IMPORTANT POINT
Mandatory compliance with Section 52A of the NDPS Act is essential for the validity of evidence in narcotics cases.

JUDGMENT :

Birendra Kumar, J.

1. The sole appellant Hariram Bishnoi has challenged his conviction by judgment dated 30.7.2024 passed in Sessions Case No. 8/2023 arising out of Narcotics Control Bureau Case No. 269/2014. The learned trial Judge has found the appellant guilty for offence under Section 8(c) read with Section 18 of NDPS Act and has awarded 6 years rigorous imprisonment alongwith fine of Rs.50,000/-. In default of payment of fine 1 month rigorous imprisonment has been ordered.

2. The prosecution case is that PW.4 Hardevaram got reliable information through informer that a person is carrying opium and he might be apprehended near Banad Tiraha. PW.4 reported the matter to the Senior Officer PW.1 Bishanlal Nayak. Bishanlal Lal Nayak constituted a team headed by PW.4. On 9.2.2012 at about 15:00 hours, the team reached near Banad Tiraha and noticed that a man carrying a handbag was talking with the truck driver near Maharaja Hotel, on suspicion the man was intercepted and he disclosed his name as the appellant. From possession of the appellant 2 kg of opium was seized. There was no explanation with the appellant for carrying the opium, therefore, appellant was taken into custody. Two samples were taken out from the seized contraband at the Narcotics Control Bureau office because at the spot the crowd had assembled, which was creating hindrance. After investigation, charge sheet was submitted.

3. Perused the oral and documentary evidences on the record.

4. Learned counsel for the appellant submits that there is non compliance of mandate of law under Section 52-A of the NDPS Act as the seizure and taking out the samples were not done in presence of the Magistrate as required by the aforesaid law nor the photography of the exercise was done. Learned counsel next contends that the prosecution examined two seizure witnesses PW.2 Narayan Lal and PW.3 Shrawan Kumar. PW.2 deposed that nothing was seized in his presence and he was declared hostile by the prosecution. However, PW.3 is not a hostile witness and in the cross-examination stated that no contraband was recovered in his presence nor he could identify the appellant. The witness further disclosed that he is a cleaner in the office of Narcotics Control Bureau, therefore, the authorities of Narcotics Control Bureau got his signature in the office itself and the signature was obtained without reading out the document. Learned counsel contends that the prosecution has relied on the testimony of PW.3 Shrawan Kumar, therefore, cannot take any contrary stand to the aforesaid statement of PW.3 Shrawan Kumar. Learned counsel next contends that none of the prosecution witnesses have stated that the seized narcotics was produced before the Court as material evidence.

5. Learned counsel for the respondent contends that there is maximum compliance of the requirement of law including compliance of Section 42 of the NDPS Act. The appellant has not alleged any bias on the part of Narcotics Control Bureau authorities. Even compliance of Section 52-A was made, though on 27.3.2015, much after sending the samples to FSL examination which would be evident from the deposition of the Magistrate PW.9 Shalini Maharshi.

6. PW.1 Bishanlal Nayak is Regional Director of Narcotic Control Bureau as soon as he got information from PW.4 he immediately constituted a team headed by PW.4. PW.2 and PW.3 are witnesses of the seizure already discussed above. PW.4 Hardeva Ram is informant of the case and the Officer who had made seizure. From his deposition, it is specific that at the time of seizure samples were taken out, no photography of the aforesaid exercise was done nor presence of the Magistrate was ensured. PW.5 Yogesh Kumar Sharma was a member of the team. In the cross-examination, has admitted that he did not ask the informant to take services of the Magistrate. PW.6 Rajesh Solanki had taken the samples for FSL Examination. On 10.2.2012 PW.7 Devanand Jabti was a team member, he has supported the search and