressed by the Division Bench in the order of reference that “if Report is inadequate, should the Court in the exercise of powers under Section 165 of the Indian Evidence Act and Section 311 of the Code of Criminal Procedure, send the second sample and/or the entire bulk to the Chemical Examiner for re-examination”, has been appropriately taken care of by the Judgment of Apex Court in Thana Singh's case supra. We, therefore, hold that the prosecution shall ensure that a copy of the Report is supplied to the Accused immediately after it is collected from the Forensic Science Laboratory. The Report issued by the Forensic Science Laboratory has to be believed to be correct and its admissibility cannot be questioned by anyone. A request for re-testing/re-sampling normally should not be entertained as a matter of course, save and except in extremely exceptional circumstances and for cogent reasons to be recorded by the presiding Judge in case an Application for the purpose is made by an aggrieved party, within a period of 15 days of the receipt of the Test Report. No Application for re-testing/re-sampling should be entertained thereafter.

Therefore, the report of analysis cannot be discarded as per the Full Bench judgment of this Court in Mehboon Khan (supra)

Learned Trial Court also held that the police had witnesses associated from Magwain, which made the complainant’s case suspect. Rishi (PW2) has not supported the complainant’s case. He was permitted to be cross-examined. He refused to support the complainant that he was associated with the NCB officials, the accused were apprehended, charas was recovered and formalities were completed in his presence. He denied that he had made any statement under Section 67 of the ND&PS Act to Kuldeep Sharma, even though he admitted his signatures on the documents and the statement. This shows that the witness has not supported the complainant and is not shown to be under the influence of the complainant. Hence, no prejudice was caused to the accused by his association and the accused could not have been acquitted because no local person was associated.

Thus, all the reasons assigned by the learned Trial Court for acquitting the accused were not sustainable.

However, in the present case, the Intelligence Officer had taken the sample on the spot. Virender Singh (PW1) specifically stated that the Investigating Officer separated two samples of 25 grams each by taking the contraband randomly from the stick-shaped and ball-shaped substance. R.L. Negi (PW4) stated that he separated two samples of 25 grams each by taking small pieces of charas out of some sticks and some balls. Kuldeep Sharma (Pw5) also stated that the Investigating Officer drew the samples and put them in separate parcels. Thus, as per the complainant, the samples were taken on the spot in the presence of the Gazetted Officer Kuldeep Sharma. This is impermissible. 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 would 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:-

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) include (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 of 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 of 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 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.”

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.

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 were 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 Rs. 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 (supra), 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)include (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 of 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 of 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 SCC OnLine SC 213 wherein it was observed:

“22. Admittedly, no proceedings under Section 52A 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 (Exhibit P-11) is nothing but a waste paper and cannot be read in evidence.”

Thus, in view of these precedents, the samples are required to be taken in the presence of the Magistrate and it is impermissible to take the samples on the spot in the absence of the Magistrate. No reliance can be placed upon the report of analysis obtained after analyzing the samples taken on the spot. In the present case, the samples were not taken in the Magistrate’s presence and the prosecution version that the recovered suspected material was charas has not been established.

Hence, the accused cannot be convicted in view of the absence of any evidence regarding the suspicious substance being charas. Hence, the appeal cannot be allowed and the same is dismissed.