Samples Drawn Before Gazetted Officer Not Sufficient U/S 52A NDPS Act; It Must Be Certified By Magistrate: Chhattisgarh HC Directs DRI To Issue Advisories

The Court also directed the Directorate of Revenue Intelligence (“DRI”) to issue advisories that in any such cases, if the prosecution is launched, the investigating agency should strictly follow the mandatory provisions under the relevant Act so that the accused may not take the benefit of such lapses as the offence like the present one which is the offence against the society which weakens the basic structure of the society.

The Division Bench of Chief Justice Ramesh Sinha and Justice Sachin Singh Rajput observed, “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.”

Advocates Prasoon Agrawal and Mamta Jaiswal appeared for the Appellants while Advocate Maneesh Sharma appeared for the Respondents.

Criminal Appeals were filed assailing the judgment passed by the Special Judge convicting the Appellants for the offence under Section 29 read with Section 20(b)(ii)(c) of the NDPS Act and sentenced them to undergo rigorous imprisonment for 20 years and a fine of Rs.2,00,000/.

It was the case of the prosecution that a truck was carrying a material suspected to be ‘Ganja’ and the truck was escorted by some people who were the buyers of the suspected material. The information was received by an Intelligence Officer.

The personal search was conducted, the truck was opened in the presence of panch witnesses and around 482 bags of salt were found. On further examination, the team allegedly found 36 rectangular HDPE bags of contraband identified as Ganja hidden in the truck. The truck was then sent for weighing which allegedly weighed the suspected contraband material and the same aggregated to 1840 kg.

The Court after perusing the evidence on record, facts and circumstances of the case has observed that no evidence was brought on record to the effect that the procedure prescribed under 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.

It said that no evidence was 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 Court noted, “The chain of custody of the case property viz. mobile phones remains doubtful even though the case against the present appellants is essentially premised on the basis of the forensic analysis of the mobile phones. Therefore, the material omission of the respondent to satisfactorily prove the custody of the mobile phones casts a dent to the integrity in the chain of custody and the appellants are entitled to benefit of doubt.”

The Court also said that the weighing slips were ex-facie computer generated and no certificate under Section 65B of the Indian Evidence Act, 1872, was filed by the Respondent in order to prove it. It was observed that the Respondents failed to satisfactorily prove the weight of the alleged contraband and in the absence of the same, conviction for commercial quantity could have not been sustained.

“Non-production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence.”, the Court highlighted.

The Court relied on the judgments in Union of India v. Mohanlal and Anr. (2016 SC), Yusuf @ Asif v. State (2023 SC), Sanjeet Kumar Singh alias Munna Kumar Singh v. State of Chhattisgarh (2022 SC) and Lavkush Shukla v. State of Chhattisgarh (2024 Chhattisgarh) and opined that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in convicting and sentencing the Appellants.

Accordingly, the Appellants were acquitted.

Cause Title: Chandrashekhar Shivhare v. Intelligence Officer, Revenue, Intelligence Directorate (D.R.I.) and other connected matters. (Neutral Citation: 2024:CGHC:21721-DB)

Appearances:

Appellants: Advocates Prasoon Agrawal, Mamta Jaiswal, Harsh Prabhakar, Harsh Gattani and Anubhav Singh.

Respondents: Advocate Maneesh Sharma

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