The mandatory requirement of a Magistrate's presence during sampling under Section 52A of the NDPS Act is crucial for the legality of seizure and prosecution.

ORDER :

RAJENDRA PRAKASH SONI, J.

II Bail Application No. 11677/2023 (Suresh Vs. State)

1. Applicant Suresh is arrested and detained in FIR No. 159/2022, registered at Police Station Sambhupura, District Chittorgarh pertaining to the offence punishable under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act (in short, “the Act”) and by the instant petition, he seeks restoration of his liberty on appropriate bail bonds.

2. Earlier, applicant made an endeavor for seeking bail by way of filing first bail application which was disposed of without considering the merits of the case since it was withdrawn with liberty to file afresh after recording the statement of Seizure Officer.

3. I have considered the rival submissions made by the learned counsel for the applicant Suresh as well as learned Public Prosecutor and have perused the material available on record.

4. Learned Public Prosecutor for the State has strongly objected the different submissions made by the learned counsel for the applicant and argued that 273.340 kgs. of Poppy-straw recovered from the applicant falls within the ambit of commercial quantity and the bar as contained in Section 37 of the Act is attracted. He thus craves rejection of the applicant’s bail application.

5. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have perused the record carefully.

6. In the light of arguments raised by the learned counsel for the applicant and on perusal of the record, it would be clear that during the trial of the present case, the statement of Seizure Officer Netram (PW-1) has been recorded by the trial Court. Said statement would reveal that there was, prima facie, non-compliance of mandatory procedure of sampling, which prima facie effects the sanctity and legality of the seizure. Samples for chemical analysis from the seized contraband were drawn on the spot of recovery by Netram (PW-1) himself, in absence of a Magistrate which was clearly in derogation of provisions of Section 52A of the Act and such irregularities, prima facie, malign the seizure proceedings.

7. It is also observed that Section 52A of the Act contemplates that where any narcotic drug has been seized and forwarded to the Officer-in-charge of the nearest Police Station, such officer shall prepare an inventory of such narcotic drugs containing all the necessary details and make an application to any Magistrate for the purpose of allowing him to draw representative samples of such drug in the presence of such Magistrate and certifying the correctness of samples so drawn.

8. While dealing the scope of Section 52A of the NDPS Act, Hon’ble the Supreme Court in the case of Mangi Lal Vs. State of Madhya Pradesh, reported in 2023(3) Crimes (SC) 298 held that Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of narcotic drug recovered. This has to be followed through an appropriate application to the Magistrate concerned. The purpose is taking of samples in presence of Magistrate after due certification. The object behind this provision is to have an element of supervision by the Magistrate in taking samples. Therefore, when there is non-compliance of Section 52A of the NDPS Act and where a certification of the Magistrate is lacking, any sampling would not constitute primary evidence. The obvious reason behind this provision is to inject fair play in the process of investigation.

Section 52A of the Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval for certifying the samples drawn.

9. Hon’ble the Apex Court in the case of Union of India Vs. Mohan Lal & Ors., reported in (2016) 3 SCC 379, it was held that no sooner seizure is effected and the contraband drug is forwarded to the Officer-in-charge of the Police Station or the other Officer empowered, the Officer concerned is duty bound to approach the Magistrate for t