Non-Explanation Regarding Nonproduction Of Remaining Contraband After Drawing Sample Creates Doubt On Prosecution Case: Kerala HC

The Kerala High Court allowed an appeal challenging conviction under Section 20 of the Narcotic and Psychotropic Substances Act, (NDPS Act) for non-compliance with Section 52 of the Act, which requires police officers to certify the inventory of the seized substances by a magistrate.

A single judge bench of Justice K Babu remarked that “the intention of the legislature by incorporating Section 52A in the NDPS Act is to see that the process of drawing the sample has to be in the presence and under the supervision of the Magistrate, and the entire exercise has to be certified by him to be correct”.

“As per sub-section (2) of Section 52A, upon seizure of the contraband substance, he should forward the contraband to the officer-in-charge of the nearest Police Station or the officer empowered under Section 53, as the case may be, who shall prepare an inventory as stipulated therein and make an application to the Magistrate to certify the correctness of the inventory, certify the truthfulness of the photographs of such drugs or substances, draw representative samples in the presence of the jurisdictional Magistrate and certify the correctness of the list of samples so drawn. As per sub-section (3) of Section 52A, when such an application is filed, the Magistrate shall allow the same” stated the court.

The appellant was convicted under Section 20(b)(ii)(B) of the NDPS Act after being found in possession of 1.3kg of contraband and arrested along with the contraband substance.

The counsel for the accused submitted that the samples of the seized contraband were not drawn in the presence of the Magistrate nor was the inventory of the seized contraband duly certified by the Magistrate.

It was argued that the detecting officer ought to not have drawn the sample from the bulk quantity of the contraband substance seized at the scene of occurrence and that the prosecution failed to explain what happened to the rest of the contraband after taking the sample allegedly seized from the possession of the accused.

Counsel submitted that as per sub-section (2) of Section 52-A of the NDPS Act, the detecting officer should have forwarded the contraband substance to the officer empowered under Section 53 of the NDPS Act, who would prepare an inventory of the same.

As such, the order was challenged since the officers did not comply with the provisions under Section 52A of the NDPS Act, which the petitioner claimed violated the entire proceedings.

While allowing the appeal, the court pointed to the non-explanation from the prosecution regarding the remaining quantity of contraband that was seized, adding that this “creates doubt on the prosecution case that any contraband, as pleaded was seized from the possession of the accused”.

The court remarked that there was no material which showed that the remaining quantity was available in the trial court.

Accordingly, the court allowed the appeal and acquitted the accused of the offence under Section 20 of the NDPS Act.

Citation Number: 2024 LiveLaw (Ker) 151

Case Title: Manoj v. State of Kerala

Case Number: Crl A No. 993 of 2023

Counsel for Petitioners: Advocate Sunny Mathew

Counsel for Respondent: Advocate G Sudheer, Public Prosecutor

Click here to read/download the order