Khagendra Acharaya v. State of U.P

Order No. 1 of 1988.

¶40The Standing Order No. 1/89 dated 13.06.1989 issued under Sub-section (1) of Section 52A of NDPS Act by the Department of Revenue, Ministry of Finance, Government of India. Section (II) of the said Order of 1989 provides for the general procedure for sampling, storage and reads as under:- STANDING ORDER No. 1/89 SECTION II-GENERAL PROCEDURE FOR SAMPLING, STORAGE, ETC. "2.1. All drugs shall be properly classified, carefully weighed and sampled 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 and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot.

2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn.

2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container.

2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten [18] packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (i n duplicate) may be drawn.

2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.

2.7. If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container.

2.8. While drawing one sample (in duplicate) from a particular lot, it must be ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot.

2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also be sealed and marked "Secret-Drug sample/Test memo", to be sent to the chemical laboratory concerned.

¶3The seizing officers of the Central Government Departments, viz., Customs, Central Excise, Central Bureau of Narcotics, Narcotic s Control Bureau, Directorate of Revenue Intelligence, etc. should despatch samples of the seized drugs to one of the laboratories of the Central Revenues Control Laboratory nearest to their offices depending upon the availability of test facilities . The other central agencies like BSF, CBI and other central police organizations may send such samples to the Director, Central Forensic Laboratory, New Delhi. All State enforcement agencies may send samples of seized drugs to the Director/Deputy Director/Assistant Director of their respective State Forensic Science Laboratory. [19]

3.1. After sampling, a detailed inventory of such packages/containers shall be prepared for enclosure with the panchnama. Original wrappers shall also be preserved for evidentiary purposes."

¶41In State of Kerala and Ors. v. Kurian Abraham (P) Ltd. MANU/SC/ 0801/2008 : 2008:INSC:158 : (2008) 3 SCC 582, wherein following the earlier decision rendered in Union of India v. Azadi Bachao Andolan MANU/SC/1219/2003 : (2004) 10 SCC 1, it was held that the aforesaid statutory instructions are mandatory in nature.

¶42The sanctity of the Standing Order 1/89 came for consideration before the Supreme Court in Noor Aga v. State of Punjab MANU/SC/2913/2008 : 2008:INSC:785 : (2008) 16 SCC 417, wherein it was held as under:- "91. Logical corollary of these discussions is that the guidelines such as 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 of 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."

¶43Noticing an apparent conflict between the standing order of 1988 and 1989 as the former provides for sampling at the spot of seizure and sending the same to laboratory within 72 hours whereas the latter provides for sampling before a Magistrate, the same was dealt with by the Hon'ble Supreme Court in Union of India (UOI) v. Mohanlal and Ors., MANU/SC/0073/2016 : 2015:INSC:808 : (2016) 3 SCC 379. The relevant paragraphs of the said Judgment of the Hon'ble Apex Court are reproduced hereunder: "Seizure and sampling

¶12Section 52-A(1) of the NDPS Act, 1985 empowers the Central Government to prescribe by a notification the procedure to be followed for seizure, storage and disposal of drugs and psychotropic substances. The Central Government [20] has in exercise of that power issued Standing Order No. 1 of 1989 which prescribes the procedure to be followed while conducting seizure of the contraband. Two subsequent standing orders one dated 10-5-2007 and the other dated 16-1-2015 deal with disposal and destruction of seized contraband and do not alter or add to the earlier standing order that prescribes the procedure for conducting seizures. "Para 2.2 of Standing Order No. 1 of 1989 states that samples must be taken from the seized contraband on the spot at the time of recovery itself. It reads: "2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchnama drawn on the spot."

¶15It is manifest from Section 52-A(2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purpose of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.

¶16Sub-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."

¶44Hon'ble Supreme Court in Yusuf @ Asif vs. State, reported in MANU/SC/1142/2023 has held as under:- "12. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned Under Section 53, the officer so [21] referred to in Sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.

¶13Notwithstanding the defence set up from the side of the Respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed Under Sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of Sub-section (2) of Section 52A of the NDPS Act.

¶14It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.

¶15In Mohanlal's case, the apex court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered Under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial.

¶16In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated." [22]

¶45Thus, it is revealed that Section 52-A of the N.D.P.S. Act has also not been complied in letter and spirit and at the cost of repetition, it is to be highlighted that the absence of link evidence with regard to safe custody of the sample as well as the detention of the sample for many days by the P.W.-5/HCP Jeev Lal before depositing it in the forensic lab and ultimate revelation of the forensic lab that the contraband recovered from the appellant is 'opium' and not 'charas', a reasonable doubt is emerging in the case of the prosecution and in the considered opinion of this Court when the trial court has not considered it expedient to forward another sample of the contraband shown to have been recovered for forensic lab examination, the benefit of reasonable doubt may be accorded to the accused person/appellant.

¶46Thus, having considered all the facts and circumstances of the case, evidence produced before the trial court by the prosecution and other attending facts and circumstances of the case, in the considered opinion of this Court, the prosecution has miserably failed to prove its case beyond reasonable doubt before the trial court and, thus, appears to have committed illegality in convicting the appellant and the interference in the impugned judgment and order of the trial court is required to be made by this Court.

¶47In result, the instant appeal filed by the appellant-Khagendra Acharaya is, hereby, allowed and the appellant is acquitted of all the charges framed against him and impugned judgment and order of the trial court dated 31.07.2019 passed by Additional Sessions Judge, Court No.1, Balrampur in Special Criminal Case No. 07 of 2016 "State of U.P. vs. Khagendra Acharaya", Case Crime No. 247 of 2015, under Section 8/18/23 of N.D.P.S. Act, Police Station Kotwali Jarwa, District Balrampur, whereby the appellant has been convicted for committing offences under Section 8/18/23 of N.D.P.S. Act and has been sentenced for 10 years' imprisonment and Rs. 1,00,000/- fine and in default to further undergo imprisonment of one year is, hereby, quashed/set-aside. [23]

¶48The appellant is in jail. He shall be released from prison forthwith unless wanted in any other Court.

¶49However, having regard to the provisions contained under Section 437-A of the Cr.P.C., the appellant shall file his personal bond with two sureties of Rs. 50,000/- before the trial court within 30 days from his actual release from the prison to secure his presence before the Hon'ble Supreme Court if any S.L.P. or to say any criminal appeal is filed against the judgment of this Court.

¶50A copy of this order be immediately sent to the trial court through the Sessions Judge concerned for information, along with the record of the trial court. Order Date: 22.05.2024 Praveen/- High Court of Judicature at Allahabad, Lucknow Bench

[1] Reserved Court No. - 16 Case :- CRIMINAL APPEAL No. - 2455 of 2019 Appellant :- Khagendra Acharaya Respondent :- State of U.P. Counsel for Appellant :- Piyush Kumar Singh,Shivendra Pratap Singh Counsel for Respondent :- Govt. Advocate Hon'ble Mohd. Faiz Alam Khan,J. 1. Heard Shri Piyush Kumar Singh, learned counsel for the appellant as well as learned A.G.A. for the State and perused the record. 2. The instant criminal appeal under Section 374(2) Cr.P.C. has been preferred by the appellant- Khagendra Acharaya against the judgment and order of the trial court dated 31.07.2019 passed by Additional Sessions Judge, Court No.1, Balrampur in Special Criminal Case No. 07 of 2016 "State of U.P. vs. Khagendra Acharaya", arising out of Case Crime No. 247 of 2015, under Section 8/18/23 of N.D.P.S. Act, Police Station Kotwali Jarwa, District Balrampur, whereby the appellant has been convicted for committing offences under Section 8/18/23 of N.D.P.S. Act and has been sentenced for 10 years' imprisonment and Rs. 1,00,000/- fine and in default to further undergo imprisonment of one year. 3. The necessary facts required for disposal of the instant appeal appears to be that, an F.I.R. was lodged by the informant HC/GD Nipendra Deori on 04.11.2015 at 14:45 hours at Police Station Jarwa, District Balrampur alleging therein that when they were on patrolling and were going from Janakpur to Balapur with other members of the force, they saw a person coming from the front and who after seeing them started running back and on became suspicious, he was apprehended and was asked about the [2] reason for running away, whereon he informed that he is possessing 'charas' and revealed his name, on which he was told that as you are possessing 'charas' you are required to be searched before a Magistrate or gazetted officer who are being called, on which, the accused person stated that since he has been arrested, he may be searched by the informant and his associates, on which, the S.S.B. personnels' searched each other and did not find any objectionable thing in their possession and thereafter the consent letter was prepared and the accused person was searched and thereafter a bag which he was carrying on his back was also searched from which 7 kg. of 'charas' in five separate packets was recovered and when weighed with the use of a traditional scale was found as of 07 kg. The accused person was arrested and 50 grams of 'charas' was taken as specimen and the specimen as well as the remaining 'charas' was sealed on the spot and thereafter the recovered 'charas' and accused was taken to the police station concerned. 4. On the basis of this information a Case Crime No. 247 of 2015 was registered under Section 8/20 of the N.D.P.S. Act and the investigation commenced. 5. The specimen of 'charas' collected from the spot was also sent for forensic examination and on forensic examination, the contraband was found to be 'opium' and the investigating officer after completing the formalities of investigation e.g. recording of the statement of the informant and other members of the force, which at that point of time were allegedly accompanying the informant and also after preparing the site plan submitted charge-sheet against the appellant under Section 8/18/23 of N.D.P.S. Act. 6. The charges were framed against the appellant by the trial court under Section 8/18/23 of N.D.P.S. Act, however, the appellant denied the charges and claimed trial. 7. The prosecution in order to prove its case before the trial court has produced in oral evidence P.W.-1/Nipendra Deori, P.W.-2/Yatendra [3] Kumar, P.W.-3/Santram, P.W.-4/Sub Inspector Manoj Kumar Singh, P.W.-5/H.C.P. Shri Jeev Lal and apart from it, the prosecution has also relied on documentary evidence e.g. Seizure Memo, Exhibit-ka-1, Consent letter, Exhibit-ka-2, apprehension detail, Exhibit-ka-3, Seizure Memo, Exhibit-ka-4, Site Plan, Exhibit-ka-5, Letter of forensic lab bearing letter no. 2742 of 2015, Exhibit-ka-6, forens