Non-Compliance Of S.52A NDPS Act Prima Facie Vitiates Search & Seizure: Rajasthan HC Grants Bail To Man Allegedly Found With Half Kg Heroin

The Rajasthan High Court has reiterated that Section 52A of the Narcotic Drugs and Psychotropic Substances Act is mandatory in nature and failure to comply with the provision undermines the prosecution case and vitiates the entire search and seizure proceedings.

A bench of Justice Rajendra Prakash Soni thus granted bail to a man allegedly found in possession of 510 gms heroin.

Court said the rigour on grant bail under Section 37 is not attracted in this case since the accused-applicant has available to him substantial grounds so as to question the prosecution.

"From the challan papers and evidence produced, it prima facie did not show the compliance of section 52A of the Act and seizure by competent and authorized officer, in its true spirit. In such a situation, it assumes importance that in absence of proper explanation from the prosecution, it prima facie significantly undermines the case of the prosecution and thus, the entire search and seizure proceedings are prima facie vitiated."

Section 52A provides for safe disposal of narcotic substances after seizure. Before disposing the seized quantity, the officer-in-charge needs to prepare an inventory of the same. Thereafter, an application needs to be made to a Magistrate for: i) certifying correctness of the inventory; ii) taking photographs of the substances in magistrate's presence; iii) drawing representative samples of the substances in magistrate's presence. Following this, the prepared inventory, the photographs and the list of samples, are treated as primary evidence in relation to any offence being tried under the Act.

While perusing the records of the case, the Court highlighted failure on part of the seizure officer to comply with the procedure under Section 52A. It referred to the Supreme Court case of Mangi Lal v the State of Madhya Pradesh where it was held that Section 52A is mandatory and in case of non-compliance, the inventory, samples and photographs would not constitute as primary evidence.

The Court also mentioned another Supreme Court case of Mohammed Khalid v the State of Telangana where it was observed that since Section 52A was not followed in preparing inventory and obtaining samples, the FSL report could not be read in evidence.

Based on this analysis, the Court highlighted that since Section 52A was not complied with, it undermined the prosecution case and vitiated the search and seizure proceedings. The Court also observed that since the applicant was involved in no other trial under the Act and the trial in the present case would be taking considerable time, no purpose would be served to detain him for an indefinite period.

Accordingly, the bail application was allowed.

Title: Amjad Khan v State of Rajasthan

Citation: 2024 LiveLaw (Raj) 110

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