S.52A(2) NDPS Act | Merely Showing Sample Was Drawn In Presence Of Gazetted Officer Not Sufficient Compliance, Need To Prove Presence Of Magistrate: P&H High Court

The Punjab & Haryana High Court has acquitted a man convicted in a drugs case wherein no evidence was produced that the samples were drawn in the presence of the Magistrate in compliance with Section 52A of the NDPS Act.

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 samples in his presence with due certification.

Justice Kirti Singh said, "The mere fact that the samples were drawn in the presence of the Gazetted Officer is not sufficient compliance of the mandate of sub-Section (2) of Section 52A of the NDPS Act."

The Court was hearing an appeal against the judgement of the Trial Court where Janki Dass was convicted under Section 20 of the NDPS Act and was sentenced to undergo rigorous imprisonment for period of 5 years and to pay a fine of Rs.23,000.

According to the prosecution, Dass was apprehended for selling 4 kg of contraband. In order to substantiate its case, the prosecution examined 06 witnesses. After the closure of evidence of the prosecution, the statement of the accused under Section 313 CrPC was recorded and incriminating circumstances appearing in evidence were put to him to which he pleaded false implication.

After hearing the submissions, the Court explained that as per Sections 52A(2)(c) of the NDPS Act,

"Upon seizure of the contraband, the same has to be forwarded either to the officer uncharge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provisions and make an application to the Magistrate for purpose of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs and substrates taken before the Magistrate as true (c) to draw representatives samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. In other words the process of drawing of samples 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."

In the present case, the Court noted that "the case property and appellant was produced before the SHO Police Station who also verified the facts and put his seal on the recovered case property." The Forensic Science Laboratory Madhuban stated that the sample was ganja."

"No inventory was prepared by the Investigation Officer in regard to the contraband recovered containing quantity, mode of packing, marks,  number or other such identifying particulars of the contraband so recovered. The samples were not drawn in the presence and under the supervision of the Magistrate which is complete violation of mandatory provisions of Section 52A of the Act," noted the judge.

The samples so recovered from the appellant were directly sent to the FSL and the report identifying the sample as ganja was received, the Court noted.

Justice Singh highlighted that "No evidence has been brought on record to the effect that procedure prescribed under sub Section (2) (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample, such as preparing the inventory and getting it certified by the Magistrate."

"No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of samples so drawn was certified by the Magistrate. The mere fact that the samples were drawn in the presence of the Gazetted Officer is not sufficient compliance of the mandate of sub-Section (2) of Section 52A of the NDPS Act," the judge said.

Adding that it is a case where no inventory was prepared and the sample was not drawn in the presence of the Magistrate in compliance to the mandatory provisions of section 32A of the NDPS Act which was sent for analysis, the Court opined that, "The learned Trial Court failed to notice this material infirmity in the case of the prosecution and fell into grave error in recording conviction to the appellant. Rather the benefit of the same should have been granted to the appellant."

Consequently, the plea was allowed and the Court acquitted the judgement of conviction was set aside.

Recently, the Supreme Court held that when Samples are not drawn following Section 52A, the FSL Report is a waste of paper and can't be read in evidence.

Sukhcharan Singh Gill Advocate (Amicus Curiae) for the appellant.

Mr. Rahul Dev Singh, Addl. A.G. Haryana.

Title: Janki Dass v. State of Haryana 

2024 LiveLaw (PH) 186

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