The mere production of samples which were seized by the police before the Court is not sufficient to satisfy the condition of Section 52(A) of NDPS Act: Madras High Court
Title: N. Uganchand Kumawat v. The Inspector of Police
Citation: CRIMINAL APPEAL(MD)No. 551 of 2021
Decided on: 29.09.2023
Coram: Justice P Dhanabal
Introduction
Justice P Dhanbal in the present matter held that mere production of samples which were seized by the police before the Court is not sufficient to satisfy the condition of Section 52(A) of NDPS Act. It is mandatory that the samples have to be drawn in the presence of Magistrate and the Magistrate has to certify the samples. In case, it is not complied with, there is a serious doubt over the prosecution case that the substance recovered was a contraband, hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt.
Facts of the case
The appellant has filed this appeal challenging the judgement passed by special courts for NDPS Act, wherein he was convicted under Section 8(c)r/w.20(b)(ii)(C)of NDPS Act and sentenced him to undergo 10 years rigorous imprisonment and to pay a fine.
The case was that the appellant’s vehicle was seized and two bags of Ganja, 30kgs each was recovered. Hence, the appellant has filed the present appeal on the ground that the entire search and seizure proceedings has not been proved beyond doubt and the prosecution case is not free from doubt, but the trial Court has not given benefit of doubt to the appellant. Further, he contended that he does not know Tamil, and he only know Hindi but no translator was appointed before the trial Court and the entire evidence were recorded without appointment of translator. Thereby his right of fair trial is denied before the trial Court. Further, as per section 52(A) of NDPS Act, the samples have not been drawn in front of the Magistrate and independent witnesses have not been examined.
Court’s observation and analysis
The Madras High Court in this case made the observation that the point of contention was whether the prosecution has proved the charges levelled against the accused under Section 8(c)r/w.20(b)(ii)(C)of NDPS Act beyond reasonable doubt. The main contention of the appellant is regarding the application of Section 50 of NDPS Act in the present case. As per Section 50 of the NDPS Act search has to be conducted in the presence of nearest Gazetted Officer or nearest Magistrate. The procedure enumerated under Section 50 is mandatory in nature, however, in the present matter the police only searched the vehicle and not the body of a person, hence, the said section will not be applicable in this case.
Regarding the contention of the appellant that he does not know Tamil, and he only know Hindi but no translator was appointed before the trial Court and the entire evidence were recorded without appointment of translator, the court made the observation that, he contents of the charges were explained to the accused by Hindi knowing person. Further at the time of examination of accused the trial Court has made endorsement that translator was appointed and the accused was examined through Hindi translator. Therefore, appellant’s contention on this regard was not accepted by the court. The court further made the observation that no violation under mandatory provisions under Section 57 of the NDPS Act was made.
Reference was made to the case of Simarnjit Singh .vs. State of Punjab reported in 2023 Live Law (SC) 570 wherein the Hon’ble Apex Court has held:
It is manifest from Section 52-A(2)include (supra) that upon seizure of the contraband the same has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory, (b) certifying photographs of such drugs or substances taken before the Magistrate as true, and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn.
From the above judgement, it is clear that samples have to be drawn in the presence of Magistrate and the Magistrate has to certify the samples. In case, it is not complied with, there is a serious doubt over the prosecution case that the substance recovered was a contraband, hence, the case of the prosecution is not free from suspicion and the same has not been established beyond a reasonable doubt. Therefore mere production of samples which were seized by the police before the Court is not sufficient to satisfy the condition of Section 52(A) of NDPS Act.
With regards to the ownership of the vehicle, the appellant was acquitted of the offence under Section 25 of the NDPS Act, holding that the accused is not owner of the vehicle.
Hence, as the case of the appellant was not proved beyond reasonable doubt, the Madras High Court allowed the present criminal appeal and acquitted the appellant of his conviction under Sections 8(c)r/w.20(b)(ii)(C) of NDPS Act.
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Written by- Amrita Rout