Mandatory To Get Magistrate's Certification On Seized Contraband Before Sending It To FSL For Analysis: Karnataka High Court

A single judge bench of Justice S Vishwajith Shetty allowed the appeal filed by two accused Shahrukh Khan and another and acquitted the accused who were charged under sections 20(b)(ii), 20(B) and 20(C) of the Narcotic Drugs and Psychotropic Substances Act.

The court said “There is no compliance of the requirement of Sub Sections (2) and (3) of Section 52(A) of the NDPS Act and therefore, it is apparent that the seized contraband article and the samples drawn from the same would not be valid piece of primary evidence and therefore, no reliance can be placed either on seizure mahazar, photograph and report of the FSL.”

The accused were arrested on February 19, 2019, allegedly being in possession of ganja weighing 30 kilograms. The trial court after considering the evidence and submissions convicted the accused and sentenced them to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs 20,000, each.

In appeal they argued that there is a delay in sending the contraband article seized to the Forensic Science Laboratory for chemical examination. Therefore, the chances of tampering with the contraband article cannot be ruled out. There is no compliance of Section 52A of the NDPS Act.

The prosecution opposed the plea saying official witnesses have supported the case of the prosecution and there is no reason to disbelieve their evidence. The sample drug has tested positive as can be seen from the FSL report. Thus the appeal should be dismissed.

Findings:

On going through the records the bench noted that a sample of the contraband article – ganja was collected at the time of preparing the seizure panchnama and the said sample of the contraband article was sealed and kept separately. Subsequently, it was forwarded to the Forensic Science Laboratory for the purpose of chemical examination.

Court referred to Section 52A of sub-section (2), (3) and (4) of NDPS Act which provides for the procedure and manner of seizing, preparing of inventory of the seized contraband article, drawing of samples and getting inventory certified by the Magistrate etc.

It said “Prior to forwarding the sample of the contraband article – ganja to the Forensic Science Laboratory the inventory of the seized contraband article – ganja was not prepared and got certified before the jurisdictional Magistrate by the Investigating Officer as required under Section 52A of the NDPS Act.”

Observing that certified inventory of seized substances along with any list of seized samples can be considered as primary evidence in the trial, the court said “Mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient for compliance with the mandate of Sub Section (2) of Section 52A of the NDPS Act.”

It was held that the photograph (of the contraband), samples drawn in the presence of a gazetted officer under panchanama and the FSL report obtained cannot be considered as primary evidence and in the absence of primary evidence, the trial gets vitiated.

It was also opined that, Section 52(A)(2) gives some sanctity for the seizure made and also to prevent any mischief at the hands of the police officers or any other officer investigating the cases under the provisions of the NDPS Act.

"The punishment for the offences under the provisions of the NDPS Act depends upon the quantity of the contraband article seized and therefore, to rule out any foul play during the course of investigation, necessity of preparing the inventory and getting the same certified by the jurisdictional Magistrate within a reasonable time and drawing of sample from the seized contraband article becomes mandatory,” the Court said.

Accordingly it allowed the appeal and set aside the conviction order.

Appearance: Advocates Santosh Kumar B Metri and B C Jaka for Appellants.

HCGP Veeranagouda Malipatil for Respondent.

Citation No: 2024 LiveLaw (Kar) 335

Case Title: Shahrukh Ayub Khan & ANR AND State of Karnataka
Case No: CRIMINAL APPEAL NO. 200230 OF 2023 (374) C/W CRIMINAL APPEAL NO. 200147 OF 2023

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