The Allahabad High Court while allowing an appeal observed that for noncompliance of mandatory provisions of Section 52A of the NDPS Act, the samples drawn from the bulk could not be treated as a valid piece of primary evidence in the trial, and for want of primary evidence the trial stands vitiated on the count also.
The Division Bench of Justice Ram Manohar Narayan Mishra passed this order while hearing a Criminal Appeal filed by Satyapal and Anr.
The Criminal Appeal has been preferred by the accused/convict Satyapal and Saifuddin Urf Sheruddin who are convicted and sentenced on 02.10.2018 for charge under Section 8/15-(C) NDPS Act, Case Police Station Kotwali, District Bareilly by Additional Sessions Judge, Bareilly and sentenced to 10 years rigorous imprisonment and Rs1,50,000/- fine with a default stipulation.
The facts of the case are that on 03.05.2004 S.S.I Jagdish Kumar Arora accompanied by SI Siddhartha Mishra and SI Subhash Tiwari two constables came to Chowki Crossing P.S Kotwali, Bareilly in connection with their official duty on 03.05.2004.
They inspected the Truck on a tip off received from a secret informer around 11:20 am. Prior to this they tried to enjoin public witnesses amongst passersby but they refused to stand as a witness. The truck driver disclosed his name as Saifuddin Urf Sheruddin and admitted that in that truck Poppy straw (doda) was loaded which belonged to businessmen Pappu and Satyapal, who were sitting on sacks kept in the truck. These two persons have collected Poppys Straw near Bhamaura area and were taking this contraband to Bahedi District Bareilly to sell. The two persons were found to be sitting on sacks in the truck were asked to get down, who disclosed their name as Pappu and Satyapal, and on interrogation they confessed that they had collected these Poppy’s Straw from Bhamaura, Awlan and Aliganj area and were taking it to sell in Bahedi, district Bareilly.
They are engaged in the trade of Poppy’s Straw. The three persons caught by police were offered an option by Investigating Officer, that if they wish, their search may be conducted in presence of competent Magistrate or Gazetted Officer, they can even be called on the spot, whereupon the concerned persons reposed their faith in arresting officer, and stated that there is no need to call any other officer, they repose their faith in police team present on the spot, and they may be searched out by them. Thereupon , the police team searched the plastic sacks loaded on the truck which were found to be having Poppys Straw on smell. The truck was seized and all three persons caught from the truck were taken into police custody. The truck alongwith sacks containing the contraband was sent for weighing at nearby Jaiswal Dharamkata Shahjahanpur, Bareilly alongwith truck driver Saifuddin Urf Sheruddin; they were accompanied by two Police Officers, for being weighed at said Dharamkata.
The total weight of contraband was found to be 43 quintal and 30 Kg and weight of truck and contraband was recorded in receipt dated 03.05.2004, which was annexed with recovery memo. A 5Kg sample was taken from the sack of recovered Poppy’s Straw (doda powder), and it was kept and sealed in a cloth, as the concerned persons could not produce any authority for having such a huge quantity of Poppy’s Straw with them.
Before commencement of prayer accused Pappu died and trial in respect of him was abated vide order dated 07.03.2014.
The Additional Session Judge Bareilly framed charges under Section 8/15(C) NDPS Act against the surviving accused Satyapal and Saifuddin Urf Sheruddin on 21.04.2007.
Counsel for the appellants submitted that they were falsely implicated in the case, they were enlarged on bail during trial by the orders of the Court. The entire action of search and seizure is wholly illegal.
He further submitted that the judgment of the trial court, whereby the appellants were convicted and sentenced, is vitiated by legal and factual errors committed by the trial court in appreciation of evidence on record. There is no cogent and plausible evidence on record, which is sufficient for recording conviction of the appellants.
Per contra, A.G.A for the State submitted that there is no infirmity or legal and factual error in the impugned judgment and order passed by the court below. The prosecution has successfully proved its case against the appellants during trial by legal evidence. The appellants were found to have transported 43 quintal and 30 Kg contraband i.e Opium Poppy with a truck driven by accused Saifuddin Urf Sheruddin, appellant Satyapal and deceased accused Pappu were found to be sitting on sacks contained Doda Poppy in said truck. It is neither possible nor natural on the part of the police officers who were performing their official duty to plant such a huge quantity of contraband against the appellants. The contraband could not be produced before the trial court as the same was disposed of under the provisions of Section 52-A of NDPS Act, which provides for disposal of seized Narcotic Drugs and Psychotropic Substances. The appeal is devoid of merit and is liable to be dismissed.
The Court observed that,
On the facts of the case, we find many irregularities which find no justification whatsoever. According to the prosecution version three accused persons were arrested from the truck loaded by contraband Poppy’s Straw (doda) on the date and time of the incident. Accused Saifuddin @ Sheruddin who was driver of the truck and other two accused persons were traders, who were staying on sacks loaded on the body of the truck containing contraband Poppy’s Straw. This is an admitted fact that sample was not taken from the bulk of Poppy’s Straw recovered from the joint possession of the accused persons on the spot and not before the Magistrate as provided under Section 52A of the NDPS Act.
A perusal of the aforesaid provisions reveals that any contraband/ narcotic substance seized and forwarded to the police or to the officer so mentioned under Section 53, of the Act, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
No evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate.
No evidence has also been brought on record in the case in hand that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate.
It is an admitted position on record that the samples from the seized substance were drawn by the police team in the presence of the gazetted officer, nor in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or the list of samples so drawn.
Even no inventory as envisaged under Section 52A of the Act has been prepared and only the weight of seized contraband namely doda (power) Poppy’s Straw is mentioned in the recovery memo.
“Accordingly, the Court is of the opinion that the failure of the police team which carried out the proceedings of interception of truck search and seizure failed to lead primary evidence in regard to seized contraband and samples drawn there from, due to non production of bulk of the seized contraband and non drawing of samples in presence of the Magistrate, and in view of foregoing discussion the conviction of the appellants deserves to be set-aside”, the Court further observed while allowing the appeal.
“The impugned judgment passed and sentence awarded by trial court convicting the appellants Satyapal and Saifuddin Urf Sheruddin and sentencing them to undergo 10 years rigorous imprisonment and Rs 1,50,000/- fine with a default stipulation is hereby set-aside.
Consequently, the appellants stand acquitted of the aforesaid charge, as they are held in jail custody, the court concerned will issue a release order in compliance of this judgment, and if they are not wanted in other cases, they shall be set at liberty forthwith.
The appellants will execute, a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, within one week of their release from jail, in compliance of provision of Section 437 (A) Cr.P.C to the effect that they would appear before the higher court, as and when such court issues notice in respect of any appeal or petition filed against the judgment of the Court, such bail bonds shall be enforced for six months”, the order reads.