IMPORTANT POINT
The judgment establishes that non-compliance with Section 52A of the NDPS Act is a critical flaw that can invalidate a narcotics conviction.

ORDER :

(Birendra Kumar, J.) :

1. The sole appellant Surendra Kumar has challenged his conviction for the offence under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by the impugned judgment dated 10.07.2023 passed by the learned Special Judge, NDPS Act Cases, Hanumangarh in Sessions Case No. 21/2020 (CIS No. 21/2020). The learned trial Judge has sentenced the appellant with 10 years’ rigorous imprisonment plus fine of Rs.1 Lac and in default of payment of fine, 6 months’ rigorous imprisonment has been ordered. By the same judgment, co-accused Ashok Kumar was acquitted giving benefit of doubt.

2. In brief, the prosecution case is that on 13.1.2020 at about 10:39 am, PW-3 Bishan Sahay, SHO of Goluwala Police Station, Hanumangarh alongwith other constables was on patrolling duty. While patrolling, PW-3 Bishan Sahay saw a motor-cycle rider carrying a bag consisting of white powder on the fuel tank of the TVS motorcycle. On seeing the police, the rider turned his motorcycle in the opposite direction and started fleeing on his motorcycle bearing registration number RJ 31 SP 0531, however, he was caught by the police. The appellant was the rider on the motor-cycle.

3. From the said bag, Tramadol Hydrocholoride Prolonged – release Tablets IP TRICORE – SR were found. The total weight of the Tablets was 704 Grams. The police team took samples from the seized Tablets and the rest were sealed separately. For the incident aforesaid, FIR No.14/2020 (Exhibit P4) for offences under Sections 8, 22 and 29 NDPS Act was registered with Goluwala Police Station, District Hanumangarh.

4. During trial prosecution examined altogether 14 witnesses and several documents were exhibited; relevant whereof would be referred hereinafter.

5. The defence examined one witness, namely, DW-1 Kuldeep Singh. The defence version is that in fact a police personnel came on a motorcycle and made DW-1 Kuldeep Singh, who was working on a canal, to call on a phone number through his own mobile phone. It was in fact appellant’s phone number and as a result of being called, the appellant arrived near the canal track empty handed. Also, the police did not procure any independent witness at the site of search, instead planted a false case against the appellant by making one of the police personnel as a search witness. 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-3, therefore, there is non-compliance of the mandate of Section 52A of the 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. The exercise is not a mere formality, but to ensure and inspire confidence in the exercise of search and seizure by the police. Learned counsel for the appellant contends that the place of search was such that assistance of some passers-by could have been taken, as independent witnesses at the site of search, therefore, non-compliance of the requirements of law without mentioning as to who were the local inhabitants who were contacted and had refused to be a witness t