In Criminal Appeal No. 3191 of 2023 -SC- Samples drawn in presence of gazetted officer not sufficient compliance with Section 52A of NDPS Act, rules Supreme Court
Justice Abhay S. Oka & Justice Pankaj Mithal [13-10-2023]

Read Order: Yusuf @ Asif V. State

Chahat Varma

New Delhi, October 16, 2023: In a recent decision, the Supreme Court has set aside the convictions of three individuals in a narcotics case due to the lack of primary evidence. The Court observed that the samples of the seized heroin were not drawn in the presence of a Magistrate and that the inventory of the seized contraband was not properly certified by a Magistrate, which constituted a violation of the mandatory requirements of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Briefly stated, in the said case, an Intelligence Officer of the Narcotics Control Bureau received information, leading to the interception of a lorry near Puzhal Central Jail, Chennai, on 28.03.2000. The lorry was found to contain four individuals and a search revealed they were in possession of a commercial quantity of heroin, specifically 20 kgs of heroin in two jute bags. Subsequently, all four individuals were arrested after confirmation from the analyst's report that the seized substance was indeed heroin. A case was registered, and the Trial Court, after considering the evidence, found all four individuals guilty under the provisions of the NDPS Act. Thereafter, the High Court, on October 11, 2022, upheld the Trial Court's findings, and consequently, the accused individuals (one of whom had passed away during the appeal process) were directed to serve the remaining portion of their sentences, taking into account the time already served in imprisonment.

The division bench of Justice Abhay S. Oka and Justice Pankaj Mithal examined Section 52A of the NDPS Act and noted that a straightforward interpretation of this provision reveals that when any contraband or narcotic substance is seized and submitted to the police or the designated officer as mentioned in Section 53, that officer, as referred to in subsection (1), is required to prepare an inventory. This inventory should include details and descriptions of the seized substance, such as its quality, quantity, mode of packing, numbering, and identifying marks. After preparing this inventory, the officer must then submit an application to any Magistrate. The purpose of this application is to request the Magistrate to certify the accuracy of the inventory and to allow the drawing of representative samples of the seized substances in the Magistrate's presence. The Magistrate is also responsible for certifying the accuracy of the list of samples that are drawn.

The bench observed that in the present case, there was a lack of evidence to demonstrate that the procedures outlined in sub-sections (2), (3), and (4) of Section 52A of the NDPS Act were adhered to during the seizure and the drawing of samples. This included the absence of evidence regarding the preparation of an inventory and its certification by a Magistrate, as well as the lack of evidence indicating that the samples were drawn in the presence of a Magistrate and that the list of drawn samples had been certified by the Magistrate. The bench emphasized that the mere fact that the samples were drawn in the presence of a gazetted officer did not constitute sufficient compliance with the requirements mandated by sub-section (2) of Section 52A of the NDPS Act.

The bench concluded that due to the absence of any evidence on record confirming that the samples of the seized contraband were drawn in the presence of a Magistrate and that the inventory of the seized contraband was properly certified by a Magistrate, it was evident that both the seized contraband and the samples derived from it could not be considered as valid pieces of primary evidence in the trial. In the absence of primary evidence, the entire trial was deemed flawed.

Therefore, the bench determined that the failure of the relevant authorities to present primary evidence had a detrimental effect on the conviction.

Consequently. the court set aside the challenged judgment and order of both the High Court and the Trial Court.