Back
2019 Supreme(P&H) 2698
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Amol Rattan Singh, J.
Kuldeep Singh @ Sanju - Appellant
Versus
State Of Punjab - Respondent
CRM-M-26427-2019
Decided On : 28-08-2019
Mr. Loveleen Dhaliwal, Advocate, for the Appellant; Mr. Rajat Bansal, A.A.G., Punjab. for the Respondent
The main legal point established in the judgment is the mandatory requirement for the drawing of samples and certification in the presence of the Magistrate as contemplated under the NDPS Act.
Headnote:
NDPS Act - Seizure of Contraband - Section 52A(2)(c) - Summary: The court discussed the mandatory requirement of an application for drawing of samples and certification as contemplated under the NDPS Act. It emphasized the need for the process of drawing of samples to be in the presence and under the supervision of the Magistrate and certified by the Magistrate to be correct. The judgment of the Supreme Court was cited to support the mandatory nature of the application for drawing of samples and certification.
Fact of the Case:
The petitioner sought bail based on the contention that the samples were not drawn in the presence of the Magistrate as required under Section 52A(2) of the NDPS Act.
Finding of the Court:
The court found that the Magistrate seemingly did not follow the ratio of the judgment of the Supreme Court regarding the drawing of samples, and therefore, granted bail to the petitioner.
Issues: The main issue was whether the petitioner was entitled to bail based on the alleged non-compliance with the requirement of drawing samples in the presence of the Magistrate as per Section 52A(2) of the NDPS Act.
Ratio Decidendi: The court's decision was based on the interpretation of the mandatory requirement for drawing of samples and certification under the NDPS Act, as emphasized in the judgment of the Supreme Court.
Final Decision: The petitioner was ordered to be admitted to bail to the satisfaction of the trial Court, despite another criminal case pending against him under Section 15 of the NDPS Act.
JUDGMENT
Amol Rattan Singh, J. (Oral) - On 24.07.2019, the following order had been passed:-
"Learned counsel for the petitioner points to paragraph 13 of the judgment of Union of India vs. Mohan Lal 2016 (1) RCR (Crl.) 858, which reads 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. Subsection (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, tore-examine the matter and take suitable steps in the above direction."
He further submits that the following has been eventually held by the Supreme Court:-
"....There is in our opinion no manner of doubt that the seizure of the contraband must be followed by an application for drawing of samples and certification as contemplated under the Act." (All emphasis applied only in this order)
Learned State counsel on the other hand has drawn attention to clauses (a) to (c) of sub-section 2 of Section 52A of the NDPS Act, 1985, to submit that either of the two procedures stipulated in the aforesaid clauses can be resorted to, and if the inventory itself is checked in terms of clause (a), clause (c) need not be resorted to.
Clauses (a) to (c) of sub-section 2 of Section 52A of the NDPS Act, 1985, read as follows :-
"52-A. Disposal of seized narcotic drugs and psychotropic substances.-
XXX XXX XXX
a) certifying the correctness of the inventory so prepared; or
b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or
c) allowing to draw representative samples of such drugs or substances, in the presence
