NDPS Act | Conviction Liable To Be Set Aside If Samples Weren't Drawn In Magistrate's Presence As Per Section 52A: Supreme Court

The Supreme Court recently reiterated that the process of drawing of samples under Section 52-A of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) has to be in the presence and under the supervision of the Magistrate. The entire exercise of collecting the sample must be certified by the Magistrate to be correct, it was held.

A division bench of Justice Abhay S Oka and Justice Rajesh Bindal made the observation while considering an appeal by a person convicted by the Special Judge under Section 15 of the NDPS Act for possession of poppy husk. The High Court had dismissed his appeal and hence he had approached the Apex Court.

The case of the appellant was that the case of prosecution is vitiated as the sample-drawing was not done in accordance with Section 2 of Section 52A of the NDPS Act. The sample was drawn by PW-7, and his examination-in-Chief would show that the samples were drawn immediately after seizure of the contraband, it was argued.

The Apex Court relied on the decision in Union of India v. Mohanlal & Anr, (2016) 3 SCC 379 to reiterate that there is no provision under the NDPS Act that mandates taking of samples at the time of seizure. The drawing of samples must take place before a Magistrate and since most often, seizure occurs in the absence of a Magistrate, the question of drawing of samples at the time of seizure does not arise. According to the said decision, this is especially important as the samples drawn and certified by the Magistrate constitute primary evidence for the trial.

The Top Court found the procedure followed by the prosecution to be contrary to the law laid down in the above case:

“Hence, the act of PW-7 of drawing samples from all the packets at the time seizure is not in conformity with the law laid down by this Court in the case of Mohanlal. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.”

The Court accordingly allowed the appeal and set aside the conviction and sentence of the appellant:

“Hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Accordingly, we set aside the impugned judgments insofar as the present appellant is concerned and quash his conviction and sentence.”

Also Read - Mandate Of Section 52A NDPS Act Has To Be Duly Complied Before Disposal/Destruction Of Seized Narcotic Substances : Supreme Court

Case Title: Simarnjit Singh V. State of Punjab, Criminal Appeal No.1443 Of 2023

Citation : 2023 LiveLaw (SC) 570

Click Here To Read/Download Order