Section 52A NDPS Act| Samples Must Be Drawn Under Supervision Of A Magistrate Who Would Certify Whole Process To Be Correct: Bombay High Court Reiterates
The Nagpur Bench of the Bombay High Court has reiterated that the sampling process under Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) must be carried out in the presence and under the supervision of a Magistrate.
The Court allowed an Appeal challenging the conviction judgment of Sunil Malvi. The Court noted that the Magistrate is also required to certify the whole process to be correct.
The Bench of Justice Anil L. Pansare observed, “Thus, the Court has, in unequivocal terms, held that the process of drawing of samples 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”.
Advocate Prakash Naidu appeared for Sunil Basant Malvi (Appellant) and Additional Public Prosecutor H.S. Dhande appeared for the State (Respondents).
Nitin Mishra (prosecution witness 5) received secret information regarding one Sunil Malvi transporting ganja via a swift desire. The information was converted into an FIR. The police officers intercepted the said vehicle. Upon search, two packets were seized recovering a total of 35.390 kgs. Samples from each bag were collected and sealed by applying labels. The Trial Court convicted Sunil under the NDPS Act. Aggrieved, Sunil Malvi approached the Court challenging the Judgment and Order. He contended that provisions of Section 52A of the NDPS Act were not complied with.
The Court reiterated that the process of drawing samples 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. The Court referred to the case of Union of India v Mohanlal [(2016) 3 SCC 379].
Furthermore, the Court noted that the samples drawn before the Magistrate were not sent to the FSL. The samples that were drawn prior thereto at the spot, were sent to the FSL, the Court added.
“Thus, it is clear that the samples drawn before the Magistrate on 21.06.2021 were not sent to the FSL. The samples that were drawn prior thereto at the spot, were sent to the FSL. This procedure is in blatant violation of the law laid down in Mohanlal’s case. The Supreme Court in Simarnjit Singh’s case, in which the facts were identical to the present case, has held that the seizure of contrabands was not in conformity with the law laid down in Mohanlal’s case and thus set aside the conviction”, the Bench noted.
The Court observed that the evidence submitted by the prosecution is clearly in contravention of the dictum laid down in the case of Mohanlal (Supra).
Accordingly, the Court allowed the Appeal and set aside the impugned judgment and order.
Cause Title: Sunil Basant Malvi v The State of Maharashtra (2023:BHC-NAG:16095)
