Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A – Non-compliance of – Held: – In the present case, search warrant under Exhibit P-4 acknowledged the fact that procedure contemplated under the NDPS Act was not followed – Also, one of the witnesses to the seizure memo was not examined while the other turned hostile – Both the witnesses to the arrest memo were not examined – The record also indicates that an order was passed by the trial Judge permitting the prosecution to keep the seized materials within the police station, to be produced at a later point of time – This itself is a sufficient indication that the mandate of s.52A was not followed – There is no explanation either for non-production of the seized materials or the manner in which they are disposed of – No order passed by the Magistrate allowing the application, if any, filed u/s.52A – There are too many material irregularities creating serious doubt on the very case of the prosecution – Hence, appellant acquitted by rendering benefit of doubt – Impugned judgments set aside.
Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A – Scope and objective of – Held: Sub-section (1) of s.52A facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance – Sub-section (2) thereof mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars, followed through an appropriate application to the Magistrate for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification – The objective is to have an element of supervision by the magistrate over the disposal of seized contraband as it constitutes a primary evidence – Such inventories, photographs and list of samples drawn with certification by Magistrates constitute as a primary evidence – Therefore, when there is non-compliance of s.52A, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence would not constitute primary evidence – s.52A is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn – Evidence. Narcotic Drugs and Psychotropic Substance Act, 1985 – s.52A – Evidence Act, 1872 – s.114(g) – Held: Before any proposed disposal/destruction mandate of s.52A, NPDS Act requires to be duly complied with starting with an application to that effect – A Court should be satisfied with such compliance while deciding the case – The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration – Production of seized material is a factor to establish seizure followed by recovery – The provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution – Non-production of a physical evidence would lead to a negative inference within the meaning of s.114(g), Evidence Act – The procedure contemplated through the notification has an element of fair play such as the deposit of the seal, numbering the containers in seriatim wise and keeping them in lots preceded by compliance of the procedure for drawing samples.
Noor Aga v. State of Punjab (2008) 16 SCC 417 : [2008]
10 SCR 379; Union of India v. Mohanlal (2016) 3 SCC
379 : [2016] 1 SCR 651; Jitendra v. State of M.P., (2004)
10 SCC 562 : [2003] 3 Suppl. SCR 918; Union of India v. Jarooparam (2018) 4 SCC 334 : [2018] 1 SCR 618 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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