Calcutta High Court: ‘Sampling Without Magistrate’s Presence Violates Section 52A of NDPS Act, Conviction Overturned’

Calcutta High Court: ‘Sampling in the presence of an independent witness would not satisfy the requirement of S. 52A of the NDPS Act even when chain of custody is established,’

In a significant judgment, the Calcutta High Court has underscored the mandatory nature of Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, ruling that samples must be drawn in the presence of a Magistrate and duly certified by them. The Court allowed an appeal against the conviction of individuals under Sections 17(c), 18(c), and 29 of the NDPS Act, leading to their acquittal.

Brief Facts:

The case involved a tip-off regarding a narcotics transaction, resulting in the police search and subsequent discovery of a black sticky substance, suspected to be opium, weighing 2.6 kg. The appellants were arrested, and a written complaint was filed under Sections 17(c), 18(c), and 29 of the NDPS Act. The learned Additional Sessions Judge had convicted the appellants and sentenced them to rigorous imprisonment for 15 years.

Appellant’s Contentions:

The appellants’ counsel argued that the mandatory procedure under Section 52A of the NDPS Act was not followed. Samples were drawn on the spot rather than in the presence of a Magistrate, as required by subsection (2) of Section 52A. The counsel contended that this procedural lapse rendered the chemical examiner’s report invalid, warranting the acquittal of the appellants.

Respondent’s Contentions:

The respondent’s counsel maintained that the samples were drawn in the presence of an independent witness, and the chain of custody was established. The Malkhana registers were produced, and the chemical examiner found the seals intact. The chemical examination report confirmed the presence of opium alkaloids, thus proving the prosecution’s case beyond doubt.

Court’s Observations:

The Court emphasized that compliance with Section 52A of the NDPS Act is mandatory, stating that:

• Samples must be drawn in the presence of a Magistrate and duly certified by them.
• The purpose of drawing samples before a Magistrate is to ensure the integrity and sanctity of the process, eliminating any possibility of substitution.
• A Magistrate’s presence provides an independent check, ensuring the process is insulated from any influence by the investigating agency.

The Court further observed that the right of the accused to have samples drawn in the presence of a Magistrate cannot be negated by establishing the chain of custody alone. Accepting such an argument would dilute the mandatory nature of Section 52A.

Decision of the Court:

The Calcutta High Court, comprising Justices Joymalya Bagchi and Gaurang Kanth, allowed the appeal, overturning the conviction and sentence imposed by the trial Judge. The Court held that the mandatory provisions of Section 52A were not complied with, rendering the sampling process invalid.

Case Title: Balbir Singh & Anr. vs. The State of West Bengal
Coram: Hon’ble Justice Joymalya Bagchi and Hon’ble Justice Gaurang Kanth
Case No.: C.R.A. 358 of 2018
Advocate for the Appellant: Mr. Ayan Bhattacharjee
Advocate for the Respondent: Mr. Sanjay Bardhan

This judgment reinforces the sanctity of procedural safeguards in the NDPS Act, ensuring that the rights of the accused are protected and the integrity of the judicial process is maintained.

 If you like this law news, share it with a friend!