IMPORTANT POINT
The conviction was set aside due to non-compliance with mandatory procedures under the NDPS Act, specifically Section 52A regarding the presence of a Magistrate during sampling.

JUDGMENT :

Birendra Kumar, J.

1. The sole appellant Ram Lal has challenged his conviction for the offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 by the impugned judgment dated 16.10.2023 passed by the learned Special Judge, NDPS Cases, Pratapgarh in Sessions Case No. 10/2022. The learned trial Judge has sentenced the appellant with 20 years’ rigorous imprisonment plus fine of Rs. 2 Lacs and in default of payment of fine, 2 years’ rigorous imprisonment has been ordered.

2. In brief, the prosecution case is that on 10.07.2021 at about 08:44 pm, PW-6 Devi Lal, in-charge of Chotisadri Police Station, Pratapgarh alongwith other constables was on patrolling duty. At around 09.05 pm, the police personnel reached Jeevanpura Fanta road, where they saw a Tractor of Mahindra Company coming towards the same road, however, they noticed that the sky-blue trolley attached to the tractor was without any number plate. The police personnel also noticed that another person was also sitting next to the driver of the tractor. On seeing the police, the driver of the tractor started running towards the field, leaving the tractor in the middle of the road. The police personnel reached near the tractor and informed the co-passenger to remain seated and sent three police constables (PW-5 Maheshchand, Mahipal Singh and Sureshchandra) to search for the fleeing driver of the tractor, however, they were unable to find the driver due to darkness of the night. The appellant was the co-passenger of the tractor and on being asked about the driver of the tractor, appellant revealed his name as Devilal. On searching the said tractor trolley, 7 black plastic bags were found.

3. From the said plastic bags, half-crushed Opium Dodachura was found. The total weight of the contraband was 154 Kg 100 Gms. The police team took samples from each of the 7 seized bags and the rest were sealed separately. For the incident aforesaid, FIR No. 179/2021 (Exhibit P-26) for offences under Sections 8 & 15 NDPS Act was registered with police station Chotisadri Police Station, Pratapgarh.

4. During trial prosecution examined altogether 8 witnesses and several documents were exhibited; relevant whereof would be referred hereinafter.

5. The defence version is that in fact a false case was planted against the appellant and there has been complete violation of the mandates of sec. 52 A NDPS Act.

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 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 FIR as well as testimony of PW-6, 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.

8. 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. Learned counsel for the appellant contends that non-compliance of the requirements of law without ensuring presence of independent witnesses, makes the prosecution case doubtful. In absence of any independent witnesses, two police personnels, namely, Mahesh (PW-5) and Sureshchandra (not examined) were made witness to the search. Non-production of Sureshchandra, the witness of search a