The Allahabad High Court has acquitted an accused in a Narcotic Drugs and Psychotropic Substances (NDPS) Act case, highlighting that non-compliance with mandatory sampling procedures is fatal to the prosecution’s case.
Background:
The appellant Sajeb Ali @ Shakeel was convicted by the trial court under Section 8/20 of the NDPS Act and sentenced to 20 years rigorous imprisonment along with a fine of Rs. 1,00,000. He was arrested on November 22, 2014 and allegedly found in possession of 9.8 kg of charas. The appellant challenged his conviction in the High Court.
Key Legal Issues:
1. Whether proper sampling procedures as per Standing Orders and Section 52A of NDPS Act were followed?
2. Whether non-compliance with sampling procedures vitiates the entire case?
Court’s Analysis:
The court meticulously examined the recovery memo and statements of prosecution witnesses, particularly Inspector Amresh Vishwas (PW1). It found several discrepancies:
1. The sample was not drawn in accordance with Standing Order No. 1/88 and 1/89, which require:
– Minimum 24 grams sample from each packet for charas
– Samples to be drawn in duplicate
– Mixing of contents to make homogeneous before sampling
2. The recovery memo did not clearly indicate if samples were taken from all five recovered packets or just one.
3. There was no compliance with Section 52A of NDPS Act, which mandates:
– Preparation of inventory
– Drawing samples in presence of Magistrate
– Certification of samples by Magistrate
The court observed: “No evidence is 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.”
Citing recent Supreme Court judgments in Union of India v. Mohanlal (2016), Yusuf @ Asif v. State of U.P. (2023), and Simarnjit Singh v. State of Punjab (2023), the High Court emphasized that non-compliance with Section 52A renders the samples inadmissible as primary evidence, vitiating the entire trial.
Decision:
The court allowed the appeal and acquitted the appellant, setting aside his conviction and sentence. It held: “For non-compliance of mandatory provisions of Section 52A, the sample drawn from the bulk could not be treated as a valid piece of primary evidence in the trial, and for want of primary evidence the trial stands vitiated on this count.”
Important Observations:
1. “The prosecution had not followed the procedure as prescribed while drawing the sample of recovered charas from the bag of the accused/appellant.”
2. “The failure of the police team which carried out the proceedings of interception and seizure failed to lead primary evidence in regard to seized contraband and sample.”
3. “Accordingly, this Court is 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.”
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Case Details:
Criminal Appeal No. 1146 of 2019
Bench: Justice Saurabh Lavania
Appellant: Sajeb Ali @ Shakeel
Respondent: State of U.P.
