TaxTMI 
TaxTMI 
2017 (12) TMI 1512
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....y, arrested the criminal and on search six packets were recovered from him and on opening of the packets it was found that opium was kept in packets. It further appears that seizure list was prepared at the place of arrest itself and the seized articles were taken to the police station. 3. On the basis of the aforesaid self statement of the Police Inspector (Informant-P.W.1), Raxaul P.S.case No. 137 of 2010 has been registered under Sections 15, 17, 18, 21, 22, 23 and 24 of the Act. It further appears that during investigation involvement of one co-accused, Ramanand Patel, was also found and police submitted charge sheet against him. 3. It further appears from perusal of the record that the appellant along with the seizure list was produced before the court of the Chief Judicial Magistrate, East Champaran at Motihari. It also appears from the record that on 28.9.2010 a requisition was made to the Special Judge for authorizing a Magistrate for preparation of sample and also for sending the same to the Forensic Science Laboratory. It also appears that after completion of investigation charge sheet has been submitted. 4. Record further shows that cognizance has been taken and case ....
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....mmad (appellant), he went near Manokamana temple and from near NH 28A,appellant was arrested and on search, six packets were found tied around his waist, which on opening appears to be opium and each packet contains 1/2 kg. opium and altogether 3 kg. opium were found. Evidence of P.W.1 also shows that seizure list (Ext.1) was prepared and signatures of independent witnesses were obtained and a copy of the same was handed over to the appellant and his signature was obtained. All the other witnesses also supported above evidence of P.W.1 so far recovery is concerned. 10. Such an eventuality has already been discussed in several judgments by Hon‟ble Apex Court. In the case of Hamidbhai Azambhai Malik vs. The State of Gujarat :AIR 2009 SC 1378 in paragraph-11 of the Apex Court held as follows : "11. Coming to the factual background it has to be noted as follows :- The search was made by the raiding party at about 4.30 p.m. on 15.12.1995. Section 42 will be invocable only if the search is made by the police officer or the concerned authority, upon the prior information. If such a person has reason to believe from personal knowledge or information given by any person and oblig....
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....ise that the police officials concerned must be presumed to have acted on the basis of definite prior information. Once this assumption is held to be wrong, the ratio of the decision in State of Punjab v. Balbir Singh [(1994) 3 SCC 299] gets attracted. The legal position has been clarified thus : ........But when a police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the Cr. P.C. comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer and taking to Gazetted Officer thus would not ar....
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....ed Sessions Judge vide order dated 24.9.2010 but FSL report (Ext.8) shows that the sample has been dispatched to the FSL on 11.10.2010 which was received after 11 days , i.e., on 22.10.2010 in the FSL and the delay in sending the sample to the FSL has not been explained, which adversely affected the genuineness of the sample. It has also been argued that in this case, report has been submitted almost after about a year, i.e., on 8.9.2011 and that also creates doubt about genuineness of the report. 14. Learned counsel has cited a Division decision of this Court in the case of Pratibha Devi vs. State of Bihar : 2017(3) PLJR 694 in which non-compliance of provisions of Section 52A & 57 as well as other provisions of the Act and Standing Order have been considered in the light of the decisions of the Hon‟ble Apex Court in the case of State of Punjab vs. Balbir Singh, reported in (1994) 3 SCC 299 and in the case of Noor Aga vs. State of Punjab, reported in AIR 2009 SC 852, and the conviction so held in that case has been set aside on this ground. 15. Learned counsel for the State, on the other hand, has submitted that in this case there is no necessity for compliance of Section ....
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...., report was prepared on 8.9.2011, i.e., almost after a year, which also creates a serious suspicion about the report and about the genuineness of the findings. 17. The provision of NDPS Act is quite stringent. There is conviction of more than 10 years and a fine of Rs. 1 lac and stringent provision is there regarding grant of bail. In such a situation, Legislature has provided for certain safeguard so that the same cannot be misused and false implication can be avoided and, as such, provisions of Section 42, 50, 55 & 57 have been incorporated in the Act itself. Apart from those sections there is provision of Section 52A of the Act, wherein detail regarding disposal and preparation of sample has been provided. Further for disposal of seized articles storage, sampling, Standing Order No. 1 of 1988 and 1 of 1989 have been issued and clause 2.1 & 2.2 of Standing Order No. 1 of 1989 deals with sampling, classification and drawl of sample, which are as follows : "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 a....
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....the prosecution under Section 114 G of the Evidence Act on the ground of non-production of seized articles. Hon‟ble Supreme Court in the case of Jitendra Kumar vs. State of U.P. : (2004) 10 SCC 562 and also in the case of Ashok @ Dangra vs. State of U.P. : (2011) 5 SCC 123 has considered above aspect of the matter as in those cases also neither material exhibits nor the samples have been produced in court nor Malkhana register nor Malkhana In- charge has been examined and the Hon‟ble Apex Court has come to the conclusion that in view of non-production of seized articles or samples in court, nor Malkhana register were produced, conviction of the appellant is vitiated, particularly where the offence is punishable with a stringent sentence under the NDPS Act. Nor compliance of provisions of Section 52A, 55, 57 and Standing Orders issued under the Act along with provision of Sections 42 and 50 of the Act has also been considered by a Division Bench of this Court in the case of Pratibha Devi vs. State of Bihar and after considering the entire aspects of the matter this Court was of the view that on account of non-compliance of the mandatory provisions of law, the prosecution....