IMPORTANT POINT
The court ruled that non-compliance with Section 52A of the NDPS Act invalidates the conviction, emphasizing the necessity of a Magistrate's presence during evidence collection.

JUDGMENT :

1. The appellants and one Govind Ram (since acquitted) faced trial in Sessions Case No. 02/2019 (06/2017). On 09.03.2022 judgment of conviction was passed against appellants Raja Ram, Karu Das and Dashrath Singh. Appellants Raja Ram and Karu Das were convicted for offences under sections 8/18 (b) & 8/29 NDPS Act and appellants Dashrath Singh was convicted for offences under sections 8/25 & 8/29 NDPS Act. The learned trial Judge has sentenced the appellants with 15 years’ rigorous imprisonment plus fine of Rs. 2 Lacs and in default of payment of fine, 1 year rigorous imprisonment has been ordered.

2. In brief, the prosecution case is that Sudhir Yadav (PW-4), Superintendent of Police and Banwarilal Meena (PW-2), Sub-Inspector received secret information that on 21.07.2016 between 6:00 a.m. and 10:00 a.m., appellant no. 3 was going to send appellant Nos. 1 and 2 to Ajmer via Chittorgarh route in his Maruti Swift Dzire car, bearing registration No. RJ 09 CA 9704, to deliver about 10 - 20 kg opium (Afeem) to a smuggler. Thereafter, a preventive team was formed on 21.7.2016 itself. At around 8.30 am, the preventive team got stationed in front of a filling station at Chittorgarh– Bhilwara Road, Chittorgarh. There, Banwarilal Meena (PW-2) asked Ratanlal Bairwa (PW-1) and Rakesh Garg (not produced) to become independent witnesses of the incident. At around 8.35 am, a white Swift Dzire Car was seen coming from Nimbahera, having referred registration number. When the police personnel intercepted the car, 3 yellow bags of 5kg each, containing suspected contraband opium (afeem) were found. The car was allegedly of appellant no. 3, driver of the said vehicle was appellant No. 2 and co-passenger was appellant no. 1 herein.

3. The total weight of the bags was 15 Kg. The police team took two mixed samples of 25 gm each from each of the seized bags and the rest were sealed separately. For the incident aforesaid, complaint case No. 1/2016 was registered at CBN, Chittorgarh.

4. During trial prosecution examined altogether 6 witnesses and several documents were exhibited; relevant whereof would be referred hereinafter. Relying on the evidence of the prosecution witnesses and documents, the learned trial judge has recorded conviction.

5. The defence has examined two witnesses. DW-1 Badrilal has deposed that Appellant No. 3 had already sold his car to Appellant No. 2. DW-2 Unkarlal has also supported the aforesaid fact.

6. Learned counsel for the appellants 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 the entire exercise was made. This would be evident from the testimony of PW-2, 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.

7. Learned counsel for the appellants contends that seizure witness Ratanlal Bairwa (PW-1) has turned hostile and another independent witness Rakesh Garg was not produced, which adds to the doubt on the prosecution case.

8. 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.

9. Learned counsel for the respondent - NCB contends that the learned trial Judge has taken note of requirements of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 as well as the other requirements while passing the impugned judgment. No motive is alleged on the part of police for false implication of the appellants.

10. There is no dispute that the mandate of Section 52A of NDPS Act was not complied with at the appropriate stage in this case. On several occasions the requirement of compliance of the mandate of Section 52A