Full Judgment Text
2023 INSC 912
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.3191 OF 2023
[Arising out of SLP (Crl.) No. 3010 of 2023]
YUSUF @ ASIF …APPELLANT
VERSUS
STATE …RESPONDENT
J U D G M E N T
PANKAJ MITHAL, J.
1. Leave granted.
2. Heard Mr. Narendra Hooda, learned Senior counsel for the
Signature Not Verified
appellant and Ms. Aishwarya Bhati, learned Additional
Digitally signed by
Anita Malhotra
Date: 2023.10.13
18:22:19 IST
Reason:
Solicitor General for the respondent.
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3. On the basis of the information received by the Intelligence
1
Officer of Narcotics Control Bureau , 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. . All
Mahazar
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
2
Narcotic Drugs and Psychotropic Substances Act, 1985 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.
1 hereinafter referred to as “NCB”
2 hereinafter referred to as “NDPS Act”
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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 or
der 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 re
maining sentence after adjusting the period of imprisonment
already undergone.
Aggrieved by his conviction and sentencing by the trial court
6.
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.
It may be relevant to mention here that A1 is the owner of the
7.
contraband and the same was being transported from Madhya
Pradesh to Chennai with the help of A2 to A4. A1 had
reached the place of seizure of the contraband to receive it,
once it had reached Chennai.
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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. Fur
ther, 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.
Learned counsel for the respondent on behalf of the State
9.
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
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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.
In order to test the above submissions, it would be relevant to
10.
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 cer
tified by the Magistrate shall be recognized as the primary evi
dence in connection with the offences alleged under the NDPS
Act.
For the sake of convenience, relevant subsections of Section
11.
52A of the NDPS Act are reproduced hereinbelow:
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“ 52A. Disposal of seized narcotic drugs and
psychotropic substances.
(1)
Where any [narcotic drugs, psychotropic
(2)
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
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(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.”
A simple reading of the aforesaid provisions, as also stated
12.
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
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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
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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.
3
In case, the apex court while dealing with Section
15. Mohanlal’s
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
3 Union of India vs Mohanlal and Anr (2016) 3 SCC 379
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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.
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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.
……………………….. J.
(ABHAY S. OKA)
……………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
OCTOBER 13, 2023.
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