NDPS Act | If Samples Are Drawn Violating Section 52A, Trial Stands Vitiated : Supreme Court

The Supreme Court on Friday (13.10.2023), set aside the order of the High Court that had sentenced a man to 10 years' imprisonment for being found in possession of commercial quantities of heroin. The Apex Court set aside the order on the ground that the NCB authorities failed to show that the seized contraband were drawn in the presence of a Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate as mandated under Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985.

“In the absence of any material on record to establish that the samples of the seized contraband were drawn in the 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 therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated,” a bench of Justice Abhay S Oka and Justice Pankaj Mithal said.

In the case at hand, the appellant along with three other persons were sentenced to 10 years of imprisonment as 20 kgs of heroin were found in their possession. They were convicted by the Trial Court, and this was later upheld by the High Court.

The Appellant argued that the seizure and sampling of the alleged contraband were in violation of the mandatory provisions of Section 52A of the NDPS Act. Under the said provisions, the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting the inventory certified by the Magistrate concerned are all laid out. The said provisions also provide that the inventory or the photographs of the seized substance and any list of the samples seized, on being certified by the Magistrate can be recognized as the primary evidence in the trial.

The Apex Court observed that there was no dispute that the samples from the seized substance were drawn by the police in the presence of a gazetted officer and not in the presence of the Magistrate.

“No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of sub­section (2) of Section 52A of the NDPS Act” the Apex Court said.

The Court accordingly set aside the conviction of the Appellant.

“ ..we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside.”

Sr. Adv. Narendra Hooda appeared for the appellant Additional Solicitor General Aishwarya Bhati appeared for the State.

Case Title: Yusuf @ Asif V. State, Criminal Appeal No.3191 Of 2023

Citation: 2023 LiveLaw (SC) 890

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