[NDPS Act] Samples To Be Drawn In Magistrate’s Presence, Mere Production Before Court Not Sufficient To Satisfy S.52A: Madras High Court

Justice P Dhanabal thus set aside the conviction of a man under the Act as the prosecution agency had failed to follow the procedures laid down under the Act and by the Apex Court.

“...it is clear that the samples ought to have been drawn in the presence and supervision of Magistrate and entire exercise have to be certified by him to be correct. Therefore mere production of samples which were seized by the police before the Court is not sufficient to satisfy the condition of Section 52(A) of NDPS Act,” the court observed.

The court was hearing an appeal by one Uganchand Kumawat against the order of the Additional District Judge for NDPS Act cases in Madurai convicting him under the Act and sentencing him to undergo 10 years rigorous imprisonment and to pay a fine of one lakh rupees.

The case against Kumawat was that when a vehicle inspection was carried out upon receiving secret information, two polythene bags containing 30kgs each of Ganja were seized. The samples were drawn and Kumawat was taken to the police station an FIR was registered and he was subsequently convicted.

On appeal, it was argued that the trial court’s judgment was against the law, the weight of evidence, and the probabilities of the case. It was argued that the entire search and seizure proceedings were not proved beyond doubt and there were contradictions between the prosecution witnesses.

It was contended that Kumawat did not know Tamil but the entire evidence was recorded without appointing a translator and thus his right to a fair trial was denied by the trial court. It was also submitted that the mandatory procedures under Sections 50 and 52(A) and 57 of the NDPS Act were not complied with and the ownership of the vehicle from which the contraband was seized was also not identified.

The Additional Public Prosecutor, on the other hand argued that there was no deviation from mandatory procedures. It was submitted that the prosecution had clearly established a case against Kumawat. He also informed the court that since the vehicle was not registered in Kumawat’s name, he was acquitted for the offence under Section 25 of the NDPS Act.

With respect to Section 50 of NDPS Act, which requires search to be conducted in the presence of nearest Gazetted Officer or nearest Magistrate, the court noted that in the present case, the police had not searched Kumawat and had only searched the vehicle and thus the procedure contemplated in Section 50 was not applicable.

Regarding the absence of a translator, the court noted that trial court had made an endorsement while framing of charge to the effect that though there was no special translator, the charges were explained to the accused by a Hindi knowing person. The court also noted that the procedures under Section 57 was also complied as the reports were sent to the superior officer after arrest and recovery of materials.

However, the court agreed that the procedures under Section 52(A) of the Act were not complied with. The court also observed that the prosecution had failed to prove the possession itself and thereby the presumption under Sections 35 and 54 of the Act was not applicable.

Thus, noting that the prosecution had failed to prove the case beyond a reasonable doubt, the court set aside the order of conviction and acquitted the accused.

Counsel for the Appellant: Mr Karuppusamy Pandian for Mr. Na.Manimaran

Counsel for the Respondent: Mr.S.Ravi Additional Public Prosecutor

Citation: 2023 LiveLaw (Mad) 325

Case Title: N.Uganchand Kumawat v The Inspector of Police

Case No: CRIMINAL APPEAL(MD)No. 551 of 2021