Drawing samples of drugs in non-compliance with Section 52A of NDPS Act fatal to case of prosecution: SC sets aside conviction

06/06/2023

NEW DELHI, Jun 5: The Supreme Court recently in a Criminal Appeal challenging the conviction of the Petitioner under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) reiterated that the act of an officer empowered under Section 42 of NDPS Act for drawing samples of the material at the time of seizure, if is not in conformity with the law laid down by this Court in the case of Union of India v. Mohanlal & Anr (2016) 3 SCC 379, will create a serious doubt about the prosecution's case.
The Bench of Justice Abhay S. Oka and Justice Rajesh Bindal noted that in the present matter as per the evidence of the Police Officer (PW-7), the samples from the drugs were drawn immediately after the seizure and this being the situation "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".
The Court stated that "This creates a serious doubt about the prosecution's case that the substance recovered was contraband." Accordingly, the Bench observed that "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."
As per the case of the Prosecution, during patrolling the Petitioner was caught driving a tempo which led to the recovery of eight bags of poppy husk which were concealed under a tarpaulin and each bag was found to be 29.5 kgs. The Special Judge convicted the Petitioner under Section 15 of the NDPS Act and sentenced him to undergo 10 years R.I. and a fine of Rs. 1,00,000. The appeal preferred was dismissed by the impugned judgment of the High Court.
Appearing for the Petitioner Advocate Puneet Jain along with Advocate Harshit Khanduja submitted in the Criminal Appeal that the present case relates to the complete noncompliance of statutory safeguards contained in the NDPS Act (Section 41, 42, 52,57) which has not only prejudiced the case of the petitioner but has resulted in the trial being vitiated.
The Appeal read that total noncompliance with Section 52A is impermissible and a clear violation of the procedural safeguard which vitiates the trial and that, "an officer under Section 42 of the Act has been entrusted with specific tasks of - "entry, search, seizure and arrest". This officer under Section 42 has no power to "investigate", as that power has been conferred upon Section 53 officer. As per Section 52(3) of the Act, the Section 42 officer is required to handover the seized goods and the persons arrested to the officer in charge of a police station or Section 53 officer and all subsequent acts have to be done by the officer empowered under Section 53."
The Plea stated that from the Scheme of the Act itself, the Section 42 officer is required to hand over the seized articles and arrested persons for further action and investigation to the investigating officer empowered under Section 53. This has been expressly said so as to avoid the merging of the identity of a complainant and the investigator, as is required to ensure a fair trial in light of Article 21 of the Constitution.
It was further submitted that, in the facts of the present case, the Seizing Officer- PW 7 Hardeep Singh himself drew the samples at the time of recovery in contravention of the scheme of the Act and that PW-7 was not empowered to draw representative samples and ought to have forwarded the seized articles to the officer in charge of the police station or to the officer empowered under Section 53, who thereafter has to make an application to the Magistrate U/s 52A (3) who shall draw representative samples and certify the correctness of the samples so drawn U/s 52A(2)(c) of the NDPS Act.
Agreeing with the view and the judgments relied upon by the Petitioners, the Apex Court reiterated that as per the Judgment of Mohanlal's case, it was held that it is manifest from Section 52-A(2) that upon seizure of the contraband, the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered. The Court also reiterated that as per Section 53, there is no provision in the Act that mandates the taking of samples at the time of seizure.
"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," the Bench held.
Observing the same, the Court allowed the Appeal.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1443 OF 2023
(Arising out of S.L.P.(Crl.) No. 1958 of 2023)
SIMARNJIT SINGH ... APPELLANT(S)
VS.
STATE OF PUNJAB ... RESPONDENT(S)
O R D E R
Leave granted.
2. Heard the learned counsel appearing for the parties.
3. We make it clear that out of the 3 accused who were
before the High Court, only the present appellant has come by way of this appeal.
3. The appellant was convicted by the Special Judge under the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") for the offence punishable under Section 15 of the said Act. The appeal preferred by the present appellant has been dismissed by the impugned judgment of the High Court.
4. The case of the prosecution in brief is that SI Hardeep Singh (PW-7) along with other police officers were present at a bridge on a canal in the area of village Balak Khurd for the purposes of patrolling. When they noticed that a tempo coming from the side of village Matran, they signalled the tempo to stop. The driver and other two persons sitting in the tempo were apprehended.
According to the case of the prosecution, search was conducted in the presence of the District Superintendent of Police of the tempo which led to recovery of eight bags of poppy husk which were concealed under tarpaulin.
From each bag, two samples of 250 gms were taken out and made into sixteen parcels and residue of poppy husk in each bag was found to be of 29.5 kgs.
5. The learned counsel appearing for the appellant relied upon a decision of this Court in the case of Union of India v. Mohanlal & Anr.1. He submitted that the prosecution is vitiated as the work of drawing sample was done by PW-7 without taking recourse to sub-section 2 of Section 52A of the NDPS Act. He also pointed out that the examination-in-Chief of PW-7 SI Hardeep Singh which shows that the samples were drawn immediately after the seizure.
6. The learned counsel appearing for the respondent- State supported the impugned judgments.
7. We have perused the evidence of PW-7 Hardeep Singh in which he has stated that from the eight bags of poppy husk, two samples of 250 gms each were drawn and converted into 16 parcels. This has been done immediately after the seizure.
8. In paragraphs 15 to 17 of the decision of this Court in Mohanlal's case1, it was held thus:
"15. It is manifest from Section 52-A(2)include (supra) that upon seizure of the contraband the same has to be forwarded either to the officerin-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
16. Sub-section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer-in-charge of the police station or the officer empowered, the officer concerned is in law duty-bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.
17. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with subsections (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure."
9. 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 Mohanlal1. This creates a serious doubt about the prosecution's case that substance recovered was a contraband.
10. 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.
11. The appeal is accordingly allowed.
..........................J.
(ABHAY S.OKA)
..........................J.
(RAJESH BINDAL)
NEW DELHI;
May 09, 2023.

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