Yusuf @ Asif vs State

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

Officer of Narcotics Control Bureau1, 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. Mahazar. All

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

Narcotic Drugs and Psychotropic Substances Act, 1985 2 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.

6. Aggrieved by his conviction and sentencing by the trial court

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.

7. It may be relevant to mention here that A­1 is the owner of the

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.

9. Learned counsel for the respondent on behalf of the State

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

4|10 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.

10. In order to test the above submissions, it would be relevant to

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.

11. For the sake of convenience, relevant sub­sections of Section

52A of the NDPS Act are reproduced hereinbelow:

5|10 “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 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.”

12. A simple reading of the aforesaid provisions, as also stated

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

7|10 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

8|10 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.

15. In Mohanlal’s3 case, the apex court while dealing with Section

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

9|10 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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