Gautam Kumar Choudhary, J
1. Sole appellant is in appeal before this Court against the judgment of conviction and sentence under Sections 20 and 22 of N.D.P.S. Act.
2. Informant of this case is a Police Officer who was on patrolling duty on National Highway No.143 when a secret information was received that a Bolero vehicle bearing registration no.6094 of Orissa was coming with a driver and two persons. As per the information, the vehicle was in transit, transporting some contraband. On this information, at 12:45 p.m. on 25.04.2017, police organized search of vehicles with CRPF personnel at Pandripani Chowk. The said vehicle was intercepted and the occupants of the vehicle started fleeing, but got arrested, they disclosed their names as Munna Kumar, Aditya Kumar and Chandan Kumar.
3. Thereafter, search of the vehicle was made in presence of Block Development Officer and from the said vehicle, 75 packets each containing 1 Kg Ganja were seized, as the occupants of the vehicle could not produce any valid document with regard to the seized contraband. All the three persons were arrested. They disclosed that they were paddling cannabis from Orissa to Bihar. Vehicle was being driven by Aditya and the owner of the vehicle was Sunil Sah, who was involved in trafficking of narcotics along with one Nitish Kumar.
4. On the basis of the self-statement of the Officer-in-charge of T. Tangar Police Station, P.S. Case No. 23/17 was registered against this appellant and five others under Section 414/34 of the IPC and Sections 8, 20 and 22 of the NDPS Act.
5. Police on investigation, submitted charge sheet against this appellant and two others under Sections 20 and 22 of the NDPS Act.
6. Altogether 11 witnesses have been examined on behalf of the prosecution and relevant documents including the seizure list and FSL reports have been proved and marked as exhibits.
7. Judgment of conviction and sentence has been assailed on the ground that as per the prosecution case, 75 packets each containing 1 Kg. of Ganja were seized, but as per B.D.O (P.W. 9), in whose presence the said seizure is said to have been made, the sample was taken only from 6 packets and not from all packets. Further, weight was also taken of only one packet and therefore, it cannot be said that there was Ganja in all the packets. P.W. 10 has also deposed in para 18 of his cross-examination that sample was not collected from all the packets.
8. It is further argued that there is violation of the mandatory provisions of search, seizure and sampling. As per Section 52A of the NDPS Act, the sample have to be drawn in the presence of a Magistrate and the entire exercise certified by him to be correct. Magistrate means a ‘Judicial Magistrate’. A clarificatory notification dated 23.12.2022 of the Ministry of Finance is referred to in this context. Reliance is placed on the following authorities: -
a. Simarnjit Singh Versus State of Punjab, 2023 SCC OnLine SC 906
b. Mohan Lal v. State of Punjab, (2018) 17 SCC 627
9. Learned A.P.P. has defended the judgment of conviction and sentence. It is argued that facts of the present case are distinguishable from Simarnjit Singh case (supra) as in that case sample was drawn at the time of seizure, which was found to be not in conformity with the law laid down in Mohan Lal Case (supra). Whether the search is vitiated on account of search having been made in the presence of the Executive Magistrate, was not an issue in that case.
10. It is further argued that factum of seizure of 75 Kg. of Ganja has been established by the consistent account of the witnesses. Informant (P.W. 10) has deposed that on the basis of secret information that Bolero vehicle bearing registration no.OR 9J 6094 transporting contraband from Orissa to Simdega, the vehicle was intercepted. The appellant was travelling in the said vehicle and he was apprehended by the police party. He disclosed about trafficking of narcotics from Orissa to Bihar. Seizure was made in the presence of B.D.O. and two independent witnesses in which 75 packets weighing 1 Kg. of Ganja were seized. Other witnesses have consistently supported the case. The plea that are being raised, were not raised during trial. It is also argued that the informant had criminal antecedent and was involved in inter State trafficking of narcotics. The samples were sent for chemical examination by Forensic Science Laboratory in which as per the report (Exhibit 10), it was found to be Ganja.
11. Having heard both the sides, Judgment of conviction has been assailed mainly on two grounds. Firstly, it is that sample from contraband was not drawn by the Judicial Magistrate, but by the officer involved was Executive Magistrate (B.D.O.). Secondly, sample was not drawn from all the 75 packets of the contraband, but only from six packets.
12. With regard to mandatory nature of the provision of drawing of sample and its certification before a Magistrate, it has been held in State of Punjab v. Makhan Chand, (2004) 3 SCC 453 :
“This contention too has no substance for two reasons. Firstly, Section 52-A, as the marginal note indicates, deals with “disposal of seized narcotic drugs and psychotropic substances”. Under sub- section (1), the Central Government, by a notification in the Official Gazette, is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Section 52-A is complied with and upon an application, the Magistrate issues the certificate contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and any list of samples drawn under sub-section (2) of Section 52-A as certified by the Magistrate, would be treated as primary evidence in respect of the offence. Therefore, Section 52-A(1) does not empower the Central Government to lay down the procedure for search of an accused, but only deals with the disposal of seized narcotic drugs and psychotropic substances.
Secondly, when the very same Standing Orders came up for consideration in Khet Singh v. Union of India [(2002) 4 SCC 380 : 2002 SCC (Cri) 806] this Court took the view that they are merely intended to guide the officers to see that a fair procedure is adopted by the officer in charge of the investigation. It was also held that they were not inexorable rules as there could be circumstances in which it may not be possible for the seizing officer to prepare the mahazar at the spot, if it is a chance recovery, where the officer may not have the facility to prepare the seizure mahazar at the spot itself.
Hence, we do not find any substance in this contention”.
(emphasis supplied)
In The State of Rajasthan v. Sahi Ram, (2019) 10 SCC 649 : (2020) 1 SCC (Cri) 85,] , the Apex Court held,
“18. If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kg that it may not be possible and feasible to produce the entire bulk before the court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out”.
Whereas, in Mangilal v. State of M.P., 2023 SCC OnLine SC 862, it has been held to be mandatory in nature.
13. Preponderance of judicial opinion leans in favour of the mandate of procedure to be followed at the time of search, seizure and sampling of the contraband material.
14. The procedure envisages seized material to be produced before the jurisdictional Magistrate for its sampling and certification, before being sent to the FSL. The word “Magistrate” under this Act is intended to mean a ‘Judicial Magistrate’ in view of the notification dated 23rd December, 2022 of Ministry of Finance. The mandate of law is thus clear that Act contemplates sampling to be done in the presence of the Judicial Magistrate and not before Executive Magistrate.
15. The matter boils down to the question that should a prosecution case fail on the sole ground that samples were drawn in the presence of an Executive Magistrate and not before a Judicial Magistrate?
16. In Tofan Singh v. State of T.N., (2021) 4 SCC 1;Dalel Singh v. State of Haryana, (2010) 1 SCC 149, Apex ruled that there should be substantial compliance with the procedure. Hon’ble Supreme Court noted in Mushaque Ahammed v. State, 2020 SCC OnLine SC 1489 that procedural non-compliance cannot be fatal to the prosecution if the said question has not been raised during trial.
17. Again, where seized contraband was voluminous and it was not practicable that the total consignment of seizure be produced before the Court. If the consignment is not produced in the Court, a Judicial Magistrate cannot normally be expected to go to the police station to oversee the process of preparation of inventory and its certification. It was held in State of Rajasthan v. Sahi Ram, (2019) 10 SCC 649 that its non-production was not fatal to the prosecution. Their Lordship’s held,
“18. If the seizure of the material is otherwise proved on record and is not even doubted or disputed, the entire contraband material need not be placed before the court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kg that it may not be possible and feasible to produce the entire bulk before the court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out.
18. In view of the direct authority on the point that mandate of sampling to be done before the Magistrate is with respect to disposal of the contraband under Section 52 A, and not with respect to search and seizure, the first argument raised on behalf of the appellant is not sustainable and is accordingly rejected is rejected. Thus, there is no requirement of law that sample should be drawn in the presence of a Judicial Magistrate/Special Judge hearing NDPS matters. Even otherwise it has been held in Babubhai Odhavji Patel v. State of Gujarat, (2005) 8 SCC 725 “8. The learned counsel further contended that the seized articles were not kept in proper custody and that there was violation of Sections 52, 55 and 57 of the NDPS Act. He placed reliance on Valsala v. State of Kerala [1993 Supp (3) SCC 665 : 1993 SCC (Cri) 1082] . We do not think that there is much force in this contention. This Court in Gurbax Singh v. State of Haryana [(2001) 3 SCC 28 : 2001 SCC (Cri) 426] held that these provisions are not mandatory provisions and they are only directory”.(emphasis supplied)
19. What follows is that sampling being done before an Executive Magistrate cannot ipso facto be a ground to set aside a judgment of conviction in appeal, if the case is otherwise proved and such a plea has not been raised during trial. Here in the present case, appellant was apprehended on spot, and attempted to escape from the place of occurrence, when the vehicle was intercepted at the police picket. There is consistent and unimpeachable evidence that 75 Kg of Ganja was being illegally transported kept in seventy five packets. There is no material to remotely suggest that any of the witness was inimically disposed towards the appellant to falsely implicate him. Block Development Officer is indisputably an Executive Magistrate and he has deposed that narcotics was concealed in a secret place in the vehicle under the seat which was customized for that purpose. Six packets of sample were prepared from them. He has not stated that representative sample was made taking sample from only six packets. This is corroborated by the testimony of I.O. (P.W. 10) in para-1 that six packets samples were prepared. Argument on behalf of appellant that sample was collected only from six of the seized packets, is ingenuous, but misleading and is factually incorrect. He has also deposed that all the 75 packets were produced before the Court and were marked as material exhibits. B.D.O. (P.W.9) has however candidly admitted that only one of the seized packets was weighed in his presence. Once the possession of contraband is proved, presumption u/s 35 and 54 of the NDPS Act will apply and there is reverse burden of proof cast on the accused. At no stage of trial, quantity or nature of seized item has been seriously contested. No defence evidence has been led to dispute the nature or quantity of the seized item.
20. The plea that entire search and seizure is vitiated for being made before the Executive Magistrate is not sustainable, as there has been substantial compliance with the procedure as laid down under the NDPS Act. There is indeed division of power under the Constitution of India, but not a division of intention, which is to advance the cause of justice and not to frustrate it.
There is no infirmity in the Judgment of conviction and sentence awarded by the learned trial Court.
Criminal Appeal stands dismissed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.
