[NDPS Act] Gauhati High Court Sets Aside Conviction Of Accused Due To Non-Compliance With S. 52A, Doubts On Validity Of Seizure

The Gauhati High Court recently set aside the conviction of two accused persons under Section 20(C) read with Section 29 of the NDPS Act on the ground that seizure of the contraband from the possession of the accused persons is doubtful and there was no compliance of Section 52A of the NDPS Act.

The single-judge bench of Justice Malasri Nandi observed:

“From the evidence of PW 12 (Investigating Officer), it also discloses that he did not mention in his final compliant as to where and in what condition the samples were kept from 16.06.2015 to 18.06.2015. As per the final complaint, 24 grams of samples collected but he did not give any explanation as to how 24 grams turned into 30 grams. He did not mention in his complaint regarding impression of the seal used in the case and where the seal was kept. What seal impression was used and how and with what material sealing was done and about taking signatures of the accused persons and seizing officer, were not mentioned in his complaint petition.”

The case of the prosecution was that the Inspector of Customs, Guwahati lodged a complaint stating inter alia that on June 15, 2015 they received information that a twelve-wheeler truck bearing loaded with ganja proceeded outside the State through Baihata Chariali area on June 16, 2015, and accordingly the vehicle was intercepted with the help of other officials near Baihata Chariali police point.

The two accused persons were found inside the truck introducing themselves as driver and helper. After removing the tarpaulin cover from the truck, eight packets packed with HDPE materials found dry plant materials believed to be ganja which were weighing about 213 kg.

It was stated that then the said suspected ganja was seized, the case was registered accordingly and the two accused-appellants were arrested. After receipt of the report from the FSL, charge sheet was submitted against both the accused appellants under Section 20(C) and Section 29 of NDPS Act.

The trial court convicted both the accused persons under Section 20(C) read with Section 29 of NDPS Act and sentenced them to undergo rigorous imprisonment for 10 (ten) years each and to pay a fine of Rs.1,00,000/- each.

Hence, the accused persons filed the present criminal appeal before the High Court.

The Counsel appearing for the appellants submitted that the appellants have been convicted and sentenced to undergo rigorous imprisonment for ten years and they have been detained in custody for about nine years. It was stated that there is gross violation of Section 52 and Section 52A of the NDPS Act. It was further submitted that inventory was not prepared which is mandatory as per Section 52(A)(2) of the NDPS Act.

On the other hand, the standing counsel, Custom submitted that the present case happens to be in the year 2015 and as such the Custom Officer has followed the procedure of sampling by following the prevailing Central Government's standing order. Under such backdrop, the question of violating the provision of Sections 52 and 52A of the NDPS Act does not arise.

It was further submitted that the appellants were apprehended by the Customs officials and recovery of contraband was made from their conscious possession. They were travelling in the alleged vehicle from which the commercial quantity of ganja was recovered.

The Court noted that it is not proved on record that any inventory was prepared after the recovery and arrest of the appellants when they were produced before the Officer in-charge of the nearest police station.

“This fact is also clear from the order passed by the learned Magistrate where there is no mention of production of the inventory before him. Thus, there is a clear violation of Section 52A of the NDPS Act. Therefore, in view of the judgment in Mohanlal's (supra) the prosecution has failed to prove that it adhered to the provision of Section 52A of the NDPS Act and an important right of the appellant has been taken away by the Custom officials as no inventory was otherwise exhibited on record,” the Court noted

The Court further observed that there was no application made by the Customs officials for disposal of the seized contraband under Section 52A(2) of the NDPS Act to the jurisdictional Magistrate. It was remarked by the Court that no application has been filed by the Investigating Agency for certification of correctness of inventory, photographs and samples of the seized contraband and issue of certificate under Section 52A of the Act and thereafter, for destruction of the seized contraband.

The Court observed that in the absence of any material on record to establish that the samples of the seized contraband were drawn in 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 would not be a valid piece of primary evidence in the trial.

Thus, the Court set aside the conviction and sentence of the accused persons and acquitted them by rendering the benefit of doubt.

Citation: 2024 LiveLaw (Gau) 24

Case Title: Vikky Pachauri & Anr. v. Union of India

Case No.: Crl.A./53/2021

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