Ramesh Sinha, CJ
1. Since the aforesaid two criminal appeals have been filed against the impugned judgment dated 18.04.2022 passed by the Special Judge (N.D.P.S. Act), Raipur in Special Criminal Case No.08/18, they were clubbed & heard together and are being disposed of by this common judgment.
2. Appellant-Bhupendra Singh @ Rana has preferred Criminal Appeal No.718/2022 under Section 374(2) of the CrPC questioning the impugned judgment dated 18.04.2022 passed by the Special Judge (N.D.P.S. Act), Raipur in Special Criminal Case No.08/18, by which he has been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') and sentenced him undergo rigorous imprisonment for 20 years and fine of Rs.2,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for 2 years.
3. Appellant-Hardeep Singh @ Sandeep has preferred Criminal Appeal No.1310/2022 under Section 374(2) of the CrPC questioning the impugned judgment dated 18.04.2022 passed by the Special Judge (N.D.P.S. Act), Raipur in Special Criminal Case No.08/18, by which he has been convicted for offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced him undergo rigorous imprisonment for 20 years and fine of Rs.2,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for 2 years.
4. Case of the prosecution, in brief, is that on 14.11.2017 the present appellants were found in illegal possession of 10 qunital 75 kgs Ganja which they were transporting in truck bearing No. NL 02 Q 0304. The said truck was coming from Andhra Pradesh to Raipur. Upon informant’s information the police raided the place of occurrence and thereafter the appellants have been prosecuted in Crime No.06/2017 registered at Police Station Kabirnagar, District Raipur for offence under Section 20(b)(ii)(C) of the NDPS Act. Case of the prosecution, in brief,is that on 14.11.2017, Inspector Kishore Kumar Kerketta of Police Station-Kabirnagar, Raipur received a secret information that 12 wheeler truck bearing number-NL-02/Q-0304, which is coming to Raipur from Andhra Pradesh, in which the truck owner is also sitting, is transporting huge quantity of contraband article ganja. By recording the said information in Rojnamcha Sanha No. 20 dated 14.11.2017 (Ex.P-35), Informer Information Panchnama (Ex.P-36) was prepared and after that information about the informer information was sent through Constable No. 2655 Manish Kumar to CSP Azad Chowk and also sent Constable No. 2524 Praveen Kumar to summon the witness, which was mentioned in Sanha No. 21 (Ex.P-37), gave a memorandum to Constable No. 2655 Manish Kumar regarding informer information and sent it to CSP Azad Chowk office, whose return was recorded at Sanha No.23 (Ex.P-39). After that the police along with staff, witnesses, whose departure was recorded at Sanha No. 24 (Ex.-40) and gave his consent for informing the informer.
5. After reaching the place near Nukkad Petrol Pump, Hirapur, the accused were informed by the informer that he had received information from the informer that a huge quantity of ganja was being transported in the vehicle, the said vehicle could be searched by him or by any gazetted officer. In this regard, a notice under section 50 of the NDPS Act (Ex.P-1) was given, the accused had prepared Consent Panchnama (Ex.P-2). After giving their consent to search the vehicle, they conducted their search with the accused in the presence of police force and witnesses, in which no objectionable item was recovered. Search panchnama (Exs.P-4, P-5 and P-6) were prepared in this regard. According to the prosecution story, when the investigator put his staff in the truck’s cabin, the staff saw that there was ganja in the bags, in connection with which drug recovery panchnama (Ex.P-7) was prepared. Labourers sitting near the petrol pump were summoned and explained to them and prepared a separate panchnama (Ex.P-8) regarding the identification of the ganja, gave written notice (Ex.P-41) to the workers. When the workers unloaded the truck, they found ceramic flowerpot like objects and ganja filled in the bags. Thereafter, weighing process was started and after weighing, 43 bags, a total of 1075 kgs. of narcotic substance ganja was found, out of which two samples of 100-100 grams were taken out and sealed, weighing Panchnama (Ex.P-10) was prepared and after conducting Samaras. Samras Panchnama (Ex.P-11) was prepared and separately sealed sample Pachnama (Ex.P-15) was prepared. After the above proceedings, the investigating officer again searched the accused and prepared Panchnama (ExP-17). Thereafter, a total of 1075 kgs. of narcotic substance ganja in 43 bags was seized from the possession of accused Bhupendra Singh in front of witnesses as per Seizure (Ex.P-16) at Nukkad Petrol Pump, Hirapur. After completion of process, zero dehati nalishi (Ex.P-42) was registered and spot map was also prepared vide Ex.P-43. Thereafter, truck, seized ganja, the accused and accompanying staff returned to the police station and registered the return Sanha (Ex.P-44). The seized property was deposited in the Malkhana of the police station. On the basis of Dehati Nalisi, numberi First Information Report (Ex.P-46) was registered and accused Bhupender Singh and Hardeep Singh were arrested as per arrest memos (Exs.P-18 and P-19).
6. During investigation, according to call details of mobile number of the accused, accused K. Raju was interrogated in custody. His statement was recorded and after recording the memorandum of accused K. Raju under Section 27 Evidence Act, after finding connectivity between accused K. Raju and accused Bhupender Singh in call details, accused K. Raju was arrested as per arrest memo (Ex.P-33). The sample of the seized ganja was sent to Director FSL along with Superintendent of Police's memorandum (Ex.P-3), from where the chemical investigation report (Ex.P-49) was received along with memorandum (Ex.P-50).
7. After completion of investigation, charge-sheet was filed against the accused persons before the Special Judge under NDPS Act. The appellants abjured the guilt and entered into defence.
8. In order to bring home the offence, the prosecution examined as many as 15 witnesses and exhibited 52 documents Exs.P-1 to P-52 in support of case of the prosecution. Appellant Bhupendar Singh himself has been examined as DW-1 and and Manjeet Kaur as DW-2 in their support.
9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 18.04.2022, convicted the appellants for offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced them as mentioned herein-above in opening paragraph of this judgment, against which, these criminal appeals have been preferred.
10. So far as other two accused persons are concerned, co-accused namely Kundipudi Raju died and thus his case abated and another co-accused namely Peddi Raju has been acquitted from charges under Section 29 of the NDPS Act.
11. Mr.Vikash Pradhan, learned counsel appearing for appellant Bhupendra Singh @ Rana in CRA No.718 of 2022 and Mr.Atul Kumar Kesharwani, learned counsel appearing for appellant Hardeep Singh @ Sandeep in CRA No.1310 of 2023 would submit that the impugned judgment passed by the learned trial Court is illegal, perverse and contrary to the evidence available on record, hence liable to be set aside. Learned trial Court has failed to appreciate that there are major contradictions and omissions in the statement of investigating officer Kishor Kumar Kerketta (PW-15), which cannot be relied upon. They would further submit that general procedure for sampling provided in Standing Order No.01 of 1989 dated 13.06.1989 has not been complied with by the prosecution. From perusal of the Standing Order, it appears that the police was required to draw a sample from each packet allegedly recovered with the help of field testing kit. The mixing of the material from all the packets and then drawing of representative sample is not provided in the Standing Order, as if, such a course is adopted the sample would seize to be representative sample of the corresponding packet. In the present case, 43 packets were recovered from the possession of two accused persons and the procedure given in clause 2.4 of the Standing Order No.1 of 1989 was strictly required to be followed since there were only 28 packets in all from which the sample was to be drawn. At this point of time, it cannot be ascertained whether all 43 packets contained the alleged contraband of ganja or not. Investigating officer Kishor Kumer Kerketta (PW-15) has admitted in his deposition that he has received prior information but he has not complied with Section 42(2) of the NDPS Act. They contended that the learned trial Court wrongly appreciated that the investigation has been done properly and mandatory provisions of Sections 42, 52, 55 and 57 of the NDPS Act have been complied with. They further contended that as far as compliance of Section 42 of the NDPS Act is concerned, the learned trial Court failed to appreciate that on recording of alleged information in writing regarding arrival of Ganja, it was obligatory on the part of the SHO of the concerned PS to send a copy of the same forthwith to his immediate superior officer. In the present case, no such compliance was done, therefore, due to non-compliance of Section 42(1) and (2) of the NDPS Act, conviction of the appellants is completely wrong and vitiates all the proceedings. The learned trial Court failed to appreciate that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. Further, there is a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. They also contended that the learned trial Court failed to appreciate that the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act provide for the procedure and manner of seizing, preparing inventory of the seized material, forwarding the seized material and getting inventor 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 in the NDPS Act. A bare perusal of the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act reveals that when any contraband/narcotic substance is seized and forwarded to the police or to 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. In the present case, it is evident from evidence of investigating officer Kishor Kumar Kerketta (PW-15) that the procedure as prescribed under Section 52A(2), (3) and (4) of the NDPS Act was not followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has been brought on record that the samples were drawn in presence of the Magistrate and the lists of samples so drawn were certified by the Magistrate. Mere fact that the samples were drawn in presence of the witnesses and/or Gazette Officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. In the present case, it is an admitted position on record that the samples from the alleged seized substance were drawn in presence of the alleged witnesses 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. The learned trial Court failed to appreciate that in absence of any material on record to establish that the samples of the seized contraband were drawn in 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. Hence, in absence of the same, conviction is vitiated and deserves to be set aside. It is further submitted that the learned trial Court has not considered that the seized material was not sampled and deposited in time by the investigation agency. It is a clear violation of Section 55 of the NDPS Act with regard to safe custody of the seized articles and the samples drawn for sending for chemical analysis to FSL. There are several discrepancies in the prosecution case which makes the custody of the seized articles and sampling extremely doubtful. There is neither any proof that the seal on the samples was deposited in the Malkhana along with the samples nor that the seal was separately sent to FSL for comparison. Even in the alleged report of FSL, it was not mentioned that the seal was compared. Moreover, neither Malkhana register was produced for proof of deposit of seals and samples nor the seal was produced before the Court. As such, the criminal appeals deserve to be allowed and the impugned judgment deserve to be set aside. They relied upon the judgments of the Supreme Court in the matters of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379, Union of India v. Jarooparam reported in AIR 2018 SC 1927, Yusuf @ Asif v. State (Criminal Appeal No.3191/2023), decided on 13.10.2023), Sanjeet Kumar v. State of C.G. reported in 2022 SCC OnLine (SC) 1117, State of Rajasthan v. Bher Singh reported in (2009) 16 SCC 293 and the judgment passed by this Court in Arun Kumar Jatav v. State of Chhattisgarh (Criminal Appeal No.147 of 2022), decided on 10.11.2023.
12. On the other hand, Mr.Avinash K. Mishra, learned Government Advocate appearing for the respondent/State, would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering the material available on record and evidence adduced by the prosecution has convicted the appellants for offence under Section 20(b)(ii)(C) of the NDPS Act, in which no interference is called for.
13. We have heard the learned appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.
14. Independent witnesses Umesh Sahu (PW-1) and Hemant Sethiya (PW-2) have not supported the prosecution case. Witness of weighing Sandip Mishra (PW-4) has also not supported the case of the prosecution.
15. In para 87 of cross-examination, investigating officer Kishore Kumar Kerketta (PW-15) has stated that this thing is not mentioned in dehati nalsi (Ex.P-42) that driver of the vehicle revealed his name as Hardeep Singh @ Deep and name of the other person was revealed as Bhupendra Singh @ Rana and he was described as the owner of the vehicle. It is correct to say that he had first prepared the recovery panchnama (Ex.P-7) and thereafter he summoned the workers who were sitting at the petrol pump. It is also correct to say that the workers were sitting near the petrol pump and this is not mentioned in dehati nalsi (Ex.P-42.). In para 92 of his cross-examination, he stated that he has written dehati nalsi after completing all the proceedings. It is correct to say that in dehati nalsi (Ex.P-42), consent panchnama is mentioned at 15.55 and 16.10. It is correct to say that both the above consents are not attached to the panchnama case. It is correct to say that dehati nalsi (Ex.P-42) mentions its own search panchnama at 16.25. He also deposed that before unloading the vehicle number NL02 Q0304, no panchnama was prepared regarding taking any consent from the accused nor was it mentioned in dehati nalsi. In para 104, this witness has stated that in Ex.P-10 he has also mentioned about taking out two samples of 100 grams each. He stated that he has not prepared any separate panchnama for taking out two samples of 100 grams each. It is correct to say that from where he took out the substance for making two samples of 100 grams each he has not mentioned it in Ex.P-10 nor he prepared any separate panchnama. It is correct to say that after taking out two samples, he has marked them with A or B. No such document is attached in the case. He stated that it is incorrect that he did not put the slip in the sample. It is also incorrect that he did not get anyone’s signature on the slip. In para 126 of cross-examination, he himself admitted that there was no compliance of Section 52A of the NDPS Act in the present case.
16. 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.
17. 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 to the officer empowered under section 53, the officer referred to in subsection (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 Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence."
18. 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 to 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.
19. 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 subsections (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 of the mandate of subsection (2) of Section 52A of the NDPS Act.
20. 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.
21. In the matter of Mohanlal (supra), the Supreme 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.
22. Recently, the Supreme Court in the matter of Yusuf @ Asif (supra) has held as under:-
“16. 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.
17. 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 fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.”
23. The Supreme Court in the matter of Sanjeet Kumar (supra) has held 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.
31. 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.
32. 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.”
24. The Supreme Court in the matter of Bher Singh (supra) has held as under:-
“2. We have perused the evidence of PW 7 who seized the opium in question, as also the evidence of PW 9 who was the officer in charge of the malkhana and from their evidence, we find that it is not possible to hold that the seal allegedly put by PW 7 while taking the sample opium remained intact right through the time it reached the forensic science laboratory. This being a mandatory requirement to establish the fact that the seized goods was in fact a prohibited drug under the NDPS Act, we agree with the High Court on facts of this case that the prosecution has failed to establish this part of its case, hence, we find no reason to interfere in this appeal. Therefore, we dismiss the same.”
25. Considering the submissions advanced by the learned counsel for the parties, material available on record and also considering the evidence of investigating officer Kishor Kumar Kerketta (PW-15) in which he himself has stated that documents in relation to Section 52A of the NDPS Act are not attached with the case and also admitted that he had not initiated proceedings regarding Section 52A of the NDPS Act and applying the principle of law laid down by the Supreme Court in Mohanlal (supra), Yusuf @ Asif (supra), Sanjeet Kumar (supra), Bher Singh (supra) and this Court in Arun Kumar Jatav (supra), we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in convicting and sentencing the appellants for offence under Section 20(b)(ii)(C) of the NDPS Act. As such, the judgment impugned deserves to be set aside.
26. For the foregoing reasons, Criminal Appeal No.718/2022 filed on behalf of appellant-Bhupendra Singh @ Rana and Criminal Appeal No.1310/2023 filed on behalf of appellant-Hardeep Singh @ Sandeep are allowed and the impugned judgment dated 18.04.2022 passed by the Special Judge (N.D.P.S. Act), Raipur in Special Criminal Case No.08/18 is set-aside. The appellants are acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act. They are in jail. They shall be set at liberty forthwith if no longer required in any other criminal case.
27. The appellants are directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973.
28. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.
29. Before parting with the judgment, we wish to observe that the investigation which has been done in the instant case shows the lethargic approach of the investigating agency as it has been found that huge quantity of contraband article was seized in the present case and because of lapses on the part of the investigating agency, the mandatory provisions under the NDPS Act have not been followed. With the heavy heart, we have to allow this appeal.
30. Considering the aforesaid fact, we direct the Director General of Police, Raipur, Chhattisgarh and other investigating agencies to issue advisories that in any such cases, if the prosecution is launched, the investigating agency should strictly follow the mandatory provisions under the relevant Act so that the accused may not take the benefit of such lapses as the offence like the present one which is the offence against the society which weakens the basic structure of the society. Such offence has to be dealt with strictly in accordance with law with heavy hand in order to protect the future of this country.
31. The Registrar (Judicial) of this Court is directed to send a copy of this judgment to the Director General of Police, Raipur, Chhattisgarh forthwith for necessary information and further compliance.
