AI Structured Summary
Not yet generated for this judgment
Judgment
K.Babu, J
The appellants are the accused in S.C No.2 of 2018 on the file of the Special Court for NDPS Act Cases, Thodupuzha. They have been convicted under Sections 20(b)(ii)C and 29 of the NDPS Act.
The prosecution case is that on 19.4.2016, the accused were found in possession of 10 kg and 670 grams of Hashish oil in a vehicle bearing Registration No.KL 37 4509 in front of Choorakulam Coffee Estate on the Kottayam – Theni National Highway.
The Investigating Officer submitted the final report. The accused appeared in response to the summons. They pleaded not guilty to the charges, and therefore, they came to be tried by the Trial Court. The prosecution examined PWs1 to 10 and proved Exts.P1 to P34 and Mos 1 to 17. The Trial Court found the accused guilty of the offence alleged and passed the impugned judgment of conviction and sentence.
I have heard the learned counsel appearing for the appellants and the learned Public Prosecutor.
The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds:-
(a) The samples drawn in the presence of the learned Magistrate, being the primary evidence, were not forwarded to the Chemical Examiner’s Laboratory.
(b) The samples drawn at the scene of occurrence by the Detecting Officer cannot be treated as a valid piece of primary evidence.
The learned Public Prosecutor submitted that the mandate of Section 52A of the NDPS Act had been complied with.
The Excise Inspector, Excise Range Office, Vandiperiyar (PW1) on 19.4.2016 detected the crime. On the date of occurrence, along with his excise team, PW1 was engaged in vehicle checking in front of Choorakulam Coffee Estate on the Kottayam – Theni National Highway. He received reliable information that prohibited drugs concealed in a vehicle bearing Registration No.KL 37 4509 was being transported towards Kottayam. He recorded the information in writing in Ext.P1 and forwarded the same to the official superior to him. The Excise team led by PW1 intercepted the vehicle which was driven by accused No.1. Accused No.2 was a co-traveller. PW1 searched the vehicle and found a plastic sack containing 11 packets. After being convinced that the packets contained Hashish oil, he searched the person of the accused following the statutory formalities. PW1 seized the contraband substance. He arrested the accused on the spot.
The Excise Inspector, (PW1) also drew samples from the packets found in the possession of the accused and labelled them. PW1 produced the accused along with the contraband substance before the jurisdictional Court. On 19.4.2016 itself, he prepared Ext.P8 forwarding note requesting to forward the packets containing the samples for chemical examination.
The Excise Inspector also submitted an application under Section 52A of the NDPS Act (Ext.P11). At the request of the Excise Inspector, samples were drawn in the presence of the jurisdictional Magistrate. The Excise Inspector prepared Ext.P12(a) inventory. He had also drawn representative samples in the presence of the learned Magistrate.
The challenge of the learned counsel for the appellants is that the representative samples drawn in the presence of the learned Magistrate being primary evidence, were not forwarded for chemical examination. What were subjected to analysis in the Chemical Examiner’s Laboratory were the samples drawn at the scene of occurrence by the Detecting Officer. Relying on the law laid in Union of India v. Mohanlal and Another [2016 KHC 6069], Yusuf @ Asif v. State [2023 KHC 7154] and Khalid v. State of Telengana [2024 KHC Online 6105], the learned counsel for the appellants submitted that as the prosecution failed to forward the representative samples collected in the presence of the learned Magistrate, it failed to establish the link connecting the accused with the contraband allegedly seized from the place of occurrence.
PW1 gave evidence that he seized the contraband Hashish oil on 19.4.2016 at 3.30 p.m. while the accused were carrying the same in a vehicle bearing Registration No. KL 37 4509 through the Kottayam – Theni road near Choorakulam Coffee Estate. PW1 stated that he had drawn samples from the Hashish oil seized from the possession of the accused at the scene of occurrence. As per the Ext.P10 property list, the samples were produced before the Court on 20.4.2016.
PW1 had also submitted application under Section 52A to the jurisdictional Magistrate requesting to certify the correctness of inventory, photographs and samples of the seized contraband substance. Representative samples were also taken in the presence of the learned Magistrate.
Ext.P8 is the forwarding note prepared by the Excise Inspector, (PW1), on 19.4.2016, the date of seizure. As per Ext.P8, the detecting officer had requested to forward 11 packets, each containing 25 grams of Hashish oil, taken as sample at the scene of occurrence to the Chemical Examiner’s Laboratory. The relevant portion of Ext.P8 is extracted below:-
Sl.No.
Description of the exhibits
How when and by whom found
Sources of the exhibits
Remarks
1.
11 brown packet contain 25 grams of Hashish Oil taken in plastic cover as samples (Sealed, labeled and marked as P1S1, P2S1, P3S1, P4S1, P5S1, P6S1, P7S1, P8S1, P9S1, P10S1, P11S1)
Possession and Transporting of 10.670 Kg Hashish Oil at Kumily kara, Kumily Village, Peermade Taluk. On 19.4.2016 at 3.30 pm by Sunilraj C.K.Excise Inspector, Excise Range Office, Vandiperiyar.
Andrapradesh
Ext.P30 is the certificate of analysis prepared by the Assistant Chemical Examiner to the Government. Ext.P30 narrates the details of the samples received in the laboratory as follows:-
One sealed brown paper packet labelled “CRIME:18/2016 E.R.O.VANDIPERIYAR T.34/2016 ITEM No.1; P1S1, P2S1, P3S1, P4S1, P5S1, P6S1, P7S1, P8S1, P9S1, P10S1, P11S1” etc having eleven sealed brown paper packets marked as P1S1, P2S1, P3S1, P4S1, P5S1, P6S1, P7S1, P8S1, P9S1, P10S1 and P11S1 and each labelled “NDPS CR 18/2016 Excise Range Office, Vandiperiyar” etc and each having a heat sealed polythene cover having another heat sealed polythene cover of gross weights 24.83 g, 23.01 g, 24.12 g, 23.24g, 24.08 g, 23.945 g, 23.75g, 23.99g, 23.74g, 23.94g and 24.05g respectively, each containing a dark greenish brown pasty material alleged to be ‘Hashish oil’ involved in Crime Number 18/2016 of Excise Range Office, Vandiperiyar, for chemical analysis.
A careful analysis of Ext.P30 certificate of chemical analysis and Ext.P8 forwarding note prepared by the Detecting Officer shows that the samples drawn at the scene of occurrence and produced by the Detecting Officer as per letter dated 19.4.2016 have been forwarded to the laboratory and the same were subjected to examination. Admittedly, the samples drawn in the presence of the learned Magistrate were not forwarded to the Chemical Examiner for examination.
The intention of the legislature by incorporating Section 52A in the NDPS Act is to see that the process of drawing the sample has to be in the presence and under the supervision of the Magistrate, and the entire exercise has to be certified by him to be correct. Sub-section (4) of Section 52A says that every court trying an offence under the NDPS Act shall treat the inventory, the photographs of the contraband substance and the list of samples drawn under sub-section (2) and certified by the Magistrate as primary evidence in respect of such offence.
In Mohanlal (supra), the Apex Court held that the samples drawn in the presence of the Magistrate is primary evidence for the case. In Mohanlal (supra), the Apex Court added that there is no provision in the Act that mandates the taking of samples at the time of seizure. The law declared by the Hon’ble Supreme Court in Mohanlal (supra) was followed by the Supreme Court in Simarnjit Singh v. State of Punjab [2023 KHC 6642], Yusuf @ Asif v. State [2023 KHC 7154] and Khalid v. State of Telengana [2024 KHC Online 6105].
In Bothilal v. Intelligence Officer, Narcotics Control Bureau [2023 SCC Online SC 498], the Supreme Court held that the act of drawing sample at the time of seizure not in conformity with the law declared in Mohanlal (supra) creates serious doubt about the prosecution case that the substance recovered was contraband.
In Yusuf @ Asif (supra), the Supreme Court reiterated that once there is no primary evidence obtained as provided under Section 52A of the NDPS Act, the trial as a whole stands vitiated.
In the present case the samples drawn in the presence of the jurisdictional Magistrate were not forwarded to the Chemical Examiner’s Laboratory for analysis. The samples drawn by the Detecting Officer at the scene of occurrence formed the foundation of Ext.P30 report of chemical analysis. Therefore, Ext.P30 has no evidentiary value.
The resultant conclusion is that the prosecution failed to establish that what was seized from the possession of the accused was Hashish oil. The prosecution failed to establish the link connecting the accused with the contraband.
Therefore, the prosecution failed to prove the charges against the appellants/accused. The conviction and sentence passed by the learned Special Judge overlooking these vital aspects of the matter cannot be sustained. The appellants/accused are found not guilty of the offences alleged. They are acquitted of the offences. They are set at liberty. The Superintendent of the Central Prison concerned shall release the appellants forthwith, if their detention is not required in any other case.
The Criminal Appeals are allowed as above..