IMPORTANT POINT
Compliance with Section 52A of the NDPS Act is mandatory for the admissibility of evidence in drug-related cases, and failure to adhere to this provision can lead to the dismissal of the prosecution's case.

ORDER :

Birendra Kumar, J.

1. Heard the parties.

2. The sole appellant has challenged his conviction in Sessions Case No.46/2011, arising out of FIR No.212/2011 registered with Police Station Purani Aabadi, Bikaner for offences under Section 8/21 and 8/22 NDPS Act.

3. By the impugned judgment dated 29.11.2016, the learned trial judge has awarded ten years’ rigorous imprisonment along with fine of Rs.1,00,000/- for offence under Section 8/21 NDPS Act and in default of payment of fine to further undergo one year’s rigorous imprisonment. Five years’ rigorous imprisonment along with fine of Rs.50,000/- has been awarded for offence under Section 8/22 NDPS Act and in default of payment of fine to further undergo six months’ rigorous imprisonment.

4. Ms. Anita Gehlot, learned amicus curiae submits that there is non-compliance of the mandate of Section 52A of the NDPS Act inasmuch as neither service of the Magistrate was ensured before taking out samples from the seized contraband at the spot nor photographs were taken to ensure credibility on the part of search and seizure.

Learned counsel next contends that PW-1 Rambahadur and PW-3 Vikram Singh, who are witnesses of the search and seizure have turned hostile and they have not supported the search and seizure. Moreover, the seized contraband was not produced during trial before the court. Conjoint effect of the aforesaid lapses would be rejection of the trustworthiness of the prosecution case.

5. Learned counsel for the respondent - State contends that during trial, prosecution has examined altogether 13 witnesses and these witnesses have consistently supported each and every minute details of the exercise including sending the seized substance for forensic examination and obtaining the report. Learned counsel contends that the appellant has got criminal antecedent. He submits that there is no motive on the part of the police to falsely implicate the appellant.

6. PW-1 Rambahadur has stated that nothing was recovered from the appellant in his presence. PW-2 Rajpal was in-charge of the Police Malkhana on 25.07.2011. He has supported the fact that seized articles were kept in Malkhana. Malkhana register was also produced for perusal of the court. PW-3 Vikram Singh has deposed that nothing was recovered from the possession of the appellant before him. PW-4 Sukha Singh was a constable and he deposed that he had taken out the samples for FSL examination on 26.07.2011. PW-5 Narayan Singh deposed that he had inspected the place of recovery at the instance of Vikram Singh. As noted above, Vikram Singh has not supported this fact. PW-6 Dharamveer son of Mohar Singh was jeep driver and constable at the time search was made by the police team and he has supported the prosecution case. PW-7 Dharamveer Singh son of Madho Singh is another constable of the police, who was also a member of the team, which made the search and seizure. PW-8 Rakesh Kumar was also a member of the police team which made the search and recovery of the contraband. This witness deposed that the samples were taken out at the place of incident and separately sealed. The witnesses have admitted that the local inhabitants though available were not made witness to the search. PW-9 Kailash Dan was SHO of the police station concerned and was a member of the search team. He has also admitted that samples were taken out at the spot for forensic examination.

7. The record reveals that twice the seized materials were placed before the FSL for re-examination. There is no material to substantiate about the sanctity of the seized substance during movement from the FSL to police station and again back for re-examination. PW-10 Rampal was posted in the SP office and he had obtained permission of the concerned SP for forensic examination of the seized narcotics. PW-11 Inder Vyas had prepared forwarding letter for FSL examination. PW-12 Avdhesh Sandhu has sent the samples for FSL examination through Inder Vyas. PW-13 Roopram was Malkhana in-charge, w