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TMI Blog2023 (10) TMI 667X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and upon search, they were found in possession of commercial quantity i.e. 20 kgs of heroin kept in two jute bags. The samples were drawn from each of the packets i.e. 14 big and 12 small polythene packets kept in the two jute bags and they were seized under a seizure memo i.e. Mahazar. All the four persons were arrested after receiving the analyst report that the seized substance was nothing else but heroin. 4. Consequently, the case crime No.113/2000 was registered. The trial court upon consideration of the evidence on record held all the four persons guilty under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as "NDPS Act" and convicted them to undergo rigorous imprisonment for 10 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. 9. Learned counsel for the respondent on behalf of the State submitted that the search and seizure was based upon the prior information received by the Intelligence Officer of NCB who has been examined as PW1. The accused persons were disclosed the identity of the officers and after obtaining their consent in writing, the search was carried out in the presence of Superintendent of Police, NCB (PW8) who was a gazetted officer. After seizure, two samples from each packet were drawn and packed separately and were sealed. The NCB seal No.12 was affixed to it and the correct seal number was mentioned in the Mahazar and all o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and 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 or conveyances] and certifying such photographs as true; or (c) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, no evidence has been brought 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. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act. 14. It is an admitted position on record that the samples from the seized substance were drawn by the police i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.
18. The appellant has already undergone more than 6 years of imprisonment out of 10 years awarded to him. He is on bail and has been granted exemption from surrender by this Court. Therefore, his bail bonds, if any, stands cancelled.
19. The appeal is allowed with no order as to costs. X X X X Extracts X X X X X X X X Extracts X X X X
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