IMPORTANT POINT
The court ruled that non-compliance with Section 52A of the NDPS Act invalidates the evidence, leading to the overturning of the conviction.

JUDGMENT :

(Birendra Kumar, J.)

1. Appellants Premchand and Trilokchand faced trial in Sessions Case No. 30/2020 passed by the learned Additional Sessions Judge, No. 1, Raisinghnagar, District Anoopgarh (Sri Ganganagar). On 07.02.2024, judgment of conviction was passed against appellant No.1 Premchand for offence under Section 8/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and against appellant No.2 Trilokchand for offence under Section 8/29 of the said Act. The learned trial Judge sentenced both the appellants with 14 years’ rigorous imprisonment plus fine of Rs.1,50,000 and in default of payment of fine, 3 years’ rigorous imprisonment has been ordered.

2. In brief, the prosecution case is that on 26.03.2020 at about 12:50 pm, PW-2 Nahar Singh, SHO of Sri Vijaynagar, District Ganga Nagar alongwith other constables was on patrolling duty in view of the Covid lock down. At around 7.30 pm, the police personnel reached Bilochia Village, where they saw a person exiting from a shop, carrying a white plastic bag. On seeing the police, the person started fleeing away, however, he was caught by the police. The person caught by the police was Premchand; appellant No. 1 herein. The appellant no.1 disclosed that he had purchased the same from appellant no.2, however, nothing was recovered from the person or place of appellant no.2.

3. From the said plastic bag, Tramadol Hydrochloride Tablets were found. The total weight of the tablets was 1Kg 100 Gms. The police team took samples from the seized Tablets and the rest were sealed separately. For the incident aforesaid, FIR No. 68/2020 (Exhibit P-5) for offences under Sections 8 & 22 NDPS Act was registered with police station Sri Vijaynagar, District Sri Ganga Nagar.

4. During trial prosecution examined altogether 16 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 appellants 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 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 FIR as well as 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 at all.

8. Learned counsel for the appellants 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 appellants 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 party to the search and seizure, namely, Pyarelal (PW-4) and Vedprakash (PW-11) were made witness to the search, which tells upon 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 appellants further submits that Appellant No.2 has been f