IMPORTANT POINT
The conviction was set aside due to non-compliance with mandatory provisions of the NDPS Act, specifically Section 52A, undermining the prosecution's case.

JUDGMENT :

Birendra Kumar, J.

1. Appellant-Suresh Kumar has challenged his conviction by the judgment dated 13.4.2023 (on the date of judgment appellant Pappulal was absconding in the same case) for the offence under Sections 8/21 and 8/25 of NDPS Act in Sessions Case No.62/2014 (60/2010). Appellant Pappu Lal @ Dinesh Kumar has challenged his conviction for the offence under Section 8/21 of Narcotic Drugs and Psychotropic Substances Act, 1985 by the impugned judgment dated 11.10.2023 passed by learned Special Judge, NDPS Act Cases no. 2, Chittorgarh Camp Nimbahera, district Chittorgarh in Sessions Case No.62/2014 (60/2010).

The learned trial Judge has sentenced both the appellants with 10 years’ rigorous imprisonment plus fine of Rs.1 Lac and in default of payment of fine to further undergo 06 months’ rigorous imprisonment.

2. Prosecution case as disclosed in the FIR is that on 07.07.2009 at about 5.55 pm informant-Madanlal (PW-11) got information from Police Informer that two persons (the appellants) sitting on a motorcycle near Linkoda were about to cross from Choti Sadri side and Brown Sugar is kept on the right side of motorcycle (where battery is usually placed). The information was recorded in the general diary and intimation under section 42 (Exhb. P19) was sent to the higher authorities. The informant gave notice to Babulal (PW-13) and Gopal (PW-16) from the town, obtained their consent to be the independent witnesses of search and took them to the spot.

3. When the police reached Linkoda at about 6.15 pm, they found two persons sitting near a motorcycle bearing Reg.No. RJ-35-SA-6543. The police intercepted those two persons, they disclosed their names as Suresh Gujjar and Pappu Sharma (appellants herein). An attempt was made to open the battery panel but due to lack of tools it could not be opened. At about 7.25 pm, after reaching premises of police station, a mechanic opened the panel, and in a plastic bag 740 grams of suspected contraband (Brown Sugar) was recovered, from which three samples of 50 gm each were taken out and sealed separately alongwith the remaining contraband. For the incident aforesaid, FIR No.322/2009 (Exh. P4) for the offence under Section 8/21 of NDPS Act was registered with Police Station Badi Sadri, Chittorgarh.

4. The FSL report (Jaipur) dated 13.10.2009 (Exhibit 10) revealed that the sample contained 1.61% morphine and therefore it was 740 Grams of opium preparation.

5. During trial prosecution examined altogether 20 witnesses and several documents were exhibited; relevant whereof would be referred hereinafter.

6. Relying on the evidence of prosecution witnesses and the documents, the learned trial Judge has recorded the conviction, as above.

7. Learned counsel for the appellant contends that there is non-compliance of mandates of section 52A of NDPS Act. Witnesses of seizure PW-13 Babulal and PW-16 Gopal have not supported the prosecution case that search and seizure were made in their presence. Non-support of factum of search and seizure by the witnesses creates further doubt on the prosecution case.

8. Learned counsel further submits that initially the samples were sent to Neemuch opium factory for examination but it was informed through Exhibit 6 that their lab was incapable of testing the same, therefore it should be sent to Central Revenue Control Laboratory, New Delhi or Central Forensic laboratory Hyderabad to conduct the test. Even after that , the samples were sent to State Forensic Science Laboratory, Jaipur which creates further doubt in the prosecution case.

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

10. Learned counsel for the respondent contends that the learned trial Judge has taken note of requirements of Section 52A of the Narcotic Drugs and Psychotropic Substances Act,