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Himachal Pradesh High Court · body

2025 DAILYLAW 3475 (HP)

Anshul Mittal v. State of Himachal Pradesh

2025-09-19

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition against the order dated 08.07.2025 passed by learned Special Judge, Shimla (learned Trial Court) in Criminal Miscellaneous Petition No.2861/2025, filed under Section 36-A of Narcotic Drugs & Psychotropic Substances, Act (N.D.P.S. Act) and Section 4(2) and Section 5 of Criminal Procedure Code (Cr.P.C) in Case No. 16/2022 for the commission of offences punishable under Sections 21, 25 and 29 of N.D. P.S. Act, registered at Police Station, New Shimla. (Parties shall hereinafter be referred to in the same manner as they are arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present petition are that the police presented a challan before the learned Trial Court against the accused for the commission of offences punishable under Sections 25 & 29 of N.D.P.S., Act. It was asserted that 5.850 grams of heroin were recovered from the accused; however, the report of FSL mentioned the actual weight of the heroin as 3.606 grams. An application was filed before the learned Trial Court that 3.606 grams of heroin is a small quantity and the accused is triable by a learned Magistrate and not by a Special Judge, Shimla. Hence, it was prayed that the matter be referred to the learned Magistrate. 3. The application was opposed by a filing reply asserting that the weight of the heroin was found to be 5.850 grams in the proceedings under Section 52-A of the N.D.P.S. Act, which is a primary evidence. Any discrepancy in the report and the weight found under Section 52-A of N.D.P.S Act is irrelevant because the weight determined by the learned Magistrate supersedes other weights. Therefore, it was prayed that the application be dismissed. 4. Learned Trial Court held that, as per the prosecution, 5.850 grams of heroin were recovered from the accused. The contraband was weighed before the learned Magistrate under Section 52-A of N.D.P.S. Act, and its weight was found to be 5.850 grams. The weight of 5.850 grams found by the learned Magistrate supersedes the weight of 3.606 grams found by the laboratory. Reliance was placed upon the judgment of this Court in Sohan Lal alias Bhau versus State of H.P., Cr.MMO No. 163 of 2017 decided on 20.06.2017. 5. The weight of 5.850 grams found by the learned Magistrate supersedes the weight of 3.606 grams found by the laboratory. Reliance was placed upon the judgment of this Court in Sohan Lal alias Bhau versus State of H.P., Cr.MMO No. 163 of 2017 decided on 20.06.2017. 5. Being aggrieved by the order passed by the learned Trial Court, the petitioner has filed the present petition asserting that the learned Trial Court erred in dismissing the application. The quantity of heroin stated to have been recovered from the possession of the petitioner was a small quantity. The case is triable by a learned Magistrate and not by a learned Special Judge. The learned Magistrate had included the weight of four polythene wrappers while determining the quantity of heroin. The chemical examiner had weighed the actual heroin sent to the laboratory. Learned Trial Court failed to appreciate this aspect; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 6. I have heard Mr. Jivesh Sharma, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State. 7. Mr. Jivesh Sharma, learned counsel for the petitioner, submitted that the learned Trial Court erred in holding that the certificate of the learned Magistrate in the proceeding under Section 52-A of N.D.P.S. Act would supersede the report of the FSL. The learned Magistrate had weighed the polythene with the heroin, which was impermissible. The actual weight of the heroin was determined in the laboratory and was found to be a small quantity. The case was to be tried by the learned Magistrate in view of the report of the FSL. The learned Special Judge erred in proceeding further with the matter. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 8. Mr. Prashant Sen, learned Deputy Advocate General for the respondent State, supported the order passed by the learned Trial Court and submitted that no interference is required with it. 9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 10. It was held by this Court in Sohan Lal alias Bhau and others Vs. 9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 10. It was held by this Court in Sohan Lal alias Bhau and others Vs. State of H.P. and others, 2019 STPL 3203 HP, that samples drawn and certified by the learned Magistrate in compliance with sub-Section 2 & 3 of Section 52-A of N.D.P.S Act are primary evidence. It was observed:- “10. It would be evidently clear from the aforesaid exposition of law that the samples drawn and certified by the learned Magistrate in compliance with sub-sections (2) and (3) of Section 52-A are primary evidence and, therefore, had to be taken as true and any contradiction in such certification with the final report prepared by the prosecution, the quantity mentioned in the final report obviously had to give way to the certification so made by the Court under Section 52-A of the Act ibid.” 11. In the present case, the order passed by the learned Trial Court shows that all four polythene wrappers were weighed together on the weighing machine and their weight was found to be 5.850 grams. The report of the FSL shows that the weight of the exhibit with poly pieces was found to be 5.850 grams, the weight of poly pieces was found to be 2.244 grams, and the actual weight of the exhibit was found to be 3.606 grams. Thus, there is no variation in the weight of the contraband and the poly packets. The variation is in the actual weight of the contraband. 12. Section 52-A (2) N.D .P.S Act provides that the Officer-in-Charge shall prepare an inventory of such narcotic drugs, psychotropic substances, controlled substances, etc containing their description, quality, quantity, mode of packing, etc. The Magistrate shall certify the correctness of the inventory so prepared, take the photographs, and allow the drawing of representative samples. In the present case, admittedly, the inventory of narcotic drugs + poly packs was prepared, and it was certified to be correct. The learned Magistrate is not to certify the correctness of the enclosure in which the narcotic drugs are found, but the correctness of the weight of the drugs itself. After all, fifty grams of heroin found in an iron box weighing 500 grams cannot be certified as 550 grams of heroin. The learned Magistrate is not to certify the correctness of the enclosure in which the narcotic drugs are found, but the correctness of the weight of the drugs itself. After all, fifty grams of heroin found in an iron box weighing 500 grams cannot be certified as 550 grams of heroin. The accused cannot be held liable for a graver offence merely because he had chosen a heavier container/enclosure for keeping the drug. 13. There can be no dispute with the proposition that the certificate issued by the learned Magistrate shall prevail over the certificates given by any other person, but that certificate has to be of the narcotic drugs or psychotropic substance and not of the narcotic drugs or psychotropic substance and the enclosure. Anything other than the actual narcotics as certified by the learned Magistrate is beyond the scope of Section 52-A of N.D.P.S. Act and any certificate issued of anything other than drug will not prevail over the actual weight of the narcotics. 14. The police and the learned Magistrate had weighed the heroin and poly packs. Therefore, the weight determined by them cannot be used to determine the quantity of the heroin. The Assistant Director, FSL, on the other hand, had determined the actual weight, which will prevail over the weight of the heroin and the polypackets while determining the quantity of heroin. Therefore, the plea that the accused was found in possession of 3.606 grams of heroin, which is a small quantity and triable by a learned Magistrate has to be accepted as correct. Learned Special Judge erred in dismissing the application, and the order passed by him cannot be sustained. 15. In view of the above, the present petition is allowed and the order dated 08.07.2025 passed by the learned Special Judge, Shimla, in Criminal Misc. Petition No. 2861/2025 is set aside. The application filed by the accused is allowed, and the case is assigned to the learned Chief Judicial Magistrate, Shimla, for disposal as per the law. It will be open for the learned Chief Judicial Magistrate, Shimla, to assign the case to any other Magistrate, if necessary. 16. The present petition stands disposed of, so also the pending miscellaneous application(s), if any. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.