Supreme Court quashes conviction due to violation of Section 52A of NDPS Act: Yusuf @ Asif vs State (2023) INSC 912

Date of the Judgment: 13 October 2023

Citation: 2023 INSC 912

Judges: Abhay S. Oka, J. and Pankaj Mithal, J.

Can a conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) stand if the mandatory procedures for seizing and sampling contraband, as outlined in Section 52A of the NDPS Act, are not followed? The Supreme Court of India recently addressed this critical question in a case involving the seizure of heroin. The court examined whether the failure to have samples drawn in the presence of a Magistrate and to have the inventory certified by a Magistrate would invalidate the conviction.

The Supreme Court, in this case, was composed of a bench of two judges: Justice Abhay S. Oka and Justice Pankaj Mithal, with the judgment authored by Justice Pankaj Mithal.

Case Background

On March 28, 2000, the Narcotics Control Bureau (NCB) intercepted a lorry near Puzhal Central Jail, Chennai, based on information received by an Intelligence Officer. Four individuals were found inside the lorry, and a search revealed 20 kilograms of heroin stored in two jute bags. The heroin was packaged in 14 large and 12 small polythene packets. Samples were drawn from each packet and seized under a Mahazar (seizure memo). The four individuals were arrested after the analyst confirmed that the seized substance was heroin.

A case was registered as Crime No. 113/2000. The trial court found all four individuals guilty under the NDPS Act and sentenced them to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh each, with an additional year of imprisonment for non-payment of the fine.

All four accused appealed to the High Court. During the appeal, one of the accused (A-4) died, and the appeal against him was dismissed as abated on July 15, 2022. The High Court dismissed the remaining appeals on October 11, 2022, affirming the trial court’s findings and directing the accused to serve the remaining sentence.

A-1, the owner of the contraband, appealed to the Supreme Court, challenging the High Court’s judgment.

The appellant (A-1) was identified as the owner of the seized heroin, which was being transported from Madhya Pradesh to Chennai with the help of the other accused. He had reached the location to receive the contraband.

Timeline

Course of Proceedings

The trial court, after examining the evidence, found all four accused guilty under the NDPS Act. The court sentenced them to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh each, with an additional year of imprisonment for non-payment of the fine.

The accused appealed to the High Court. During the pendency of the appeal, one of the accused (A-4) died, and the appeal against him was dismissed as abated. The High Court upheld the trial court’s decision, stating that there was no error in the findings. The remaining accused were directed to serve the remaining sentence.

Aggrieved by the High Court’s decision, A-1 appealed to the Supreme Court, challenging the legality of the seizure and sampling procedures.

Legal Framework

The core legal issue revolves around Section 52A of the NDPS Act, which outlines the procedure for the seizure, inventory, and sampling of narcotic drugs and psychotropic substances. This section ensures that the seized contraband is properly documented and that samples are drawn in a manner that preserves their evidentiary value.

Section 52A of the NDPS Act states:

“52A. Disposal of seized narcotic drugs and psychotropic substances. –
(1) …
(2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (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 sub-section (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
(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 sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.”

This provision mandates that after seizing any contraband, the officer must prepare an inventory detailing the substance’s description, quality, quantity, and other identifying particulars. The officer must then apply to a Magistrate to certify the inventory’s correctness, take photographs, and draw representative samples in the Magistrate’s presence. The Magistrate must certify the correctness of the list of samples drawn. These certified documents are considered primary evidence in court.

Arguments

Appellant’s Arguments:

• The appellant argued that the entire seizure and sampling process was illegal, violating the mandatory provisions of Section 52A(2) of the NDPS Act.
• The procedure prescribed under Section 52A(2) of the NDPS Act was not followed in drawing the samples and seizing the alleged narcotic substance.
• There was a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband.

Respondent’s Arguments:

• The respondent (State) contended that the search and seizure were based on prior information received by the Intelligence Officer of NCB (PW1).
• The accused were informed of the officers’ identities, and the search was conducted with their written consent in the presence of a gazetted officer (PW8).
• After the seizure, two samples from each packet were drawn, packed separately, and sealed with NCB seal No. 12.
• The seal number was correctly mentioned in the Mahazar and other documents, except for an inadvertent error in the godown receipt.
• The officers involved in the operation submitted their reports as required under Section 57 of the NDPS Act.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

1. Whether the seizure and sampling of the contraband were conducted in accordance with the mandatory provisions of Section 52A of the NDPS Act?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Case Law:

• Union of India vs Mohanlal and Anr [(2016) 3 SCC 379] – The Supreme Court of India held that upon seizure of contraband, it must be forwarded to the officer in charge of the nearest police station or to the officer empowered under Section 53 of the NDPS Act. This officer is obliged to prepare an inventory of the seized contraband and then apply to the Magistrate for certification. Samples drawn in the presence of the Magistrate and the list thereof, on being certified, alone would constitute primary evidence for the purposes of the trial.

Legal Provisions:

• Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 – This section outlines the procedure for the seizure, inventory, and sampling of narcotic drugs and psychotropic substances. It mandates that samples must be drawn in the presence of a Magistrate, and the inventory must be certified by the Magistrate.

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court relied on Union of India vs Mohanlal and Anr [(2016) 3 SCC 379] to emphasize that samples must be drawn in the presence of a Magistrate and the inventory must be certified by the Magistrate for it to be considered primary evidence.
• The Court interpreted Section 52A of the NDPS Act as laying down a mandatory procedure for the seizure and sampling of narcotic substances.

What weighed in the mind of the Court?

The Supreme Court’s decision in Yusuf @ Asif vs State was primarily influenced by the procedural lapses in adhering to Section 52A of the NDPS Act. The Court emphasized the mandatory nature of the procedures for seizure and sampling of contraband, underscoring that these steps are crucial for ensuring the integrity of evidence in narcotics cases. The Court’s reasoning focused on the lack of primary evidence due to non-compliance with the statutory requirements, which ultimately led to the quashing of the conviction.

The Court’s reasoning was primarily based on the legal requirements under Section 52A of the NDPS Act. The factual aspects of the case, such as the seizure of heroin and the arrest of the accused, were secondary to the legal analysis of whether the correct procedure was followed. The Court’s emphasis on the law highlights the importance of strict adherence to statutory procedures in criminal cases, particularly those involving narcotics.

Logical Reasoning

Judgment

The Supreme Court observed that the procedure under Section 52A of the NDPS Act was not followed. The samples were drawn in the presence of a gazetted officer, not a Magistrate, and there was no evidence that the Magistrate certified the inventory or the list of samples. The Court emphasized that the mere presence of a gazetted officer does not fulfill the mandate of Section 52A(2) of the NDPS Act.

The Court stated that, “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.”

The Court further noted that, “Once there is no primary evidence available, the trial as a whole stands vitiated.”

The Supreme Court relied on the case of Union of India vs Mohanlal and Anr [(2016) 3 SCC 379], which clearly laid down that the samples drawn in the presence of the Magistrate and the list thereof, on being certified, alone would constitute primary evidence for the purposes of the trial.

The Court concluded that the failure to produce primary evidence as per Section 52A of the NDPS Act vitiated the conviction. The Court set aside the judgments of the High Court and the trial court, thereby acquitting the appellant. The Court also directed that the appellant’s bail bonds, if any, be canceled.

The Court observed that, “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.”

Key Takeaways

• Strict Compliance with Section 52A is Mandatory: The Supreme Court has emphasized that the procedure laid down in Section 52A of the NDPS Act must be strictly followed. This includes preparing an inventory, drawing samples in the presence of a Magistrate, and having the inventory and list of samples certified by the Magistrate.
• Primary Evidence is Crucial: The court reiterated that the inventory and list of samples certified by the Magistrate are primary evidence in NDPS cases. Failure to adhere to this procedure can invalidate the trial.
• Impact on Future Cases: This judgment serves as a reminder to law enforcement agencies to strictly adhere to the procedural requirements under the NDPS Act. Any deviation from these procedures can lead to the quashing of convictions.

Directions

The Supreme Court gave the following directions:

• The conviction of the appellant was set aside.
• The judgments of the High Court and the trial court were also set aside.
• The appellant’s bail bonds, if any, were canceled.

Development of Law

The ratio decidendi of this case is that strict compliance with Section 52A of the NDPS Act is mandatory for the seizure and sampling of contraband. The court emphasized that the inventory and list of samples must be certified by a Magistrate to be considered primary evidence. This decision reinforces the importance of procedural safeguards in criminal trials, particularly in cases involving narcotics. This judgment does not change any previous position of law but reinforces the already existing position of the law.

Conclusion

The Supreme Court’s judgment in Yusuf @ Asif vs State underscores the critical importance of adhering to the mandatory procedures outlined in Section 52A of the NDPS Act. The Court’s decision to quash the conviction highlights the necessity of ensuring that all steps in the seizure and sampling process are strictly followed, including the presence of a Magistrate, the certification of the inventory, and the drawing of samples. This judgment serves as a crucial reminder to law enforcement agencies about the importance of procedural compliance in narcotics cases.

Category

• Narcotic Drugs and Psychotropic Substances Act, 1985
  • Section 52A, Narcotic Drugs and Psychotropic Substances Act, 1985
  • Seizure of Contraband
  • Sampling Procedure
  • Primary Evidence
  • Magistrate Certification
  • Criminal Law
  • Narcotics Law

FAQ

Q: What is Section 52A of the NDPS Act?

A: Section 52A of the NDPS Act outlines the procedure for the seizure, inventory, and sampling of narcotic drugs and psychotropic substances. It mandates that samples must be drawn in the presence of a Magistrate, and the inventory must be certified by the Magistrate.

Q: Why is it important to follow Section 52A of the NDPS Act?

A: Following Section 52A is crucial because it ensures that the seized contraband is properly documented and that samples are drawn in a manner that preserves their evidentiary value. This helps to maintain the integrity of the evidence in court.

Q: What happens if Section 52A is not followed?

A: If Section 52A is not followed, the seized contraband and the samples drawn from it may not be considered valid primary evidence in court. This can lead to the quashing of convictions.

Q: Who should be present when samples are drawn under Section 52A?

A: Samples must be drawn in the presence of a Magistrate, and the inventory must be certified by the Magistrate.

Q: What is the main takeaway from the Yusuf @ Asif vs State case?

A: The main takeaway is that strict compliance with the procedures outlined in Section 52A of the NDPS Act is mandatory. Failure to adhere to these procedures can invalidate a conviction.