2023 (10) TMI 667 - SC - Indian Laws

Smuggling - violation of the mandatory provisions of Section 52A (2) of the NDPS Act - procedure not followed in drawing the samples and seizing the alleged narcotic substance - HELD THAT - 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. The failure of the concerned authorities to lead primary evidence vitiates the conviction and as such, 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 - 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. Appeal allowed.

Summary

Issues:
The issues involved in the judgment are the legality of seizure and sampling under the Narcotic Drugs and Psychotropic Substances Act, 1985.

Seizure and Sampling:
The case involved the seizure of a commercial quantity of heroin from a lorry near Puzhal Central Jail, Chennai. Four persons were arrested and convicted under the NDPS Act based on the seizure. The appellant challenged the legality of the seizure and sampling process, alleging violations of Section 52A (2) of the NDPS Act. The defense argued that the samples were not drawn in the presence of a Magistrate as required by law. The court noted that no evidence was presented to show compliance with the procedure outlined in Section 52A, which mandates the presence of a Magistrate during sampling and certification of inventory. Citing a previous Supreme Court ruling, the court emphasized that without proper certification by a Magistrate, the seized contraband and samples cannot be considered valid primary evidence for trial. Consequently, the court held that the lack of primary evidence vitiated the conviction, leading to the setting aside of the appellant's conviction and sentence.

Judgment:
The Supreme Court allowed the appeal, setting aside the conviction and sentence imposed on the appellant. The court noted that the appellant had already served over six years of the 10-year sentence and was currently on bail. As a result, the appellant's bail bonds were canceled, and no costs were awarded in the case. The court's decision was based on the failure to produce primary evidence in accordance with the NDPS Act, leading to the conclusion that the appellant's conviction was not valid.