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Himachal Pradesh High Court · body

2017 DIGILAW 695 (HP)

Sohan Lal Alias Bhau v. State Of Himachal Pradesh

2017-06-20

TARLOK SINGH CHAUHAN

body2017
JUDGMENT Tarlok Singh Chauhan, J. (Oral)—Since common question of law and facts arise for consideration, therefore, both these petitions were taken up together for consideration and are being disposed of by a common judgment. 2. The petitioner(s) have sought quashing of charge framed by the learned Special Judge-III, Mandi, on 18.04.2017 in ND&PS Case No.4 of 2017, titled ''State v. Sohan Lal and others . 3. The brief facts of the prosecution case are that on 20.10.2016 upon receipt of a secret information, a policy party was constituted to raid the house of the petitioner as it was learnt that the petitioners were dealing with Narcotic Drugs and Psychotropic Substances. Accordingly, the police party alongwith Pradhan and members of the concerned Gram Panchayat raided the house of the petitioner Sohan Lal and are alleged to have recovered 1kg 7 grams of ''Charas'', apart from 52 bottles of liquor. It was on the basis of the disclosure statement made by petitioner Sohan Lal that petitioner Joginder Pal in Cr.MMO No.202 of 2017 was arrested by the police on 21.10.2016 under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (for short the "Act") and both the petitioner(s) were produced before the learned Magistrate on 21.10.2016 and remanded to police custody for five days. Immediately on arrest of the petitioner(s), the prosecution moved an application before the learned Magistrate under Section 52(A) (3) of the Act seeking certification of the correctness of the inventory of seized narcotic drugs i.e. ''Charas'' opium and poppy straw and for this purpose produced the bulk of the drugs so seized. However, on weighment, it was found that ''Charas'' was not 1 Kg 7 grams, as claimed by the prosecution, but was only 1 kg. 4. Thereafter, the investigation was conducted and challan was presented before the Court for the offences punishable under Sections 15, 18 and 20 of the Act and Section 39 of the H.P. Excise Act. 5. After supplying the copies of challan to the petitioner(s), the matter was ordered to be listed on 18.04.2017 for framing of charge. However, the learned Court below instead of framing charge against the petitioner(s) for having in conscious and exclusive possession of 1kg of ''Charas'' as certified by the learned Magistrate framed a charge with respect to 1kg 7 grams in accordance with the case as set up by the prosecution. However, the learned Court below instead of framing charge against the petitioner(s) for having in conscious and exclusive possession of 1kg of ''Charas'' as certified by the learned Magistrate framed a charge with respect to 1kg 7 grams in accordance with the case as set up by the prosecution. It is this order which has been assailed by the petitioner(s) on the ground that it is certification of the Court under Section 52(A)(3) of the Act that constitutes the primary evidence and not as alleged by the prosecution in the challan. I have heard the learned counsel for the parties and gone through the material available on record. 6. Section 52-A as amended by Act 16 of 2014 was the subject matter of interpretation of the Hon''ble Supreme Court in a recent judgment in case titled Union of India v. Mohan Lal and another (2016) 3 SCC 379 wherein it was observed as under :- "14. Section 52-A as amended by Act 16 of 2014, deals with disposal of seized drugs and psychotropic substances. It reads: " 52-A : 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 substances, 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 substances 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 drug or psychotropic substance 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 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 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 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) When 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 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 sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence." 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. 16. Sub-section (3) of Section 52- A requires that the Magistrate shall as soon as may be allow the application. 16. 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. 17. 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." 7. It would be evidently clear from the aforesaid exposition of law that the samples drawn and certified by the learned Magistrate in compliance with sub-sections (2) and (3) of Section 52-A are primary evidence and, therefore, had to be taken as true and any contradiction in such certification with the final report prepared by the prosecution, the quantity mentioned in the final report obviously had to give way to the certification so made by the Court under Section 52-A of the Act ibid. 8. In view of the aforesaid discussion, the charge framed by the learned Special Judge on 18.04.2017 cannot withstand judicial scrutiny insofar as it relates to the quantity of ''Charas'' and to that extent it is quashed and set aside with the direction to re-frame the charge strictly in accordance with the certification given by the learned Magistrate under Section 52-A of the Act. 9. 9. The petitions are disposed of in the aforesaid terms alongwith all pending applications. 10. The parties to appear before the learned Special Judge on 03.07.2017. Registry is directed to place a copy of this judgment on the file of Cr.MMO No.202 of 2017.