Yusuf v. State
Date of Order:
13 October 2023
Hon’ble Justice Mr. Pankaj Mithal
Hon’ble Justice Mr. Abhay S. Oka
Appellant: Yusuf Asif
The Hon’ble Supreme Court of India (hereinafter referred to as ‘Supreme Court’ or ‘the Court’) has set aside the impugned order of the Trial Court of Chennai and High Court of Madras and held that the mandatory procedure was not followed by the concerned authorities as per the Narcotic Drugs and Psychotropic Substances Act, leaving the trial with no primary evidence against the appellant.
Section 52A(2) : Where any narcotic drug or psychotropic substance has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered … 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 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.
Section 52A(3) : Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application.
- Section 52A(4) : (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 or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence.
- Section 53 : Power to invest officers of certain departments with powers of an officer-in-charge of a police station.
- Section 53(1) : The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence 1[or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.
- Section 53(2) : The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise 2[or any other department] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.
- Section 57: Report of arrest and seizure. Whenever any person makes any arrest or seizure, under this Act, he shall within forty-eight hours next after such arrest or seizure make a full report of all the particulars of such arrest or seizure to his immediate official superior.
- The Narcotics Control Bureau (NCB) Intelligence Officers, upon receiving prior information, intercepted a lorry parked near Puzhal Central Jail, Chennai. 4 persons were found in the lorry, and upon search, they were found in possession of 20kgs of heroin.
- The 4 persons were arrested and the samples retrieved from the 26 polythene bags were seized under memo ‘Mahazar’. The analyst report revealed that the seized substances were nothing else but heroin.
- The trial court held all 4 persons guilty as per the provisions of Narcotic Drug and Psychotropic Substances Act 1985 (NDPS) and sentenced them to undergo 10 years of rigorous imprisonment and a fine of Rs. 1 Lakh in default of which 1 year of imprisonment was ordered, on the basis of the evidence.
- All 4 accused appealed in the High Court of Madras. The appeal was dismissed and the court held that there was no error in the order of the trial court and the accused were to continue to serve the remainder of their sentence.
- The order was challenged by Accused no 1, who was also the owner of the contraband who was there at the location to retrieve the contraband from the accused no.s 2, 3 and 4 who had shipped it from Madhya Pradesh.
- It was found that there were discrepancies in the procedure of retrieving samples from the seized contraband and the legitimacy of the evidence against the accused.
- The samples drawn of the contraband were done in the presence of the Superintendent of Police and not a Magistrate as per the mandatory provisions of section 52A(2), (3), and (4) of NDPS.
- Aggrieved, the Appellant has appealed before the Supreme Court.
- Whether the procedure to draw samples of contraband done as per the provisions of NDPS?
- Whether there is any evidence against the appellant?
ARGUMENTS ADVANCED BY THE APPELLANT:
- The Counsel appearing on behalf of the Appellant submitted that the entire manner and action of the seizure and sampling of the contraband was illegal and in violation of the mandatory provisions of section 52A(2) of NDPS as the procedure was not followed.
- There is serious doubt if the samples sent for analysis belonged to the contraband seized.
- There is no evidence on record to the effect of evidence of procedure followed by authorities.
ARGUMENTS ADVANCED BY THE RESPONDENT:
- Seizure was done based on the information received by the NCB Officer.
- Identities of the accused were disclosed to the officers and their written consent was obtained before carrying out the search.
- 2 samples from each bag were drawn and sealed separately in the presence of the Superintendent of Police, who was a gazette officer.
- The Court observed that the concerned authorities had failed to follow procedure of seizure and sampling as per the provisions of NDPS.
- The seized contraband was not a valid piece of evidence as the drawing of samples was not done in the presence of a Magistrate.
- The Conviction of the appellant set aside due to failure of concerned authorities to lead primary evidence.
The Court held that the whole trial stood vitiated in the absence of any primary evidence against the appellant. It was an admitted position on record that the samples were drawn by the police in the presence of the Superintendent and not the Magistrate and there was no evidence on record that the Magistrate has certified the seizure. The impugned judgment by the Trial Court and High Court was set aside and the appellant, on bail, was granted exemption from surrender. His bail bonds, if any, stood cancelled and appeal was allowed with no order as to costs.