The failure to forward the primary evidence (samples drawn in the Magistrate's presence) to the Chemical Examiner vitiates the prosecution's case and results in the acquittal of the accused.

The appellants are the accused in S.C No.2 of 2018 on the file of the Special Court for NDPS Act Cases, Thodupuzha.

They have been convicted under Sections 20(b)(ii)C and 29 of the NDPS Act .

2.The prosecution case is that on 19.4.2016, the accused were found in possession of 10 kg and 670 grams of Hashish oil in a vehicle bearing Registration No.KL 37 4509 in front of Choorakulam Coffee Estate on the Kottayam – Theni National Highway.

3.The Investigating Officer submitted the final report. The accused appeared in response to the summons. They pleaded not guilty to the charges, and therefore, they came to be tried by the Trial Court. The prosecution examined PWs1 to 10 and proved Exts.P1 to P34 and Mos 1 to 17. The Trial CRL.A Nos. 1100 & 1138 of 2019 4 Court found the accused guilty of the offence alleged and passed the impugned judgment of conviction and sentence.

4.I have heard the learned counsel appearing for the appellants and the learned Public Prosecutor.

5.The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds:-

(a) The samples drawn in the presence of the learned Magistrate, being the primary evidence, were not forwarded to the Chemical Examiner’s Laboratory.

(b) The samples drawn at the scene of occurrence by the Detecting Officer cannot be treated as a valid piece of primary evidence.

6.The learned Public Prosecutor submitted that the mandate of Section 52A of the NDPS Act had been complied with.

7.The Excise Inspector, Excise Range Office, Vandiperiyar (PW1) on 19.4.2016 detected the crime. On the date of occurrence, along with his excise team, PW1 was CRL.A Nos. 1100 & 1138 of 2019 5 engaged in vehicle checking in front of Choorakulam Coffee Estate on the Kottayam – Theni National Highway. He received reliable information that prohibited drugs concealed in a vehicle bearing Registration No.KL 37 4509 was being transported towards Kottayam. He recorded the information in writing in Ext.P1 and forwarded the same to the official superior to him. The Excise team led by PW1 intercepted the vehicle which was driven by accused No.1. Accused No.2 was a co-traveller. PW1 searched the vehicle and found a plastic sack containing 11 packets. After being convinced that the packets contained Hashish oil, he searched the person of the accused following the statutory formalities. PW1 seized the contraband substance. He arrested the accused on the spot.

8.The Excise Inspector, (PW1) also drew samples from the packets found in the possession of the accused and labelled them. PW1 produced the accused along with the contraband substance before the jurisdictional Court. On 19.4.2016 itself, he prepared Ext.P8 forwarding note requesting to forward the packets containing the samples for chemical examination. CRL.A Nos. 1100 & 1138 of 2019 6

9.The Excise Inspector also submitted an application under Section 52A of the NDPS Act (Ext.P11). At the request of the Excise Inspector, samples were drawn in the presence of the jurisdictional Magistrate. The Excise Inspector prepared Ext.P12(a) inventory. He had also drawn representative samples in the presence of the learned Magistrate.

10.The challenge of the learned counsel for the appellants is that the representative samples drawn in the presence of the learned Magistrate being primary evidence, were not forwarded for chemical examination. What were subjected to analysis in the Chemical Examiner’s Laboratory were the samples drawn at the scene of occurrence by the Detecting Officer. Relying on the law laid in Union of India v. Mohanlal and Another [2016 KHC 6069] , Yusuf @ Asif v. State [2023 KHC 7154] and Khalid v. State of Telengana [2024 KHC Online 6105], the learned counsel for the appellants submitted that as the prosecution failed to forward the representative samples collected in the presence of the learned Magistrate, it failed to establish the link connecting CRL.A Nos. 1100 & 1138 of 2019 7 the accused with the contra