Mandate Of Section 52A NDPS Act Has To Be Duly Complied Before Disposal/Destruction Of Seized Narcotic Substances : Supreme Court

The Supreme Court observed that the mandate of Section 52A of the NDPS Act has to be duly complied before any disposal/destruction of seized narcotic substances.

The bench of Justices A S Bopanna and M M Sundresh observed thus while allowing an appeal filed by an accused concurrently convicted uinder Section 8(b) read with Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. This is after the court noted that in this case there was no order passed by magistrate for the disposal of the narcotics substance allegedly seized.

Sub-section (1) of Section 52A of the NDPS Act facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes.

Taking note of this provision, the bench observed.

"The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn...Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act)."

Reappreciating the evidence on record, the bench found that there are too many material irregularities which create a serious doubt on the very case of the prosecution. Giving benefit of doubt to the accused, the bench allowed the appeal and acquitted him.

Case details

 Mangilal vs State Of Madhya Pradesh | 2023 LiveLaw (SC) 549 | 2023 INSC 634

Headnotes

NDPS Act, 1986 ; Section 52A - Indian Evidence Act, 1872 ; Section 114(g) - Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approval either for certifying an inventory or for a photograph taken apart from list of samples drawn - Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery - Provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act. (Para 6-9)

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