S.52A NDPS Act Mandates Samples To Be Drawn In Presence Of Judicial Magistrate, Not Gazetted Officer: Chhattisgarh High Court

The Chhattisgarh High Court has made it clear that the mandate of Section 52A NDPS Act qua drawing of samples from alleged contraband is fulfilled only when the same is done in presence of a Judicial Magistrate, not in presence of a Gazetted Officer.

Underscoring the critical importance of adhering to the statutory procedures outlined under the Act, a Division bench of Chief Justice Ramesh Sinha and Justice Sachin Singh Rajput observed,

"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."

It thus acquitted four individuals convicted by the trial court in connection with 1,840 kg of ganja (cannabis) recovered from a truck in Raipur.

The court noted that the samples were collected in the presence of a Sub-Divisional Magistrate (SDM) instead of a Judicial Magistrate, as required by law. It cited NDPS Rules 2022 which defines "Magistrate" under the Act as a "Judicial Magistrate". Hence Court observed, "There is no material on record to prove that the Judicial Magistrate had certified the inventory of the substance seized or of the list of samples so drawn."

The court further noted that the sampling process did not comply with Standing Orders 1/88 and 1/89, which hold the binding force of law.

“The act of the Intelligence Officer of drawing samples from all the packets at the time of seizure is not in conformity with the law laid down by the Supreme Court in Mohanlal (supra). This creates a serious doubt about the prosecution's case that substance recovered was a contraband. Therefore, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt,” the Court stated.

It also noted significant contradictions in the statements of prosecution witnesses, including the independent witnesses who turned hostile. Court thus allowed all the appeals, setting aside the convictions and sentences imposed by the trial court.

In parting, the Court lamented over DRI's [Directorate of Revenue Intelligence] failure to observe mandatory provisions of the law and thus directed the specialized investigating agency to issue apposite advisories.

Case Title: Chandrashekhar Shivhare and Anr vs Intelligence Officer

Appearance:

For Appellant: Mr.Harsh Prabhakar, Mr.Harsh Gattani and Mr.Anubhav Singh, Advocates in CRA No.1294 of 2023

For Appellants: Mr.Prasoon Agrawal, Advocate in CRA No.808 of 2023

For Appellant: Ms.Mamta Jaiswal, Advocate in CRA No.1028/2023

For Respondent: Mr.Maneesh Sharma, Advocate

Click Here To Read Judgement