# Satyapal & Anr v. State of U.P

- **Citation:** (2024) 2 ILRA 1427
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-02
- **Case number:** Criminal Appeal No. 6549 of 2018
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satyapal-anr-v-state-of-u-p-51269
- **Pages:** 19

## Headnote

Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8, 15(c), 42 & 52A - Appellants
challenged conviction and sentence of 10 years
rigorous imprisonment and Rs.1,50,000 fine
under Section 8/15(c) NDPS Act for possession
and transportation of 43 quintals and 30 kg of
poppy straw. Court held: (1) Non-compliance
with mandatory provisions of Section 52A, as
samples were not drawn in the presence of a
Magistrate, and inventory was not certified,
rendering samples invalid as primary evidence.
(2) Bulk contraband (43 quintals and 30 kg) not
produced during trial or remand, reportedly
destroyed due to rain, without following Section
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
52A disposal procedures, leading to a negative
inference under Section 114(g) of the Indian
Evidence Act, 1872. (3) Non-compliance with
Section 42, as secret information was not
recorded or reported to superiors, further
vitiating the prosecution case. (4) Lack of
evidence on the number of sacks, sealing, and
proper sampling raised doubts about the
recovery's authenticity. Conviction set aside due
to failure to produce primary evidence and
procedural lapses; appellants acquitted; appeal
allowed. (Mangilal Vs St. of M.P., Criminal
Appeal No. 1651 of 2023; U.O.I. Vs Jarooparam,
(2018) 4 SCC 334; Noor Aga Vs St. of Punj.,
(2008) 16 SCC 417; Jitendra Vs St. of M.P.,
(2004) 10 SCC 562; Gorakh Nath Prasad Vs St.
of Bihar, AIR 2018 SC 704). (Paras 19-33)

Appeal Allowed.

Case Law Cited:

## Text

_Characters 0–39,837 of 65,520. This is a partial read: ask again with offset=39837 for what follows._

2 All. Satyapal & Anr. Vs. State of U.P.
1427
application of mind and is arbitrary. Thus
the impugned orders dated 23.09.2020 and
15.03.2021
passed
by
the
District
Magistrate, Ambedkar Nagar and the
impugned order dated 18.10.2022 passed
by the Court of Special Judge, Gangster
Act Ambedkar Nagar in Misc. Case No.
153/2021 CNR No. UPAN0100116872021:
State of U.P. Vs. Nabi Sarvar are illegal and
the same are liable to be quashed.

20. In view of above facts and
circumstances of the case, the impugned
orders passed by the trial court cannot be
said to be passed in correct perspectives as
they are not sustainable in the eye of law
and require interference by this Court, the
prosecution has failed to establish that the
provisions of Sections 2 and 3 of the
Gangster Act are attracted in the case of
appellant, and further the appellant's
property is also not attached in accordance
with law, as the prosecution has failed to
establish that the property in question
acquired and owned by the appellant has
been earned from the income indulging in
anti social activities. The enquiry under
Section 16 was not done in accordance with
the Act, the provisions of Sections 14, 15 &
17 were also not followed in accordance
with the Act, thus the entire proceeding
initiated in pursuance thereof is vitiated.

21. Accordingly, the present appeal is
allowed. The
impugned
order
dated
23.09.2020 and order dated 15.03.2021
passed
by
the
District
Magistrate,
Ambedkar Nagar in Criminal Misc Case
No. 648 of 2020, arising out of F.I.R./Case
Crime No. 393 of 2020, under Section 3 (1)
U.P. Gangster Act, 1986, Police Station
Akbarpur, District Ambedkar Nagar and
order dated 18.10.2022 passed by the Court
of Special Judge, Gangster Act Ambedkar
Nagar in Misc. Case No. 153/2021 CNR
No. UPAN0100116872021: State of U.P.
Vs. Nabi Sarvar are hereby quashed.

The District Magistrate, Ambedkar
Nagar is directed to release all the
properties of the appellant attached vide
order dated 23.09.2020 in favour of
appellant, forthwith.

No order as to costs.
----------
(2024) 2 ILRA 1427
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2024

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Appeal No. 6549 of 2018

Satyapal & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Murtaza Ali, Sri Gufran Ahmad Khan, Sri
Imtiyaj Ali, Sri Sadrul Islam Jafri, Sri N.I. Jafri
(Sr. Advocate)

Counsel for the Respondent:
G.A.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8, 15(c), 42 & 52A - Appellants
challenged conviction and sentence of 10 years
rigorous imprisonment and Rs.1,50,000 fine
under Section 8/15(c) NDPS Act for possession
and transportation of 43 quintals and 30 kg of
poppy straw. Court held: (1) Non-compliance
with mandatory provisions of Section 52A, as
samples were not drawn in the presence of a
Magistrate, and inventory was not certified,
rendering samples invalid as primary evidence.
(2) Bulk contraband (43 quintals and 30 kg) not
produced during trial or remand, reportedly
destroyed due to rain, without following Section
1428 INDIAN LAW REPORTS ALLAHABAD SERIES
52A disposal procedures, leading to a negative
inference under Section 114(g) of the Indian
Evidence Act, 1872. (3) Non-compliance with
Section 42, as secret information was not
recorded or reported to superiors, further
vitiating the prosecution case. (4) Lack of
evidence on the number of sacks, sealing, and
proper sampling raised doubts about the
recovery's authenticity. Conviction set aside due
to failure to produce primary evidence and
procedural lapses; appellants acquitted; appeal
allowed. (Mangilal Vs St. of M.P., Criminal
Appeal No. 1651 of 2023; U.O.I. Vs Jarooparam,
(2018) 4 SCC 334; Noor Aga Vs St. of Punj.,
(2008) 16 SCC 417; Jitendra Vs St. of M.P.,
(2004) 10 SCC 562; Gorakh Nath Prasad Vs St.
of Bihar, AIR 2018 SC 704). (Paras 19-33)

Appeal Allowed.

Case Law Cited:

1. Mangilal Vs St. of M.P., Criminal Appeal No.
1651 of 2023 (Para 20)

2. U.O.I. Vs Jarooparam, (2018) 4 SCC 334
(Para 21)

3. Noor Aga Vs St. of Punj., (2008) 16 SCC 417
(Para 20)

4. Jitendra Vs St. of M.P., (2004) 10 SCC 562
(Para 20, 24)

5. Gorakh Nath Prasad Vs St. of Bihar, AIR 2018
SC 704 (Para 23)

6. Kishan Chand Vs St. of Har., AIR 2013 SC 357
(Para 22)

7. Mohd. Idris and another Vs St. of U.P., 2017 0
Supreme (All) 1327 (Para 10)

8. Javed A. Bhat Vs U.O.I., 2007 Cr.LJ 3145
(Bom) (Para 10)

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. The instant 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 No.39 of 2018 (State of U.P. Vs.
Satyapal and other) arising out of Case
Crime No.994 of 2004, Police Station
Kotwali, District Bareilly by Additional
Sessions Judge, Court No.30 Bareilly and
sentenced
to
10
years
rigorous
imprisonment and Rs.1,50,000/- fine with a
default stipulation. Another co-accused
Pappu died during trial and the case was
abated in respect of him due to his death.

2. Heard Sri N.I. Jafri, learned senior
counsel assisted by Sri Sadrul Islam Jafri,
learned counsel for the appellant and
learned AGA for the State and perused the
material available on record.

3. The brief facts of the case, leading to
filing of present Criminal Appeal are that
on 03.05.2004 PW1 S.S.I. Jagdish Kumar
Arora accompanied by SI Siddhartha
Mishra and SI Subhash Tiwari (PW2) two
constables came to Chowki Crossing P.S.
Kotwali, Bareilly in connection with their
official duty on 03.05.2004. They inspected
the Truck Bearing Registration No.DL-1
GA-6583 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
keeping 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
2 All. Satyapal & Anr. Vs. State of U.P.
1429
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 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 search the plastic sacks
loaded on the truck which 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 weighted 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. 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
huge quantity of Poppy's Straw with them,
they were arrested after disclosure of
reasons of arrest at around 12:15 hours on
03.05.2004 in presence of police witnesses.
Recovery memo was prepared on the spot
and FIR was lodged at P.S. concerned at
15:30 hours on the basis of recovery memo
prepared by SSI Jagdish Kumar Arora,
which bears signature of other members of
police team and thumb impression of
arrested accused persons. The sample was
taken on the spot from one sack containing
Poppy straw and sent for chemical
examination
at
Forensic
Science
Laboratory, Agra which was found as
pieces
of
doda
opium
in
chemical
examination report submitted by Joint
Director FSL to the Special Judge NDPS
Act
bearing
dated
08.06.2004.
The
investigation of the case was carried out by
S.I. Harveer Singh, P.S. Kotwali, Bareilly
who recorded statements of the witnesses,
prepared site plan of the place of incident
and after collection of evidence filed
chargesheet against three arrested accused
persons under Section 8/15 NDPS Act,
before the court of Special Judge with
payer to prosecuted them.

4. Before commencement of prayer
accused Pappu died and trial in respect of
him
was
abated
vide
order
dated
07.03.2014.

5. Learned Additional Session Judge,
Court No.8, Bareilly framed charge under
Section
8/15(C)
NDPS
Act
against
surviving accused Satyapal and Saifuddin
Urf Sheruddin on 21.04.2007.

6. Prosecution examined PW1 Jagdish
Kumar Arora, the search and arresting
officer who proved recovery memo in his
own signature and in hand-writing of his
colleague Sidharth Mishra as Ex. Ka1 in
his evidence. PW2 SI Subhash Tiwari was
also examined as witness of search,
recovery and arrest and he acknowledged
his signature on recovery memo Ka1. 5Kg
Opium Poppy was taken from one sack as
sample and sent for chemical examination
1430 INDIAN LAW REPORTS ALLAHABAD SERIES
at FSL Agra was produced before the court
during evidence of PW2 who proved the
plastic sack containing 5 Kg of Opium
Poppy taken as sample as material Exhibit
ME1 and contents of sample of Poppy
straw as ME2. He also corroborated the
evidence of PW1 in regard to search,
seizure and arrest PW3 SI Harveer Singh
who is Investigating Officer of the said
case who proved site plan of the place of
arrest and recovery as Exb. Ka2 and
chargesheet submitted by him against the
accused persons as Exb. Ka3 by his
evidence.
The
statement
of
accused
appellants were recorded under Section 313
Cr.P.C. after conclusion of prosecution
evidence. The accused persons declined to
adduce any defence evidence, their defence
is of denial and false implication.

7. Learned counsel for the appellants
submitted that they were falsely implicated
in the case, they were enlarged on bail
during trial by the orders of this Court. The
entire action of search and seizure is wholly
illegal.

8. 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 learned 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.
Infact,
prosecution failed to prove its case beyond
reasonable doubt. Inasmuch as the bulk of
case property was not produced during trial
as material exhibit and only 5kg sample
which was allegedly taken on the spot from
one sack of Poppy straw (Doda) and sent for
chemical examination to FSL was only
produced during evidence of PW2. In
absence of production of bulk of case
property before the Court, link evidence,
which is very relevant in cases based on
recovery of contraband is missing in the case.
There is total non-compliance of Sections 57,
42(2) and particularly Section 52(A) of
NDPS Act,1985 which is held as mandatory
in recent pronouncements of Hon'ble Apex
Court. Even number of sacks containing
Poppy straw is neither mentioned in recovery
memo nor in statement of the witnesses. The
truck owner was not made accused during
investigation which also raises suspicion in
case set up by the police. The accused
persons have denied the recovery of
contraband from their possession from very
beginning and in the absence of production of
case property during remand proceedings as
well as during trial, it cannot be discerned
that such huge quantity of contraband was
recovered from the possession of the
appellants. The appellants have stated in their
statements under Section 313 Cr.P.C. before
the trial court that in the truck polish of rice
was loaded and not Doda Poppy. The truck
mistakenly entered into no entry zone. The
appellants were not in conscious position of
any contraband what so ever, and they were
falsely implicated by the police. The truck in
which
alleged
contraband
was
being
transported, was released in favour of its
registered owner Anis vide order dated
28.10.2004 passed by this Court subject to
certain conditions. The search and seizure
operation was conducted in violation of the
mandatory provisions of Section 52A of the
Act as the procedure prescribed therein was
not followed in drawing the samples and
seizing the alleged contraband. Further there
is a serious doubt about the correctness of
samples for analysis as to whether they
were actually the samples of seized
contraband.

9. Per contra, learned A.G.A. for the
State submitted that there is no infirmity or
2 All. Satyapal & Anr. Vs. State of U.P.
1431
legal and factual error in the impugned
judgment and order passed by learned 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 officer
who were performing their official duty to
plant such 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.

10. Learned counsel for the appellants
placed reliance on judgment of Hon'ble of
this Court in Mohd. Idris and another Vs.
State of U.P., 2017 0 Supreme (All) 1327,
Kishan Chand vs State Of Haryana AIR
2013 (SC) 357, Gorakh Nath Prasad Vs.
State of Bihar AIR 2018 (SC) 704, Javed A.
Bhat Vs. Union of India, 2007 Cr.LJ, 3145
(Bom) in support of his submissions.

11. Let us examine the statutory
provision relevant to present Section 8 of
N.D.P.S. Act, 1985 reads as under:-

"8.
Prohibition
of
certain
operations.-No person shall-

(a) cultivate any coca plant or gather
any portion of coca plant; or

(b) cultivate the opium poppy or any
cannabis plant; or

(c) produce, manufacture, possess,
sell, purchase, transport, warehouse, use,
consume, import inter-State, export interState, import into India, export from India
or
tranship
any
narcotic
drug
or
psychotropic substance, except for medical
or scientific purposes and in the manner
and to the extent provided by the provisions
of this Act or the rules or orders made
thereunder and in a case where any such
provision, imposes any requirement by way
of licence, permit or authorisation also in
accordance with the terms and conditions
of such licence, permit or authorisation:

Provided that, and subject to the other
provisions of this Act and the rules made
thereunder, the prohibition against the
cultivation of the cannabis plant for the
production of ganja or the production,
possession, use, consumption, purchase,
sale, transport, warehousing, import interState and export inter-State of ganja for
any purpose other than medical and
scientific purpose shall take effect only
from
the
date
which
the
Central
Government may, by notification in the
Official Gazette, specify in this behalf:

[Provided further that nothing in this
section shall apply to the export of poppy
straw for decorative purposes.]"

12. Section 15 of N.D.P.S. Act of
1985 is reproduced as under:-

"[15.
Punishment
for
contravention in relation to poppy straw.-
Whoever,
in
contravention
of
any
provisions of this Act or any rule or order
made or condition of a licence granted
thereunder, produces, possesses, transports,
imports inter-State, exports inter-State,
sells,
purchases,
uses
or
omits
to
warehouse poppy straw or removes or does
any act in respect of warehoused poppy
straw shall be punishable,-
1432 INDIAN LAW REPORTS ALLAHABAD SERIES

(a) where the contravention
involves small quantity, with rigorous
imprisonment for a term which may
extend to 2 [one year], or with fine which
may extend to ten thousand rupees, or
with both;

(b) where the contravention
involves quantity lesser than commercial
quantity but greater than small quantity,
with rigorous imprisonment for a term
which may extend to ten years, and with
fine which may extend to one lakh rupees;

(c) where the contravention
involves
commercial
quantity,
with
rigorous imprisonment for a term which
shall not be less than ten years but which
may extend to twenty years, and shall also
be liable to fine which shall not be less
than one lakh rupees but which may
extend to two lakh rupees:

Provided that the court may, for
reasons to be recorded in the judgment,
impose a fine exceeding two lakh rupees."

13. The notification of Central
Government with regard to quantity of
contraband which may be recovered a
small, commercial or intermediate quantity
for the purposes of Section 15 are specified
vide S.O. 1055 (E) dated 19.10.2001
published in the Gazette of India Extra.
dated 19.10.2001 in this schedule the
quantity of different kind of Narcotic Drugs
and Psychotropic Substances Act, 1985 for
purposes of specifying the same in said
quantity is provided by said notification in
a table at the end of the Act of 1985 as
amended by the Narcotic Drugs and
Psychotropic
Substance
(amendment)
2001. In this table at Serial No.110 it is
provided that accordingly 1 Kg of Poppy
straw is comes within 1Kg Poppy's Straw
comes under small quantity and 50Kg
under commercial quantity. Therefore,
Poppy straw more than 1 Kg and less than
50 Kg will be considered as intermediate
quantity for the purposes of Section 15 of
the Act which provides for punishment
according to quality of contraband involved
in the case. In the present case, the quantity
of Poppy straw is shown as 43 quintal 30
Kg
which
apparently
comes
under
commercial quantity.

14. In the present case, the charge
against the appellants is that 43 quintal and
30 Kg of illegal opium powder, recovered
from joint possession of the appellants who
were travelling in a truck and contraband
was found to be loaded in the truck on the
date of search, seizure, recovery and arrest.
All the sacks from which contraband was
recovered were loaded in the truck
according to prosecution version and 5 Kg
sample was taken out from one of the sacks
on the spot. The contraband was weighted
in a nearby Dharamkata and for that
purpose a truck was sent to Dharamkata
when the raiding team intercepted the truck
and was apprised that illegal Poppy's Straw
in huge quantity was loaded in the truck.

15. PW3 Inspector Harveer Singh CB
CID stated in his evidence that he received
FSL report from the office of Police Station
on 20.06.2004 and transcribed its content in
the case diary. Police Team left the police
station at 11:20 hours on the date of
incident by making an entry in G.D. vide
Rapat No.27. The docket was prepared
from the court, where jurisdiction of NDPS
Act case was entrusted and for that purpose
sample was brought from the police station.
He had send the sample for FSL
examination after receiving the same from
Thana Malkhana. The docket was sent for
chemical analysis through constable 414
Brijesh Mishra. He has not taken any action
in respect of Section 52-A of NDPS Act.
PW2 had produced the sample for doda
2 All. Satyapal & Anr. Vs. State of U.P.
1433
powder (Poppy's Straw) which was sent for
chemical analysis to FSL, Agra in sealed
cover which was opened before the Court.
This is admitted fact that except sample
taken from one of the sacks containing
Poppy's Straw seized in the case and send
for chemical analysis to FSL was produced
before the court during the evidence of
PW2, but entire case property was never
produced before the Court either at the time
of seeking judicial remand of the accused
persons or during trial.

16. PW3 Inspector Harveer Singh has
proved the FSL report as Ka4 during his
evidence. He also proved the copy of Chick
FIR prepared by Constable Kripal Giri
related to Crime No.994 of 2004, in the
absence of its author and stated that he was
posted with Constable Harveer Singh at
relevant time. He also stated that said
constable Harveer Singh has transcribed the
copy of recovery memo on the back of
chick FIR word to word. He also proved
copies of general diary of registration of
case while GD No.34 time 15:30 hours
dated 03.05.2004. The Chick FIR is
exhibited as Ka5, and copy of GD of
registration of Case as Ex.Ka7. He also
produced a copy of report of SSP Office, in
which it is stated that Original GD of
Registration of Case dated 03.05.2004 has
been weeded out.

17. The appellants are presently held
in jail custody since 20.10.2018. There is a
report in the record of trial court submitted
by S.H.O. Kotwali, Bareilly bearing dated
10.08.2018, in which it is stated that
according to Malkhana Register of 2014,
43 quintal and 30 Kg doda related to Case
Crime No.994 of 2004, under Section 8/15C of NDPS Act, which was loaded in the
truck got rotten due to rain and an entry in
this regard has been made in G.D. Report
No.54 dated 15.11.2004. Although there is
an over writing in date of report of GD, as
well as GD number and date of GD.

18. From this report it is obvious that
contraband could not be produced before
the court below on account of being
destroyed to to rain, since the same was
kept in Malkhana; after getting this report,
the trial court took strong objection to this
state of affair, and he had written a letter to
the Director General of Police, Lucknow
apprising him of the fact that the case
property in the case was not produced
before the court and a brief report has been
filed by concerned Police Official that same
has been destroyed, whereas it was kept in
the Malkhana. Therefore, this reveals that
the slackness and negligence on the part of
concerned police officials with regard to
upkeep of case property, he shall issue
directions
to
various
officers
facing
responsibility
including
concerned
Investigating Officer/Station House Officer
or any other person with regard to
destruction of case property during the
pendency of appeal.

19. The Hon'ble Supreme Court in
Mangilal Vs. State of Madhya Pradesh in
similar case while deciding the appeal
against conviction and sentencing for
charge under Section 8(b) read with Section
15-C of NDPS, Act in Criminal Appeal
No.1651 of 2023 Mangilal Vs. State of
Madhya Pradesh considering scope of
Section 52-A of NDPS, Act, which reads as
under:-

SCOPE OF SECTION 52A OF THE
NDPS ACT, 1985:

Section 52A of the NDPS Act

[52A. Disposal of seized narcotic
drugs and psychotropic substances.-
1434 INDIAN LAW REPORTS ALLAHABAD SERIES

(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-incharge 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
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 [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 4[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
innventory, the photographs of [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."

20. Hon'ble Supreme Court observed
in Mangilal Vs. State of Madhya Pradesh
(supra) as follows:-

"4. Sub-section (1) of Section
52A of the NDPS Act facilitates the Central
Government a mode to be prescribed to
dispose of the seized narcotic substance.
The idea is to create a clear mechanism for
such disposal both for the purpose of
dealing with the particular case and to
safeguard the contraband being used for
any illegal purpose thereafter.

5. Sub-section (2) of Section 52A
of the NDPS Act mandates a competent
officer to prepare an inventory of such
narcotic drugs with adequate particulars.
This has to be followed through an
appropriate application to the Magistrate
concerned for the purpose of certifying the
correctness of inventory, taking relevant
2 All. Satyapal & Anr. Vs. State of U.P.
1435
photographs in his presence and certifying
them as true or taking drawal of samples in
his presence with due certification. Such an
application can be filed for anyone of the
aforesaid three purposes. The objective
behind this provision is to have an element
of supervision by the magistrate over the
disposal
of
seized
contraband.
Such
inventories,
photographs
and
list
of
samples
drawn
with
certification
by
Magistrates would constitute as a primary
evidence. Therefore, when there is noncompliance of Section 52A of the NDPS
Act, where a certification of a magistrate is
lacking any inventory, photograph or list of
samples would not constitute primary
evidence.

6. The obvious reason behind
this provision is to inject fair play in the
process of investigation. Section 52A of
the NDPS Act is a mandatory rule of
evidence which requires the physical
presence of a Magistrate followed by an
order facilitating his approval either for
certifying
an
inventory
or
for
a
photograph taken apart from list of
samples drawn. In due compliance of
Section 52A(1) of the NDPS Act the
Ministry of Finance (Department of
Revenue) issued a Notification No. G.S.R.
339(E)
dated
5
10.05.2007
which
furnishes an exhaustive manner and mode
of disposal of drugs ending with a
certificate of destruction:

"4. Manner of disposal

1) Where any narcotic drug or
psychotropic substances has been seized
and forwarded to the officer-in-charge of
the nearest police station or to the officer
empowered under section 53, of the Act, or
if it is seized by such an officer himself, he
shall prepare an inventory of such narcotic
drugs or psychotropic substances as per
Annexure 1 to this notification and apply to
any Magistrate under sub-section (2) of
section 52A as per Annexure 2 to this
notification.

2) After the Magistrate allows the
application under sub-section (3) of section
52A, the officer mentioned in clause (1)
above shall preserve the certified inventory,
photographs and samples drawn in the
presence of the Magistrate as primary
evidence for the case and submit details of
the drug consignments to the Chairman of
the Drug Disposal Committee for a
decision by the committee on the disposal.
The officer shall send a copy of the details
along with the drug consignments to the
officer-in-charge of the godown.

XXX XXX XXX

4.2 Mode of disposal of drugs. (i)
Opium, morphine, codeine and thebaine
shall be disposed of by transferring to the
Government Opium and Alkaloid Works
under the Chief Controller of Factories. (ii)
In case of drugs other than the drugs
mentioned
in
clause
(i),
the
Chief
Controller of Factories shall be intimated
by the fastest means of communication
available, details of drug consignments that
are ready for disposal. (iii) The Chief
Controller of Factories shall indicate
within 15 days of the date of receipt of the
communication, the quantities of drugs, if
any, that are required by him to supply as
samples under Rule 67B. (iv) Such
quantities of drugs, if any, as required by
the Chief Controller of Factories under
clause (iii) shall be transferred to him and
the remaining quantities of drugs shall be
destroyed as per the procedure outlined in
para 4.1.2. (v) Destruction shall be by
incineration in incinerators fitted with
appropriate air pollution control devices,
which comply with emission standards.
Such incineration may only be done in
places where adequate facilities and
security arrangements exist. In order to
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
ensure that such incineration may not be a
health hazard or polluting, consent of the
State Pollution Control Board or Pollution
Control Committee, as the case may be,
should be obtained. Destruction shall be
carried out at the presence of the Members
of the Drug Disposal Committee.

XXX XXX XXX

4.4 Certificate of destruction. A
certificate of destruction (in triplicate)
containing all the relevant data like
godown entry number, gross and net
weight of the drugs seized, etc., shall be
prepared and signed by the chairman and
members of the Drug Disposal Committee
as per format at Annexure 3. The original
copy shall be pasted in the godown
register after making necessary entries to
this effect, the duplicate to be retained in
the seizure case file and the triplicate copy
will be kept by the Drug Disposal
Committee. Details of disposal of drugs
shall be reported to the Narcotics Control
Bureau in the Monthly Master Reports."

7. To be noted, the aforesaid
notification was in existence at the time of
the commission of the offence alleged in the
case on hand, stood repealed with effect
from 23.12.2022 vide Notification No.
G.S.R.899(E). In any case a notification
issued in derogation of the powers
conferred under sub-section (1) of Section
52A of the NDPS Act can never contradict
the main provision, particularly subSection (2). However, any guideline issued
by way of a notification in consonance with
Section 52A of the NDPS Act has to be
followed mandatorily.

8.
Before
any
proposed
disposal/destruction mandate of Section
52A of the NPDS Act requires to be duly
complied with starting with an application
to that effect. A Court should be satisfied
with such compliance while deciding the
case. The onus is entirely on the
prosecution in a given case to satisfy the
Court when such an issue arises for
consideration.
Production
of
seized
material is a factor to establish seizure
followed by recovery. One has to remember
that the provisions of the NDPS Act are
both stringent and rigorous and therefore
the burden heavily lies on the prosecution.
Non-production of a physical evidence
would lead to a negative inference within
the meaning of Section 114(g) of the Indian
Evidence Act, 1872 (hereinafter referred to
as the Evidence Act). The procedure
contemplated through the notification has
an element of fair play such as the deposit
of the seal, numbering the containers in
seriatimwise and keeping them in lots
preceded by compliance of the procedure
for drawing samples. The afore-stated
principles of law are dealt with in extenso
in Noor Aga v. State of Punjab, (2008) 16
SCC 417:

"89. Guidelines issued should not
only be substantially complied with, but
also in a case involving penal proceedings,
vis-à-vis
a
departmental
proceeding,
rigours of such guidelines may be insisted
upon. Another important factor which must
be borne in mind is as to whether such
directions have been issued in terms of the
provisions of the statute or not. When
directions are issued by an authority having
the legal sanction granted therefor, it
becomes obligatory on the part of the
subordinate
authorities
to
comply
therewith.

90. Recently, this Court in State
of Kerala v. Kurian Abraham (P) Ltd.
[(2008) 3 SCC 582] , following the earlier
decision of this Court in Union of India v.
Azadi Bachao Andolan [(2004) 10 SCC 1]
held
that
statutory
instructions
are
mandatory in nature.

91. The logical corollary of these
discussions is that the guidelines such as
2 All. Satyapal & Anr. Vs. State of U.P.
1437
those present in the Standing Order cannot
be
blatantly
flouted
and
substantial
compliance therewith must be insisted upon
for so that sanctity of physical evidence in
such cases remains intact. Clearly, there
has been no substantial compliance with
these guidelines by the investigating
authority which leads to drawing of an
adverse inference against them to the effect
that had such evidence been produced, the
same would have gone against the
prosecution.

92. Omission on the part of the
prosecution to produce evidence in this
behalf must be linked with a second
important piece of physical evidence that
the bulk quantity of heroin allegedly
recovered indisputably has also not been
produced
in
court.
The
respondents
contended
that the
same
had
been
destroyed. However, on what authority it
was done is not clear. Law requires that
such an authority must flow from an order
passed by the Magistrate. Such an order
whereupon reliance has been placed is
Exhibit PJ; on a bare perusal whereof, it is
apparent that at no point of time had any
prayer been made for destruction of the
said goods or disposal thereof otherwise.
What was necessary was a certificate
envisaged under Section 110(1-B) of the
1962 Act. An order was required to be
passed under the aforementioned provision
providing for authentication, inventory, etc.
The same does not contain within its
mandate
any
direction
as
regards
destruction.

XXX XXX XXX

95. The High Court proceeded on
the basis that non-production of physical
evidence is not fatal to the prosecution case
but the fact remains that a cumulative view
with respect to the discrepancies in
physical evidence creates an overarching
inference which dents the credibility of the
prosecution. Even for the said purpose the
retracted confession on the part of the
accused could not have been taken
recourse to.

96. Last but not the least,
physical evidence relating to three samples
taken from the bulk amount of heroin was
also not produced. Even if it is accepted
for the sake of argument that the bulk
quantity was destroyed, the samples were
essential to be produced and proved as
primary evidence for the purpose of
establishing the fact of recovery of heroin
as envisaged under Section 52-A of the
Act.

XXX XXX XXX

100. Physical evidence of a case
of this nature being the property of the
court should have been treated to be
sacrosanct. Non-production thereof would
warrant drawing of a negative inference
within the meaning of Section 114(g) of the
Evidence Act. While there are such a large
number of discrepancies, if a cumulative
effect thereto is taken into consideration on
the basis whereof the permissive inference
would be that serious doubts are created
with respect to the prosecution's endeavour
to prove the fact of possession of
contraband by the appellant. This aspect of
the matter has been considered by this
Court in Jitendra v. State of M.P. [(2004)
10 SCC 562 : 2004 SCC (Cri) 2028] in the
following terms: (SCC p. 565, para 6)

"6. ... In the trial it was
necessary for the prosecution to establish
by cogent evidence that the alleged
quantities of charas and ganja were seized
from the possession of the accused. The
best evidence would have been the seized
materials which ought to have been
produced during the trial and marked as
material objects. There is no explanation
for this failure to produce them. Mere oral
evidence as to their features and production
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
of panchnama does not discharge the heavy
burden which lies on the prosecution,
particularly where the offence is punishable
with a stringent sentence as under the
NDPS Act.""

9. On the issue of seizure in the
presence of Magistrate, we wish to place
reliance upon the decision of this Court in
Union of India v. Mohanlal, (2016) 3 SCC
379:

"16. Sub-section (3) of Section
52-A requires that the Magistrate shall as
soon as may be allow the application. This
implies that no sooner the seizure is
effected and the contraband forwarded to
the officer-in-charge of the police station or
the
officer
empowered,
the
officer
concerned is in law duty-bound to
approach the Magistrate for the purposes
mentioned
above
including
grant
of
permission to draw representative samples
in his presence, which samples will then be
enlisted and the correctness of the list of
samples
so
drawn
certified
by
the
Magistrate. In other words, the process of
drawing of samples has to be in the
presence and under the supervision of the
Magistrate and the entire exercise has to be
certified by him to be correct. 17. The
question of drawing of samples at the time
of seizure which, more often than not, takes
place in the absence of the Magistrate does
not in the above scheme of things arise.
This is so especially when according to
Section 52-A(4) of the Act, samples drawn
and
certified
by
the
Magistrate
in
compliance with sub-sections (2) and (3) of
Section 52-A above constitute primary
evidence for the purpose of the trial. Suffice
it to say that there is no provision in the Act
that mandates taking of samples at the time
of seizure. That is perhaps why none of the
States claim to be taking samples at the
time of seizure. 18. Be that as it may, a
conflict between the statutory provision
governing taking of samples and the
Standing Order issued by the Central
Government is evident when the two are
placed in juxtaposition.