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CIS CNR No. HPHA01-001840-2021

CIS CASE TYPE : Criminal Revision
CIS CASE NO. (Regn. No.) : 11/2021
CIS CASE YEAR : 29.10.2021
IN THE COURT OF NARESH KUMAR, ADDITIONAL

SESSIONS JUDGE, HAMIRPUR, (H.P).
Criminal Revision No. : 04 of 2021.

CNR No. : HPHA01-001840-2021.
Digitally signed Registration No. : 11/2021.
by NARESH
KUMAR
Date:
Date of Institution : 25.10.2021.
2021.11.22
14:58:10 IST Date of Decision : 22.11.2021.
State of H.P.
.......Revisionist
Versus
Karan son of Jeewan Lal, House No.108, Charan Dass & Sons
Industrial Estate, Jallandhar (Pb.)
....... Respondent.
Revision under Section 397/399

Cr.P.C against the order dated
15.10.2021 passed by Learned
Judicial Magistrate First Class,
Court No.II, Hamirpur, District
Hamirpur in application for
certification of Inventory moved by
SHO PS Hamirpur under section 52-
A NDPS Act in Case FIR No.180/21
dated 14.10.2021 U/S 20 of NDPS
Act PS Hamirpur.
-----
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For the Revisionist : Sh. Anuj Sharma, Learned PP.

ORDER
The present revision is directed against the order

dated 15.10.2021 passed by Learned Judicial Magistrate First
Class, Court No.II, Hamirpur, District Hamirpur in application
under section 52-A of NDPS Act filed in case FIR No.180/21
dated 14.10.2021 under section 20 of NDPS Act registered in
Police Station Hamirpur claiming the following relief :-
A) that the order may kindly be set aside and keeping
in view the special compelling circumstances, fresh
directions be issued to the Ld. JMFC to draw
representative and homogeneous sample and to
certify the inventory strictly in terms of Section 52-A
of NDPS Act and rules and law laid down by
Hon'ble Apex Court and High Court of Himachal
Pradesh;
B) that the police has already sent one of the sample
S-1 to the FSL for chemical examination as per the
directions of the Ld. Court and the same kindly be
ordered to e recalled as the same cannot be said to
be representative and homogeneous as per law laid
down by the Higher Courts;
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C) such other relief/order as the Hon'ble Court deems

fit in the facts and circumstances mentioned above
may kindly be granted.
2. Briefly stated, the facts giving rise to the present
revision are that on 15.10.2021 SHO Police Station Sadar
Hamirpur has moved an application under section 52-A (2) of
the NDPS Act bearing Cr.M.A.No.1118/2021 before learned
JMFC Court No.II, Hamirpur (in short learned JMFC) for
certifying the correctness of inventory, permitting taking
photographs of the seized items in the inventory and certifying
such photographs as true and to allow drawing of
representative samples and certify the correctness of the list of
samples so drawn, in case FIR No.180/2021 dated 14.10.2021
under section 20 and 29 of NDPS Act registered in Police
Station Sadar Hamirpur with inventory of the contraband i.e.
1515 grams charas seized on 14.10.2021 at Mursu Garla, on
Bhota -Hamirpur NH.
3. The learned JMFC allowed the application on same
day i.e., 15.10.2021, however, at the same time the learned
JMFC has observed that the Investigating Officer
SHO/Inspector Nirmal Singh stressed upon taking
representative samples as the matter was reportedly been
consulted with learned Public Prosecutor and therefore, in view
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of the request so made and in view of the direction of Hon'ble

Supreme Court in Union of India Versus Madan Lal 2016(3)
SCC 379 allowed to draw representative samples. The learned
JMFC further observed that Investigating Officer was apprised
that the contraband was to be mixed to make a composite
whole, however, he showed his helplessness in producing any
instrument/device in order to make it homogeneous mixture
and therefore the contraband was not mixed homogeneously.
However, the samples alleged to be representative were drawn
in the manner detailed in the order.
4. Feeling aggrieved and dissatisfied with the
impugned order, the the revisionist / Public Prosecutor has
challenged the same on the grounds that the order passed by
the learned JMFC is against provisions of section 52 A NDPS
Act and Notification No.1/89 and rules for disposal of case
property and the law laid down by the Hon'ble Apex Court and
Hon'ble High Court of H.P. Though the learned JMFC has
drawn the samples of 89 gms and 93 gms, marked as S-1 and
S-2 respectively, the same have been mentioned in the
impugned order as .089 gms and .093 gms which come out to
89 mg and 93 mg respectively whereas the sample of the 24
gms of charas should have been drawn. The learned JMFC
has directed the police to send sample S-1 for the purpose of
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chemical examination at the earliest and to deposite the

sample S-2 and remaining bulk in the judicial Malkhana
whereas, as per the directions of the Hon'ble Apex Court, the
government has set up storage facility in each District for
storage of case property of the NDPS cases and the case
property in such cases is stored in the said Malkhana. The
inventory proceedings before the Magistrate are the
proceedings at the stage of investigation and there was no
requirement of the presence of Public Prosecutor at that stage.
But if the presence of the Public Prosecutor was required by
the learned court for its assistance, the learned court should
have issued notice or asked the SHO/Inspector to request the
Public Prosecutor to come to the court. The prosecution is not
required to appear in the court automatically whenever the
police comes up with an application. The Public Prosecutor is
an independent officer of the court and is not supposed to act
as Police Prosecutor and thus learned JMFC has tried to shift
the burden of drawing samples on the Police and the
Prosecutor despite law settled by the Hon'ble Supreme Court
and the Hon'ble High Court mandating duty of drawing samples
and certification of inventory and photographs in accordance
with section 52-A of the NDPS Act on the Magistrate.
Furthermore there was no question of drawing the sample on
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the request of the SHO/I.O or PP rather it is the mandate of law

to allow taking photographs and drawing of representatives
samples and certification of inventory in view of the law laid
down by the Hon'ble High Court. Taking samples has a broader
purpose to prevent substitution,pilferage,theft etc. and to
obviate the necessity of sending the whole bulk for testing but
to get the sample tested and then to ensure destruction of bulk
in accordance with law. The findings of the learned JMFC that
the I.O. showed his helplessness in producing any
device/instrument so as to mix the contraband in order to make
homogeneous mixture and that the contraband was not mixed
homogeneously, however, the representative samples were
drawn in following manner, are also beyond the scope of NDPS
Act and the Rules framed thereunder and the law laid down by
our own Hon'ble High Court. Non drawing of representative
samples is not only against law but would completely demolish
the prosecution case and favour the accused. SHO Police
Station Hamirpur has moved an application seeking clarification
regarding depositing of case property and the learned JMFC
vide order dated 18.10.2021 again committed an error by
modifying the order that sample S-2 and remaining bulk be
deposited in Malkhana of Police Station Sadar whereas the
same is deposited in the District Malkhana. Furthermore the
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observations made by the learned JMFC with regard to the

presence of the Public Prosecutor in bail application are
unnecessary and uncalled for and the same be expunged and
set aside. It has thus been prayed that the impugned order be
set aside and the learned JMFC be directed to draw
representative and homogeneous sample and to certify the
inventory strictly in terms of section 52-A of NDPS Act and
sample S-1 already sent to FSL by the police to chemical
analysis be ordered to be recalled.
5. I have heard learned Public Prosecutor and gone
through the record carefully.
6. Following points arise for determination in this
revision:-
1. Whether the impugned order dated 15.10.2021
is sustainable in law ?
2. Final Order.
7. For the reasons to be recorded hereinafter, while

discussing the aforesaid points for determination, my findings
on these points are as under:-
Point No.1 : Partly yes
Final Order: Revision is partly allowed per

operative part of the order.
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REASONS FOR FINDINGS
POINT NO.1
8. The prosecution has challenged the impugned

order passed by learned JMFC on the ground that the
representative sample has not been drawn as per the
provisions of section 52 A of NDPS Act, Notification No.1/89 as
well as law laid down by the Hon'ble Supreme Court in Union
of India Versus Mohan Lal 2016(3) SCC 379. The learned
JMFC has observed that the Investigating Officer showed his
inability to produce any instrument/device so as to mix the
contraband in order to make it homogeneous mixture and that
the contraband was not mixed homogeneously whereas the
sampling and certification was to be done as per the directions
of Hon'ble High Court in State of H.P. Versus Hari Ram 2012
(2) ShimLC 1152 and that the learned JMFC has drawn the
samples of 89 gms and 93 gms marked as S-1 and S-2
respectively, whereas the same has been written .089 gms and
.093 gms which come out to 89 mg and 93 mg respectively
whereas as per the Notification No.1/89 samples of atleast 24
gms were to be drawn and therefore the impugned order be set
aside and the learned JMFC be directed to draw representative
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sample and to certify the inventory strictly in terms of section 52

A of NDPS Act and sample S-1 already sent for chemical
analysis be recalled.
9. So far as the inventory is concerned, the learned
JMFC in paras No.3 and 4 of the impugned order has held as
under :-
3. One white cloth parcel was produced before me which
was sealed with nine impressions of seal “A”. The seals were
intact and as per the details mentioned over the cloth parcel,
the cloth parcel contains one white colour carry bag having
imprint BAWA Fashion.Com(M) 8699003451 with red ink
inside which none plastic zipper packets containing circular
(chapatinuma) and round contraband alleged to be 1.515 kgs
of Charas. The cloths on which sample seals were taken also
seen.
4. The cloth parcel was cut from back side with the help of
scissors. One white coloured carry bag having imprint BAWA
Fashion.Com(M) 8699003451 with red ink was taken out from
the parcel. Inside the carry bag, nine plastic zipper packets
containing circular (Chapatinuma) and round black coloured
substance were taken out. Out of the 9 zippers, one big zipper
packet contains six small zipper packets containing round
contraband which means there are total 14 zipper packets
{8+1 (which contains 6 small zipper packets)}. Out of the
aforesaid 14 zipper packets, 2 zipper packets contains
circular (chapatinuma) black coloured substance and 12
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packets contains round black coloured substance. The

contraband alleged to be Charas was weighed with plastic
zipper packets with the help of electronic weighing machine.
Before measuring the contraband, zero was ensured on the
weighing machine. The weight of substance allegedly Charas,
came out to be 1.515 kgs. The contents of the cloth parcel
matches with the inventory. Thus, the correctness of the
inventory is certified.
10. However, before drawing representative sample,
the learned JMFC has observed that the I.O/SHO was apprised
of the judgment of Hon'ble High Court of Himachal Pradesh
passed in Dilbar Singh Versus State of H.P. Cr.MP(M)
No.1751 of 2018 decided on 11.01.2019, Bhavan Kumar
Versus State of H.P. Cr.M.P. (M) No.613 of 2019 decided on
29.02.2020 and State of H.P. Versus Naresh Kumar Cr.
Appeal No.782 of 2008 decided on 28.06.2019, but the
Investigating Officer stressed upon taking representative
sample as the matter has been reportedly consulted with Public
Prosecutor, so the samples were allowed to be drawn in view
of the direction of the Hon'ble Supreme Court in Mohan Lal's
case supra. The learned JMFC further observed that the the
IO was apprised that contraband needs to be mixed to make a
composite whole from which the samples were to be drawn but,
the Investigating Officer showed his helplessness in producing
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any instrument/device so as to mix the contraband in order to

make it homogeneous mixture and therefore, the contraband
was not mixed homogeneously. Thereafter the learned JMFC in
paras No.9 to 13 of the impugned order recorded the manner in
which the samples were drawn.
11. The learned JMFC however, has held that the
contraband was not mixed homogeneously and on the basis of
such observations the prosecution has moved the present
application for directing the learned JMFC to draw
representative and homogeneous samples again and to certify
the inventory strictly as per the provisions of section 52 A of
NDPS Act.
12. Our own Hon'ble High Court in Hari Ram's case

supra has explained the procedure of drawing sample. The
Hon'ble High Court in paras No.5 to 8 has held as under:-
“[5] Before parting with the case, we are constrained to observe that in a
large number of cases we are finding that some Magistrates are not fully
conversant with the provisions of Section 52A of the Act and the manner
in which certification by them has to be carried out. Section 52(A) of the
Act reads as follows:--
[52A. Disposal of seized narcotic drugs and psychotropic
substances.-
(1) The Central Government may, having regard to the
hazardous nature of any narcotic drugs or psychotropic
substance, their vulnerability to theft substitution, constraints of
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proper storage space or any other relevant considerations, by

notification published in the Official, Gazette, specify such
narcotic drugs or psychotropic substance or class of narcotic
drugs or class of psychotropic substances which shall, as soon
as may be after their seizure, be disposed of by such officer
and in such manner as that Government may, from time to
time, determine after following the procedure hereinafter
specified.
(2) Where any narcotic drugs or psychotropic substances has
been seized and forwarded to the officer in charge of the
nearest police station or to the officer empowered under
Section 53, the officer referred to in sub-section (1) shall
prepare an inventory of such narcotic drugs or, psychotropic
substances containing such details relating to their description,
quality, quantity, mode of packing, marks, numbers or such
other identifying particulars of the narcotic drugs or
psychotropic substances or the packing in which they are
packed, country of origin and other particulars as the officer
referred to in sub-section (1) may consider relevant to the
identity of the narcotic drugs or psychotropic substances in any
proceedings under this Act and make an application, to any
purpose of,--
(a) Certifying correctness of the inventory so prepared; or
(b) Taking, in the presence of such Magistrate, photographs
substances 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.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence
Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973
(2 of 1974), every Court trying an offence under this Act, shall
treat the inventory, the photographs of narcotic drugs or
psychotropic substances and any list of samples drawn under
sub-section (2) and certified by the Magistrate, as primary
evidence in request of such offence.]
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[6] This is a very important provision. Narcotic Drugs and Psychotropic

Substances are vulnerable to misuse. When huge quantities of
contraband are seized it is not possible to keep them safely in the
Malkhanas and there may be a chance of pilferage or the narcotic
substances falling in wrong hands. Therefore, the aforesaid Section was
inserted in the NDPS Act. Under sub-section (2) of the aforesaid Section
after the contraband has been produced before the empowered officer
under Section 53 of the Act the said officer is required to prepare a
inventory of the alleged Narcotic Drugs and Psychotropic Substances
containing details relating to their description, quality, quantity, mode of
packing, marks, numbers and other identifying particulars on the packing
in which they are packed. The country of origin and other particulars as
referred to in sub-section (1) may also be considered relevant to identify
the narcotic drugs. Thereafter, the empowered officer can apply to any
Magistrate under Section 52A for the purpose of; certifying the
correctness of the inventory so prepared; or taking in the presence of the
Magistrate, photographs of such drugs or substances and certifying such
photographs as true and lastly allowing to draw representative sample of
such drugs or substances in the presence of the Magistrate and certifying
the correctness of any list of samples so drawn. The Magistrate is
required to deal with this application forthwith. Under sub-section (4) the
inventories, photographs and list of samples certified by the Magistrate
are to be treated as primary evidence by the Court trying the offence.
[7] Thus, it is apparent that an onerous and important duty is cast on the
Magistrate. The Magistrate must ensure that the inventory prepared by
the Officer is proper. We would like to reiterate that this job must be
performed by the Magistrate himself and he cannot issue the certificate
merely on the asking of the police officer. The Magistrate must personally
and by himself verify the correctness of the inventory. Therefore, a duty is
cast upon the Magistrate to verify the number of seals, the seal
impression and he should tally the same with the sample seal impression.
The Magistrate should not blindly copy what is stated in the application
filed under Section 52A but it is his duty to ensure that he records the
exact number of seals, the seal impression, the other special markings or
identification marks on the parcels. He must ensure and write down
whether the seals are broken or intact. He must also clearly observe
whether the parcel appears to be tampered with or not. He must ensure
that the Narcotic Drugs and Psychotropic Substances are weighed in his
presence and thereafter he should certify the inventory.
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[8] In case samples have to be drawn the Magistrate must ensure that if
there are more one packet then separate samples are drawn from each
packet. Obviously, he need not draw samples from the parcels stated to
be parcels of samples if drawn by the police but in case of a plurality of
bulk parcels he must ensure that separate samples are drawn from each
packet. The Magistrate should also ensure that before drawing the
parcels he makes the substance homogenous. We are not going into the
details as to how the substance has to be made homogenous but all
Magistrates have received training whereby it has been explained to them
how material is made homogenous so that a representative sample of the
whole is drawn. This is normally done by cutting the bulk into a number of
smaller units usually four, re-uniting them then cutting them again and
then re-uniting them. The Magistrate then must ensure that the samples
and the bulk drugs are again reseated in a proper manner. His zimini
order and proceedings should reflect each and every action taken by the
Magistrate. In case photographs are taken then the Magistrate must
ensure that the same are taken in his presence. We must again reiterate
that this job has to be done by the Magistrate himself and cannot be
delegated to any member of the Court staff.”
13. Thus in view of the law laid down by the Hon'ble

High Court in the above said case no instrument/device was
required to mix the contraband in order to make it
homogeneous; rather samples were to be drawn by cutting the
balls /chapatis of the alleged contraband. The learned JMFC in
para No.4 of the impugned order has observed that the parcel
was cut with the help of scissors which means that the scissors
was available. The contraband i.e. alleged charas in the shape
of balls and chapatis found in 14 zipper packets could have
been cut with the help of scissors. But in any case the sample
was not drawn as per the law laid down by the Hon'ble High
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Court in the above said case.
14. So far as the weight of the samples i.e. 89 mg and

93 mg is concerned, it appears to be clerical mistake as the
prosecution has pleaded that the samples of 89 gms and 93
gms were drawn, however, even if this plea of the prosecution
that the samples have not been drawn as per the notification
No.1/89 and also as per the directions of Hon'ble High Court is
accepted to be correct, even then re-sampling and sending the
samples for re-testing cannot be ordered at this stage. Hon'ble
Supreme Court in Thana Singh Versus Central Bureau of
Narcotics 2013 (2) SCC 590 has held as under :-
“[23] The NDPS Act itself does not permit re-sampling or re-testing of
samples. Yet, there has been a trend to the contrary; NDPS courts have
been consistently obliging to applications for re-testing and re- sampling.
These applications add to delays as they are often received at advanced
stages of trials after significant elapse of time. NDPS courts seem to be
permitting re-testing nonetheless by taking resort to either some High
Court judgments [See: State of Kerala Vs. Deepak. P. Shah, 2001 CrLJ
2690; Nihal Khan Vs. The State (Govt. of NCT Delhi), 2007 CrLJ 2074] or
perhaps to Sections 79 and 80 of the NDPS Act which permit application
of the Customs Act, 1962 and the Drugs and Cosmetics Act, 1940. While
re-testing may be an important right of an accused, the haphazard
manner in which the right is imported from other legislations without its
accompanying restrictions, however, is impermissible. Under the NDPS
Act, re-testing and re-sampling is rampant at every stage of the trial
contrary to other legislations which define a specific time-frame within
which the right may be available. Besides, reverence must also be given
to the wisdom of the Legislature when it expressly omits a provision,
which otherwise appears as a standard one in other legislations. The
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Legislature, unlike for the NDPS Act, enacted Section 25(4) of the Drugs
and Cosmetics Act, 1940, Section 13(2) of the Prevention of Food
Adulteration Act, 1954 and Rule 56 of the Central Excise Rules, 1944,
permitting a time period of thirty, ten and twenty days respectively for filing
an application for re- testing
[24] Hence, it is imperative to define re-testing rights, if at all, as an
amalgamation of the above- stated factors. Further, in light of Section 52A
of the NDPS Act, which permits swift disposal of some hazardous
substances, the time frame within which any application for re-testing may
be permitted ought to be strictly defined. Section 52A of the NDPS Act
reads as follows: -
"52A. Disposal of seized narcotic drugs and psychotropic
substances
(1) The Central Government may, having regard to the
hazardous nature of any narcotic drugs or psychotropic
substances, their vulnerability to theft, substitution, constraints
of proper storage space or any other relevant considerations,
by notification published in the Official Gazette, specify such
narcotic drugs or psychotropic substances or class of narcotic
drugs or class of psychotropic substances which shall, as soon
as may be after their seizure, be disposed of by such officer
and in such manner as that Government may from time to time,
determine after following the procedure hereinafter specified.
(2) Where any narcotic drug or psychotropic substance has
been seized and forwarded to the officer- in- charge of the
nearest police station or to the officer empowered under
section 53, the officer referred to in sub- section (1) shall
prepare an inventory of such narcotic drugs or psychotropic
substances containing such details relating to their description,
quality, quantity, mode of packing, marks, numbers or such
other identifying particulars of the narcotic drugs or
psychotropic substances or the packing in which they are
packed, country of origin and other particulars as the officer
referred to in sub- section (1) may consider relevant to the
identity of the narcotic drugs or psychotropic substances in any
proceedings under this Act and make an application, to any
Magistrate for the purpose of
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(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such magistrate, photographs of
such drugs or substances 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.
(3) Where an application is made under sub- section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence
Act, 1872 (1 of 1872 ), or the Code of Criminal Procedure,
1973 (2 of 1974 ), every court trying an offence under this Act,
shall treat the inventory, the photographs of narcotic drugs or
psychotropic substances and any list of samples drawn under
sub- section (2) and certified by the Magistrate, as primary
evidence in respect of such offence."
[25] Therefore, keeping in mind the array of factors discussed above, we
direct that, after the completion of necessary tests by the concerned
laboratories, results of the same must be furnished to all parties
concerned with the matter. Any requests as to re-testing/re-sampling shall
not be entertained under the NDPS Act as a matter of course. These may,
however, be permitted, in extremely exceptional circumstances, for cogent
reasons to be recorded by the Presiding Judge. An application in such
rare cases must be made within a period of fifteen days of the receipt of
the test report; no applications for re-testing/re-sampling shall be
entertained thereafter. However, in the absence of any compelling
circumstances, any form of re-testing/re-sampling is strictly prohibited
under the NDPS Act.”
15. Thus, in view of the law laid down by the Hon'ble

Supreme Court in Thana Singh's case supra the request for
re-testing or re-sampling can only be made within a period of
15 days after receiving the report of chemical examination from
RFSL Junga. Since one of the sample drawn in presence of
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learned JMFC has been sent to RFSL Junga, the request for
re-sampling for re-testing can only be considered after receipt
of the report. Hence the prayer of the prosecution to set aside
the impugned order and to direct the learned JMFC to draw
representative and homogeneous samples again and to recall
the sample already sent to RFSL Junga cannot be allowed.
16. So far as the certification of the inventory and

photographs is concerned, the learned JMFC, as has been
observed above, in paras No.3 & 4 of the impugned order, has
recorded the details of sealed parcel, number of seals and seal
impressions on parcel and sample seal taken on cloth and after
cutting/opening the parcel weighed the contraband and
thereafter held that the contents of the cloth parcel matches
with the inventory and thus the correctness of inventory is
certified, however, the learned JMFC has neither prepared the
list of the samples drawn nor certified the same as well as the
inventory and photographs as per the mandate of Section 52 A
of NDPS Act. The learned JMFC has only initialed the
photographs. The learned JMFC was required to certified the
inventory by issuing certificates under Section 52A of NDPS Act
prescribed in Notification dated 10.05.2007 issued by Ministry
of Finance(Department of Revenue) in ANNEXURES 1&2
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respectively. These certificates being part of inventory and

application should have been filed by SHO concerned, but if he
has not filed with the same, the learned JMFC should have
issued same in order to certify the inventory and also should
have prepared the list of the samples drawn and certified the
same and also should have certified the photographs to be
true and thus the learned JMFC after completing the
proceedings under Section 52 A of NDPS Act, has not certified
the inventory and the photographs and prepared the list of the
samples drawn and certified the same in accordance with the
provisions of Section 52 A of the NDPS Act.
17. The prosecution has also averred that the learned

JMFC earlier has directed to deposit the case property in
Judicial Malkhana regarding which clarification was sought by
moving separate application by the SHO Police Station
Hamirpur but the learned JMFC vide order dated 18.10.2021
again committed error by modifying the order to the extent that
the sample S-2 and remaining bulk be deposited in Malkhana
of Police Station Sadar Hamirpur whereas the same are to be
deposited in District Malkhana constituted as per the direction
of Hon'ble Supreme Court in Mohan Lal's case supra.
18. The perusal of application dated 18.10.2021 reveals

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that the SHO Hamirpur has not averred that the case property
is to be deposited in District Malkhana set up as per the
direction of Hon'ble Supreme Court in Mohan Lal's case
supra; rather the SHO has sought the clarification as to in
which Judicial Malkhana the case property was to be
deposited. But in any case, the direction issued by the Hon'ble
Supreme Court is binding on all and therefore the police has to
deposit contraband/ remaining bulk and sample S-2 in the
District Malkhana set up as per the direction issued by the
Hon'ble Supreme Court. Since the Hon’ble Supreme Court has
already issued directions with regard to setting up storage
facilities for the exclusive storage of seized Narcotic Drugs and
Psychotropic and controlled Substances in each Disrict, the
learned JMFC was not required to issue direction with regard
to depositing the contraband/case property and therefore the
order the learned JMFC to that extent is not sustainable in law.
19. The prosecution has also pleaded that the

comments in the impugned order with regard to the Public
Prosecutor are unnecessary and uncalled for and the same be
expunged and set aside.
20. The learned JMFC has observed that “not only today,
but also on 14.10.2021 despite being called in the court in
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connection with the remand of an accused in FIR No.175 of

2021 under section 20 of ND & PS Act, no one from
prosecution put in appearance…...” Thus it is evident that the
learned JMFC has made observations about the relevant day
but has also quoted the example of other day. Presumption of
truth is attached to the order passed by the court and the Public
Prosecutor concerned has not challenged the same,therefore,
the comments cannot be expunged and set aside as prayed
for.
21. Hence, in view of my above observations,the

impugned order is partly sustainable in law. Hence this point is
partly decided in favour of the revisionist and is answered as
such.
FINAL ORDER
22. In view of the findings returned on point No.1, the
revision is partly allowed and impugned order qua depositing
case property,i.e.,remaining bulk and sample S-2 is set aside
and the police shall store/deposit the same in the storage
facility set up as the direction of the Hon’ble Supreme Court
and the learned JMFC is directed to certify the inventory and
the photographs and to prepare the list of the samples drawn
and certify the same in accordance with the provisions of
22
Section 52 A of the NDPS Act. Rest of the petition merits

dismissal and is accordingly dismissed.
23. The record of learned trial Court along with a copy
of this order be sent back and the record received from the
court Ld. Special Judge Hamirpur be also returned. The file of
this Court, after its due completion, be consigned to the Record
Room.
Announced in the open court today the 22 nd day of
November, 2021.
(Naresh Kumar)
Additional Sessions Judge,
Hamirpur, (H.P).
rk.

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1

CIS CNR No. HPHA01-001840-2021

IN THE COURT OF NARESH KUMAR, ADDITIONAL

Criminal Revision No. : 04 of 2021.

Revision under Section 397/399

For the Revisionist : Sh. Anuj Sharma, Learned PP.

The present revision is directed against the order

C) such other relief/order as the Hon'ble Court deems

of the request so made and in view of the direction of Hon'ble

chemical examination at the earliest and to deposite the

the request of the SHO/I.O or PP rather it is the mandate of law

observations made by the learned JMFC with regard to the

7. For the reasons to be recorded hereinafter, while

Final Order: Revision is partly allowed per

REASONS FOR FINDINGS

8. The prosecution has challenged the impugned

sample and to certify the inventory strictly in terms of section 52

packets contains round black coloured substance. The

any instrument/device so as to mix the contraband in order to

12. Our own Hon'ble High Court in Hari Ram's case

proper storage space or any other relevant considerations, by

[6] This is a very important provision. Narcotic Drugs and Psychotropic

13. Thus in view of the law laid down by the Hon'ble

Court in the above said case.

14. So far as the weight of the samples i.e. 89 mg and

(a) certifying the correctness of the inventory so prepared; or

15. Thus, in view of the law laid down by the Hon'ble

16. So far as the certification of the inventory and

respectively. These certificates being part of inventory and

17. The prosecution has also averred that the learned

18. The perusal of application dated 18.10.2021 reveals

19. The prosecution has also pleaded that the

connection with the remand of an accused in FIR No.175 of

21. Hence, in view of my above observations,the

Section 52 A of the NDPS Act. Rest of the petition merits

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