SUPREME COURT - SUPREME COURT QUASHES TRIAL DUE TO VIOLATION OF PROCEDURE UNDER SECTION 52A OF THE NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985.
In the case Yusuf @ Asif v. State of Tamil Nadu, [Criminal Appeal No. 3191 of 2023], the Appellant and three other persons were sentenced by the Trial Court to 10 years of rigorous imprisonment along with a fine of Rs.1,00,000/- as 20 kg of heroin was found in their possession. This decision was later upheld by the High Court of Tamil Nadu. The Supreme Court of India set aside their conviction because proper procedure under Section 52A of the NDPS Act, 1985 (“Act”), was not followed.
Section 52A sub-section 2 sub-clause C of the Act states that all samples drawn from the seized contraband must be done in the presence of the magistrate who must certify the correctness of the list of any such samples which have been drawn.
In the present case, the Supreme Court of India held that there was no material record to prove that samples drawn from the seized contraband were done in the presence of a magistrate.
The Supreme Court has also placed reliance on the case Union of India v. Mohanlal and Anr. [(2016) 3 SCC 379] where the Court stated that all seized contraband is to be sent either to the Officer-In-Charge of the nearest police station or to the Officer empowered under Section 53 of the Act. Such Officers are obliged to prepare an inventory of the seized contraband and make an application to the magistrate for the purpose of getting its correctness certified. Further, it was held 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.
Samples drawn in the presence of a Gazetted Officer are not sufficient in compliance with Section 52A sub-section 2 sub-clause C of the Act. Thus, such samples cannot be treated as primary evidence. Once there is no primary evidence available in a case, the trial stands vitiated.