IMPORTANT POINT
Non-compliance with Section 52A of the NDPS Act regarding sample collection invalidates the prosecution's case, creating doubt about the integrity of evidence.

JUDGMENT :

K. Babu, J.

The appellants are the accused in SC No.728 of 2015 on the file of the Additional Sessions Court-IV, Thiruvananthapuram. Appellants in Crl.A.No.291 of 2019 are accused Nos.1 and 2, respectively. Appellant in Crl.A.No.438 of 2017 is accused No.3. The appellants have been convicted under Section 21(c) r/w 29 of the NDPS Act.

2. The prosecution case :- Accused Nos. 1 to 3 entered into a criminal conspiracy for the purpose of trafficking of heroin and pursuant to the conspiracy accused No.3 demanded 400 grams of heroin from accused No.1, and accordingly, accused No.1 collected 400 grams of heroin and came to Kochuveli Railway Station, Thiruvanathapuram, on 16.12.2014 at 20.40 hours. Accused No.2 was waiting on the premises of the railway station for receiving accused No.1 as per the directions of accused No.3. While they were trying to leave the premises of the railway station, they were detained by the team led by the Intelligence Officer, NCB, Sub Zone, Kochi (PW1). The Detecting Officer seized the contraband substances from the possession of the accused.

3. The Intelligence Officer, NCB (PW10) completed the investigation and submitted charge before the Sessions Court, Thiruvananthapuram. The court took cognizance of the offence and framed charge against the accused.

4. The accused pleaded not guilty to the charge. Thereupon, the trial court proceeded with the trial.

5. The prosecution examined PWs 1 to 10 and proved Exts.P1 to P73, and MO1 to 16.

6. After the close of the trial, the Sessions Court convicted the accused for the offence alleged and sentenced them to undergo rigorous imprisonment for 15 years each and pay a fine of Rs.1,00,000/- each.

7. I have heard Sri. J.R.Prem Navaz and Sri.Nireesh Mathew, the learned counsel appearing for the appellants and Sri.Vinu Raj, the learned Special Public Prosecutor appearing for the NCB.

8. The learned counsel appearing for the appellants/accused challenged the judgment of conviction and sentence on the following grounds:-

(1)The samples of the seized contraband were not drawn in the presence of the Magistrate, and the inventory of the seized contraband was not duly certified by the Magistrate;

(2)The Detecting Officer ought not to have drawn the sample from the bulk quantity of the contraband substance seized at the scene of occurrence, and he should have drawn the sample in the presence of the Magistrate as provided in Section 52A of the NDPS Act.

9. The learned Special Public Prosecutor submitted that there is substantial compliance of Section 52A of the NDPS Act. The learned Special Public Prosecutor submitted that the strict compliance of Section 52A of the NDPS Act need not be insisted in all cases. Learned Special Public Prosecutor submitted that the prosecution could produce the primary evidence regarding the possession of the contraband substance by the accused before the court. The learned Public Prosecutor submitted that the oral evidence of the Detecting Officer and the other witnesses who supported the prosecution corroborated by the contemporaneous documents prepared at the scene of occurrence and the Chemical Examiners Report established the case of the prosecution.

10. The Intelligence Officer, NCB, Sub Zone, Kochi, (PW1) effected the seizure on 16.12.2014 at 20.40 hours on the premises of the Kochuveli Railway Station, Thiruvananthapuram, based on the prior information received from reliable sources. PW1 gave evidence in support of the prosecution case. He deposed that on the relevant day he got a tip off over phone as to the trafficking of drugs by accused No.1. He had received information regarding the identifying features of the man, who trafficked the drugs by train. He had specific information that accused No.1 was carrying 400 grams of heroin for the purpose of delivery to accused No.2. PW1 stated that accused No1 was travelling in G-12 coach of Lokamanya Tilak - Kochuveli Garib Rath Express. He would depose that the train reached Kochuveli at 20.40