2023 ALL SCR (ONLINE) 801

Supreme Court

JUSTICE ABHAY S. OKA JUSTICE PANKAJ MITHAL

YUSUF @ ASIF Vs. STATE

CRIMINAL APPEAL NO.3191 OF 2023

13th October 2023

Petitioner Counsel: RAKESH DAHIYA

Respondent Counsel: ARVIND KUMAR SHARMA

Act Name: Narcotic Drugs and Psychotropic Substances Act, 1985

HeadNote : Narcotic Drugs and Psychotropic Substances Act, 1985

Section :
Section 52A(2) Narcotic Drugs and Psychotropic Substances Act, 1985 Section 52A(3)
Narcotic Drugs and Psychotropic Substances Act, 1985 Section 52A(4) Narcotic Drugs
and Psychotropic Substances Act, 1985 Section 57 Narcotic Drugs and Psychotropic
Substances Act, 1985

Cases Cited :
Para 15: Mohanlal’s Union of India Vs. Mohanlal and Anr., (2016) 3 SCC 379

JUDGEMENT

PANKAJ MITHAL, J.

1. Leave granted.

2. Heard Mr. Narendra Hooda, learned Senior counsel for the appellant and Ms.
Aishwarya Bhati, learned Additional Solicitor General for the respondent.

3. On the basis of the information received by the Intelligence Officer of Narcotics

Control Bureau hereinafter referred to as “NCB”, a lorry parked near Puzhal Central Jail,
Chennai, was intercepted by NCB on 28.03.2000 early in the morning. Four persons
were found in the lorry and upon search, they were found in possession of commercial
quantity i.e. 20 kgs of heroin kept in two jute bags. The 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 i.e. Mahazar. All the four persons were
arrested after receiving the analyst report that the seized substance was nothing else
but heroin.

4. Consequently, the case crime No.113/2000 was registered. The trial court upon
consideration of the evidence on record held all the four persons guilty under the
provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter
referred to as “NDPS Act” and convicted them to undergo 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.

5. All the four accused persons preferred appeal before the High Court. During the
pendency of the appeal, A4 (Ganesh Ram) died and the appeal was dismissed as
abated against him vide order dated 15.07.2022. The High Court vide judgment and
order dated 11.10.2022 dismissed the appeal holding that there is no error in the
findings recorded by the trial court and, therefore, the accused persons were directed to
serve the remaining sentence after adjusting the period of imprisonment already
undergone.

6. Aggrieved by his conviction and sentencing by the trial court and its affirmation by the
High Court, A1 alone has preferred the present appeal assailing the judgment and order
of the High Court dated 11.10.2022.

7. It may be relevant to mention here that A1 is the owner of the contraband and the
same was being transported from Madhya Pradesh to Chennai with the help of A2 to A-
4. A1 had reached the place of seizure of the contraband to receive it, once it had
reached Chennai.

8. We have heard learned Senior counsel for the appellant. The main plank of his
argument is that the entire action of seizure and sampling is wholly illegal. It was done
in violation of the mandatory provisions of Section 52A (2) of the NDPS Act as the
procedure prescribed therein was not followed in drawing the samples and seizing the
alleged narcotic substance. Further, there is a serious doubt about the correctness of
samples sent for analysis as to whether they were actually the samples of the seized
contraband.

9. Learned counsel for the respondent on behalf of the State submitted that the search
and seizure was based upon the prior information received by the Intelligence Officer of
NCB who has been examined as PW1. The accused persons were disclosed the
identity of the officers and after obtaining their consent in writing, the search was carried
out in the presence of Superintendent of Police, NCB (PW8) who was a gazetted officer.
After seizure, two samples from each packet were drawn and packed separately and
were sealed. The NCB seal No.12 was affixed to it and the correct seal number was
mentioned in the Mahazar and all other documents except in the godown receipt
whereby inadvertently seal No.11 was mentioned. The Officers involved in the search,
seizure and arrest operation had duly submitted their report as referred to under Section
57 of the NDPS Act.

10. In order to test the above submissions, 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.

11. For the sake of convenience, relevant subsections of Section 52A of the NDPS Act
are reproduced hereinbelow:
“52A. Disposal of seized narcotic drugs and psychotropic substances.
(1)
(2) Where any [narcotic drugs, psychotropic substances, controlled substances or
conveyances] has been seized and forwarded to the officerincharge of the nearest
police station or to the officer empowered under section 53, the officer referred to in
subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic
substances, controlled substances or conveyances] containing such details relating to
their description, quality, quantity, mode of packing, marks, numbers or such other
identifying particulars of the [narcotic drugs, psychotropic substances, controlled
substances or conveyances] or the packing in which they are packed, country of origin
and other particulars as the officer referred to in subsection (1) may consider relevant to
the identity of the [narcotic drugs, psychotropic substances, controlled substances or
conveyances] in any proceedings under this Act and make an application, to any
Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared; or
(b) taking, in the presence of such Magistrate, photographs of [such drugs or
substances or conveyances] and certifying such photographs as true; or
(c) allowing to draw representative samples of such drugs or substances, in the
presence of such Magistrate and certifying the correctness of any list of samples so
drawn.
(3) Where an application is made under sub-section (2), the Magistrate shall, as soon
as may be, allow the application.
(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or
the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under
this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic
substances, controlled substances or conveyances] and any list of samples drawn
under subsection (2) and certified by the Magistrate, as primary evidence in respect of
such offence.”

12. 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 sub- section (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.

13. 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.

14. 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.

15. In Mohanlal’s Union of India vs Mohanlal and Anr (2016) 3 SCC 379 case, the apex
court while dealing with Section 52A of the NDPS Act clearly laid down that it is
manifest from the said provision that upon seizure of the contraband, it has to be
forwarded either to the officerincharge of the nearest police station or to the officer
empowered under Section 53 who is obliged to prepare an inventory of the seized
contraband and then to make an application to the Magistrate for the purposes of
getting its correctness certified. It has been further laid down that the samples drawn in
the presence of the Magistrate and the list thereof on being certified alone would
constitute primary evidence for the purposes of the trial.

16. 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.

17. Accordingly, we are of the opinion that the failure of the concerned authorities to
lead primary evidence vitiates the conviction and as such in our opinion, the conviction
of the appellant deserves to be set aside. The impugned judgment and order of the High
Court as well as the trial court convicting the appellant and sentencing him to rigorous
imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to
undergo further imprisonment of one year is hereby set aside.

18. The appellant has already undergone more than 6 years of imprisonment out of 10
years awarded to him. He is on bail and has been granted exemption from surrender by
this Court. Therefore, his bail bonds, if any, stands cancelled.

19. The appeal is allowed with no order as to costs.