Sl.No.,Description of the exhibits,"How when and by
whom found","Sources of the
exhibits",Remarks
1.,"11 brown packet contain 25
grams of Hashish Oil taken
in plastic cover as samples
(Sealed, labeled and marked
as P1S1, P2S1, P3S1, P4S1,
P5S1, P6S1, P7S1, P8S1,
P9S1, P10S1, P11S1)","Possession and
Transporting of 10.670
Kg Hashish Oil at
Kumily kara, Kumily
Village, Peermade
Taluk. On 19.4.2016 at
3.30 pm by Sunilraj
C.K.Excise Inspector,
Excise Range Office,
Vandiperiyar.",Andrapradesh,
and the same were subjected to examination. Admittedly, the samples drawn in the presence of the learned Magistrate were not forwarded to the",,,,
Chemical Examiner for examination.,,,,
16. The intention of the legislature by incorporating Section 52A in the NDPS Act is to see that the process of drawing the sample 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. Sub-section (4) of Section 52A",,,,
says that every court trying an offence under the NDPS Act shall treat the inventory, the photographs of the contraband substance and the list of",,,,
samples drawn under sub-section (2) and certified by the Magistrate as primary evidence in respect of such offence.,,,,
17. In Mohanlal (supra), the Apex Court held that the samples drawn in the presence of the Magistrate is primary evidence for the case. In Mohanlal",,,,
(supra), the Apex Court added that there is no provision in the Act that mandates the taking of samples at the time of seizure. The law declared by the",,,,
Hon’ble Supreme Court in Mohanlal (supra) was followed by the Supreme Court in Simarnjit Singh v. State of Punjab [2023 KHC 6642], Yusuf",,,,
@ Asif v. State [2023 KHC 7154] and Khalid v. State of Telengana [2024 KHC Online 6105].,,,,
18. In Bothilal v. Intelligence Officer, Narcotics Control Bureau [2023 SCC Online SC 498], the Supreme Court held that the act of drawing sample at",,,,
the time of seizure not in conformity with the law declared in Mohanlal (supra) creates serious doubt about the prosecution case that the substance,,,,
recovered was contraband.,,,,
19. In Yusuf @ Asif (supra), the Supreme Court reiterated that once there is no primary evidence obtained as provided under Section 52A of the",,,,
NDPS Act, the trial as a whole stands vitiated.",,,,
20. In the present case the samples drawn in the presence of the jurisdictional Magistrate were not forwarded to the Chemical Examiner’s,,,,
Laboratory for analysis. The samples drawn by the Detecting Officer at the scene of occurrence formed the foundation of Ext.P30 report of chemical,,,,
analysis. Therefore, Ext.P30 has no evidentiary value.",,,,
21. The resultant conclusion is that the prosecution failed to establish that what was seized from the possession of the accused was Hashish oil. The,,,,
prosecution failed to establish the link connecting the accused with the contraband.,,,,
Therefore, the prosecution failed to prove the charges against the appellants/accused. The conviction and sentence passed by the learned Special",,,,
Judge overlooking these vital aspects of the matter cannot be sustained. The appellants/accused are found not guilty of the offences alleged. They are,,,,
acquitted of the offences. They are set at liberty. The Superintendent of the Central Prison concerned shall release the appellants forthwith, if their",,,,
detention is not required in any other case.,,,,
The Criminal Appeals are allowed as above..,,,,
