Brief Facts
- The Intelligence Officer of Narcotics Control Bureau (NCB) intercepted a lorry, on the basis of the information received by them, wherein four persons were found and upon search the NCB found 20 kgs of heroin kept in two jute bags. Thereafter, samples were drawn from each of the packets i.e. 14 big and 12 small polythene packets kept in the two jute bags and they were seized under a seizure memo.
- Upon trial, all four persons were found guilty and rigorous imprisonment for 10 years and to pay fine of Rs.1 lakh each, in default of which a further imprisonment of one year was ordered. Aggrieved by the same they preferred appeal before the High Court which was also dismissed. Hence, the Appellant-Accused approached the Supreme Court assailing the validity and legality of the said orders.
Issues
- What is the role and importance of section 52A of the NDPS Act?
- Whether non-compliance with section 52A of the NDPS Act would vitiate the trial?
Held
- The Appeal was allowed by the Supreme Court and the order of conviction was set aside.
- It would be relevant to refer to the provisions of Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act.
- A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in subsection (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn.
- Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (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 the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act.
- It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the gazetted officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn.
- In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated.
Relevant Para No.
- 10, 12, 13, 14, 16