IMPORTANT POINT
Mandatory compliance with Section 52A of the NDPS Act is essential for the validity of evidence in narcotics cases, and failure to adhere to this provision can lead to the dismissal of charges.

JUDGMENT :

Birendra Kumar, J.

1. The sole appellant Vicky @ Vikramjeet Singh has challenged his conviction for the offence under Section 8/22 of Narcotic Drugs and Psychotropic Substances Act, 1985 by the impugned judgment dated 12.3.2024 passed by learned Special Judge, NDPS Act Cases, Sri Ganganagar in Sessions Case No.03/2019 (CIS No.03/2019). The learned trial Judge has sentenced the appellant with 10 years’ rigorous imprisonment plus fine of Rs.1 Lac, in default of payment of fine to further undergo 02 years’ simple imprisonment has been ordered.

2. In brief, the prosecution case is that on 03.8.2018 at about 3:58 pm PW-5 Kuldeep Valia, SHO of Sadar Police Station, Sri Gangangar alongwith other Constables was on patrolling duty. The local CO Mr. Tulsi Das telephonically informed to PW-5 that some suspicious motor-cycle is coming on the road. The police intercepted motor-cycle bearing Regn. No.RJ-13SX-9078. The rider started fleeing dropping the motor-cycle on the road, however, he was caught by the police. The appellant was the rider on the motor-cycle.

3. From the bag hanging with the handle of motor-cycle Nrx Tramadol Hydrocholoride Tablets were found. The total weight of Tablets was 597 Grams and 140 Milligrams. The police team took samples from the seized Tablets and the rest was sealed separately. For the incident aforesaid, FIR No.307/2018 (Exhibit-10) for the offence under Section 8/22 of NDPS Act was registered with Sadar Police Station, Sri Gangangar.

4. During trial prosecution examined altogether 10 witnesses and several documents were exhibited; relevant whereof would be referred hereinafter.

5. The defence examined two witnesses, namely, DW-1 Boby Singh and DW-2 Sandeep Singh. Exhibit-D/1 is statement of Ramlal before the police. The defence version is that in fact the appellant was intercepted from his house and taken to Police station and a false case was planted. Relying on the evidence of prosecution witnesses and the documents, the learned trial Judge has recorded the conviction, as above.

6. Learned counsel for the appellant contends that it is an admitted case of the prosecution that the seized material was not sealed in presence of the Magistrate nor the samples were taken out in presence of the Magistrate nor photography of entire exercise was made. This would be evident from the FIR as well as testimony of PW-5, therefore, there is non-compliance of the mandate of Section 52A of NDPS Act. As a result whereof the whole trial stands vitiated and the learned trial Judge has not considered this infirmity properly.

7. Learned counsel for the appellant next contends that presence of independent witnesses was not ensured at the site of search. Sub-Section (4) of Section 100 Cr. P.C., provides that before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search. Learned counsel for the appellant contends that the place of search was a busy place having locals residing thereat, therefore, non-compliance of the requirements of law without mentioning as to who where the local inhabitants who were contacted and had refused to be a witness to the search, makes the prosecution case doubtful.

8. Learned counsel for the appellant contends that as per the mandate of Section 102(3) Cr. P.C., every Police Office is bound to forthwith report seizure to the Magistrate having jurisdiction. In the case on hand, no such reporting was made to the Magistrate.

9. Learned counsel for the appellant further submits that the motor-cycle seized by the police was not of the appellant nor Mr. Tulsi Das was examined to substantiate that the police had acted upon the information supplied by Mr. Tulsi Das.

10. Learned counsel for the respondent contends that the learned tri