IMPORTANT POINT
Non-compliance with Section 52A of the NDPS Act vitiates the prosecution case, requiring the presence of a Magistrate during the seizure process.

JUDGMENT :

1. The sole appellant – Ladu Lal Jat faced trial in Sessions Case No.12/2019 and by the impugned judgment dated 30.06.2022 was found guilty for offence under Section 8/15 of the NDPS Act and by order of the same date was awarded rigorous imprisonment of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, six months rigorous imprisonment was ordered.

2. The aforesaid trial arose out of FIR No.202/2018 registered with Bigod Police Station at the behest of PW-3 – Ram Gopal Choudhary, who was in-charge Station House Officer of Bigod Police Station. According to FIR, on 26.09.2018, PW-3 along with his police team was engaged in checking of the vehicles. At about 6:55 pm, a Bolero vehicle bearing Registration No.RJ-14-UA-9651 was intercepted and from that vehicle twelve, bags of Afeem (doda chura) was seized. Total weight of the seized contraband was 212 Kg. and 650 Grms. The appellant was driving the said vehicle and was arrested at the spot. Out of seized contraband, 300 Grms. were taken out from each of the bags and two samples were sent for forensic examination and the rest were sealed as controlled samples. The remaining contraband were sealed in different bags at the place of recovery itself. Since the appellant had no license for carrying the contraband, the appellant was booked. After investigation, PW-1 – Jaswant Singh submitted charge-sheet against the appellant.

3. During trial, the prosecution examined altogether ten witnesses and several documents were marked as exhibits, which are fully referred, in the trial court’s judgment, in detail. No defense evidence was produced.

4. Learned counsel for the appellant contends that there is apparent non-compliance of the mandates of Section 52A of the NPDS Act inasmuch as services of the Magistrate was not taken to complete the exercise of seizure and taking out the samples. Similarly, photographs of seizure and taking out of samples were also not done in contravention of provisions of Section 52A of the NDPS Act.

Learned counsel contends that another doubtful circumstance is that one of the witnesses of seizure PW-8 – Arif Khalifa, did not support the prosecution case and another witness Dinesh, was not produced before the court by the prosecution, which further creates doubt on the trustworthiness of the prosecution case.

Learned counsel for the appellant contends that the seized materials were sent for FSL on 01.10.2018. On 04.10.2018, the seized materials were returned back as the seal was tampered. Thereafter, again it was sent on 08.10.2018 to the Forensic Science Laboratory. The factum of tampered seal diminishes the trustworthiness and acceptability of the prosecution case as it is.

5. Learned counsel for the respondent contends that the appellant has not shown any prejudice due to aforesaid non-compliance and the prosecution case otherwise stands proved by oral and documentary evidences produced in the case, which are referred by the trial court.

6. It is evident from the FIR at Ex.P-1 as well as statement of PW-3 - the informant of the case that mandates of Section 52A of the NDPS Act was not complied with. The requirement of compliance of the provisions of Section 52A of the NDPS Act was considered by the Hon’ble Supreme Court on several occasions. The said provisions 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 of