IMPORTANT POINT
The court ruled that adherence to statutory procedures under the NDPS Act is essential for the admissibility of evidence, and allowed the suspension of sentence based on procedural violations.

JUDGMENT :

MANOJ KUMAR GARG, J.

1. Heard learned counsel for the parties and perused the material available on record.

2. This is the second application for suspension of sentence. The first application for suspension of sentence was dismissed as withdrawn vide order dated 24.04.2024 passed by this Court. Learned counsel for the appellant submits that the appellant is behind the bars since 18.03.2019. The recovery of contraband was made from the appellant on 18.03.2019 and the samples were sent for FSL on 25.03.2019, but inventory in this case was prepared before the presence of Judicial Magistrate on 22.05.2019. Counsel submits that there are no antecedents of similar nature against the appellant. Counsel further submits that this shows that there is clear cut violation of provisions of Section 52A of NDPS Act. He relied upon the judgment of the Hon’ble Supreme Court in the case of Union of India Vs. Mohanlal & Anr. AIR Online 2016 SC 606. In the said judgment, the Hon’ble Supreme Court has held as under:

“It is manifest from Section 52A (2)(c) (supra) that upon seizure of the contraband the same has to be forwarded either to the officer in-charge of the nearest police station or to the officer empowered under Section 53 who shall prepare an inventory as stipulated in the said provision and make an application to the Magistrate for purposes of (a) certifying the correctness of the inventory (b) certifying photographs of such drugs or substances taken before the Magistrate as true and (c) to draw representative samples in the presence of the Magistrate and certifying the correctness of the list of samples so drawn. Sub-Section (3) of Section 52-A requires that the Magistrate shall as soon as may be allow the application. This implies that no sooner the seizure is effected and the contraband forwarded to the officer in charge of the Police Station or the officer empowered, the officer concerned is in law duty bound to approach the Magistrate for the purposes mentioned above including grant of permission to draw representative samples in his presence, which samples will then be enlisted and the correctness of the list of samples so drawn certified by the Magistrate. In other words, 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. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with Sub-Section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure. That is perhaps why none of the States claim to be taking samples at the time of seizure. Be that as it may, a conflict between the statutory provision governing taking of samples and the standing order issued by the Central Government is evident when the two are placed in juxtaposition. There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation but the continuance of the statutory notification in its present form is bound to create confusion in the minds of the authorities concerned instead of helping them in the discharge of their duties. The Central Government would, therefore, do well, to re-examine the matter and take suitable steps in the above direction.”

3. Counsel has also relied upon the decision of Hon’ble Supreme Court in the case of Mohammad Khalid and Anr. Vs. State of Telangana, 2024 INSC 158, Criminal Appeal No. 1610/2023, decided on 01.03.2024. The relevant Para is as under:

“22. Admittedly, no proceedings under Section 52A of the NDPS Act were undertaken by the Investigating Officer PW-