Samples Drawn In Gazetted Officer's Presence Not Enough U/s. 52A(2), NDPS Act: Supreme Court Emphasizes Magistrate's Certification
The Supreme Court held that the mere presence of a gazetted officer during the seizure of contraband, without adherence to the specific procedures outlined in Section 52A(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 does not validate the seizure or sampling process. The Court emphasized that proper documentation, including inventory preparation and certification by a Magistrate, is crucial. Based on information from the Narcotics Control Bureau, a lorry was intercepted in 2000. It contained 20 kgs of heroin. Four individuals were arrested, and a case was registered under the NDPS Act. All four were found guilty, but one person died during the appeal process. The High Court affirmed the trial court's decision. The owner of the contraband among them appealed the High Court's judgment.
A two judge Bench of Justice Abhay S. Oka and Justice Pankaj Mithal held that, “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.”
Senior Advocate Narendra Hooda appeared for the Appellant and Advocate Aishwarya Bhati appeared for the Respondent.
The defense argued that the seizure and sampling procedures violated Section 52A(2) of the NDPS Act. The defense claimed there was doubt about the correctness of the samples sent for analysis.
The prosecution contended that the seizure was based on prior information, proper procedures were followed, and the samples were drawn in the presence of a gazetted officer.
The Court perused Section 52A(2) which mandates specific procedures for seizure, inventory preparation, and sample drawing. The Court noted no evidence proved compliance with these procedures. The Court said, “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 Court further said samples were not drawn in the presence of a magistrate, rendering them invalid as primary evidence. The Court added, “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.”
Due to the lack of adherence to legal procedures, the conviction was set aside by the Court. The Court said, “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.”
The Court set aside the conviction of the owner, who had already served over 6 years of the sentence out of 10 years awarded to him. His appeal was allowed with no costs.
Cause Title: Yusuf v. State, [2023 INSC 912]
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