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Himachal Pradesh High Court · body

2012 DIGILAW 312 (HP)

STATE OF HIMACHAL PRADESH v. HARI RAM

2012-05-29

DEEPAK GUPTA, V.K.AHUJA

body2012
JUDGMENT : DEEPAK GUPTA, J. 1. This appeal by the State is directed against the judgment dated 2.12.2002 passed by the learned Sessions Judge, Kullu, in Sessions trial No. 59-02 whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). Briefly stated the prosecution story is that on 31.1.2002 PW-9 Inspector Shiv Chaudhary alongwith PW-4 ASI Baldev, ASI Mathru Ram, HC Gangbir Singh, H.C. Ranjit Singh, PW-2 HHC Santosh Kumar and constable Sukh Dev were present near Kalakendra, Kullu for the purpose of traffic checking. At about 6.15 p.m. a bus of Harison Travels bearing registration No. HP-01/2043 came from Manali side. It was going to Delhi. The bus was stopped and on checking a person was found sitting on seat No. 18. When the police party searched him he looked perplexed. The said person was having a bag on his lap. The driver of the bus PW-5 and conductor PW-6 were associated as independent witnesses. On inquiry the person sitting at seat No. 18 disclosed his name to be Hari Ram, the accused. Thereafter, the bag of the accused was searched and inside this bag charas was found in a polythene packet inside a sky-blue coloured towel which on weighment was found to be two kilograms. After weighment two samples of 25 gram each were drawn and thereafter two samples and the remaining bulk charas were packed in three separate packets and sealed with seal bearing impression "A". Thereafter codal formalities were completed at the spot and the accused was arrested. Rukka Ext. PW-9/B was sent for registration of the case on the basis of which PW-8 Inspector Sanjay Kumar registered F.I.R. Ext. PW-8/A. On return to the police station PW-9 Inspector Shiv Chodhary produced the case property before PW-8 Sanjay Kumar who resealed the same and deposited the same with PW-3 MHC Bhagat Ram. On 3.2.2002 PW-3 sent one sample alongwith NCB form and documents to CTL Kandaghat through constable Sunder Lal. The chemical examiner vide his report Ext. PW-8/G opined that the sample was of charas. On this basis the accused was charged of having committed the aforesaid offence. The accused pleaded not guilty and claimed trial. 2. The learned trial Court held that the recovery was not proved and hence acquitted the accused. 3. The chemical examiner vide his report Ext. PW-8/G opined that the sample was of charas. On this basis the accused was charged of having committed the aforesaid offence. The accused pleaded not guilty and claimed trial. 2. The learned trial Court held that the recovery was not proved and hence acquitted the accused. 3. At the outset it may be stated that independent witnesses PW-5 and PW-6 did not support the prosecution version at all. They were declared hostile and cross-examined at length by the learned public prosecutor but nothing favourable to the prosecution could be extracted from them. They denied that any charas was recovered from the accused in their presence. No doubt they admitted their signatures on various documents, such as, consent memo, seizure memo, etc. but stated that they signed blank papers on the asking of the police. It is well settled that when independent witnesses turn hostile the prosecution can rely upon the official witnesses but the statements of the official witnesses should inspire confidence and in case there are contradictions in the statements of the prosecution witnesses the benefit has to be given to the accused. 4. According to PW-2 H.C. Santosh Kumar the accused had kept the bag on his lap and it was opened and found to contain charas and thereafter the accused alongwith bag was brought out of the bus and then the packets were inspected and found to contain charas. However, as per PW-4 ASI Baldev Singh the bag was kept between the lags and not on the lap. He stated that the accused was also brought outside the bus and then the polythene packet with the help of pin was torn and then the charas was found. PW-9 Inspector Shiv Chodhary gives a different version. According to him the search was conducted inside the bus and not outside. Thus there are material contradictions in the statements of the prosecution witnesses and therefore, when the independent witnesses have turned hostile it would not be safe or prudent to convict the accused on the basis of the testimony of the official witnesses. The learned trial Court was fully justified in acquitting the accused. 5. Thus there are material contradictions in the statements of the prosecution witnesses and therefore, when the independent witnesses have turned hostile it would not be safe or prudent to convict the accused on the basis of the testimony of the official witnesses. The learned trial Court was fully justified in acquitting the accused. 5. Before parting with the case, we are constrained to observe that in a large number of cases we are finding that some Magistrates are not fully conversant with the provisions of Section 52A of the Act and the manner in which certification by them has to be carried out. Section 52(A) of the Act reads as follows:-- [52A. Disposal of seized narcotic drugs and psychotropic substances.- (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substance, their vulnerability to theft substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official, Gazette, specify such narcotic drugs or psychotropic substance or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drugs or psychotropic substances has been seized and forwarded to the officer in charge of the nearest police station or to the officer empowered u/s 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or, psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any purpose of,-- (a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs substances 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 sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) 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 or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in request of such offence.] 6. This is a very important provision. Narcotic Drugs and Psychotropic Substances are vulnerable to misuse. When huge quantities of contraband are seized it is not possible to keep them safely in the Malkhanas and there may be a chance of pilferage or the narcotic substances falling in wrong hands. Therefore, the aforesaid Section was inserted in the NDPS Act. Under sub-section (2) of the aforesaid Section after the contraband has been produced before the empowered officer u/s 53 of the Act the said officer is required to prepare a inventory of the alleged Narcotic Drugs and Psychotropic Substances containing details relating to their description, quality, quantity, mode of packing, marks, numbers and other identifying particulars on the packing in which they are packed. The country of origin and other particulars as referred to in sub-section (1) may also be considered relevant to identify the narcotic drugs. Thereafter, the empowered officer can apply to any Magistrate u/s 52A for the purpose of; certifying the correctness of the inventory so prepared; or taking in the presence of the Magistrate, photographs of such drugs or substances and certifying such photographs as true and lastly allowing to draw representative sample of such drugs or substances in the presence of the Magistrate and certifying the correctness of any list of samples so drawn. The Magistrate is required to deal with this application forthwith. Under sub-section (4) the inventories, photographs and list of samples certified by the Magistrate are to be treated as primary evidence by the Court trying the offence. 7. Thus, it is apparent that an onerous and important duty is cast on the Magistrate. The Magistrate must ensure that the inventory prepared by the Officer is proper. We would like to reiterate that this job must be performed by the Magistrate himself and he cannot issue the certificate merely on the asking of the police officer. 7. Thus, it is apparent that an onerous and important duty is cast on the Magistrate. The Magistrate must ensure that the inventory prepared by the Officer is proper. We would like to reiterate that this job must be performed by the Magistrate himself and he cannot issue the certificate merely on the asking of the police officer. The Magistrate must personally and by himself verify the correctness of the inventory. Therefore, a duty is cast upon the Magistrate to verify the number of seals, the seal impression and he should tally the same with the sample seal impression. The Magistrate should not blindly copy what is stated in the application filed u/s 52A but it is his duty to ensure that he records the exact number of seals, the seal impression, the other special markings or identification marks on the parcels. He must ensure and write down whether the seals are broken or intact. He must also clearly observe whether the parcel appears to be tampered with or not. He must ensure that the Narcotic Drugs and Psychotropic Substances are weighed in his presence and thereafter he should certify the inventory. 8. In case samples have to be drawn the Magistrate must ensure that if there are more one packet then separate samples are drawn from each packet. Obviously, he need not draw samples from the parcels stated to be parcels of samples if drawn by the police but in case of a plurality of bulk parcels he must ensure that separate samples are drawn from each packet. The Magistrate should also ensure that before drawing the parcels he makes the substance homogenous. We are not going into the details as to how the substance has to be made homogenous but all Magistrates have received training whereby it has been explained to them how material is made homogenous so that a representative sample of the whole is drawn. This is normally done by cutting the bulk into a number of smaller units usually four, re-uniting them then cutting them again and then re-uniting them. The Magistrate then must ensure that the samples and the bulk drugs are again reseated in a proper manner. His zimini order and proceedings should reflect each and every action taken by the Magistrate. In case photographs are taken then the Magistrate must ensure that the same are taken in his presence. The Magistrate then must ensure that the samples and the bulk drugs are again reseated in a proper manner. His zimini order and proceedings should reflect each and every action taken by the Magistrate. In case photographs are taken then the Magistrate must ensure that the same are taken in his presence. We must again reiterate that this job has to be done by the Magistrate himself and cannot be delegated to any member of the Court staff. 9. Coming to the present case, we find that according to PW-8 Inspector Sanjay Kumar on 15.11.2001 PW-9 Inspector Shiv Ram produced the three samples sealed with seal 'A' alongwith NCB form in triplicate and sample seal. PW-8 resealed the aforesaid charas and sample. He also prepared the sample seal and thereafter handed over the case property to MHC Bhagat Ram. On 18.4.2002 he moved an application u/s 52A of the NDPS Act Ext. PW-3/B alongwith inventory Ext. PW-8/E. As per this inventory two cloth parcels, one having 1.950 kg and another having 25 grams charas sealed with three seal of seal impression 'A' and 'T' were being produced. The Magistrate recorded that the sealed packets were produced before him and the seal affixed were found to be intact but he did not state what were the seal impressions. In our view he should have clearly stated what were the seal impressions. According to the Magistrate after the seal packets were opened then another sample of 25 gram was taken and sealed with 8 seals of CJM. However, in the certificate issued by the same Magistrate it was stated that two-white cloth parcels in case F.I.R. No. 73/2002 sealed with 8 seals had been produced before him by H.C. Bhagat Ram and the seals were found intact. This certificate is not at all happily worded. As pointed out above according to the police and the inventory there were three seal each on the parcels. In the order of 29.4.2002 the Magistrate has not mentioned the number of seals or the seal impression. In the certificate the seal impression has not been mentioned but the number of seals do not tally with the inventory. It was the duty of the Magistrate to have clearly spelt out this fact. This shows that the certificate was issued in a lax manner and therefore, we cannot place any reliance on this certificate. In the certificate the seal impression has not been mentioned but the number of seals do not tally with the inventory. It was the duty of the Magistrate to have clearly spelt out this fact. This shows that the certificate was issued in a lax manner and therefore, we cannot place any reliance on this certificate. In view of the above discussion we find no merit in the appeal which is accordingly dismissed. The bail bonds are discharged.