APHC010730782018 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] THURSDAY, THE TWENTY THIRD DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR. JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL APPEAL NO: 2703/2018 Between: 1. REDDI SATYA RAO, R/O. PANJA. CENTRE, GANDHI STREET NO.1, 3RD HOUSE, VIJAYAWADA 2. AARLI SRINU, R/O. NARASAYYAPETA, CHODAVARAM MANDAL, VISAKHAPATNAM DIST. ...APELLANT(S) AND 1. THE STATE OF AP, REP BY THE PUBLIC PROSECUTOR, THROUGH PS CHODAVARAM, VISAKHAPATNAM DIST, HIGH COURT AT HYDERABAD. ...RESPODENT Counsel for the Appellant(S): 1. R SIVA SAI SWARUP 2. V V SATISH Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: JUDGMENT: Impugning the judgment of conviction dated 29.08.2018 passed in N.S.C.No.27 of 2013 by the Special Judge to try the offences under NDPS Act-cum-I Additional District and Sessions Judge-cum-Metropolitan Sessions Judge, Visakhapatnam for the offence under Section 8(c) read with Section 2 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 19851, the Appellants / Accused Nos.1 and 2 preferred the present appeal. 2. Heard Sri R.Siva Sai Swarup and Sri V.V.Satish, learned counsel for the Appellants and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor for Respondent/State. 3. Learned counsel for both the Appellants would submit that Section 52 A of the NDPS Act has not been complied with. Learned counsel would further submit that four witnesses were examined by the Prosecutor and P.W.1 is a stock witness. Learned counsel would further submit that P.W.1 was not present at the time of alleged raid. It is further submitted that the alleged seize of ganja was added at the end of the mediators report and there is no mention of the name of the person, who weighed the said ganja. Learned counsel would submit that, Ex.P.1 panchanama speaks about drawing of sample on the spot, which is illegal. As such, the consequential report becomes irrelevant to the case on hand. The identity of the contraband is not legally established by the Prosecution. Learned counsel would finally submit that, there are irregularities and infirmities in the judgment passed by the learned trial Judge, as such, interference of this Court is necessary and prays to allow the appeal by setting aside the judgment. In support of his contentions, learned counsel has placed reliance on the judgments of the Hon’ble Apex Court in Mohammed Khalid and another vs. The State of 1 For short ‘NDPS Act’ 3 Telangana2, Yusuf @ Asif vs. State3, Mangilal vs. The State of Madhya Pradesh4 4. Learned Assistant Public Prosecutor would submit that the learned trial Judge has rightly appreciated the evidence on record and proved the case against the Appellants beyond all reasonable doubt. Learned Assistant Public Prosecutor would further submit that there are no tenable grounds warranting interference of this Court in the judgment passed by the learned trial Judge. Hence, prayed for dismissal of the appeal. 5. N.S.C.No.27 of 2013 was registered against the Appellants herein alleging that on 08.01.2013 at 4.30 a.m., near Gowripatnam Bridge, Chodavaram Mandal, they were found while transporting 475 kgs of ganja, which is a commercial quantity, loaded in 19 bags in white colour Maruthi Van bearing No.AP 37 AB 8709, without any valid permission or license. The learned trial Judge, after conducting full-fledged trial, having found that the Appellants/Accused Nos.1 and 2 have committed the alleged offence, convicted them under Section 235(2) Cr.P.C and sentenced them to undergo rigorous imprisonment for a period of fourteen years each and also to pay fine of Rs.1,00,000/- each, in default, to suffer rigorous imprisonment for a period of one year each for the offence under Section 8(c) read with Section 20(b)(ii)(C) of NDPS Act. Aggrieved by the said judgment, the present appeal has been preferred by the Appellants/Accused Nos.1 and 2. 2 2024 INSC 158 3 2023 INSC 912 4 2023 LiveLaw (SC) 549 4 6. A keen perusal of the judgment passed in N.S.C.No.27 of 2013 would show that, the learned trial Judge opined that M.Os.1 to 38 samples contain the signatures of P.Ws.1 and 2 and also the Accused Nos.1 and 2. Further, during examination under Section 313 Cr.P.C, Accused Nos.1 and 2 did not deny their signatures on the samples. Though the Investigating Officer failed to show them in the property form, it cannot be a ground to reject the evidence of the Prosecution. Further, P.W.2, who is the Tahsildar is a Gazetted officer and as per Section 50 of NDPS Act, the search proceedings can be conducted either by a gazette officer or by a Magistrate. Therefore, it was rightly held by the learned trial Judge that P.W.2 was empowered to exercise the functions as an Executive Magistrate. 7. As seen from the evidence of P.W.2, she supported the contents of Ex.P.1 – Mediator’s report dated 08.01.2013. She deposed that 19 bags of ganja were produced before her, the same were weighed in her presence, which came to 475 kgs of ganja. As observed by the learned trial Judge, no contra material has been elicited from the cross examination of P.Ws.1 and 2 to discard their evidence. Further, though P.W.1 admitted that he gave evidence in three cases as a mediator, his evidence cannot be brushed away, since Ex.P.1 contains the signature of Accused No.1 and thumb impression of Accused No.2. Furthermore, Accused Nos.1 and 2 had not stated in their examination under Section 313 Cr.P.C., that no search proceedings were taken place in their presence and they also had not denied their signature and thumb impression on Ex.P.1. Accused Nos.1 and 2 also did not state the 5 circumstances under which they subscribed their signature and thumb impression in the mediator’s report and it is not their case that P.Ws.1 and 2 were not present during the search proceedings. As seen from Ex.P.8- R.E.L Report, it is clear that 19 samples were received on 24.01.2013 from the Inspector of Police, Chodavaram by the laboratory and after analysis the material in the samples was identified as ganja. 8. Further, Accused Nos.1 and 2 had not produced any evidence to prove that the 19 bags containing ganja were not seized from them on the date of alleged offence. Moreover, as per Section 54 of NDPS Act, the Court can draw a presumption that on the dated of offence, Accused Nos.1 and 2 were found while transporting 475 Kgs of ganja, which was loaded in 19 bags in Maruthi Van bearing No.AP 37 AB 8709. 9. Learned counsel for the Appellants further argued that Section 52-A of NDPS Act has not been complied with. At this stage, it is apposite to extract Section 52A of the NDPS Act which reads as under: “52A. Disposal of seized narcotic drugs and psychotropic substances.—(1) The Central Government may, having regard to the hazardous nature, vulnerability to theft, substitution, constraint of proper storage space or any other relevant consideration, in respect of any narcotic drugs, psychotropic substances, controlled substances or conveyances, by notification in the Official Gazette, specify such narcotic drugs, psychotropic substances, controlled substances or conveyance or class of narcotic drugs, class of psychotropic substances, class of controlled substances or conveyances, which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may, from time to time, determine after following the procedure hereinafter specified.] (2) Where any narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic 6 substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the 4[narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such magistrate, photographs of 5[such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of 1[narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.]” 10. The Hon’ble Apex Court in Bharat Aambale vs. The State of Chhattisgarh5, delved into the legislative history and purport of Section 52A of the NDPS Act, by referring the cases of Mohammed Khalid, Yusuf @ Asif and Mangilal (supra), which are relied on by the learned counsel for the Appellants, and held as follows: “………Mere non-compliance of the procedure envisaged under Section 52A of the NDPS Act will not entitle the accused to acquittal or bail, if there is sufficient material to establish the search and seizure of the contraband in due compliance of the mandatory provisions of the Act. The relevant observations read as under: - “23. As demonstrated above, sub-section (2) of Section 52A specifies the procedure as contemplated in sub- section (1) thereof, for the disposal of the seized contraband or controlled narcotic drugs and psychotropic substances. Any deviation or 5 2025 INSC 78 7 delay in making the application under subsection (2) by the concerned officer to the Magistrate or the delay on the part of the Magistrate in deciding such application could at the most be termed as an irregularity and not an illegality which would nullify or vitiate the entire case of the prosecution. The jurisprudence as developed by the courts so far, makes clear distinction between an “irregular proceeding” and an “illegal proceeding.” While an irregularity can be remedied, an illegality cannot be. An irregularity may be overlooked or corrected without affecting the outcome, whereas an illegality may lead to nullification of the proceedings. Any breach of procedure of rule or regulation which may indicate a lapse in procedure, may be considered as an irregularity, and would not affect the outcome of legal proceedings but it can not be termed as an illegality leading to the nullification of the proceedings. 24. Section 52A was inserted only for the purpose of early disposal of the seized contraband drugs and substances, considering the hazardous nature, vulnerability to theft, constraint of proper storage space etc. There cannot be any two opinions on the issue about the early disposal of the contraband drugs and substances, more particularly when it was inserted to implement the provisions of International Convention on the Narcotics Drugs and Psychotropic Substances, however delayed compliance or non-compliance of the said provision by the concerned officer authorised to make application to the Magistrate could never be treated as an illegality which would entitle the accused to be released on bail or claim acquittal in the trial, when sufficient material is collected by the Investigating Officer to establish that the Search and Seizure of the contraband substance was made in due compliance of the mandatory provisions of the Act. 25. It is significant to note that as per Section 54 of the said Act, the courts are entitled to presume, unless and until the contrary is proved that the accused had committed an offence under the Act in respect of any narcotic drug or psychotropic substance etc. for the possession of which he failed to account satisfactorily. Therefore, unless such statutory presumption is rebutted by the accused during the course of trial, there would be a prima facie presumption that the accused had committed the offence under the Act, if he is found to have possessed the contraband drug and substance, and if he fails to account satisfactorily, as contemplated in the said provision of Section 54. An anomalous situation would arise if a non-compliance or delayed compliance of Section 52A is held to be vitiating the trial or entitling the accused to be released on bail, though he is found to have possessed the contraband substance, and 8 even if the statutory presumption is not rebutted by him. Such could not be the intention of the legislature. xxx xxx xxx 36. At this stage, we must deal with the recent judgments in case of Simarnjit v. State of Punjab, (Criminal Appeal No. 1443/2023), in case of Yusuf @ Asif v. State (2023 SCC OnLine SC 1328), and in case of Mohammed Khalid v. State of Telangana ((2024) 5 SCC 393) in which the convictions have been set aside by this Court on finding non-compliance of Section 52A and relying upon the observations made in case of Mohanlal. Apart from the fact that the said cases have been decided on the facts of each case, none of the judgments has proposed to lay down any law either with regard to Section 52A or on the issue of admissibility of any other evidence collected during the course of trial under the NDPS Act. Therefore, we have considered the legislative history of Section 52A and other Statutory Standing Orders as also the judicial pronouncements, which clearly lead to an inevitable conclusion that delayed compliance or non- compliance of Section 52A neither vitiates the trial affecting conviction nor can be a sole ground to seek bail. In our opinion, the decisions of Constitution Benches in case of Pooran Mal and Baldev Singh must take precedence over any observations made in the judgments made by the benches of lesser strength, which are made without considering the scheme, purport and object of the Act and also without considering the binding precedents. xxx xxx xxx 39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or 9 delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” 22.From the above exposition of law, it is clear that the underlying object behind Section 52A of the NDPS Act and the Standing Order(s) / Rules thereunder is only to provide for a mechanism and procedure for the safe and early disposal of narcotics substances and seized contraband to prevent such substances from endangering lives due to prolonged storage, ceasing to be of any evidentiary value due to degradation or spoilage, or from falling into wrong hands or being recirculated into the market due to theft etc. 23.Although it is true that Chapter V of the NDPS Act more particularly, Section(s) 42 to 57 form a unique scheme of provisions that prescribe several procedural safeguards and conditions that have to be mandatorily adhered to, right from the process of conducting search till the seizure and recovery of the contraband, its safe-keep and handling, yet it does not mean that a mere delay or non-compliance of the same, would result in the trial being vitiated, or the entire case of prosecution crumbling.” 11. Though the Hon’ble Apex Court set aside the order of conviction in the cases relied on by the learned counsel for the Appellants, it was not solely for violation of Section 52A of the Act but on the strength of the other discrepancies or shortcomings in the prosecution’s case therein. In Mangilal’s case (supra), the order of conviction was held unsustainable as some of the witnesses to the seizure either turned hostile or were not examined at all and 10 due to discrepancies in the case of the prosecution. Likewise, in Mohammed Kalid (supra), the conviction was set aside as the FSL report was found to be very doubtful and in complete contradiction of the seizure that had taken place, but not for non-compliance of Section 52A of the Act. In such circumstances, the judgments relied on by the learned counsel for the Appellants are not helpful to the case of the Appellants. 12. The language employed in the provision would clearly show that, the said provision was inserted for an early disposal of the seized narcotic drugs and psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constraints of proper storage space and other relevant considerations. Sub-section(2) of Section 52-A prescribed the procedure for the purpose contemplated under sub-section (1) i.e., for the disposal of the seized contraband. Any breach, deviation or delay in the said procedure would be termed as an ‘irregularity’ but not an ‘illegality’ to vitiate the case of the prosecution. Non-compliance of the procedure envisaged under Section 52-A of the NDPS Act will not entitle the Accused to acquittal, if there is sufficient material to establish the search and seizure of the contraband. The above provision is only a procedural provision dealing with seizure, inventory and disposal of narcotic drugs and psychotropic substances and does not lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial. 13. In the instant case, since the Prosecution could prove the seizure of contraband by adducing cogent oral and documentary evidence, non- 11 compliance of Section 52A of NDPS Act does not vitiate the trial and an automatic acquittal. Procedural lapses must be viewed in the context of the overall evidence. 14. On re-appreciation of the evidence and the material placed on record, this Court is of the view that the Prosecution could establish the case against the Appellants/Accused Nos.1 and 2 beyond all reasonable doubt for the alleged offences, by adducing oral and documentary evidence. Therefore, this Court does not find any reason to interfere with the judgment passed by the learned trial Judge, as there are no irregularities and infirmities in the said judgment. Accordingly, the appeal lacks merit and the same is liable to be dismissed. 15. In the result, the Criminal Appeal is dismissed confirming the judgment of conviction dated 29.08.2018 passed in N.S.C.No.27 of 2013 by the Special Judge to try the offences under NDPS Act-cum-I Additional District and Sessions Judge-cum-Metropolitan Sessions Judge, Visakhapatnam. Pending miscellaneous petitions, if any, shall stand closed. ________________________________________ Dr.JUSTICE VENKATA JYOTHIRMAI PRATAPA Date:23.01.2025 Dinesh 12 HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA Crl.A.No.2703 of 2018 Dt.23.01.2025 Dinesh