Strict compliance with Section 52-A of the NDPS Act regarding inventory, certification, and representative sampling in the presence of a Magistrate is mandatory. Procedural lapses, such as undated documents and faulty sampling, create reasonable doubt, necessitating the acquittal of the accused.

ORDER :

Avanindra Kumar Singh, J.

This Criminal Appeal has been filed being aggrieved of the judgment dated 20.3.2023 passed by the learned Special Judge (NDPS Act) District Rewa in SC No. NDPS/20/2019 (State of M.P. Through Police Station Chorhata, District Rewa v. Veer Singh and others) in Crime No. 46/2019, convicting the appellants/accused as below:

2. At the time of final arguments learned counsel for appellants Shri Surendra Verma submitted that the appeal has been filed on the grounds that the trial Court has erred in law as well as on facts while convicting the appellants for the offence punishable under the provisions of N.D.P.S Act as aforesaid. The trial Court has failed to consider the fact that the appellants are innocent and they have been falsely implicated in the offcence. Learned trial Court has also failed to appreciate that appellant No. 1 (Veer Singh) did not have information regarding contents of the packets which were to be sent to the place of Ramlal Jaiswal. Learned trial Court has failed to appreciate testimony of Anil Kumar Vishwakarma (D.W.-1) who has categorically stated that the appellant was having tea at Dhaba, when some police officials came. It is pertinent to mention here that aforesaid witness was running the tea stall and his testimony should have been considered by the learned trial Court. The learned trial Court has failed to appreciate that in the present case there is grave violation of Section 50 of NDPS Act, compliance of which is necessary. In this regard it is pertinent to mention here that consent memorandum (Ex. P-7) which has been prepared in the present case is joint and the same is not sufficient to fulfil requirements provided under Section 50 of NDPS Act as it is a joint Panchnama Even the report of F.S.L was sought and given on the basis of joint recovery, whereas only appellants were convicted, seizure was disbelieved for the other co-accused Manoj. learned trial Court has failed to appreciate that in the present case, there is grave violation of Section 57 of NDPS Act, compliance of which is necessary. The trial court has failed to consider the fact that there are grave infirmities in the testimonies of the prosecution witnesses. The prosecution has not been able to prove its case beyond reasonable doubt as to arrived at the conclusion that the appellants are liable under the alleged offences and that learned trial Court has failed to appreciate the established principle of criminal law that benefit of doubt in a case should always be given to the accused.

3. Investigating Officer Animesh Dwivedi (PW-8) admitted that he was given nd th case for investigation on 22 January 2019, he kept the file with him till 27 January, 2019 for which no reasons were assigned. Prosecution Witnesses P.W.-5 Santosh Shukla and P.W-6 Santosh Kushwaha have not supported the prosecution story and P.W-5 Santosh Shukla has deposed that he had signed plain papers. There is no evidence of conscious possession. Before proving conscious possession, presumption under Section 35 of NDPS Act cannot be attracted. Contraband articles were made homogeneous (समरस) contrary to law. There is total non-compliance of Section 52-A of NDPS Act, inasmuch as; (i) Samples are made twice; (ii) Sample made before the Magistrate was not sent to the F.S.L for testing (iii) It is admitted by the I.O Animesh Dwivedi (PW-8) that Karyvahi Rojnamcha Sanha of Section 52-A of NDPS Act was not made part of the challan. It is also admitted by him that necessary particulars were not recorded. Photographs of exercise under Section 52 – A of NDPS Act was not made part of th the challan conducted after lapse of 5 months on 27 June, 2019; (v) It is also an admitted fact that neither the full contraband article was produced before the Court nor the same has been produced before the Magistrate. (vi) There is no photograph or videography recorded of the exercise conducted under Section 52-A of NDPS Act; and (vii) the Magistrate had conducted