NDPS Act | Should Sample Be Drawn On Spot Or In Magistrate's Presence As Per Sec. 52A? Supreme Court Reserves Judgment

The Supreme Court recently concluded the two-day hearing on an appeal filed by the Narcotics Control Bureau against the May 18 order of the Delhi High Court, wherein the Court observed that the seized samples of narcotic drugs or psychotropic substances under the Narcotics Drugs and Substance Act, 1985 (NDPS Act), should be forwarded to the laboratory within 72 hours. The High Court's judgment also held that the samples should be drawn under Section 52A in the presence of Magistrate. 

This was challenged by the NCB before the Court which formulated the issue of law as: whether samples under the NDPS should be drawn on the spot of recovery or after an application under Section 52A has been moved and in the presence of a Magistrate. 

A bench of Justices Bela M. Trivedi and Satish Chandra Sharma on November 18 reserved the judgment. But they did not cancel the bail granted to the Respondent (original petitioner-Kashif) by Justice Jasmeet Singh of the High Court on grounds that there was a delay of 51 days in moving the Section 52A, which is mandatory. 

The High Court granted bail on the grounds that there was a violation of Standing Order 1/88 in the drawing of Samples. The Court stated that neither the seizure memo was prepared on the spot nor sampling was done on the spot which is a mandate upon the investigating agency as per Clause 1.5 of the Standing Order 1/88.

Further, the High Court relied on Union of India v. Mohanlal (2016) and stated that as per the judgment, the application to the Magistrate for sampling has to be moved immediately after seizure. However, in the present case, the application under Section 52A for the drawing of samples was made after an "inordinate delay of around 51 days".

The court observed that Section 52A of the NDPS Act does not give a time frame within which application has to be made for collection of sample to the magistrate and that the time frame provided in Standing Order 1/88 is only in the context of sending the sample to FSL. But it is a settled principle of law that where a statute does not provide a particular time limit, the same has to be inferred from the guidelines and/or has to be within a reasonable time.

Arguments of the NDPS

Solicitor General Tushar Mehta (for NCB) said that the view taken by the Court in Mohanlal was not applicable in the present contet.

Mehta took the Court through the Statutory Direction (Standing Order 1/88) issued under Section 4(3) of the NDPS Act. 

He submitted that as per Clause 1.5 of the Standing Order 1/88, the samples must be drawn on the spot of recovery, in duplicate, in the presence of search (Panch) witnesses and the person from whose possession the drug is recovered, and mention to this effect should invariably be made in the panchnama drawn on the spot. He added that the samples are then sent by the seizing officer of the Central Government (Customs/NCB.,etc) to one of the laboratories. 

Mehta also referred to 1.13 (mode and time limit for dispatch of sample to Laboratory) of Standing Order 1.88, which states that the samples should be sent either by insured post or through a special messenger duly authorized for the purpose. Dispatch of samples by registered post or ordinary mail should not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection.

Mehta submitted that before Section 52A, for the pre-trial disposal of drugs, recourse to the provision of Section 451 of the Code of Criminal Procedure is taken along with Section 110 of the Customs Act read with the Government of India's notifications. However, for disposal, filing of a Chargesheet is the condition precedent along with the receipt of the FSL report. 

He pointed out that a need was felt to insert a provision that would specifically provide for disposal as the NDPS Act did not provide for the same and one had to resort to Standing Orders. Therefore, it was inserted through an amendment in 1989. 

Referring to the Lok Sabha debates as no Statement of Objects and Reasons was available, Mehta said: "Section 52A is only referable to '3' [which is] procedure for pre-trial disposable. That is the limited purpose of Section 52A. It does not wipe away the evidence collected, sampled, and sent to the laboratory, the report received and the evidence proved." 

Mehta stated that Mohanlal's judgment was given on the backdrop of a public interest litigation which was that whatever drug is seized is not disposed of. As a result, it remains in police stations or godowns. That's why, the Supreme Court passed the judgment that the disposal of the drug is done expeditiously. 

In Mohanlal, the issue framed by the Supreme Court was: "Pilferage of the contraband goods and their return to the market place for circulation being a major hazard, this Court appointed Mr. Ajit Kumar Sinha, Senior Advocate, as Amicus Curiae, with a view to making a realistic review of the procedure for search, disposal or destruction of the narcotics and the remedial steps that need to be taken to plug the loopholes, if any."

Mehta stated that the issue before the Court in Mohanlal's judgment was totally different. However, the obiter parts, limited to 2 or 3 paragraphs, were treated as if in the absence of the disposal certificate, the trial is vitiated. Some of the judgments which followed Mohanlal's line of arguments and were referred to by Mehta included: "Simranjit Singh v. State of Punjab (2023).

The obiter part referred by him is as follows: "In other words, the process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct. The question of drawing of samples at the time of seizure which, more often than not, takes place in the absence of the Magistrate does not in the above scheme of things arise. This is so especially when according to Section 52-A(4) of the Act, samples drawn and certified by the Magistrate in compliance with sub-section (2) and (3) of Section 52-A above constitute primary evidence for the purpose of the trial. Suffice it to say that there is no provision in the Act that mandates taking of samples at the time of seizure."

Mehta: "On the spot, you have to draw [the samples]. What happens, kindly appreciate, the Magistrate will permit destruction and draw the samples after 90 days. In the meanwhile, the accused may say that police has changed the sample. What was recovered was salt but now the Police has put Ganja or Heroin and now Magistrate's sample would fine Heroin only. Therefore, the first sample has its sanctity. " 

He added that Mohanlal's judgment was then followed in another judgment, Satyapal And Anr v. State of UP(2024), where the Court connected Section 52A with the drawing of samples whereas, it prescribed the procedure for disposal. The concerned para read by Mehta: "The search and seizure operation was conducted in violation of the mandatory provisions of Section 52A of the Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged contraband." 

Mehta further added: "No evidence has also been brought on record in the case in hand that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate."

On this, the Court in unison said that it was not just impractical but also impossible that the first sample would be drawn in the presence of a Magistrate.

Arguments of the Respondent 

Advocate Akshay Bhandari at the outset prayed that the bail granted to the Respondent should not be cancelled. He then proceeded to argue that Section 52A mandates that the sample has to be taken in the presence of the Magistrate. 

To this, Justice Bela added: "For disposal". She added that if there is a dispute between the samples taken at the spot of recovery, the sample could then be taken in front of the Magistrate before disposal to match with the sample that was sent to the laboratory. 

Justice Bela opined that the application of Section 52A cannot be mandatory.

Bhandari responded: "All sampling under the NDPS Act is in duplicate only. The I.O. [investigating officer] has taken a duplicate sample, so there is no question of an objection coming later for the samples in front of the Magistrate."

Bhandari took the Court through Section 52 and stated that it aids in the interpretation of Section 52A. He said: "The aspect of taking samples under the NDPS Act is provided under Section 52A. There is no other provision which empowers the officer to draw samples. Disposal is only one aspect of the provision. That's why I took your Lordships to Section 52. Under Section 52, once the article is seized, it will be immediately sent to the Magistrate for disposal. That is the time when the samples have to be drawn. There cannot be two provisions for drawing of samples-one where the I.O. draws the samples on spot and one taken in presence of the Magistrate."

To this, Justice Sharma asked: "If you say Section 52A is the only section which deals with sampling, what was happening prior to Section 52A?"

Bhandari responded: "They were justifying taking samples on spot based on notification received by the Department under delegated legislation."

Mehta interjected and added: "The notification was under Section 4(3) of the NDPS Act. It may be mentioned Section 52, but the power is traceable under Section 4(3)."

Bhandari also added: "The notifications will always be subservient to the Parent Act."

He stated that he is not going to argue on the aspect of bail but if the Court has to settle the issue, it has to settle the conflict between Section 55 and Section 52A. He said: "Section 55 also provides for taking samples. Section 55 comes into play after seizure and then the officer-in-charge will forward under Section 52A. When the legislature enacted Section 52A, they did not take notice of Section 55..." 

Bhandari also prayed that the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 also needs to be relooked. He said: "In 2008, there was a judgment by this honourable Court which says that they will go by purity. In a seizure of 100 gms of cocaine, purity is 10 percent, it would be treated as 10 gms. Subsequently, that law was clarified through an notification dated 18 May 2009 where the Central Government issued a notification and said that no, it is the total quantity that has to be taken. Now, again if these Rules are to be seen, it allows the seizing officer to mix different packets and make seizures. Taking notice of the chance in law, multiple High Courts have held that this kind of sampling is not permissible. 

On the aspect of the High Court's judgment that the samples must be forwarded to the laboratory within 72 hours, Bhandari stated that the time period comes from the notification of the Government, that is, Rule 1.13 of Standing Order 1/88.

But Justice Bela questioned if the Magistrate does not decide the Section 52A application, then what would happen?

Bhandari stated that the time frame starts after the Section 52A application has been decided but Justice Bela disagreed and stated that the period begins after the seizure of the samples. 

Case Details: NARCOTICS CONTROL BUREAU v KASHIF., SLP(Crl) No. 12120/2024

Appearances: Solicitor General Tushar Mehta and Arvind Kumar Sharma, AOR (for NCB) & Adv Akshay Bhandari and Ashish Batra, AOR (for Respondent)

Click Here To Read Order