IMPORTANT POINTS
(1) Section 52A of NDPS Act is a mandatory rule of evidence – When there is non-compliance of Section 52A of NDPS Act, where a certification of a Magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence.
(2) Provisions of NDPS Act are both stringent and rigorous and burden heavily lies on prosecution – Non-production of a physical evidence would lead to a negative inference within meaning of Section 114(g) of Evidence Act, 1872.

JUDGMENT

M.M. SUNDRESH, J.

The appellant stood charged and convicted under Section 8(b) read with Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”). The Additional Sessions Judge, Special Court NDPS, Jaora, District Ratlam, Madhya Pradesh, convicted the appellant and sentenced him to undergo rigorous imprisonment for 10 years. It was accordingly confirmed by the High Court of Madhya Pradesh. Aggrieved, the present appeal is filed.

THE CASE OF THE PROSECUTION IN A NUTSHELL:

2. The Assistant Sub Inspector, H.S. Sengar, posted at Police Station Kalukheda received an information through a telephonic message on 20.05.2010 that the appellant and co-accused Mathuralal against whom the trial stood abated due to his death were in the process of supplying narcotic substance in the nature of poppy straw. Upon registering the information in the Daily Diary and without wasting time on the procedural compliance, the police force stopped a tractor in which bags containing the contraband were seized. The accused were told about the search upon due compliance of Section 50 of the NDPS Act. A panchnama was written at the place of occurrence. Samples were taken while the accused were informed about the reason for the arrest. A First Information Report was registered under Section 8(b) read with Section 15(c), Sections 25 and 29 of the NDPS Act in Crime No. 53/10. A final report was filed before the jurisdictional Court on 13.09.2010. Before the trial court 16 prosecution witnesses have been shown in the list of witnesses to have been examined by the prosecution while marking 48 exhibits.

3. Of these witnesses, the public witnesses, namely, P.W.2, P.W.3, P.W.4 and P.W.6 turned hostile. Among them P.W.2 & P.W.6 were panch witnesses. These two witnesses signed majority of the exhibits. P.W.5 though not declared hostile has deposed in clear term that the narcotic substance was in existence at the police station even before the alleged occurrence. This part of the testimony has not been questioned by the prosecution. Both the Courts placed reliance upon the FSL Report along with the police witnesses in rendering conviction. To be noted, two of the witnesses bearing testimony to the arrest memo have not been examined by the prosecution for the reasons best known to it.

SCOPE OF SECTION 52A OF THE NDPS ACT, 1985:

Section 52A of the NDPS Act

“52A. Disposal of seized narcotic drugs and psychotropic substances.— (1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, 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, 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 sub-section (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 sub-section (1) may consider relevant to the identity of the narco