NDPS Act | Samples Not Drawn In Magistrate's Presence As Per S. 52A Can't Be Treated As Primary Evidence During Trial: Allahabad HC

For context, Section 52A (2), (3) and (4) of the provide that when seized contraband is forwarded to the officer-in-charge of the nearest police station, the officer must draw samples from the seized goods in the presence of a magistrate who shall certify its correctness. It is further provided that the inventory or the photographs of the seized substance and any list of samples in connection thereof on being certified by the Magistrate shall be recognized as primary evidence in connection with the offences alleged under the NDPS Act.

A bench of Justice Ram Manohar Narayan Mishra observed thus while setting aside the conviction and sentence of 10 years awarded by the trial court to two convicts who were allegedly intercepted with doda (power) Poppy's Straw in May 2004.

In the present case, it was alleged that the appellants-convicts were found in possession of 43 quintal and 30 Kg of illegal opium powder, while they were travelling in a truck and contraband was found to be loaded in the truck on the date of search, seizure, recovery and arrest. After the trial, they were convicted by the trial court. Challenging their conviction, they had moved the HC.

As per the prosecution's case, the sacks from which contraband was recovered were loaded in the truck and a 5 Kg sample was taken out from one of the sacks on the spot and was sent for FSL examination.

Interestingly, except for the sample taken from one of the sacks containing Poppy's Straw seized in the case and sent for chemical analysis to FSL, the entire case property was never produced before the Court either at the time of seeking judicial remand of the accused persons or during trial.

It was claimed by the prosecution that the contraband could not be produced before the court on account of the same being destroyed due to rain, since the same was kept in Malkhana.

Taking note of the factual background of the case, the Court, at the outset, referred to Supreme Court's recent ruling in the case of Mangilal vs State Of Madhya Pradesh 2023 LiveLaw (SC) 549, Union of India v. Jarooparam, (2018) to note that non-production of the bulk before the court during trial and disposal of contraband in violation of mandatory provisions of Section 52A of NDPS Act, is fatal to prosecution case.

For context, Sub-section (1) of Section 52A of the NDPS Act facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification

Further, looking to the facts of the case, the Court observed that the bulk of contraband getting allegedly destroyed in Malkhana due to heavy rain was nothing, but gross negligence in the upkeep of case property that too in a case under NDPS Act, for which severe punishment has been provided under the Act.

“It is evident that the case property got destroyed, in violation of the provisions of Section 52A of NDPS Act, as stated above,” the Court observed.

The Court further emphasised that the prosecution had failed to prove that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed in the instant case while making the seizure and drawing samples such as preparing the inventory and getting it certified by the Magistrate.

“No evidence has also been brought on record in the case in hand that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. It is an admitted position on record that the samples from the seized substance were drawn by the police team in the presence of the gazetted officer, nor in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or the list of samples so drawn…For noncompliance of mandatory provisions of Section 52A, the samples drawn from the bulk could not be treated as a valid piece of primary evidence in the trial, and for want of primary evidence the trial stands vitiated on this count also.”

Accordingly, the Court opined that the police team which carried out the proceedings of interception of truck search and seizure failed to lead to primary evidence regarding seized contraband and samples drawn there from, due to non-production of bulk of the seized contraband and non-drawing of samples in presence of the Magistrate.

In view of this, the Court noted that the conviction of the appellants deserved to be set-aside. Accordingly, the appeal was allowed.

Appearances

Counsel for Applicant: Murtuza Ali,Gufran Ahmad Khan,Imtiyaj Ali

Counsel for Opposite Party: G.A.

Case title - Satyapal And Anr. vs. State of U.P. 2024 LiveLaw (AB) 82 [CRIMINAL APPEAL No. - 6549 of 2018]

Case citation: 2024 LiveLaw (AB) 82

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