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Synopsis

The Supreme Court has acquitted a man found possessing 20 kgs of heroine, after finding that the trial in the case was vitiated as samples of contraband were not drawn in presence of Magistrate and inventory was duly certified by the officer.

"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 bench said.

Court allowed the appeal by Yusuf alias Asif against his conviction and sentence of 10 years imprisonment with Rs One lakh fine imposed upon by the trial court and confirmed by the High Court.

The Narcotics Control Board claimed to have seized 20 kgs of heroine from a lorry parked near Puzhal Central Jail, Chennai on March 28, 2000 and four persons were found in the vehicle.

Of the four convicts, the appellant alone, who filed the appeal, contended the entire action of seizure and sampling was wholly illegal for it was done in violation of the mandatory provisions of Section 52A (2) of the NDPS Act.

The NCB, on the contrary, contended the search and seizure was based upon prior information. 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, who was a gazetted officer. After seizure, two samples from each packet were drawn and packed separately and were sealed, it said. 

Referring to Section 52A (2), (3) and (4) of the NDPS Act, the court, however, found the entire action of seizure and sampling was wholly illegal as it was done in violation of the mandatory provisions.

"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," the bench said.

The court pointed out a simple reading of the provisions, 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.

"In the instant case, no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (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", the bench said.

It also pointed out 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. 

"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 bench said.

Case Title: Yusuf @Asif vs. State