Himachal Pradesh High Court
Reserved On : 19.11.2024 vs State Of Himachal Pradesh on 26 December, 2024
Author: Virender Singh
Bench: Virender Singh
2024:HHC:16096
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.2246 of 2024
Reserved on : 19.11.2024
Decided on: 26.12.2024
Anil Kumar ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?
For the applicant : Mr. Kulwant Singh Gill, Advocate.
For the respondent : Mr. Tejasvi Sharma, Mr. H.S. Rawat,
Additional Advocates General, with
Mr. Rohit Sharma and Ms. Ranjana
Patial, Deputy Advocates General.
Virender Singh, Judge
By way of the present application, filed under
Section 483 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (hereinafter referred to as ‘BNSS’), applicant-Anil
Kumar has sought his release, on bail, during the
pendency of the trial, in case FIR No.53 of 2022, dated
06.07.2022, registered under Sections 22-61-85 of the
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Narcotic Drugs & Psychotropic Substances Act (hereinafter
referred to as the ‘NDPS Act‘), with Police Station Shillai,
District Sirmaur, H.P.
2. According to the applicant, he is innocent
person and has falsely been implicated, in the present
case.
3. As per applicant, he has allegedly been caught
by the police, on the ground that he was possessing of 91
vials of cough syrup. The applicant is stated to be in
judicial custody for more than 2 years and 2 months and
the chances of conclusion of trial against him are not so
bright. The investigation is also stated to be complete.
4. Another ground, upon which, the relief, as
claimed, has been sought, is that as per order dated
07.07.2022, passed by the learned Judicial Magistrate
First Class, Shillai, District Sirmaur, H.P., the entire bulk
was not sent for the chemical analysis, rather, two
representative samples, of 10 bottles each, were forwarded.
Rest 71 bottles were deposited with Malkhana. All these
facts have been highlighted to show that there was
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violation of mandatory provisions of Section 52(A) of the
NDPS Act.
5. In addition to this, the applicant has also
sought the relief on the ground that the question, with
regard to the fact as to whether the drugs, containing
codeine phosphate falls, within the definition of
‘manufactured drugs’, under the NDPS Act, or not, has
been referred to the larger Bench and according to him, till
the larger Bench does not decide the said issue, the
applicant may be released on bail.
6. According to the applicant, he had not misused
the relief of interim bail, which has been granted to him.
7. In addition to this, the delay in the trial has
also been sought, as one of the grounds to release the
applicant on bail. According to him, out of the 26
prosecution witnesses, 17 prosecution witnesses have yet
been examined.
8. Earlier, the applicant had filed bail
applications, before this Court, a number of times,
however, all his bail applications were dismissed as
withdrawn.
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9. Learned counsel for the applicant has given
certain undertakings, on behalf of the applicant, for which,
the applicant is ready to abide by, in case, ordered to be
released on bail, during the pendency of the trial.
10. On the basis of the above facts, a prayer has
been made to allow the application.
11. When, put to notice, police has filed the status
report, disclosing therein, that on 06.07.2022, at about
12:48pm, Constable Neeraj No.105 has sent the ruqqa to
the Police Station Shillai, through HC Rakesh No.224 (IO),
mentioning therein that on 05.07.2022, he, along with
other police officials, had left the SIU Office, Nahan,
regarding patrolling duty to detect the crime relating to
excise and narcotic drugs. At about 06:00 pm, they had left
towards Paonta Sahib-Rajban-Shillai. When, the IO was
present at a place known as Sataun, then, at about 02:15
in the midnight of 06.07.2022, a secret information was
received.
12. As per the said information, one Anil Kumar,
S/o Sh. Kali Ram, R/o Village Chudeu, PO Timbi Tehsil
Kamaru District Sirmaur, H.P. (applicant), has been selling
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banned medicine codeine phosphate for a long time in
Village Chadeu, located near Kafota. He had brought large
quantity of bottles of codeine syrup for sale yesterday also
and kept them in his possession in a residential house.
The said information was found to be authentic and
reliable.
13. Thereafter, the provisions of Section 42(2) of the
NDPS Act were complied with. Subsequently, the police
party, after associating two independent witnesses, namely
Tulsi Ram, S/o Late Kalu Ram and Kalyan Singh, S/o
Santram, both residents of Village Chadeu, reached at the
house of the said Anil Kumar (applicant). The door of the
said house was knocked and one person came out, to
whom, IO has given his identification and on enquiry, the
said person has disclosed his name as Anil Kumar
(applicant). Thereafter, he has been apprised about the
secret information, which the IO had received, in this case.
Room was checked and one black coloured backpack,
make PUMA, was found lying on the side of the bed and
when, the same was opened, it was found containing 91
vials of codeine phosphate and chloropheuiramine maleate
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syrup. Total weight of the said bottles was found to be
11.846 kg. The above syrup was found to be manufactured
by Laborate Pharmaceuticals India Ltd., #31, Rajban Road,
Paonta Sahib, H.P. Thereafter, the said contraband was
taken into possession and other codal formalities were
completed.
14. It is the case of the police that on 07.07.2022,
the applicant was produced, before the Court of learned
Judicial Magistrate First Class, Shillai and he was
remanded to police custody. Thereafter, for the purpose of
inventory, the case property was produced, before the
Court of learned Judicial Magistrate First Class, Shillai and
the learned JMFC, Shillai has separated 10-10 bottles as
representative samples. Subsequently, the samples, as well
as, main parcel were sealed with the Court seal.
15. Thereafter, the samples were sent to the FSL for
chemical analysis and after receiving positive report from
there, the charge-sheet has been prepared and filed against
the applicant, which is pending adjudication, before the
Court of learned Special Judge, Nahan. Out of the 26
prosecution witnesses, 21 prosecution witnesses have been
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examined and the case is now stated to be pending for
recording the statements of only five prosecution
witnesses.
16. On the basis of above facts, a prayer has been
made to dismiss the application.
17. In this case, the contraband, so recovered,
admittedly falls within the definition of ‘commercial
quantity’ and once, the commercial quantity of the
contraband is involved, in the present case, then, before
releasing the applicant, on bail, it is incumbent upon the
Court to give specific finding about the existence of the
twin conditions, as enumerated, under Section 37(1)(b) of
the NDPS Act.
18. If, the entire facts and circumstances of the
present case are taken together, then, it is not possible for
this Court, even, to prima facie conclude that the applicant
has not committed the offence and in case, he is ordered to
be released on bail, he may not commit any offence. In the
absence of the existence of the twin conditions, in favour of
the person, involved in the commercial quantity of the
contraband, he cannot be released on bail.
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19. So far as the non-compliance of Section 52A of
the NDPS Act is concerned, in view of the decision of the
Hon’ble Supreme Court in Criminal Appeal No.5544 of
2024, titled as ‘Narcotics Control Bureau versus
Kashif’, Citation No.2024 INSC 1045, the lapse and
delay in compliance of Section 52A of the NDPS Act, itself
would neither vitiate the trial nor would entitle the accused
to be released on bail. Relevant paragraphs 32 to 39 of the
judgment are reproduced, as under:
“32. Significantly, the Authorised Officer can make the
application under subsection (2) of Section 52A for three
purposes – (a) for certifying the correctness of the inventory
prepared by him; or (b) taking in presence of such
magistrate, photographs of the seized drugs, substances
and 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. The use of the conjunction “OR” made in between
the three purposes mentioned therein, itself makes it
explicitly clear that the purposes for which the application
could be made under sub-section (2) are alternative and
not cumulative in nature. Such provision specifying
multiple alternative purposes could not be construed as a
mandatory provision muchless its non-compliance fatal to
the case of prosecution.
33. Though it is true that the inventory certified,
photographs taken and the list of samples drawn under
sub-section (2) has to be treated by the Court as primary
evidence in view of sub-section (3), nonetheless the
9 2024:HHC:16096documents like Panchnama, seizure memo, arrest memo
etc. prepared by the Investigating Officer on the spot or
during the course of investigation are also primary
evidence within the meaning of Section 62 of the Evidence
Act, carrying the same evidentiary value as any other
primary evidence. Such primary evidence with regard to
Search and Seizure of the contraband substance could not
be overlooked merely because some lapse or non-
compliance is found of Section 52A of the Act.
34. In our opinion reliance placed by the High Court on the
decision of this Court in Union of India Vs. Mohanlal and
Another7, is thoroughly misplaced. In the said case, the
issue of pilferage of contraband was the main issue. The
Court after noticing the non-compliance of the procedure
laid down in the Standing Order No. 1 of 89 dated
13.06.1989, and the possibility of the pilferage of
contraband goods and their return to the market place for
circulation, had appointed an amicus curiae for making a
realistic review of the procedure for search, disposal or
destruction of the narcotics and remedial steps that need
to be taken to plug the loopholes, if any.
The Court, thereafter, had raised the queries with regard
to the seizure, storage, disposal/destruction and also with
regard to the judicial supervision in respect of the seized
narcotic drugs and psychotropic substances. The prime
focal in case of Mohanlal was the disposal of seized
contraband goods as contemplated in Section 52A. Though
it held that the process of drawing samples has to be done
in presence of and under the supervision of the Magistrate,
it nowhere held that non-compliance or delayed
compliance of the procedure prescribed under Section 52A
(2) would vitiate the trial or would entitle the accused to be
released on bail.
35. None of the provisions in the Act prohibits sample to
be taken on the spot at the time of seizure, much less
Section 52A of the said Act. On the contrary, as per the
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procedure laid down in the Standing Orders and
Notifications issued by the NCB and the Central
Government before and after the insertion of Section 52A
till the Rules of 2022 were framed, the concerned officer
was required to take samples of the seized contraband
substances on the spot of recovery in duplicate in presence
of the Panch witnesses and the person in whose
possession the drug or substance recovered, by drawing a
Panchnama. It was only with regard to the remnant
substance, the procedure for disposal of the said
substance was required to be followed as prescribed in
Section 52A.
36. At this stage, we must deal with the recent judgments
in case of Simarnjit vs. State of Punjab, (Criminal Appeal
No.1443/2023), in case of Yusuf @ Asif vs. State (2023
SCC Online SC 1328), and in case of Mohammed Khalid
and Another vs. 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
noncompliance 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
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without considering the scheme, purport and object of the
Act and also without considering the binding precedents.
37. It hardly needs to be reiterated that every law is
designed to further ends of justice and not to frustrate it
on mere technicalities. If the language of a Statute in its
ordinary meaning and grammatical construction leads a
manifest contradiction of the apparent purpose of the
enactment, a construction may be put upon it which
modifies the meaning of the words, or even the structure of
the sentence. It is equally settled legal position that where
the main object and intention of a statute are clear, it must
not be reduced to a nullity by the draftsman’s
unskillfulness or ignorance of the law. In Maxwell on
Interpretation of Statutes, Tenth Edition at page 229, the
following passage is found: –
“Where the language of a statute, in its ordinary meaning
and grammatical construction, leads to a manifest
contradiction of the apparent purpose of the enactment, or
to some inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon
it which modifies the meaning of the words, and even the
structure of the sentence. Where the main object and
intention of a statute are clear, it must not be reduced to a
nullity by the draftsman’s unskilfulness or ignorance of
the law, except in a case of necessity, or the absolute
intractability of the language used.”
38. As observed by this Court in K.P. Varghese vs. Income
Tax Officer, Ernakulam and Another8, a statutory
provision must be so construed, if it is possible, that
absurdity and mischief may be avoided. Where the plain
and literal interpretation of statutory provision produces a
manifestly absurd and unjust result, the Court may
modify the language used by the Legislature or even do
some violence to it, so as to achieve the obvious intention
of the Legislature and produce a rational construction and
just result.
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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.
(ii) While considering the application for bail, the Court
must bear in mind the provisions of Section 37 of the NDPS
Act which are mandatory in nature. Recording of findings
as mandated in Section 37 is sine qua non is known for
granting bail to the accused involved in the offences under
the NDPS 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 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.
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(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.”
(self-emphasis supplied)
20. So far as the arguments of learned counsel for
the applicant, qua the fact that the matter has been
referred to the larger Bench, are concerned, merely, on this
ground, the ratio, laid down in earlier judgments, is liable
to be ignored. While holding so, the view of this Court is
being guided by the decision of the Hon’ble Supreme Court
in ‘Rajnish Kumar Rai versus Union of India & Ors.‘,
reported in 2023 LiveLaw (SC) 842. Relevant paragraph 4
of the said judgment is reproduced, as under:-
“4. Learned counsel appearing for the petitioner has
brought to our notice a coordinate Bench decision of this
Court in the case of Union of India vs. Sanjiv Chaturvedi
[(2023) 2 SCR 59] in which the point of law laid down in
the earlier judgment passed by this Court in the case of
Alapan Bandyopadhyay (supra) has been referred to a
larger Bench. But so far as this Bench is concerned, we do
not think judicial propriety permits ignoring the ratio laid
down by the coordinate Bench in the case of Alapan
Bandyopadhyay (supra) as no decision has come as yet
from the larger Bench on the point of territorial jurisdiction
of the High Court in a similar context. If we were to take a
different view, the only course open for us would have
been to refer the petition to the Hon’ble the Chief Justice
for being adjudicated by a larger Bench, as has been done
in the case of Sanjiv Chaturvedi (supra). No argument has
been raised before us that the decision in the case of
Alapan Bandyopadhyay (supra) is per incurium.”
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21. So far as the second leg of the arguments of
learned counsel, appearing for the applicant, qua the delay
in trial, is concerned, keeping in view the pace of the trial,
this Court is fully satisfied that there is no delay in the
trial, as, out of 26 prosecution witnesses, 21 prosecution
witnesses have already been examined and 5 prosecution
witnesses are yet to be examined. In such situation, it
cannot be said that there is inordinate delay in the trial.
22. Considering all these facts, the applicant is not
able to make out the case for releasing him on bail.
23. Consequently, the present bail application is
dismissed.
24. Any of the observations, made hereinabove,
shall not be taken, as an expression of opinion, on the
merits of the case, as, these observations are confined only
to the disposal of the present bail application.
( Virender Singh )
Judge
December 26, 2024
(Gaurav Thakur)