High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Appeal No.499 of 2009.

Judgment reserved on :19.06.2019.

Date of decision: 26

th

June, 2019.

State of Himachal Pradesh …..Appellant.

Versus

Rakesh Kumar …..Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

Whether approved for reporting?

1

Yes

For the appellant : Mr. Vinod Thakur and Mr.

Sudhir Bhatnagar, Additional

Advocate Generals with Mr.

Bhupinder Thakur and Ms.

Svaneel Jaswal, Deputy

Advocate Generals.

For the Respondent : Mr. N.S.Chandel, Senior

Advocate with Ms. Prem Lata

Negi, Advocate.

Tarlok Singh Chauhan, Judge

Aggrieved by the acquittal of the respondent for an

offence punishable under Section 18 of the Narcotic Drugs and

Psychotropic Substances Act (for short ‘ND&PS Act’), the State

has filed the instant appeal.

1

Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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2. Briefly stated the case of the prosecution is that on

16.03.1998, a police party headed by the Deputy Superintendent

of Police, Shri Prem Thakur, was present at Village Bhadroa and

at about 3.00 p.m., it received a secret information that ‘Sharma

Traders’ shop at Damtal deals in contraband. Such information

was reduced into writing and then passed on to the

Superintendent of Police, Kangra. The police party thereafter

proceeded to Damtal and also associated two witnesses namely

Karnail Singh and Sandip Singh. The shutters of the shop had

been pulled down and when opened it was found that there were

two persons inside the shop, who disclosed their names as

Subhash and Rakesh. Both the persons were apprised of the

information received by the police party and also gave reasons

for search and issued notice to this effect to both these persons

and they opted to be searched by the police party. Their

personal search was conducted and premises in question was

also searched, which led to the recovery of a polythene bag

containing opium, which on weighment was found to be 7kg 100

grams. Two samples of 25 grams each were taken and sealed

separately with seal ‘M’, whereas, remaining opium was also put

in six polythene bags which were also sealed and put in one

parcel of cloth which too was sealed. The specimen of the seal

impression was taken separately vide Ex. PR and seal after use

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was handed over to Karnail Singh. The rukka was then sent to

the Police Station for registration of the case pursuant to which

an FIR in question came to be registered. On completion of the

investigation, the respondent along with Subhash Chand was

made to face trial. Since Subhash Chand did not appear,

therefore, he was declared as proclaimed offender vide order

dated 29.11.2000.

3. After recording evidence and evaluating the same,

the learned Special Judge acquitted the respondent mainly on

the ground that the prosecution has not been able to establish

the guilt of the respondent and since the complainant and the

person investigating the case was the same person, the same

has resulted in miscarriage of justice.

4. It is vehemently contended by the learned Additional

Advocate General that the learned Special Judge erred in

acquitting the respondent without taking into consideration that

the officials witnesses examined by the prosecution were

reliable. It is further contended that the learned Court below

remained completely oblivious to the quantity of the contraband

that had been recovered, which by sheer volume, size and

weight could not have been planted.

5. On the other hand, Shri N.S.Chandel, learned Senior

Advocate assisted by Ms. Prem Lata, Advocate, for the

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respondent would contend that since the prosecution has

miserably failed to prove its case beyond reasonable doubt,

therefore, no fault can be found with the judgment of acquittal

passed by the learned Special Judge.

We have heard the learned counsel for the parties

and have also gone through the records of the case.

6. It is the case of the prosecution that the contraband

was recovered from the exclusive and conscious possession of

the respondent in the presence of two independent witnesses

namely Karnail Singh and Sandip Singh. It is not in dispute that

the independent witnesses PW-1 Karnail Singh and PW-2 Sandip

Singh did not support the case of the prosecution and rather

claimed that nothing was recovered from the respondent in their

presence.

7. Even PW-4 Satnam Singh whose shop is adjacent to

the shop in question also did not support the case of the

prosecution and rather stated that he had not seen the

respondent in the shop at the time when the alleged contraband

was recovered.

8. PW-5 Raj Kumar, who is an independent witness and

President of ‘Damtal Veopar Mandal’ also did not support the

case of the prosecution and was declared hostile.

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9. As regards the official witnesses, even though they

tried to prove the case of the prosecution, however, when their

statements are read with other material that has come on

record, then the case of the prosecution becomes doubtful

because indisputably the premises belonged to respondent

Rakesh Kumar and admittedly did not have any lock. The

recovery has been effected from one Rakesh Kant and not

Rakesh Kumar and there is nothing on record to show that

Rakesh Kant and Rakesh Kumar are the one and the same

person.

10. That apart, there is nothing on record to even

remotely indicate where and whose custody the samples that

were separately drawn and sent to FSL, Kandaghat had been

kept with effect from 16.03.1998 to 22.03.1998 and thereafter

from 22.03.1998 to 30.03.1998 and could therefore conveniently

be tampered with.

11. What is more surprising is that the NCB forms had

not been filled up at the time when the search of the premises

was carried out and the contraband as is alleged to have been

recovered, which in itself casts a serious doubt on the

prosecution case, more particularly, when there is no reason

forthcoming as to why the NCB forms were not filled up.

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12. A detailed procedure for drawal, storage, testing and

disposal of samples from seized drugs have been issued vide

Standing Orders No. 1/88 and the same was thereafter followed

by Standing Orders No. 1/89, dated 13

th

June, 1989. The relevant

portion whereof reads as under:-

2.1 All drugs shall be properly classified, carefully,

weighed and samples on the spot of seizure.

2.2 All the packages/containers shall be serially

numbered and kept in lots for sampling. Samples from

the narcotic drugs and psychotropic substances seized,

shall be drawn on the spot of recovery, in duplicate, in

the presence of search witnesses (Panchas) and the

person from whose possession the drug is recovered, and

a mention to this effect should invariably be made in the

panchnama drawn on the spot.

2.3 The quantity to be drawn in each sample for chemical

test shall not be less than 5 grams in respect of all

narcotic drugs and psychotropic substances save in the

cases of opium, ganja and charas (hashish) where a

quantity of 24 grams in each case is required for

chemical test. The same quantities shall be taken for

duplicate sample also. The seized drugs in the

packages/containers shall be well mixed to make it

homogeneous and representative before the sample (in

Duplicate) is drawn.

2.4 In the case of seizure of a single package/container,

one sample in duplicate shall be drawn. Normally, it is

advisable to draw one sample (in duplicate) from each

package/container in case of seizure of more than one

package/container.

2.5 However, when the packages/containers seized

together are of identical size and weight, bearing

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identical markings and the contents of each package

given identical results on colour test by the drug

identification kit, conclusively indicated that the

packages are identical in all respects the

packages/containers except in the case of ganja and

hashish (charas), where it may be bunched in lots of 40.

Such packages/containers, one sample (in duplicate) may

be drawn.

2.6 Whereafter making such lots, in the case of hashish

and ganja, less than 20 packages/containers remain, and

in the case of other drugs, less than 5

packages/containers remain, no bunching would be

necessary and no samples need be drawn.

2.7 If such remainder is 5 or more in the case of other

drugs and substances and 20 or more in the case of

ganja and hashish, one more sample (in duplicate) may

be drawn for such remainder/container.

2.8 While drawing one sample (in duplicate) from a

particular lot, it must be ensured that sample are in equal

quantity is taken from each quantity is taken from each

package/container of that lot and mixed together to

make a composite whole from which the samples are

drawn for that lot.

2.9 The sample in duplicate should be kept in heat sealed

plastic bags as it is convenient and safe. The plastic bag

container should be kept in a paper envelope which may

be sealed properly. Such sealed envelope may be marked

as original and duplicate. Both the envelopes should also

bear the S. No. of the package(s)/container(s) from which

the sample has been drawn. The duplicate envelope

containing the sample will also have a reference of the

test memo. The seals should be eligible. This envelope

along with test memos should be kept in another

envelope which should also be sealed and marked

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‘secret-drug’ sample/test memo’, to be sent to the

chemical laboratory concerned.

3.0 The seizing officers of the Central Government

Departments, viz., Customs, Directorate of Revenue

Intelligence, etc. should dispatch samples of the seized

drugs to one of the Laboratories of the Central Revenues

Control Laboratory nearest to their offices depending

upon the availability of test facilities. The other Central

Agencies like BSF, CBI and other Central Director, Central

Forensic Laboratory, New Delhi. All State Enforcement

Agencies may send samples of seized drugs to the

Director/ Deputy Director, Assistant Director of their

respective State Forensic Science Laboratory.

3.1 After sampling, detailed inventory of such

packages/containers shall be prepared for being enclosed

to the panchnama. Original wrappers shall also be

preserved for evidentiary purposes.

Section-III Receipt of Drugs in Godown and Procedure

3.2 All the drugs invariably be stored in safes and vaults

provided with double-locking system. Agencies of the

Central and State Governments, may specifically

designate their godowns for storage purposes. The

godowns should be selected keeping in view their

security angle, juxtaposition to courts, etc.

3.3 Such godowns, as a matter of rule, shall be placed

under the over-all supervision and charge of a Gazetted

Officer of the respective enforcement agency, who shall

exercise utmost care, circumspection and personal

supervision as far as possible. Each seizing officer shall

deposit the drugs fully packed and sealed in the godown

within 48 hours of such seizure, with a forwarding memo

indicating NDPE Crime No. as per Crime and Prosecution

(C & P register) under the new law, name of the accused,

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reference of test memo, description of the drugs, total

no. of packages/containers, etc.

3.4 The seizing officer, after obtaining an

acknowledgement for such deposit in the format

(Annexure-I), shall had acknowledgement over such to

the Investigating Officer of the case alongwith the case

dossiers for further proceedings.

3.5 The Officer-in-Charge of the godown, before

accepting the deposit of drugs, shall ensure that the

same are properly packed and sealed. He shall also

arrange the packages/containers (case-wise and lot-wise)

for quick retrieval, etc.

3.6 The godown-in-charge is required to maintain a

register wherein entries of receipt should be made as per

format at Annexure-II.

3.7 It shall be incumbent upon the Inspecting Officers of

the various Departments mentioned at Annexure-II to

make frequent visits to the godowns for ensuring

adequate security and safety and for taking measures for

timely disposal of drug. The Inspecting Officers should

record their remarks/observations against Col. 15 of the

Format at Annexure-II.

3.8 the Heads of the respective enforcement agencies

(both Central and State Governments) may prescribe

such periodical reports and returns, as they may deem

fit, to monitor the safe receipt, deposit, storage,

accounting and disposal of seized drugs.

3.9 Since the early disposal of drugs assumes utmost

consideration and importance, the enforcement agencies

may obtain orders for pre-trial disposal of drugs and

other articles (including conveyance, if any) by having

recourse to the provisions of sub-section (2) of section

52A of the Act.

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13. What is the effect of non-filing of the NCB forms or

for that matter as had been directed by the Standing Orders has

been considered by the Hon’ble Supreme Court in Khet Singh

versus Union of India, (2002) 4 SCC 380, wherein it was held

that the instructions issued by the Narcotics Control Bureau, New

Delhi, are to be followed by the officer-in-charge of the

investigation of the crimes coming within the purview of the

NDPS Act, even though these instructions do not have the force

of law. They are intended to guide the officers and to see that a

fair procedure is adopted by the officer-in-charge of the

investigation. It is apposite to refer to the relevant observations

as contained in paragraphs 5 and 10 of the report which read as

under:-

“5. It is true that the search and seizure of contraband

article is a serious aspect in the matter of investigation

related to offences under the NDPS Act. The NDPS Act

and the rules framed thereunder have laid down a

detailed procedure and guidelines as to the manner in

which search and seizure are to be effected. If there is

any violation of these guidelines, Courts would take a

serious view and the benefit would be extended to the

accused. The offences under NDPS Act are grave in

nature and minimum punishment prescribed under the

Statute is incarceration for a long period. As the

possession of any narcotic drugs or psychotropic

substance by itself is made punishable under the act, the

seizure of the article from the appellant is of vital

importance.

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10.The instructions issued by the Narcotics Control

Bureau, New Delhi are to be followed by the officer in-

charge of the investigation of the crimes coming within

the purview of the NDPS Act, even though these

instructions do not have the force of law. They are

intended to guide the officers and to see that a fair

procedure is adopted by the officer in-charge of the

investigation. It is true that when a contraband article is

seized during investigation or search, a seizure mahazar

should be prepared at the spot in accordance with law.

There may, however, be circumstances in which it would

not have been possible for the officer to prepare the

mahazar at the spot, as it may be a chance recovery and

the officer may not have the facility to prepare a seizure

mahazar at the spot itself. If the seizure is effected at the

place where there are no witnesses and there is no

facility for weighing the contraband article or other

requisite facilities are lacking, the officer can prepare the

seizure mahazar at a later stage as and when the

facilities are available, provided there are justifiable and

reasonable grounds to do so. In that event, where the

seizure mahazar is prepared at a later stage, the officer

should indicate his reasons as to why he had not

prepared the mahazar at the spot of recovery. If there is

any inordinate delay in preparing the seizure mahazar,

that may give an opportunity to tamper with the

contraband article allegedly seized from the accused.

There may also be allegations that the article seized was

by itself substituted and some other items were planted

to falsely implicate the accused. To avoid these

suspicious circumstances and to have a fair procedure in

respect of search and seizure, it is always desirable to

prepare the seizure mahazar at the spot itself from where

the contraband articles were taken into custody.”

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14. It is thereafter that the Hon’ble Supreme Court after

examining the issue of violation of such procedural guidelines

ruled as under:

“16. Law on the point is very clear that even if there is

any sort of procedural illegality in conducting the search

and seizure, the evidence collected thereby will not

become inadmissible and the Court would consider all the

circumstances and find out whether any serious prejudice

had been caused to the accused. If the search and

seizure was in complete defiance of the law and

procedure and there was any possibility of the evidence

collected likely to have been tampered with or

interpolated during the course of such search or seizure,

then, it could be said that the evidence is not liable to be

admissible in evidence.”

15. Subsequently, the issue came up before the Hon’ble

Supreme Court in State of Punjab versus Makhan Chand ,

(2004) 3 SCC 453, wherein it was observed as under:-

“9. Learned counsel for the respondent-accused relied on

certain standing orders and standing instructions issued

by the Central Government under Section 52A(1) which

require a particular procedure to be followed for drawing

of samples and contended that since this procedure had

not been followed the entire trial was vitiated.

10. This contention too has no substance for two reasons.

Firstly, Section 52A, as the marginal note indicates, deals

with "disposal of seized narcotic drugs and psychotropic

substances". Under Sub-section (1), the Central

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Government, by a notification in the Official Gazette, is

empowered to specify certain narcotic drugs or

psychotropic substance's having regard to the hazardous

nature, vulnerability to theft, substitution, constraints of

proper storage space and such other relevant

considerations, so that even if they are material objects

seized in a criminal case, they could be disposed of after

following the procedure prescribed in Sub-sections (2) &

(3). If the procedure prescribed in Sub-sections (2) & (3)

of Section 52A is complied with and upon an application,

the Magistrate issues the certificate contemplated by

Sub-section (2), then Sub-section (4) provides that,

notwithstanding anything to the contrary contained in the

Indian Evidence Act, 1872 or the Code of Criminal

Procedure, 1973, such inventory, photographs of narcotic

drugs or substances and any list of samples drawn under

Sub-section (2) of Section 52A as certified by the

Magistrate, would be treated as primary evidence in

respect of the offence. Therefore, Section 52A(1) does not

empower the Central Government to lay down the

procedure for search of an accused, but only deals with

the disposal of seized narcotic drugs and psychotropic

substances.

11. Secondly, when the very same Standing Orders came

up for considerations in Khet Singh v. Union of India,

(2002) 4 SCC 380 this Court took the vie that they are

merely intended to guide the officers to see that a fair

procedure is adopted by the Officer-in-Charge of the

investigation. It was also held that they were not

inexorable rules as there could be circumstances in which

it may not be possible for the seizing officer to prepare

the mahazar at the spot, if it is a chance recovery, where

the officer may not have the facility to prepare the

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seizure mahazar at the spot itself. Hence, we do not find

any substance in this contention.”

16. However, it would be noticed that subsequent to the

aforesaid judgment which had been rendered by the two Hon’ble

Judges, a Bench of three Hon’ble Judges of the Hon’ble Supreme

Court of India in Union of India versus Balmukund and

others, (2009) 12 SCC 161 , held that the Standing Instruction

1/88 (as was involved in that case) is a requirement of law, as

would be evident from paragraphs 7 and 36 of the judgment

which read as under:-

“7. The manner in which a sample of narcotic is required

to be taken has been laid down by the Standing

Instruction 1/88, the relevant portion whereof reads as

under:

"e) While drawing one sample in duplicate from a

particular lot, it must be ensured that representative

drug in equal quantity is taken from each package/

container of that lot and mixed together to make a

composite whole from which the samples are drawn

for that lot."

36. There is another aspect of the matter which cannot

also be lost sight of. Standing Instruction 1/88, which had

been issued under the Act, lays down the procedure for

taking samples. The High Court has noticed that PW-7

had taken samples of 25 grams each from all the five

bags and then mixed them and sent to the laboratory.

There is nothing to show that adequate quantity from

each bag had been taken. It was a requirement in law.”

17. As observed above, in the present case, the evidence

of the prosecution is totally lacking to the effect that the NCB

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forms at the first instance were filled up, rather, it is admitted

that the NCB forms were not even filled up and thereafter even

when the same were filled up, there is nothing on record to

suggest where the samples of 25 grams each that were drawn

apart for the purpose of analysis had been kept. This assumes

importance, especially, when the prosecution had brought

‘Malkhana’ register, but did not bother to exhibit the same

calling for an adverse inference under Section 114(g) of the

Evidence Act.

18. The object of filling up of the forms suggests of its

preparation at the time of seizure of a contraband article and

separation of its representative sample and the affixing of the

seal impressions is that the specimen seal impressions used at

the time are affixed on the forms, so that it can be deposited

with the case property in the ‘Malkhana’ and another copy

thereof can be forwarded to FSL along with sample parcel, so

that the seal impressions affixed on the sample parcel are duly

compared with seal impressions on the NCB forms. The idea

behind taking such precautions is to complete a material link in

the prosecution evidence by eliminating the possibility of the

sample being tampered with.

19. The sentence provided under the Act is very severe

and, therefore, naturally the Courts insist for the standard of

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proof beyond shadow of all reasonable doubt against the

accused. Suspicion, however strong, cannot take the place of

positive proof.

20. In view of the aforesaid discussion, we are of the

considered view that the prosecution has not been able to prove

conclusively the guilt of the respondent and has, therefore,

rightly been acquitted by the learned Special Judge. The appeal

sans merit and is dismissed as such. Bail bonds, if any, furnished

by the respondent are discharged.

(Tarlok Singh Chauhan)

Judge

(Chander Bhusan Barowalia)

Judge

26

th

June, 2019.

(krt/sanjeev)

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