S.52A NDPS Act: Kerala High Court Grants Bail To Accused As Seizure Officer Mixed Alleged Contraband Found In Three Separate Packets

The Kerala High Court has granted bail to an accused booked under the Narcotic Drugs and Psychotropic Substances (NDPS) Act for possession of over 100 gms contraband, noting that the Investigating Officer had mixed the content found in three separate packets.

Justice C. S. Dias cited Section 52A of the Act which requires the Investigating Officer to draw separate samples from "each of the packets", that too in the presence of the jurisdictional Magistrate and then, send the representative samples from each packet for chemical analysis.

The bench said that an infraction of the statutory provision by the Investigating Officer had prejudiced the accused and therefore, the rigour on grant of bail under Section 37 of the NDPS Act stands diluted.

"It is mandatory for the Investigating Officer to prepare an inventory of the seized narcotic drugs/psychotropic substances/controlled substances with all such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars, and then make an application to the Magistrate to permit him to draw the representative samples of such contraband in the presence of the Magistrate so as to certify the correctness of the inventory so prepared. If the contraband is found in packages or containers, such packages/containers shall be weighed separately and serially numbered for the purpose of identification and one sample, in duplicate, shall be drawn from each package/container seized," Court explained.

The case against the accused was that he was found in conscious possession of 106 grams of MDMA. The substance was found in three packets weighing 93 grams, 13 grams and 11 grams respectively. The Detecting Officer cut open the three covers at the scene and transferred it into a single cover and weighed it and found it to be 106 grams. He sent two samples from the single cover to chemical analysis. After the chemical analysis, the contraband was found to be methamphetamine.

Court found that the Act of Detecting Officer cutting open the three packets and transferring it into a single cover violated Section 52A of the Act and Rules 3, 5, 8, 9 & 10 of the Narcotic Drugs and Psychotropic Substances Rules, 2022. Section 52A of the Act lays down that the samples of the drug shall be drawn only in the presence of a Magistrate. Rule 3 says that each package will be weighed separately and serially numbered. Rule 10 says that one sample shall be drawn from each package seized.

The Court declared that the procedures to be followed by the Officer was of a mandatory nature.

“When the statutory provisions mandate a particular procedure to be followed, it was the bounden duty of the Detecting Officer to have followed the prescribed procedure. No person can assume the nature of the substance on speculation and conjectures. It is to ensure a fair trial that the legislatures has incorporated the above safeguards and above provison.”

On this ground, the Court granted bail to the accused.

Counsel for the Petitioner: Advocates P. Rahul, Abhina L.

Counsel for the Respondent: Advocate C. S. Hrithwik

Case No: B.A. 1790/2024

Case Title: Amal v State of Kerala

Citation: 2024 LiveLaw (Ker) 378

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