SUPREME COURT ACQUITS THE APPELLANT-ACCUSED OWING TO FAILURE OF AUTHORITIES TO FOLLOW THE PROCEDURE PRESCRIBED IN LAW FOR SEIZURE OF NARCOTICS AND DRUGS

A two Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Pankaj Mithal passed a Judgment dated 13.10.2023, in Yusuf @ Asif v. The State, Criminal Appeal No. 3191 of 2023, and held that the failure of the concerned Authorities to follow the procedure established by law in respect of seizure of drugs and contraband, vitiated the conviction of the Appellant-Accused.

Facts

i) In the present case, the Narcotics Control Bureau’s (NCB) intelligence officers apprehended a truck bearing registration number MP 14 G 6424 that was parked close to Puzhal Central Jail in Chennai on 28.03.2000, early in the morning, after receiving prior information that it was transporting illegal drugs. After a search, it was discovered that the four people inside the truck were in possession of 20 kg of heroin, which was kept in two jute bags. The 14 large and 12 little polythene packets, which were contained in the two jute bags, were each sampled, and they were all taken in accordance with the seizure document. When it was discovered that the material that had been seized was heroin, all four of the people involved were placed under arrest.

ii) Thereafter, a Crime No.113/2000 was registered against Appellant-Accused No.1- Yusuf @ Asif, Accused No.2-  Balbir Singh,  Accused No.3- Harbajhan Singh, and Accused No.4- Ganesh Ram for offence under Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act) (Prohibition of certain activities relating to property derived from offence), read with (r/w) Section 21 NDPS Act (Punishment for contravention in relation to manufactured drugs and preparations), Section 25 NDPS Act (Punishment for allowing premises, etc., to be used for commission of an offence) and Section 29 NDPS Act (Punishment for abetment and criminal conspiracy).

iii) Thereafter, the NCB filed a Charge Sheet before the Ld Special Judge, NDPS Act Cases at Chennai (Trial Court) in C.No.113 of 2000 against the 4 Accused for offences under Section 8(c), r/w 21, 25 and 29 of NDPS Act.

iv) Thereafter, the Trial Court passed a Judgment dated 15.3.2002 by convicting all four Accused, to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh each, in default of which a further imprisonment of one year will be imposed.

v) Aggrieved by the Trial Court Order dated 15.3.2002, all the Accused, filed a Criminal Appeal before the High Court of Judicature at Madras (High Court) in Criminal Appeal No.379 of 2002.

vi) The High Court dismissed the Criminal Appeal filed by the Accused, vide Order dated 11.10.2022 by upholding the Ld. Trial Court Order dated 15.3.2002.

Supreme Court Analysis

Aggrieved by the High Court Order dated 11.10.2022, the Appellant-Accused No.1 Yusuf @ Asif filed Criminal Appeal No. 3191 of 2023 before the Supreme Court. The Apex Court passed a Judgment dated 13.10.2023 and observed as follows:

1) The Appellant’s learned Senior Counsel argued that in this case, the sampling and seizure of drugs as a whole was done completely in an illegal manner. It was done in contravention of the mandatory provisions of Section 52A (2) of the NDPS Act (Disposal of seized narcotic drugs and psychotropic substances) as the procedure outlined therein was not followed while drawing the samples and confiscating the purported narcotic substances. Also, there is a lot of uncertainty as to whether the samples sent for analysis were indeed samples of the contraband that was seized.

2) The Supreme Court observed that with reference to Section 52A (2), (3), and (4) of the NDPS Act, the said provisions outline the process and manner of seizing, as well as how to prepare an inventory of the confiscated goods, send them, and obtain an inventory certification from the relevant Magistrate. Additionally, it is stated that upon being confirmed by the Magistrate, the inventory or images of the material that was seized, as well as any list of samples related thereto, shall be accepted as the main pieces of evidence in relation to any offences claimed to have occurred in violation of the NDPS Act.

3) In the present 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 samples, such as preparing the inventory and getting it certified by the Magistrate.

4) The mere fact that the samples were drawn in the presence of a Gazetted Officer is not sufficient compliance with the mandate of Section 52A (2) of the NDPS Act.

5) The admitted fact to the record is that the samples from the material that had been seized were taken by the police in front of a Gazetted Officer rather than a Magistrate. Nothing in the record indicates that the Magistrate certified the list of samples taken or the inventory of the substance they were seizing.

6) In Union of India vs Mohanlal and Anr (2016), 3 SCC 379, the Supreme Court held that, with respect to Section 52A of the NDPS Act, upon seizure of the contraband, it must be sent either to the officer in charge of the closest police station or to the officer empowered under Section 53 of the NDPS Act (Power to invest officers of certain departments with powers of an officer-in-charge of a police station). Either officer is required to make an inventory of the seized contraband and then submit an application to the Magistrate in order to have the Magistrate certify its accuracy. Furthermore, it has been established that the only primary evidence used in the trial will be (a) the samples taken while the Magistrate was present and (b) the list of those samples after they are certified.

Conclusion

Thus, based on the aforesaid observations and laws, the Apex Court held that the failure of the concerned Authorities to follow the procedure established by law in respect of seizure of drugs and contraband, vitiates the conviction of the Appellant-Accused. As a result, the conviction of the Appellant was set aside. Thus, the Appeal filed by the Appellant-Accused was allowed, and the High Court Order dated 11.10.2022 and the Trial Court Order dated 15.03.2002 convicting the Appellant-Accused were set aside.

Suneel Kumar Jaiswal

Associate

The Indian Lawyer