[NDPS Act] Not For Accused To Prove Seized Samples Were Not In Safe Custody, Burden Lies On Prosecution To Establish Safe Handling: J&K High Court

Allowing a Criminal Conviction Appeal on behalf of the convict for offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) Justice Sanjay Dhar observed,

“By placing the reverse burden of proof upon the appellant/accused, the learned trial court has gone contrary to the rules and principles of evidence. The absence of explanation from the prosecution with regard to whereabouts of the samples from 9th October, 2018 to 30th October, 2018, assumes great significance in the instant case and creates a serious dent in the case of the prosecution”

The case originated from an incident in 2018, when Police Station Kakapora, Pulwama, acting on a tip-off, conducted a raid at the residence of one Abdul Hamid Bhat. The police claimed to have recovered a substantial quantity of contraband, including 104.4 kilograms of cannabis leaves and 1.2 kilograms of powdered charas from his house.

Following the seizure, the police registered FIR under Sections 8/20 of the NDPS Act, arrested the accused and subsequently filed a charge sheet before the Principal Sessions Judge, Pulwama. The trial court, after evaluating the prosecution's evidence, convicted Bhat sentencing him to ten years of rigorous imprisonment along with a fine of ₹1 lakh.

In the appeal before the High Court, Bhat's counsel, Advocate Zahid Hussain Dar, challenged the conviction alleging violation of Section 42 of NDPS Act for the police failed to record the secret information in writing or convey it to superior officers, which is mandatory under the law.

Highlighting the contradictions in prosecution witnesses' testimonies the counsel submitted that there were discrepancies regarding the place of sealing, the presence of the accused at the scene, and where the contraband was weighed. Additionally, it was argued that the prosecution could not establish that the samples remained untampered between the time of seizure and their delivery to the Forensic Science Laboratory

The government counsel, Syed Musaib (Deputy Advocate General), defended the conviction, arguing that procedural lapses, if any, were not fatal to the case and that the trial court had rightly convicted the accused based on substantial evidence.

Observations Of The Court: 

Justice Dhar, after a meticulous examination of the evidence, found serious lapses in the investigation that cast grave doubts on the prosecution's case.

The Court underscored that Section 42 of the NDPS Act mandates police officers to record secret information in writing and forward it to a superior officer before conducting a search. In this case, the police station received the tip-off and registered an FIR, but there was no record of the information being forwarded to a superior officer in writing.

The trial court had assumed that since the SHO informed the Deputy Superintendent of Police (Dy. SP) through oral communication, this satisfied the requirement. However, the High Court rejected this reasoning, emphasizing that strict compliance with Section 42 is mandatory, and failure to adhere to it weakens the prosecution's case.

“From the evidence on record, it is established that there has been a clear violation of Section 42 of the NDPS Act in the instant case and it gives rise to a grave suspicion about the manner in which raid was conducted by the investigating officer, which has an adverse impact upon the veracity of the prosecution case”, the court remarked.

The Court further noted multiple inconsistencies in the statements of prosecution witnesses as some police witnesses stated that the contraband was sealed on the spot, while others said it was sealed later at the police station. It also noted that there were conflicting accounts about the presence of the accused during the raid, with some witnesses claiming he was arrested from the house, while the official arrest memo showed he was arrested ten months later.

The location where the contraband was weighed was also disputed, with some witnesses saying it was done on the spot and others claiming it was weighed at the police station.

“The contradictions as narrated hereinbefore go to the root of the prosecution case… This causes a grave suspicion about the fairness of investigation and the manner in which the whole proceedings have been approached by the Investigating Officer”, the court opined.

One of the most crucial findings was the prosecution's failure to prove the safe custody of the seized samples. The Court pointed out that the seized samples were handed over to the Malkhana (police storeroom) on October 8, 2018, but the samples were sent to FSL only on October 30, 2018 and there was no explanation regarding where the samples were kept during this period.

Rejecting the trial court's conclusion that the defence had been unable to convince the Court that the samples were not in safe custody till these were deposited in FSL, Justice Dhar firmly ruled that the burden to prove the integrity of the samples lay on the prosecution, stating,

“It is not for the accused to prove that the samples were not in safe custody. The burden is upon the prosecution to prove the safe custody of the samples and to establish that there was no possibility of tampering.”

The Court also took note of the Investigating Officer's failure to involve independent witnesses, despite their availability at the scene. Witness testimonies confirmed that civilians were present, yet none were asked to participate in the search or seizure process.

The Court held that while the absence of independent witnesses alone may not be fatal, in this case, it added to existing doubts about the fairness of the investigation.

The Court expressed serious reservations about the fact that the SHO who conducted the raid was also the complainant and Investigating Officer. While this alone does not vitiate the trial, when seen in light of other procedural lapses, contradictions, and missing records, it raised serious concerns about the fairness of the investigation.

In light of these glaring lapses, the High Court ruled that the conviction could not be sustained. The Court allowed the appeal, setting aside both the conviction and sentence. The accused Bhat, was ordered to be released from custody, and his bail bonds were discharged.

Mr. Zahid Hussain Dar, Advocate, with Mr. Bhat Shafi, Advocate appeared for the petitioner, Mr. Syed Musaib, Dy. AG represented the UT

Case Title: Abdul Hamid Bhat Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 67

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