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TMI Blog2023 (10) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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 rigoro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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 photograp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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