S.52A NDPS Act | Contraband Becomes Primary Evidence Only When It Is Tested Through Magistrate: Punjab & Haryana High Court

The Punjab & Haryana High Court has set aside the conviction of a man under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) , observing that there was no evidence that magistrate was present when the sample was drawn from the bulk, hence the contraband produced by the prosecution cannot be considered as a "primary evidence."

Referring to Section 52 (4) of NDPS Act, Justice Sureshwar Thakur and Justice Lalit Batra observed, "the mere production of the certified inventory in Court, may not become primary evidence, but would become so only when at the time of drawings of the representative parcels before the learned Magistrate concerned, the apposite laboratory testings are then done, either through the learned Magistrate personally travelling along with the representative parcels, to the laboratory or his deputing a gazetted officer along with an empowered police officer to travel to the laboratory for the relevant testings being made there."

The Court was hearing an appeal against conviction of trial court wherein, the appellant was convicted under Section 15 of the NDPS Act in 2022 and sentenced to rigorous imprisonment  of 12 years, and fine of Rs.1 lakh.

It was alleged that appellant Kuldeep Singh @ Keepa was engaged in business of poppy husk and based on secret information he was apprehended with 640 Kgs of poopy husk in his car.

After examine the 8 prosecution witnesses and FSL report of the contraband, Singh was convicted by the Trial Court under Section 15 of the NDPS Act.

Challenging the conviction, the counsel for the petitioner argued that apart from the FSL report, the prosecution has not tendered into evidence the sample cloth parcels, nor the examined sample cloth parcel were produced or adduced into evidence.

After hearing the submissions and considering the material on record, the Court noted that the poppy husk was destroyed by the incharge of the Malkhana.

"However, no destruction could be caused of the bulk as remained with the in-charge of the Malkhana of the police station concerned, as in terms of notification..., only Poppy Husk being 10 MT was required to be destroyed, but Poppy Husk weighing less than 10 MT which is the quantum of Poppy Husk in the instant case was not required to be destroyed, as such, it was incumbent, upon the investigating officer concerned, to, even if at the FSL concerned, the stuff examined, became destroyed by the Chemical Examiner concerned, rather from the bulk prepare sample parcels for an opinion thereons being made by the Chemical Analyst concerned. However, the said has not been done thereby omission..., makes inroads into the efficacy of the prosecution case," said the bench.

The Court further noted that there is "no evidence" to prove that at the time of drawing sample of the contraband from the bulk, the magistrate was present, in compliance of Section 52(4) of the NDPS Act and the same sample was tested in the laboratory.

Consequently, the Court rejected the contraband as the "primary evidence."

In the light of the above, the Court allowed the plea and acquitted the appellant.

While disposing of the appeal the Court directed the Secretary Home, Government of Punjab, and, to the Secretary Home, Government of Haryana to increase the capacity of Malkhana in 6 months.

Angad Parmar, Advocate for Vivek K. Thakur, Advocate for the appellant.

Eklavya Darshi, Sr. DAG, Punjab.

KULDEEP SINGH ALIAS KEEPA V. STATE OF PUNJAB

2024 LiveLaw (PH) 164

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