Appeal details
Assessee PAN
Bench
Appeal Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
26-12-2024
Appeal Filed By
Assessee
Assessment Year
misc
Appeal Filed On
10-09-2024
Judgement Text
"1\n IN THE HIGH COURT OF HIMACHAL PRADESH \nAT SHIMLA\nCr. M.P. (M) No. 2049 of 2024\n Reserved on: 11.11.2024\n Decided on : 26.12.2024\nLes Raj\n \n… Applicant\nVersus\nState of H.P.\n \n…Respondent\n_____________________________ ______________\nCoram\nHon’ble Mr. Justice Virender Singh, Judge\nWhether approved for reporting? \n___________________________________________________\nFor the Applicant :\nMr.\n \nBhupinder\n \nSingh\nAhuja, Advocate.\nFor the Respondent : Mr. Tejasvi Sharma, Mr.\nMohinder Zharaick and Mr.\nH.S. Rawat, Additional\nAdvocates General with\nMs. Ranjana Patial, Dy.\nA.G.\nVirender Singh, Judge \nApplicant Les Raj has filed the present\napplication under Section 483 of Bharatiya Nagarik\nSuraksha Sanhita, (hereinafter referred to as ‘the\nB.N.S.S.’), for releasing him on bail, during the\npendency of the trial, in case FIR No. 43 of 2023,\ndated 19.2.2023, registered with Police Station,\n\n2\nSadar, Kullu, H.P., under Section 20 of the Narcotic\nDrugs & Psychotropic Substances Act (hereinafter\nreferred to as ‘the NDPS Act’. \n2. \nAccording to the applicant, he has wrongly\nbeen arrested in the aforesaid case and is in judicial\ncustody for allegedly possessing 2 kg 72 grams of\nCharas. \n3. \nAs per the case of the applicant, investigation\nin the present case, is complete and no useful\npurpose would be served by keeping him in judicial\ncustody.\n4. \nApart from this, the applicant has sought his\nrelease on bail on the ground that in this case, the\nI.O. has violated the mandate of Section 52-A of the\nNDPS Act, as the entire bulk has allegedly been sent\nto the Forensic Science Laboratory, for analysis. \n5. \nAccording to the applicant, leakage of\ncontraband from the SFSL is rampant. The alleged\nviolation of Section 52-A of the NDPS Act, is stated\n\n3\nto be going to the roots of the case. As such, he has\nsought relief of bail, on the ground of violation of\nthe provisions of Section 52-A of the NDPS Act.\n6. \nAccording to the applicant, he is ready to\nabide by any condition to be imposed by this Court,\nin case, ordered to be released on bail. \n7. \nOn the basis of above facts, Mr. Bhupinder\nSingh Ahuja, Advocate has prayed that the bail\napplication may kindly be allowed and the applicant\nmay kindly be released on bail.\n8. \nWhen, put to notice, Police filed status report,\ndisclosing that on 19.2.2023, S.I. Narayan Lal,\nalongwith with other police officials, was on\npatrolling duty and the duty to detect the crimes,\nrelating to Narcotic and Psychotropic substance.\nWhen, the I.O., alongwith the police team, was\npresent at Kais market at about 7:15 p.m., then, he\nreceived a secret information that in case, Les Raj\n(applicant), R/o Tandla is nabbed near Tandala\n\n4\nSoyal Zero Point, then, large quantity of charas\ncould be recovered from him. According to the I.O.,\nin case, the efforts to obtain search warrants were\nobtained, in that eventuality, there were chances\nthat the contraband could be removed from there.\nHe has found the said information as authentic and\nreliable and complied with the provisions of Section\n42(2) of the NDPS Act. \n8.1\nIt has been mentioned in the status report\nthat the Police team had gone to Tandla. Efforts to\nassociate independent witnesses were made.\nThereafter, one independent witness, namely, Gopal\nSingh, S/o Jeet Ram was associated, who has called\nWard Member Hira Lal to the spot. Said Hira Lal\nreached at the spot at about 9:30 p.m. Both the\npersons were associated as independent witnesses.\nThereafter, picketing was done. At about 9:45 p.m.,\none person was found coming from Tandla road\nside. The said person was duly identified by the\n\n5\nperson, who has given secret information, as Les\nRaj. On seeing the Police, said Les Raj turned back,\nthrew the carry bag on the roadside, in the bushes\nand tried to flee away from the spot, but he was\nnabbed by the Police.\n8.2\nOn inquiry, he could not give any satisfactory\nreply as to why he threw the carry bag and was\nfleeing away from the spot, rather he tried to get\nhimself free from the clutches of the Police. On\ninquiry, he disclosed his name as Les Raj, S/o Om\nParkash (applicant). \n8.3\nWhen, the bag thrown by him was lifted and\nchecked, the same was found containing charas,\nweighing 2 kg 72 grams. Other codal formalities\nwere completed and FIR in question was registered\nand accused was arrested. \n8.4\nThe contraband, so recovered, was sent to\nFSL Junga. After receiving the positive report from\nthe FSL, Junga, the Police has submitted the\n\n6\nChallan, before the Court of learned Special Judge,\nKullu, upon which, the learned Special Judge, Kullu\nhas taken congnizance and charges have been\nframed. \n8.5\nOut of 17 witnesses, 5 witnesses are stated to\nhave been examined. The case is stated to be fixed\nfor PWs on 21.11.2024 and 22.11.2024.\n8.6\nOn the basis of above, a prayer has been\nmade to dismiss the bail application. \n9.\nLearned counsel for the applicant has placed\non record the order dated 21.2.2023, passed by the\nCourt of learned Judicial Magistrate First Class,\nKullu, by virtue of which, proceedings under Section\n52-A of the NDPS Act were conducted by the said\nCourt. The perusal of the same shows that instead\nof separating the samples, the entire contraband\nwas sent to FSL, Junga, for analysis. \n10.\nAlongwith the order dated 20.2.2023, the\ncopy of report of the State Forensic Science Lab has\n\n7\nalso been annexed, according to which, contraband\nweighing 2 kg 58 grams was received in the FSL,\nJunga. \n11.\nOn the basis of above facts, it has been\nargued by the learned counsel for the applicant that\nnon-compliance of Section 52-A of the NDPS Act is\nwrit at large. As such, for violation of mandatory\nprovisions of Section 52-A of the NDPS Act,\napplicant is entitled to be released on bail. \n12. \nIn order to buttress his contention, learned\ncounsel for the applicant has relied upon the\ndecisions of Hon’ble Supreme Court in Union of\nIndia (UOI) vs. Mohan Lal & others, reported in\n(2016) 3 SCC 379, Yusuf @ Asif versus State,\nreported in 2023 Live Law (SC) 890, Mangilal versus\nState of Madhya Pradesh, reported in reported in\n(2023) 3 Cri CC 212 and Mohammad Khalid & anr.\nvs. State of Telangana, in Criminal Appeal No(s).\n1610 of 2023.\n\n8\n15. \nIn nut-shell, it is the case of the applicant\nthat on account of violation of Section 52-A of the\nNDPS Act, as highlighted in the aforesaid paras, the\napplicant is entitled for bail. This fact has also been\nhighlighted that non-compliance of Section 52-A of\nthe NDPS Act entails the acquittal of the applicant.\nAs such, the relief of bail has been sought.\n16. \nThe contraband involved in the present case\nfalls under the definition of ‘commercial quantity’, as\nsuch, rigors of Section 37 of the NDPS Act are fully\napplicable, in this case. At this stage, there is\nnothing on record to even prima-facie hold that the\napplicant has not committed the offence, or in case,\nhe is ordered to be released on bail, he shall not\ncommit any offence. In absence of existence of twin\nconditions, as enumerated in Section 37 of the\nNDPS Act, in favour of the applicant, he is not\nentitled for any relief, in this case.\n\n9\n17. \nSo far as the case laws, which have been\nrelied upon by the applicant, as referred to above,\nare concerned, with due respect of the law laid down\nby the Hon’ble Supreme Court, the same are not\napplicable to the facts and circumstances of the\npresent case, as, in a recent decision of Hon’ble\nSupreme Court in Criminal Appeal No. 5544 of 2024\n@ SLP (Crl.) No. 12120 of 2024, titled as, ‘Narcotics\nControl Bureau versus Kashif’, Citation No. 2024\nINSC 1045, the Hon’ble Supreme Court has\nelaborately discussed the provisions of Section 52-A\nof the NDPS Act, and held that lapse and delay in\ncompliance of Section 52-A of the NDPS Act, itself\nwould neither vitiate the trial nor would entitle the\naccused to be released on bail. Relevant paragraphs\n32 to 39 of the judgment are reproduced as under:\n“32. Significantly, the Authorised Officer can make the\napplication under subsection (2) of Section 52A for three\npurposes - (a) for certifying the correctness of the inventory\nprepared by him; or (b) taking in presence of such\nmagistrate, photographs of the seized drugs, substances\n\n10\nand conveyances and certifying such photographs as true;\nor (c) allowing to draw representative samples of such\ndrugs or substances, in the presence of such Magistrate,\nand certifying the correctness of any list of samples so\ndrawn. The use of the conjunction \"OR\" made in between\nthe three purposes mentioned therein, itself makes it\nexplicitly clear that the purposes for which the application\ncould be made under sub-section (2) are alternative and\nnot cumulative in nature. Such provision specifying\nmultiple alternative purposes could not be construed as a\nmandatory provision muchless its non-compliance fatal to\nthe case of prosecution.\n33. Though it is true that the inventory certified,\nphotographs taken and the list of samples drawn under\nsub-section (2) has to be treated by the Court as primary\nevidence in view of sub-section (3), nonetheless the\ndocuments like Panchnama, seizure memo, arrest memo\netc. prepared by the Investigating Officer on the spot or\nduring the course of investigation are also primary\nevidence within the meaning of Section 62 of the Evidence\nAct, carrying the same evidentiary value as any other\nprimary evidence. Such primary evidence with regard to\nSearch and Seizure of the contraband substance could not\nbe overlooked merely because some lapse or non-\ncompliance is found of Section 52A of the Act.\n34. In our opinion reliance placed by the High Court on the\ndecision of this Court in Union of India Vs. Mohanlal and\nAnother7, is thoroughly misplaced. In the said case, the\nissue of pilferage of contraband was the main issue. The\nCourt after noticing the non-compliance of the procedure\nlaid down in the Standing Order No. 1 of 89 dated\n13.06.1989, and the possibility of the pilferage of\n\n11\ncontraband goods and their return to the market place for\ncirculation, had appointed an amicus curiae for making a\nrealistic review of the procedure for search, disposal or\ndestruction of the narcotics and remedial steps that need\nto be taken to plug the loopholes, if any.\nThe Court, thereafter, had raised the queries with regard to\nthe seizure, storage, disposal/destruction and also with\nregard to the judicial supervision in respect of the seized\nnarcotic drugs and psychotropic substances. The prime\nfocal in case of Mohanlal was the disposal of seized\ncontraband goods as contemplated in Section 52A. Though\nit held that the process of drawing samples has to be done\nin presence of and under the supervision of the Magistrate,\nit nowhere held that non-compliance or delayed compliance\nof the procedure prescribed under Section 52A (2) would\nvitiate the trial or would entitle the accused to be released\non bail.\n35. None of the provisions in the Act prohibits sample to be\ntaken on the spot at the time of seizure, much less Section\n52A of the said Act. On the contrary, as per the procedure\nlaid down in the Standing Orders and Notifications issued\nby the NCB and the Central Government before and after\nthe insertion of Section 52A till the Rules of 2022 were\nframed, the concerned officer was required to take samples\nof the seized contraband substances on the spot of\nrecovery in duplicate in presence of the Panch witnesses\nand the person in whose possession the drug or substance\nrecovered, by drawing a Panchnama. It was only with\nregard to the remnant substance, the procedure for\ndisposal of the said substance was required to be followed\nas prescribed in Section 52A.\n\n12\n36. At this stage, we must deal with the recent judgments\nin case of Simarnjit vs. State of Punjab, (Criminal Appeal\nNo.1443/2023), in case of Yusuf @ Asif vs. State (2023\nSCC Online SC 1328), and in case of Mohammed Khalid\nand Another vs. State of Telangana ((2024) 5 SCC 393) in\nwhich the convictions have been set aside by this Court on\nfinding non-compliance of Section 52A and relying upon\nthe observations made in case of Mohanlal. Apart from the\nfact that the said cases have been decided on the facts of\neach case, none of the judgments has proposed to lay\ndown any law either with regard to Section 52A or on the\nissue of admissibility of any other evidence collected\nduring the course of trial under the NDPS Act.\nTherefore, we have considered the legislative history of\nSection 52A and other Statutory Standing Orders as also\nthe judicial pronouncements, which clearly lead to an\ninevitable conclusion that delayed compliance or\nnoncompliance of Section 52A neither vitiates the trial\naffecting conviction nor can be a sole ground to seek bail.\nIn our opinion, the decisions of Constitution Benches in\ncase of Pooran Mal and Baldev Singh must take\nprecedence over any observations made in the judgments\nmade by the benches of lesser strength, which are made\nwithout considering the scheme, purport and object of the\nAct and also without considering the binding precedents.\n37. It hardly needs to be reiterated that every law is\ndesigned to further ends of justice and not to frustrate it on\nmere technicalities. If the language of a Statute in its\nordinary meaning and grammatical construction leads a\nmanifest contradiction of the apparent purpose of the\nenactment, a construction may be put upon it which\nmodifies the meaning of the words, or even the structure of\n\n13\nthe sentence. It is equally settled legal position that where\nthe main object and intention of a statute are clear, it must\nnot be reduced to a nullity by the draftsman's\nunskillfulness or ignorance of the law. In Maxwell on\nInterpretation of Statutes, Tenth Edition at page 229, the\nfollowing passage is found: -\n\"Where the language of a statute, in its ordinary meaning\nand grammatical construction, leads to a manifest\ncontradiction of the apparent purpose of the enactment, or\nto some inconvenience or absurdity, hardship or injustice,\npresumably not intended, a construction may be put upon\nit which modifies the meaning of the words, and even the\nstructure of the sentence. Where the main object and\nintention of a statute are clear, it must not be reduced to a\nnullity by the draftsman's unskilfulness or ignorance of the\nlaw, except in a case of necessity, or the absolute\nintractability of the language used.\"\n38. As observed by this Court in K.P. Varghese vs. Income\nTax Officer, Ernakulam and Another8, a statutory\nprovision must be so construed, if it is possible, that\nabsurdity and mischief may be avoided. Where the plain\nand literal interpretation of statutory provision produces a\nmanifestly absurd and unjust result, the Court may modify\nthe language used by the Legislature or even do some\nviolence to it, so as to achieve the obvious intention of the\nLegislature and produce a rational construction and just\nresult.\n39. The upshot of the above discussion may be\nsummarized as under:\n(i) The provisions of NDPS Act are required to be interpreted\nkeeping in mind the scheme, object and purpose of the Act;\n\n14\nas also the impact on the society as a whole. It has to be\ninterpreted literally and not liberally, which may ultimately\nfrustrate the object, purpose and Preamble of the Act.\n(ii) While considering the application for bail, the Court\nmust bear in mind the provisions of Section 37 of the NDPS\nAct which are mandatory in nature. Recording of findings\nas mandated in Section 37 is sine qua non is known for\ngranting bail to the accused involved in the offences under\nthe NDPS Act.\n(iii) The purpose of insertion of Section 52A laying down\nthe procedure for disposal of seized Narcotic Drugs and\nPsychotropic Substances, was to ensure the early disposal\nof the seized contraband drugs and substances. It was\ninserted in 1989 as one of the measures to implement and\nto give effect to the International Conventions on the\nNarcotic drugs and psychotropic substances.\n(iv) Sub-section (2) of Section 52A lays down the procedure\nas contemplated in sub-section (1) thereof, and any lapse\nor delayed compliance thereof would be merely a\nprocedural irregularity which would neither entitle the\naccused to be released on bail nor would vitiate the trial on\nthat ground alone.\n(v) Any procedural irregularity or illegality found to have\nbeen committed in conducting the search and seizure\nduring the course of investigation or thereafter, would by\nitself not make the entire evidence collected during the\ncourse of investigation, inadmissible. The Court would\nhave to consider all the circumstances and find out\nwhether any serious prejudice has been caused to the\naccused.\n\n15\n(vi) Any lapse or delay in compliance of Section 52A by\nitself would neither vitiate the trial nor would entitle the\naccused to be released on bail. The Court will have to\nconsider other circumstances and the other primary\nevidence collected during the course of investigation, as\nalso the statutory presumption permissible under Section\n54 of the NDPS Act.”\n(Self emphasis supplied)\n18.\nIn view of the aforesaid discussions and\nobservations, in the considered opinion of this\nCourt, the applicant is not able to make out a case,\nfor grant of bail, in this case. As such, the present\napplication is dismissed.\n19. \nAny of the observations, made hereinabove,\nshall not be taken as an expression of opinion, on\nthe merits of the case, as, these observations, are\nconfined, only to the disposal of the present bail\napplication. \n (Virender Singh)\n Judge\n 26.12.2024 \n Kalpana\n"
