Mere Breach Of S.52A NDPS Act Not Fatal To Trial If Contraband Recovery Otherwise Proved : Supreme Court

Highlighting that substantive justice outweighs procedural irregularities, the Supreme Court recently upheld the conviction of an individual for possessing contraband, rejecting his plea for acquittal based on alleged non-compliance with Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”).

The Court observed that mere non-compliance with Section 52A would not be fatal to the prosecution's case when other cogent evidence proves the recovery of the contraband from the accused possession.

“Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.”, the Court observed.

“If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.”, the court added.

The Bench comprising Justice JB Pardiwala and Justice R Mahadevan was hearing the case where the accused challenged its conviction over non-compliance of Section 52A of the NDPS Act. The accused argued that the mixing of all 73 packets of seized contraband into a single composite lot and subsequent sampling violated the statutory requirements under Section 52A of the NDPS Act and Rule 10 of the NDPS Rules, 2022. He claimed this process compromised the integrity of evidence and cast doubt on the prosecution's case, thereby vitiating the trial.

The trial court convicted the accused rejecting his plea for non-compliance of Section 52A. The trial court said that all 73 packets that were seized were opened and the contents inside each packet were matched and an identification memo was prepared in that regard. Thereafter, two samples of 100 gm each were prepared by drawing representative samples / mixed samples and thereafter the remaining packets were sealed.

The Chhattisgarh High Court upheld the trial court's decision, noting that the Appellant's contention was nothing but a bald allegation and that there was nothing to evince such contravention.

Following this, an appeal was preferred before the Supreme Court.

Affirming the High Court's decision, the Court observed that the investigating officers adhered to the procedural mandates. Specific steps, such as matching the contents of packets, preparing identification memos, and creating composite samples, aligned with the guidelines.

“Thus, it appears that identification test by colour was done, thereafter the 73 packets were bunched into two lots of a maximum of 40 packets each, and representative samples were drawn which were then mixed together to prepare the two sample packets. Thus, it can be hardly be said that there has been any procedural lapse in terms of Section 52A of the NDPS Act, rather it appears that the police have strenuously followed the process prescribed thereunder that was in force at the time of seizure and sampling.”, the court observed.

The Court emphasized that even if minor procedural lapses had occurred, they would not have impacted the overall reliability of the prosecution's evidence. The Court noted that the conviction was not based solely on sampling but was supported by other robust evidence of recovery and seizure.

Principles summarised.

The Court summarized the principles regarding Section 52 in the following points: -

(I) Although Section 52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.

(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.

(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.

(IV) The procedure prescribed by the Standing Order(s) / Rules in terms of Section 52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in-charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.

(V) Mere non-compliance of the procedure under Section 52A or the Standing Order(s) / Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.

(VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as-well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.

(VII) Non-compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.

(VIII) Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under Section 54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.

(IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.

(X) Once the foundational facts laid indicate non-compliance of Section 52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance with the mandate of Section 52A of the NDPS Act OR (ii) satisfy the court that such non-compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt.

Consequently, the Appeal was dismissed.

Appearance:

For Petitioner(s) Mr. Sameer Shrivastava, AOR Ms. Palak Mathur, Adv. Ms. Priyanka Shrivastava, Adv.

For Respondent(s) Mr. Bishwajit Dubey, A.A.G. Mr. Vinayak Sharma, Standing Counsel, Adv. Mr. Ravinder Kumar Yadav, AOR

Case Title: BHARAT AAMBALE VERSUS THE STATE OF CHHATTISGARH

Citation : 2025 LiveLaw (SC) 84

Click here to read/download the judgment

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