IMPORTANT POINT
Mandatory compliance with Section 52A of the NDPS Act is essential for the validity of evidence in narcotics cases, particularly regarding the involvement of a Magistrate in the seizure process.

JUDGMENT :

Birendra Kumar, J.

1. The sole appellant Triloka Ram faced trial in Sessions Case No.36/2020 for offence under Section 8/21 NDPS Act and was convicted by the impugned judgment dated 07.11.2022 and sentenced as follows:-

“15 years rigorous imprisonment and fine of Rs.1,00,000/- and in default of payment of fine further to undergo 3 years simple imprisonment.”

The aforesaid conviction and sentence is under challenge in this appeal.

2. The prosecution case is that District Special Team of the police was constituted by the Commissionerate level Police Officer to looking after law and order as well as menace of crime within the territorial jurisdiction.

3. On 26.01.2020, the said team was patrolling near PTM circle Mr. Kanta Singh (PW-1) Inspector of Police was leading the team. Near PTM circle, they noticed a man carrying a carton. At about 2:30 AM, the man was intercepted. He was the appellant and from the carton, 750 tablets of Tramadol Hydrochloride and 2550 tablets of Alprazolam were seized. The appellant had no license to keep and sell those drugs. Hence, the appellant was taken into custody. Samples from the drugs, for forensic examination, were also taken out at the spot and samples as well as the remaining portion were sealed in two different packets in presence of PW-2 Girdawar Singh and PW-3 Papu Ram, the local witnesses. On forensic examination, the drugs were found as tramadol and alprazolam vide a copy of the report as exhibited P/25.

4. Heard the parties and perused the oral and documentary evidences brought on the record.

5. Learned counsel for the appellant contends that there is non-compliance of mandate of law under Section 52 A of the NDPS Act, as neither the service of the Magistrate was ensured nor photographs were taken while effecting the search, seizure and sampling of the so called drugs.

Learned counsel next contends that the initiation of the prosecution is itself fishy as two FIRs of the same incident were registered. There is evidence that the written report prepared at the spot was destroyed by the informant at the police station and another report was drafted on the basis whereof FIR No.09/2020 was registered with Mohangarh Police Station against the appellant vide Ex.23.

Learned counsel next contends that seizure witnesses have not supported the fact that seizure was made in their presence. Learned counsel contends that he is conscious that only for the seizure witnesses getting hostile, the prosecution case cannot be disbelieved, however, in the case on hand PW-12 constable Mukesh Bira, who was member of the Police Team has stated that first the carton was opened and thereafter the seizure witnesses were called upon by Maya Ram. Constable Maya Ram has not been examined in this case to support this fact. The cumulative effect of the aforesaid discrepancy creates doubts on the prosecution case itself.

6. Learned counsel for the respondent contends that 19 prosecution witnesses were examined in this case. Most of them are police officials and were present at the time of search and seizure. No motive against the police is alleged for false implication. Hence, only for the reason that the two prosecution witnesses have turned hostile, the prosecution case cannot be disbelieved.

Learned counsel next contends that since search and seizures were made from two different persons on the same date and about the same time, separate FIRs were lodged against the two. If by inadvertence, same number 7/2020 was recorded in both the FIRs, it was necessary to be corrected and was accordingly corrected under order of the superior police officer.

Learned counsel next contends that search of the appellant was made in presence of the independent witnesses and other police officials. Though availability of the Magistrate was not there, but otherwise sanctity to the exercise is established by trustworthy evidence of other prosecution witnesses and documents brought on the record in the nature of written consent of the appell