IMPORTANT POINT
Non-compliance with Section 52A of the NDPS Act, which mandates the presence of a Magistrate during the sampling of seized narcotics, renders the prosecution's case invalid.

ORDER :

1. Heard the parties.

2. Both the appellants faced trial in Criminal Case No.200/2016 arising out of FIR No.03/2008 registered at Baytu Police Station for offence under Section 8/15 NDPS Act. Since appellant - Kewal Singh was absconding on the date of judgment, another appellant Dinesh @ Diniya @ Lala Ram was convicted by judgment dated 26.09.2019 and was awarded with ten years rigorous imprisonment and fine of Rs.1,00,000/- in default of payment of fine, one year simple imprisonment was ordered. Later on Kewal Singh was also apprehended and he was convicted by the impugned judgment dated 19.01.2024 and same sentence was awarded against him as well.

2. The prosecution case as disclosed in the statement of PW-10 Manish Charan is that on 15.01.2008, he was posted as Officer In-Charge of Baytu Police Station. He along with police party had intercepted a scorpio vehicle bearing Registration No. RJ-14-U-4559, of which Mr. Mool Singh was driver (Mool Singh is reported dead). Appellant Kewal Singh was sitting beside the driver and appellant Dinesh was seen fleeing from the place of interception of the vehicle. From the said vehicle, seven bags of doda post were recovered. They had no documents in the nature of license, hence, they were arrested. The total weight of doda post was 179 Kgs. PW-10 took out 500 Grms. from each of the bags and sent the same for FSL examination on 17.01.2008. After about seven years of the incident, compliance of Section 52A of NDPS Act was made; as order of the Magistrate for preparation of inventory etc. was obtained on 18.04.2017. Inventory was prepared in the presence of the Magistrate on 18.06.2017. Samples were taken out again on the same day.

3. Learned counsel for the appellants submits that the prosecution examined fifteen witnesses. Most of them were of the police team, which had conducted the raid and seizure and two of them were witnesses of the seizure.

Learned counsel contends that there is non-compliance of mandates of Section 52 A of the NDPS Act inasmuch as the bags allegedly containing doda post were opened without ensuring presence of the Magistrate and samples were taken out. No photographs were taken of the aforesaid exercise. The non-compliance creates doubts on the prosecution version. The witness of search PW-2 has stated that no samples were taken in his presence, whereas PW-10 says that samples were taken in presence of the witness. Even if PW-10 is believed, then also it would not make compliance of Section 52 A of the NDPS Act.

4. Learned counsel for the respondent – State contends that the prosecution witnesses have proved the factum of search and seizure. There is no material to suggest that the police had any motive to falsely implicate the appellants. Only for trivial lapse in compliance of law, which was later on complied, the prosecution case cannot be disbelieved.

5. There is no dispute that the mandate of Section 52A of NDPS Act was not complied with in this case. On several occasions the requirement of compliance of the mandate of Section 52A of NDPS Act was considered by Hon’ble Supreme Court in the past. Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads as follows:-

“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 speci