MANGILAL versus THE STATE OF MADHYA PRADESH

Citation: [2023] 10 S.C.R. 517 · Decided: 12-07-2023 · Supreme Court of India · Bench: A.S. BOPANNA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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517
[2023] 10 S.C.R. 517 : 2023 INSC 634
517
MANGILAL
v.
THE STATE OF MADHYA PRADESH
(Criminal Appeal No. 1651 of 2023)
JULY 12, 2023
[A. S. BOPANNA AND M. M. SUNDRESH, JJ.]
Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A
– Non-compliance of – Held: – In the present case, search warrant
under Exhibit P-4 acknowledged the fact that procedure
contemplated under the NDPS Act was not followed – Also, one of
the witnesses to the seizure memo was not examined while the other
turned hostile – Both the witnesses to the arrest memo were not
examined – The record also indicates that an order was passed by
the trial Judge permitting the prosecution to keep the seized materials
within the police station, to be produced at a later point of time –
This itself is a sufficient indication that the mandate of s.52A was
not followed – There is no explanation either for non-production of
the seized materials or the manner in which they are disposed of –
No order passed by the Magistrate allowing the application, if any,
filed u/s.52A – There are too many material irregularities creating
serious doubt on the very case of the prosecution – Hence, appellant
acquitted by rendering benefit of doubt – Impugned judgments set
aside.
Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A
– Scope and objective of – Held: Sub-section (1) of s.52A facilitates
the Central Government a mode to be prescribed to dispose of the
seized narcotic substance – Sub-section (2) thereof mandates a
competent officer to prepare an inventory of such narcotic drugs
with adequate particulars, followed through an appropriate
application to the Magistrate for the purpose of certifying the
correctness of inventory, taking relevant photographs in his presence
and certifying them as true or taking drawal of samples in his
presence with due certification – The objective is to have an element
of supervision by the magistrate over the disposal of seized
contraband as it constitutes a primary evidence – Such inventories,
photographs and list of samples drawn with certification by
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518
SUPREME COURT REPORTS
[2023] 10 S.C.R.
Magistrates constitute as a primary evidence – Therefore, when
there is non-compliance of s.52A, where a certification of a magistrate
is lacking any inventory, photograph or list of samples would not
constitute primary evidence would not constitute primary evidence
– s.52A 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 – Evidence.
Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A
– Evidence Act, 1872 – s.114(g) – Held: Before any proposed
disposal/destruction mandate of s.52A, 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 – 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 s.114(g), 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 seriatim wise and keeping them in lots preceded by compliance
of the procedure for drawing samples.
Noor Aga v. State of Punjab (2008) 16 SCC 417 : [2008]
10 SCR 379; Union of India v. Mohanlal (2016) 3 SCC
379 : [2016] 1 SCR 651; Jitendra v. State of M.P., (2004)
10 SCC 562 : [2003] 3 Suppl. SCR 918; Union of India
v. Jarooparam (2018) 4 SCC 334 : [2018] 1 SCR 618
– relied on.
Case Law Reference
[2008] 10 SCR 379
relied on
Para 8
[2016] 1 SCR 651
relied on
Para 9
[2003] 3 Suppl. SCR 918
relied on
Para 11
[2018] 1 SCR 618
relied on
Para 12
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519
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1651 of 2023.
From the Judgment and Order dated 14.03.2019 of the High Court
of Madhya Pradesh at Indore in CRLA No.6163 of 2017.
Rakesh Dahiya, Aditya Dahiya, Sunil Verma, Kapil Dahiya, Advs.
for the Appellant.
Nachiketa Joshi, AAG, Sunny Choudhary, Ms. Arushi Singh, Advs.
for the Respondent.
The Judg

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