Failure to comply with mandatory seizure and sampling procedures under the NDPS Act vitiates conviction, as primary evidence was not established.

Order :

(Arvind Kumar Verma, J.)

1. Challenge in this criminal appeal is to impugned judgment of conviction and sentence dated 22/12/2023 passed by learned Special Judge, (NDPS Act), Raipur, District Raipur (CG) in Special Criminal Case No.19/2023, whereby the appellant stands convicted and sentenced as under:

2. Case of the prosecution, in brief, is that on 13/11/2022 on the basis of secret information the police of police station Amanaka, Raipur conducted a raid and recovered 2832 capsules (48 strips) of Spasmo Proxyvon Plus having Tramadol Drugs from the illegal possession of the appellant. Thereafter, the crime No.426/2022 was registered against the appellant for the offence punishable under Section 22-C of NDPS Act and after completing necessary investigation, the charge-sheet was submitted before the concerned Court below.

3. In order to prove guilt of appellant, prosecution examined total 09 witnesses and their statements were recorded. Statement of appellant (accused) was recorded under Section 313 CrPC in which he pleaded innocence and false implication.

4. After completion of trial, trial Court convicted and sentenced the appellant as mentioned in paragraph -1 of this judgment. Hence, this appeal.

5. Learned counsel for the appellant submits that the impugned judgment passed by the learned trial Court is illegal, perverse and contrary to the evidence available on record, hence liable to be set aside. Apart from this, general procedure for sampling provided in Standing Order No.01 of 1989 dated 13.06.1989 has not been complied with by the prosecution. Learned Counsel further submits that the Investigating Officer received prior information but he has not complied with provision of Section 42(2) of the NDPS Act. There are major contradictions and omissions in the statement, which cannot be relied upon. Trial Court has wrongly appreciated that the investigation has been done properly and mandatory provisions of the NDPS Act have been complied with. The learned trial Court failed to appreciate that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. There is serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. The learned trial Court failed to appreciate that the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act provides for the procedure and manner of seizing, preparing inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged in the NDPS Act. In the present case, it is evident from evidence of Investigating Officer that the procedure as prescribed under Section 52A(2), (3) and (4) of the NDPS Act was not followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has been brought on record that the samples were drawn in presence of the Magistrate and the lists of samples so drawn were certified by the Magistrate. Mere fact that the samples were drawn in presence of the witnesses and/or Gazette Officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. There are several discrepancies in the prosecution case which makes the custody of the seized articles and sampling extremely doubtful. As such, the criminal appeals