Rinku Choudhary vs State Of Chhattisgarh

The appellant has challenged the impugned judgment of conviction and order of sentence dated 30.11.2019 passed in Special Criminal Case No. 51/2018 by the Special Judge (NDPS Act) Raipur, District Raipur, CG whereby the appellant has been convicted and sentenced as mentioned herein below.

Conviction Sentence

Under Section 20(b) II (c) of RI for 10 years and fine of Rs.

NDPS Act, 1985. 1,00,000/- in default of payment of

fine 2 years Additional RI.

The appellant was charged for offence punishable under Section  20(b) II (c) of NDPS Act, 1985 (for short NDPS Act.) that he was found in illegal possession of 22 kilograms contraband (Ganja) on 21.06.2018 at 16:20 hours at Railway Station, Raipur, CG.

Prosecution story in brief, is that on 21.06.2018 in-charge of the police station GRP ASI Mr. L.S. Rajput (PW-8) received secret information that three people were sitting in platform No. 2 & 3 towards Durg at Railway Station, Raipur keeping the Narcotic goods. That said information was recorded by him in Rajnamcha Sanha No. 33/18 dated 21.06.2018 (Ex. P-19C) and sent constable Khetram Sahu (PW-1) to call for the witnesses who called Suresh Mahanand (PW-6) and Prahlad Yadu (PW-7). They were intimated by giving a notice under Section 160 of CrPC (Ex.P-9) asking to corporate in the further investigation, and on their consent, Mukhbir Suchna Panchnama (Ex.P-2) and Panchnama to Seizure & arrest without obtaining warrant (Ex.P-3) were prepared. Constable No. 258 Diwakar Tiwari (PW-2) was sent along with the information to Superintendent of Police Railways Raipur and looking to the possibility of contraband being destroyed he (PW8) along with his staff and witnesses proceeded towards platform No. 2 & 3 at Durg corner, without obtaining warrant to that effect.

The appellant was found sitting there and was given notice under Section 50 of the NDPS Act (Ex.P-10) informing about his rights and obtained the consent. Thereafter the bags were searched and vide (Ex.P-11) consent of the appellant, the witnesses present and the police people were searched vide (Ex. P-12) but no contraband was found in their possession. Thereafter a black colour a trolley bag containing 7 packets and one black colour bag containing one big packet and 4 small packet were found in his possession and on being opened the con taint was noticed to be Ganja vide Ex. P- 13. On being weighed the contraband came out to be 14 kg and from the other 8 kg totaling to 22 kg which was subsequently subjected to homogenization under Ex. P-14. Two samples marked as articles A1 and A2 were taken from each bag and thereafter the seizure of the contraband was made under Ex. P-15. The samples were sent to Forensic Science Laboratory for chemical examination under Ex. P-7 and the report Ex. P-30 received therefrom confirms the contraband being ganja. Thus, after completion of investigation the charge-sheet was filed and the trial proceeded.

Prosecution, in order to establish its case, examined as many as 8 witnesses. Statement of the accused / appellant under Section 313 CrPC was recorded in which he pleaded his innocence and false implication in the case.

After appreciating the evidence available on record, learned trial Court convicted and sentenced the accused / appellant as mentioned herein above by the judgment impugned. Hence this appeal.

Learned counsel for the appellant to substantiate his case, made the following submissions:

a. that the prosecution could not prove its case beyond all reasonable doubt;

b. that the trial Court has not appreciated the evidence available on record in its proper prospective and arrived at an erroneous conclusion as to the guilt of the appellant;

c. that the learned trial Court failed to see that the prosecution has not complied with the mandatory provisions of NDPS Act in particular that of Section 52-A as no sampling was done in presence of Magistrate nor any inventory of the contraband was prepared; nor the photographs were taken;

d. that no application for certification was filed before the Magistrate which is a mandatory requirement under the NDPS Act and as such the failure to comply with such mandatory provision can vitiates the entire trial, and give a clean chit to the accused in the form of acquittal;

e. that the statement of investigating Officer (PW-8) clearly goes to show that after the alleged seizure of contraband, the samples were drawn on the spot itself and not before the Magistrate which is absolutely not permissible in law.

f. that there is violation of standing order No. 1/89 which has statutory force, which says that from each packet the sample has to be drawn and thereafter it has to be sent to FSL, but in the case in hand first all the packets were mixed together and thereafter two samples of 50-50 grams each were drawn;

g. that in the case in hand, there were total 8 witnesses and out of them six happen to be from police department and the remaining two the independent witnesses being Suresh Mahanand (PW-6) and Prahlad Yadu (PW-7) who unfortunately have not supported the case of the prosecution and turned hostile as they have given and all together different story if compare to the statements given by the other witnesses, which renders the entire case of the prosecution as doubtful;

h. that the another lacuna on the part of prosecution is that the Ex. P-4 shows that one sample was drawn whereas Ex. P-7 shows that two samples were sent to the laboratory for chemical examination and likewise, the report received from the laboratory also shows that two samples were received by it which on subjection to chemical examination were found to be ganja. Thus, according to the counsel for the appellant, there are innumerable contradictions and omissions and the statements of the witnesses examined by the prosecution and number of shortcoming in the procedural formalities under taken by it;

i. In order to fortify his submissions, learned counsel for the appellant placed reliance on the decisions of Hon’ble the Supreme Court in the case of Union of India Vs. Mohanlal and another reported in (2016) 3 SCC 379; in the matter of Simarnjit Singh Vs. State of Punjab reported in 2023 SCC OnLine SC 906; in the matter of Union of India Vs. Jarooparam reported in AIR 2018 SC 1927; in the matter of Mangilal Vs. State of Madhya Pradesh reported in 2023 SCC OnLine SC 862; in the matter of Noor AGA Vs. State of Punjab reported in (2008) 16 SCC 417; in the matter of Union of India Vs. Bal Mukund and others reported in (2009) 12 SCC 161; in the matter of Sanjeet Kumar Singh @ Munna Kumar Singh Vs. State of Chhattisgarh reported in 2022 SCC Online SC 1117; in the matter of Makhan Singh Vs. State of Haryana reported in (2015) 12 SCC 247; on the decision of this Court rendered on 29.08.2023 in the matter of Santosh Kumar Suryvanshi @ Rakesh Vs. State of Chhattisgarh rendered in CRA No. 519 of 2021; and on the decision of Delhi High Court in the matter of Amani Fidel Chris Vs. Narcotics Control Bureau reported in 2020 SCC OnLine Del 2080 : 2020 Cri LJ 3523 : (2020) 268 DLT 44.

On the other hand, learned counsel for the respondent / State supports the judgment impugned and submits that the prosecution has proved its case to the hilt by adducing the evidence on record and that the findings recorded by learned Court below holding the accused / appellant guilty as referred to above do not suffer from any illegality or procedural irregularity warranting any interference therewith in this appeal. He further submits that of course the independent witnesses examined in this case have not supported the case of the prosecution but it does not mean that on the statements of the police witnesses the conviction cannot follow. On the contrary, he submits that if the version put forth by the witnesses much less the people is consistent and does not indicate variations on material particulars, according to the settled legal position holding the filed as on date, can definitely lead to a finding of conviction.

Heard learned counsel for the parties and perused the material available on record.

From the material available on record it is apparent that after receiving a secret information the police party reached the spot and after complying with the legal requirement under Section 50 of the NDPS Act and Section 160 of the Code of Criminal Procedure, recovered the contraband from the possession of the appellant, subjected to mixture and drawing of sample on the spot itself. There is nothing to indicate that the sampling was done in presence of the Magistrate or the inventory of the contraband was prepared; or the photographs thereof were taken. This exercise, as is rightly pleaded by the counsel for the appellant, is contravention of the mandatory requirement as enshrined in Section 52-A of the NDPS Act which deals with the disposal of the seized narcotic drugs and psychotropic substances. Hon’ble Supreme Court while dealing with this question has in plethora of cases has held that the breach of the provision of Section 52-A can lead to the trial itself being vitiated and eventually result in acquittal. Some of the judicial pronouncements of the Supreme Court on this point are considered worth adumbration in this case.

In Union of India Vs. Mohanlal (Supra) it is held as under:

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-section (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 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.

Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.”

In the matter of Union of India Vs. Jarooparam (Supra) it has been held as under:-

There is no denial of the fact that the prosecution has not filed any such application for disposal/destruction of the allegedly seized bulk quantity of contraband material nor any such order was passed by the Magistrate. Even no notice has been given to the accused before such alleged destruction/disposal. It is also pertinent here to mention that the trial Court appears to have believed the prosecution story in a haste and awarded conviction to the respondent without warranting the production of bulk quantity of contraband. But, the High Court committed no error in dealing with this aspect of the case and disbelieving the prosecution story by arriving at the conclusion that at the trial, the bulk quantities of contraband were not exhibited to the witnesses at the time of adducing evidence.

The above decision of the Supreme Court in Union of India Vs. Mohanlal (supra) has lately been followed in Simarnjit Singh (supra) where it has been held as under:

“15. It is manifest from Section 52-A(2)(c) (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 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.

In Mangilal Vs. State of Madhya Pradesh (supra) it has been held as under:-

The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn. In due compliance of Section 52A(1) of the NDPS Act the Ministry of Finance (Department of Revenue) issued a Notification No. G.S.R. 339(E) dated 10.05.2007 which furnishes an exhaustive manner and mode of disposal of drugs ending with a certificate of destruction:

"4. Manner of disposal

1) Where any narcotic drug or psychotropic substances has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, of the Act, or if it is seized by such an officer himself, he shall prepare an inventory of such narcotic drugs or psychotropic substances as per Annexure 1 to this notification and apply to any Magistrate under sub-section (2) of section 52A as per Annexure 2 to this notification.

2) After the Magistrate allows the application under sub-section (3) of section 52A, the officer mentioned in clause (1) above shall preserve the certified inventory, photographs and samples drawn in the presence of the Magistrate as primary evidence for the case and submit details of the drug consignments to the Chairman of the Drug Disposal Committee for a decision by the committee on the disposal. The officer shall send a copy of the details along with the drug consignments to the officer-in-charge of the godown.

4.2 Mode of disposal of drugs.

(i) Opium, morphine, codeine and thebaine shall be disposed of by transferring to the Government Opium and Alkaloid Works under the Chief Controller of Factories.

(ii) In case of drugs other than the drugs mentioned in clause (i), the Chief Controller of Factories shall be intimated by the fastest means of communication available, details of drug consignments that are ready for disposal.

(iii) The Chief Controller of Factories shall indicate within

15 days of the date of receipt of the communication, the quantities of drugs, if any, that are required by him to supply as samples under Rule 67B.

(iv) Such quantities of drugs, if any, as required by the Chief Controller of Factories under clause (iii) shall be transferred to him and the remaining quantities of drugs shall be destroyed as per the procedure outlined in para 4.1.2.

(v) Destruction shall be by incineration in incinerators fitted with appropriate air pollution control devices, which comply with emission standards. Such incineration may only be done in places where adequate facilities and security arrangements exist. In order to ensure that such incineration may not be a health hazard or polluting, consent of the State Pollution Control Board or Pollution Control Committee, as the case may be, should be obtained. Destruction shall be carried out at the presence of the Members of the Drug Disposal Committee.

4.4 Certificate of destruction.

A certificate of destruction (in triplicate) containing all the relevant data like godown entry number, gross and net weight of the drugs seized, etc., shall be prepared and signed by the chairman and members of the Drug Disposal Committee as per format at Annexure 3.

The original copy shall be pasted in the godown register after making necessary entries to this effect, the duplicate to be retained in the seizure case file and the triplicate copy will be kept by the Drug Disposal Committee. Details of disposal of drugs shall be reported to the Narcotics Control Bureau in the Monthly Master Reports."

As regards, the other limb of argument regarding violation of standing order no.1/89 which has a mandatory force, it has been held by the Apex Court in Noor Aga (supra) as under -

Preservance of original wrappers, thus, comes within the purview of the direction issued in terms of Section 3.1 of the Standing Order No. 1 of 1989. Contravention of such guidelines could not be said to be an error which in a case of this nature can conveniently be overlooked by the Court. We are not oblivious of a decision of this Court in Chief Commercial Manager, South Central Railway, Secunderabad & Ors. v. G. Ratnam & Ors. [(2007) 8 SCC 212] relating to disciplinary proceeding, wherein such guidelines were held not necessary to be complied with but therein also this Court stated:

"In the cases on hand, no proceedings for commission of penal offences were proposed to be lodged against the respondents by the investigating officers."

In the matter of Union of India v. Bal Mukund (supra), it has been held by the Supreme Court as under :-

“36. There is another aspect of the matter which cannot also be lost sight of. Standing Instruction No. 1/88, which had been issued under the Act, lays down the procedure for taking samples. The High Court has noticed that PW-7 had taken samples of 25 grams each from all the five bags and then mixed them and sent to the laboratory. There is nothing to show that adequate quantity from each bag had been taken. It was a requirement in law.”

In the matter of Amani Fidel Chris (supra), it has been held by the Delhi High Court as under :-

“10. As per the prosecution story, total 100 kgs. Ganja was found in total 100 packets. The mixing ( samras) panchnama (Ex.P3) shows that the entire Ganja kept in 100 packets was mixed and out of that mixed Ganja, as stated by PW12 Investigating Officer K.B. Dwivedi, 2 sample packets A1 and A2 were prepared.”

As regards the argument as to the fact that two independent witnesses have been declared hostile, it has been held by the Supreme Court in the matter of Sanjeet Kumar Singh (supra) as under -

“18. But if the Court has -- (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats.

Therefore, it is clear that the I.O. examined as PW-7 claims to have done everything only in the presence of independent witnesses. But those independent witnesses not merely denied their presence and participation but also came up with an explanation as to how their signatures found a place in those documents.

In such circumstances, a serious doubt is cast on the very search and seizure allegedly made by PW-7. But unfortunately, both the Special Court and the High Court went by the law in theory, without applying the same to the facts of the case.”

In the matter of Makhan Singh (supra), the Supreme Court has further held as under :-

“8. During the trial, PW1-Manjeet Singh was declared hostile by the prosecution and another independent witness Gamdur Singh was examined as defence witness. Both PW1 and DW2 have deposed that the appellant was not arrested in their presence nor any recovery was made from him. PW1 and DW2 have further deposed that when they went to police station for some work, they saw the appellant already in custody of police and that their signatures were obtained on the blank papers. In his cross-examination, though DW2 has admitted that Ext. PB bears his signature at point 'A', he disowned his statement in Ext.PL recorded under Section 161 of the Criminal Procedure Code. Though PW1 turned hostile, his evidence cannot be discarded as his testimony draws support from the version of DW1 and DW2.

The High Court discarded the evidence of PW1 and DW2 observing that the independent witnesses hail from the same village to which accused belongs and the accused might have approached the witnesses through respectables of the village to resile from his statement. That apart, the High Court also observed that both the independent witnesses did not explain the circumstances or compulsions in which they had to sign the blank papers. The reasoning of the High Court is based more on assumptions than on acceptable basis. When PW1 and DW2 have asserted that they have signed only the blank papers, the courts below ought to have considered them in proper perspective.

For recording the conviction, the Sessions Court as well as the High Court mainly relied on the testimony of official witnesses who made the recovery, i.e. H.C. Suraj Mal-PW2 and Inspector Raghbir Singh-PW6, and found them sufficiently strengthening the recovery of the possession from the appellant. In our considered view, the manner in which the alleged recovery has been made does not inspire confidence and undue credence has been given to the testimony of official witnesses, who are generally interested in securing the conviction. In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution. Though it is well-settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available. Independent witnesses PW1 and another independent witness examined as DW2 has spoken in one voice that the accused person was taken from his residence. In such circumstances, in our view, the High Court ought not to have overlooked the testimony of independent witnesses, especially when it casts doubt on the recovery and the genuineness of the prosecution version.”

Having thus heard counsel for the parties at length and gone through the material available on record including the judgment impugned and also taken note of the judicial pronouncements referred to above, this Court has not hesitation to say that the prosecution has not led the evidence which could conclusively lead to the conviction of the accused / appellant under the provisions of NDPS Act. The mandatory legal requirement as is contemplated under Section 52-A of the NDPS Act which requires sampling of the contraband being done, inventory being prepared, photographs being taken etc. in the presence of the Magistrate have not been taken care of by the prosecution in the course of investigation. As has already been discussed herein above that the non-compliance of the legal requirement under Section 52-A of the NDPS Act can ipso facto result in trial being vitiated resulting in acquittal of the accused. Thus, the Court below has also fallen in a serious legal error in ignoring the manifest legal error which is mandatory in character, crept in this case on the part of the prosecution. In this view of the matter, the judgment impugned has no legs to stand and therefore, it is hereby set aside.

Appeal is thus allowed, judgment impugned is set aside and the accused / appellant is hereby acquitted of the charge leveled against him. He shall be set at liberty forthwith if not required in any other case.