Decided on May 01,2013

Dayal Singh Burha alias Guddu Appellant


Barin Ghosh, C.J. - (1.) IN the instant case, the officer -in -charge of a Police Station, having jurisdiction over the public place, where the appellant was initially detained and then searched and thereafter arrested, caused the detention, seizure and arrest of the appellant on 5th December, 2006 at 9:15 PM. On the next day, i.e. on 6th December, 2006, the said officer -in -charge caused the appellant to be presented before the Special Magistrate along with the seized material. The Magistrate gave police remand to the appellant and, simultaneously, returned the seized article to the said officer in charge. At the time of trial, the said officer -in -charge deposed as P.W. 1 and, in course of tendering evidence, tendered the seized article as material evidence. It has come from his evidence that, at the time of detention, search, seizure and arrest, the article seized was weighed; when it transpired that the same weighed 3 kgs. It is P.W. 1, who drew sample from the seized article on 22nd December, 2006 in presence of the Special Magistrate by once again producing the seized material before the Magistrate and, soon after the sample was drawn, the article seized was returned to the custody of P.W. 1. Therefore, the seized article remained in the custody of P.W. 1 from the time the seizure was made. He is the person, who is said to have weighed the seized article and it is he, who had drawn sample from the seized article, though in the presence of the Special Magistrate. The evidence tendered by P.W. 1 to the extent as above having been accepted, appellant has been convicted. The fact remains that the appellant has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act'). Under the provisions of the said Act, P.W. 1 had no authority to weigh the material seized or to draw samples therefrom even in the presence of the Magistrate. It is surprising that the Special Magistrate, in the instant case, permitted P.W. 1 to draw sample from article produced by P.W. 1 before the Magistrate. The question of P.W. 1, i.e. the officer -in -charge producing seized article before the Magistrate, does not arise in terms of the mandate contained in the Act. The Act contemplates that soon after the seized article is received by the officer -in -charge, he is required to take measures for disposal of the same. The measures for disposal have been provided in Section 52A of the Act. I(sic) terms thereof, the officer -in -charge is required to produce the seized article for being inventorised by the officer mentioned in Sub -section (1) of Section 52A of the Act. That officer, after having had made the inventory of the seized article, is required to obtain certification of correctness thereof Making of inventory includes weighment of the seized article. It is, therefore that officer, who alone is entitled to weigh the seized article and that i(sic) required to be certified by the Magistrate. It is that officer, mentioned in Sub -section (1) of Section 52A of the Act, who is entitled to take sample (sic) the seized article with the permission of the Magistrate. In the instant (sic) case, weighment, a part of making inventory, was made by a person n(sic) authorised by the Act. In the instant case, sample was drawn by a person not authorized by the Act. The seized material remained with the person who seized the same and not with the person mentioned in Sub -section (sic) of Section 52A of the Act or with the Magistrate immediately after the same(sic) was seized. There is, therefore, no acceptable evidence of weight of the seized article. There is, therefore, also no acceptable evidence of collection of sample from the seized article and, accordingly, there is no evidence contravention of the provisions of the Act authorizing conviction of the appellant under Section 20 of the Act.
(2.) WE , accordingly, allow the Appeal and set aside the judgment under Appeal. Appellant is in custody. If he is not detained in any other case, let him be set free forthwith. Let a copy of this judgment be sent to the Court below alongwith the lower court records for compliance.;

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