2025 INSC 78 Special Leave Petition (Crl.) No. 14420 of 2024 Page 1 of 65

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 250 OF 2025

(ARISING OUT OF SLP (CRL.) NO. 14420 OF 2024)

BHARAT AAMBALE …APPELLANT(S)

VERSUS

THE STATE OF CHHATTISGARH …RESPONDENT(S)

O R D E R

1. Leave Granted.

2. This appeal is at the instance of a convict accused for the offence punishable

under Section 20(b) (ii) (c) of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (for short the “NDPS Act”) and is directed against the judgment

and order passed by the High Court of Chhattisgarh, Bilaspur dated 8th July,

2024 in Criminal Appeal No. 731 of 2023 by which the High Court dismissed

the appeal filed by the appellant herein and thereby affirmed the judgment and

order of conviction passed by the Special Judge, (NDPS Act), Mahasamund

in Special Criminal Case No. H-29/2017 holding the appellant herein guilty

of the offence enumerated above and sentencing him to undergo rigorous

imprisonment for a period of 15 years and fine of Rs.1 lakh.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 2 of 65

3. The only contention raised before us by the learned counsel appearing for the

appellant herein is that the conviction could be said to have stood vitiated

because of the non-compliance of Section 52A of the NDPS, Act.

4. The learned counsel appearing for the appellant placed strong reliance on the

decision of this Court rendered in the case of Union of India v. Mohan Lal &

Anr. reported in (2016) 3 SCC 379 to make good his submission that non-

compliance of Section 52A of the NDPS Act along with the relevant rules,

would vitiate the entire trial and the conviction.

5. Having heard the learned counsel appearing for the parties and having gone

through the materials on record, we are not impressed with the submission as

regards Section 52A of the NDPS Act.

Legislative History & Scope of Section 52A of the NDPS Act.

6. Before proceeding with the analysis, it would be apposite to first delve into

the legislative history and purport of Section 52A of the NDPS Act. Much

before the enactment of NDPS Act, 1985 the statutory control over narcotic

drugs was exercised in India through number of scattered legislations like

the Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act,

1930. With the passage of time and rampant increase in illicit drug trafficking

and abuse of several substances, many deficiencies in the older legislations

Special Leave Petition (Crl.) No. 14420 of 2024 Page 3 of 65

were noticed. This led to the enactment of the NDPS Act. The Act was enacted

to consolidate and amend the law relating to narcotic drugs, to make stringent

provisions for the control and regulation of operations relating to narcotic

drugs and psychotropic substances, and to provide for the forfeiture of

property derived from or involved in the illicit drug trafficking.

7. Section 52A of the NDPS Act came into existence as part of the amendments

made in 1989 following the original enactment of the NDPS Act in 1985. It

was inserted due to several practical challenges that were encountered in the

enforcement of the law, more particularly concerning the management of

seized narcotic substances. Before its introduction, there was no specific

statutory provision detailing the disposal of such substances which led to

logistical and financial difficulties in storing seized drugs for prolonged

periods, given the large quantities often involved and the need for strict

security measures to prevent theft or misuse. The absence of clear guidelines

resulted in long delays in trials, as the seized substances had to be preserved

intact for being produced as evidence before the court. This created a situation

where seized drugs remained in storage for years, increasing the risk of their

degradation, theft, or diversion back into illicit markets. This was further

compounded by the highly sensitive nature of narcotic drugs and psychotropic

substances, which required specialized storage facilities to maintain its

integrity and prevent misuse. Additionally, the lack of clarity regarding the

Special Leave Petition (Crl.) No. 14420 of 2024 Page 4 of 65

disposal process often resulted in inconsistencies and inefficiencies,

particularly in the sampling, testing and reporting of such substances which

undermined the very trial itself and the overall effectiveness of the NDPS Act.

These issues highlighted the urgent need for a streamlined, legally sanctioned

mechanism for the disposal of seized substances while ensuring that such

disposal did not compromise the integrity of the legal process or the

evidentiary value of the material in question.

8. Over a period of time, it was also noticed by the Narcotics Control Bureau

(NCB) that different investigating officers of various enforcement agencies

and States were adopting different procedures in drawing samples from seized

narcotic drugs and psychotropic substances, etc. Therefore, with a view to

bring uniformity of approach in such matters and to provide for a secured

system of handling of drug samples, the NCB had issued the Standing Order

No. 1 of 88 vide the notification dated 15.03.1988 prescribing the procedure

to be followed for drawing samples from the seized narcotic drugs and

psychotropic substances, numbering of samples drawn, sealing, mode of

packing, dispatch of samples to the concerned laboratory for test etc.

Thereafter, recognizing the importance of dispatch, transit, receipt, safe

custody, storage, proper accounting and disposal destruction of the

seized/confiscated drugs and the need for evolving a uniform procedure, the

NCB issued the Standing Order No. 2 of 88 vide the notification dated

Special Leave Petition (Crl.) No. 14420 of 2024 Page 5 of 65

11.04.1988 formulating the procedure for seizure, sampling and storage of

contraband.

9. However, despite the aforesaid the necessity to insert Section 52A was felt in

view of the International Convention of 1988 held by the United Nations,

which adopted the United Nations Convention Against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances, 1988 and the South Asian

Association for Regional Cooperation (SAARC) held in December, 1988,

where it was resolved that the Member-States would take measures for early

destruction or lawful disposal of narcotic drugs and psychotropic substances.

Since, India being a Member-State, was a signatory to the said conventions,

the Central Government introduced a Bill in Parliament, i.e., the Narcotic

Drugs or Psychotropic Substances (Amendment) Bill, 1988, specifically to

give effect to the International Conventions in the substantive Act.

Accordingly, Section 52A of the NDPS Act came to be inserted by the Act 2

of 1989, which came into force with effect from 29.05.1989. The said

provision reads as under: -

“52A. Disposal of seized narcotic drugs and psychotropic

substances. —

(1) The Central Government may, having regard to the hazardous

nature, vulnerability to theft, substitution, constraint of proper

storage space or any other relevant consideration, in respect of

any narcotic drugs, psychotropic substances, controlled

substances or conveyances, by notification in the Official Gazette,

specify such narcotic drugs, psychotropic substances, controlled

substances or conveyance or class of narcotic drugs, class of

Special Leave Petition (Crl.) No. 14420 of 2024 Page 6 of 65

psychotropic substances, class of controlled substances or

conveyances, which shall, as soon as may be after their seizure,

be disposed of by such officer and in such manner as that

Government may, from time to time, determine after following the

procedure hereinafter specified.

(2) Where any narcotic drugs, psychotropic substances,

controlled substances or conveyances has been seized and

forwarded to the officer-in-charge of the nearest police station or

to the officer empowered under section 53, the officer referred to

in sub-section (1) shall prepare an inventory of such narcotic

drugs, psychotropic substances, controlled substances or

conveyances containing such details relating to their description,

quality, quantity, mode of packing, marks, numbers or such other

identifying particulars of the narcotic drugs, psychotropic

substances, controlled substances or conveyances or the packing

in which they are packed, country of origin and other particulars

as the officer referred to in sub-section (1) may consider relevant

to the identity of the narcotic drugs, psychotropic substances,

controlled substances or conveyances in any proceedings under

this Act and make an application, to any Magistrate for the

purpose of —

(a) certifying the correctness of the inventory so prepared;

or

(b) taking in the presence of such magistrate, photographs

of such drugs, substances or conveyances and

certifying such photographs as true; or

(c) allowing to draw representative samples of such drugs

or substances, in the presence of such magistrate and

certifying the correctness of any list of samples so

drawn.

(3) Where an application is made under sub-section (2), the

Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence

Act, 1872 (1 of 1972) or the Code of Criminal Procedure, 1973 (2

of 1974), every court trying an offence under this Act, shall treat

the inventory, the photographs of narcotic drugs, psychotropic

substances, controlled substances or conveyances and any list of

samples drawn under sub-section (2) and certified by the

Magistrate, as primary evidence in respect of such offence.”

Special Leave Petition (Crl.) No. 14420 of 2024 Page 7 of 65

10. Section 52A of the NDPS Act lays down a comprehensive procedure for the

disposal of seized narcotic drugs and psychotropic substances. Sub-section (1)

empowers the Central Government to prescribe the manner in which such

substances are to be disposed of. Sub-section (2) provides that the officer in

charge of the police station or the officer authorized under Section 53, who

has seized the substances, shall prepare an inventory of the seized material.

The inventory must include details such as the description, quantity, mode of

packing (including the mode of conveyance being used such as any vehicle),

identifiable marks or numbers, country of origin and other particulars as

necessary of the substances so seized. This inventory is to be forwarded to the

magistrate having jurisdiction over the case by way of an application. Under

sub-section (3), the magistrate, upon receiving the application, is required to

certify the correctness of the inventory so prepared. The certification process

involves taking photographs of the original seized substances (including the

mode of conveyance being used such as any vehicle), verifying the correctness

of the inventory prepared against the same, and thereafter drawing

representative samples in the presence of the magistrate, which are then sealed

and its details are entered into a list which is certified by the magistrate. These

certified samples, along with the inventory and photographs, are admissible as

evidence during trial under sub-section (4) and are to be treated as primary

evidence.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 8 of 65

11. Thereafter, in order to formulate and prescribe a set procedure, the Standing

Order No. 1 of 1989 vide notification dated 13.06.1989 came to be issued

which laid down the procedure to be followed while conducting seizure of the

contraband. Two subsequent notifications in lieu of the said Standing Order

came to be issued dated 10.05.2007 and 16.01.2015 respectively, that dealt

with the procedure for disposal and destruction of seized contraband. Clause

2.1 of the said Standing Order No. 1 of 1989 stated that all drugs shall be

properly classified, carefully weighed and sampled on the spot of seizure. The

said Standing Order also provided about the drawing of samples on the spot

of recovery, quantity to be drawn for sampling, etc. It also provided a detailed

procedure with regard to the method of drawing of representative samples,

storage of samples, dispatch of samples, preparation of inventory, etc., and

also provided for an early disposal of drugs and other articles by having

recourse to the provisions of sub-section (2) of Section 52A of the

Act. Ultimately, the aforesaid Standing Order(s) came to be repealed with the

enactment of the Narcotic Drugs and Psychotropic Substances (Seizure,

Storage, Sampling and Disposal) Rules, 2022 (for short, the “NDPS Rules”),

that consolidated the entire framework and procedure to be followed for the

seizure, storage, sampling and disposal of the seized material.

12. Thus, it can be seen that the scope of Section 52A although primarily for the

disposal and destruction of seized contraband in a safe manner yet extends

Special Leave Petition (Crl.) No. 14420 of 2024 Page 9 of 65

beyond the immediate context of drug disposal, as it serves a broader purpose

of strengthening the evidentiary framework under the NDPS Act. By

providing for the preparation of inventories and certification by magistrates,

the provision enhances the credibility and reliability of evidence presented

during trial, minimizing the scope for disputes or challenges related to the

handling and disposal of seized substances.

13. In Mohanlal (supra) this Court exhaustively explained the scope of Section

52A of the NDPS Act, the Standing Order(s) issued thereunder and the

procedure envisaged under the same for seizure, storage and disposal of

narcotic substances as follows: -

(i) Section 52A sub-section (1) empowers the Central Government to

prescribe the procedure to be followed for seizure, storage and disposal

of narcotic substances, and in exercise of the same, the aforesaid

Standing Order(s) were issued (as amended from time to time). The

relevant observations read as under: -

“12. Section 52-A(1) of the NDPS Act, 1985 empowers the

Central Government to prescribe by a notification the

procedure to be followed for seizure, storage and disposal

of drugs and psychotropic substances. The Central

Government has in exercise of that power issued Standing

Order No. 1 of 1989 which prescribes the procedure to be

followed while conducting seizure of the contraband. Two

subsequent standing orders one dated 10-5-2007 and the

other dated 16-1-2015 deal with disposal and destruction

of seized contraband and do not alter or add to the earlier

standing order that prescribes the procedure for conducting

Special Leave Petition (Crl.) No. 14420 of 2024 Page 10 of 65

seizures. Para 2.2 of Standing Order No. 1 of 1989 states

that samples must be taken from the seized contraband on

the spot at the time of recovery itself.”

(ii) As per sub-section (2) of Section 52A, upon seizure of such substance,

the same has to be forwarded either to the officer-in-charge of the

nearest police station or to the officer empowered under Section 53 who

shall prepare an inventory as stipulated under the said provision and

then make an application to the magistrate for the purposes of certifying

the correctness of the inventory, photographs etc. and to draw

representative samples therefrom in its presence. The relevant

observations read as under: -

“15. It is manifest from Section 52-A(2)(c) (supra) that

upon seizure of the contraband the same has to be

forwarded either to the officer-in-charge of the nearest

police station or to the officer empowered under Section 53

who shall prepare an inventory as stipulated in the said

provision and make an application to the Magistrate for

purposes of (a) certifying the correctness of the inventory,

(b) certifying photographs of such drugs or substances

taken before the Magistrate as true, and (c) to draw

representative samples in the presence of the Magistrate

and certifying the correctness of the list of samples so

drawn.”

(iii) As per Section 52A sub-section (3) as soon as the seizure is effected

and the contraband is forwarded, the officer concerned is in law duty-

bound to approach the magistrate as soon as possible for the purposes

mentioned above including grant of permission to draw representative

Special Leave Petition (Crl.) No. 14420 of 2024 Page 11 of 65

samples in his presence, which will then be enlisted and certified. Thus,

the entire 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 as correct. The relevant observations read as under: -

“16. Sub-section (3) of Section 52-A requires that the

Magistrate shall as soon as may be allow the application.

This implies that no sooner the seizure is effected and the

contraband forwarded to the officer-in-charge of the police

station or the officer empowered, the officer concerned is in

law duty-bound to approach the Magistrate for the

purposes mentioned above including grant of permission to

draw representative samples in his presence, which

samples will then be enlisted and the correctness of the list

of samples so drawn certified by the Magistrate. 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.”

(iv) Section 52A of the NDPS Act does not require drawing of samples at

the very time of seizure or even at the spot where the contraband was

seized. However, as per sub-section (4) of Section 52A only those

samples which are drawn in presence of a magistrate and certified by it

will constitute primary evidence for the purpose of the trial. The

relevant observations read as under: -

“17. 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-sections (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

Special Leave Petition (Crl.) No. 14420 of 2024 Page 12 of 65

provision in the Act that mandates taking of samples at the

time of seizure. That is perhaps why none of the States claim

to be taking samples at the time of seizure.”

(Emphasis supplied)

(v) The scheme of the Act in general and Section 52A in particular, does

not brook any delay in the matter of making of an application or the

drawing of samples and certification. While no strict time-frame can be

prescribed into the said provision, yet the entire process of sampling

and certification ought to be done in a reasonable period without any

undue delay. The relevant observations read as under: -

“19. [...] There is in our opinion no manner of doubt that

the seizure of the contraband must be followed by an

application for drawing of samples and certification as

contemplated under the Act. There is equally no doubt that

the process of making any such application and resultant

sampling and certification cannot be left to the whims of the

officers concerned. The scheme of the Act in general and

Section 52-A in particular, does not brook any delay in the

matter of making of an application or the drawing of

samples and certification. While we see no room for

prescribing or reading a time-frame into the provision, we

are of the view that an application for sampling and

certification ought to be made without undue delay and the

Magistrate on receipt of any such application will be

expected to attend to the application and do the needful,

within a reasonable period and without any undue delay or

procrastination as is mandated by sub-section (3) of Section

52-A (supra). We hope and trust that the High Courts will

keep a close watch on the performance of the Magistrates

in this regard and through the Magistrates on the agencies

that are dealing with the menace of drugs which has taken

alarming dimensions in this country partly because of the

ineffective and lackadaisical enforcement of the laws and

procedures and cavalier manner in which the agencies and

Special Leave Petition (Crl.) No. 14420 of 2024 Page 13 of 65

at times Magistracy in this country addresses a problem of

such serious dimensions.”

(vi) As per Section 55 of the NDPS Act the officer-in-charge of a police

station shall take charge of and keep in safe custody the remaining

seized article pending orders of the magistrate concerned for its disposal

or destruction. Further, as per the Standing Order(s), such seized

substances must be stored in appropriate safe vaults or godowns as

prescribed thereunder as far as possible. The relevant observations read

as under: -

“20. The Narcotic Drugs and Psychotropic Substances Act,

1985 does not make any special provision regulating

storage of the contraband substances. All that Section 55 of

the Act envisages is that the officer-in-charge of a police

station shall take charge of and keep in safe custody the

seized article pending orders of the Magistrate concerned.

There is no provision nor was any such provision pointed

out to us by the learned counsel for the parties prescribing

the nature of the storage facility to be used for storage of

the contraband substances. Even so the importance of

adequate storage facilities for safe deposit and storage of

the contraband material has been recognised by the

Government inasmuch as Standing Order No. 1 of 1989 has

made specific provisions in regard to the same. Section III

of the said Order deals with “Receipt of Drugs in Godowns

and Procedure” which inter alia provides that all drugs

shall invariably be stored in “safes and vaults” provided

with double-locking system and that the agencies of the

Central and the State Governments may specifically

designate their godowns for storage purposes and such

godowns should be selected keeping in view their security

angle, juxtaposition to courts, etc.”

(Emphasis supplied)

Special Leave Petition (Crl.) No. 14420 of 2024 Page 14 of 65

(vii) As per Clause 4 of the notification dated 16.01.2015 amending the

Standing Order No. 1 of 1989, the officer in charge of the police station

shall within 30-days from the date of receipt of chemical analysis report

of the seized substances apply to the magistrate for disposal of the

remaining substance.

“27. Section 52-A as amended provides for disposal of the

seized contraband in the manner stipulated by the

Government under sub-section (1) of that section.

Notification dated 16-1-2015, in supersession of the earlier

Notification dated 10-5-2007 not only stipulates that all

drugs and psychotropic substances have to be disposed of

but also identifies the officers who shall initiate action for

disposal and the procedure to be followed for such disposal.

Para 4 of the Notification, inter alia, provides that officer

in charge of the police station shall within 30 days from the

date of receipt of chemical analysis report of drugs,

psychotropic substances or controlled substances apply to

any Magistrate under Section 52-A(2) in terms of Annexure

2 to the said Notification.”

(viii) After the aforesaid application is allowed, the concerned officer is

required to submit details of the seized items to the Chairman of the

Drugs Disposal Committee for a decision on disposal along with a copy

to the officer in charge of the godown where such substance is stored.

Thereafter, the Drugs Disposal Committee shall order the disposal in

terms of the procedure envisaged under Clauses 7 & 8, respectively of

the Standing Order as amended by notification dated 16.01.2015 and

thereafter issue a certificate of destruction or disposal.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 15 of 65

“28. Sub-para (2) of Para 4 provides that after the

Magistrate allows the application under sub-section (3) of

Section 52-A, the officer mentioned in sub-para (1) of Para

4 shall preserve the certified inventory, photographs and

samples drawn in the presence of the Magistrate as primary

evidence for the case and submit details of seized items to

the Chairman of the Drugs Disposal Committee for a

decision by the Committee on the question of disposal. The

officer shall also send a copy of the details along with the

items seized to the officer in charge of the godown. Para 5

of the Notification provides for constitution of the Drugs

Disposal Committee while Para 6 specifies the functions

which the Committee shall perform. In Para 7 the

Notification provides for procedure to be followed with

regard to disposal of the seized items, while Para 8

stipulates the quantity or the value up to which the Drugs

Disposal Committee can order disposal of the seized items.

In terms of proviso to Para 8 if the consignments are larger

in quantity or of higher value than those indicated in the

Table, the Drugs Disposal Committee is required to send its

recommendations to the head of the department who shall

then order their disposal by a high-level Drugs Disposal

Committee specially constituted for that purpose. Para 9

prescribes the mode of disposal of the drugs, while Para 10

requires the Committee to intimate to the head of the

Department the programme of destruction and vest the

head of the Department with the power to conduct a

surprise check or depute an officer to conduct such checks

on destruction operation. Para 11 deals with certificate of

destruction while Paras 12 and 13 deal with details of sale

to be entered into the godown register and communication

to be sent to the Narcotics Control Bureau.”

14. At this stage it would be appropriate to refer to a few decisions of this Court

on the subject, to understand the instances where a conviction had been set

aside on account of non-compliance of Section 52A of the NDPS Act.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 16 of 65

15. In Noor Aga v. State of Punjab & Anr. reported in (2008) 16 SCC 417 the

case of the prosecution therein was that 1.4 kg heroin concealed in a cardboard

container was allegedly recovered from the appellant therein. However,

neither the bulk quantity of heroin nor the cardboard carton containing the

same was ever produced before the court. The explanation that was put forth

by the prosecution for such omission was that the original cardboard carton

had gone missing whereas the heroin which was seized had been destroyed.

However, neither any order of disposal in terms of Section 52A for the

destruction of the heroin nor any photographs or inventory details of the carton

in terms of the Standing Order(s) was placed before the court. Moreover, the

samples of the seized narcotic substance had also been drawn in complete

violation of the procedure envisaged under the Standing Order(s) and had

several discrepancies as regards the weight and colour and uncorroborated by

any independent witnesses. The High Court however, convicted the appellant

on the ground that as per the record, all seized material had been duly sealed,

thus, the physical evidence could be said to have been intact and in safe

custody. In appeal, this Court speaking through Justice S.B. Sinha after

examining Section 52A and the aforesaid Standing Order(s) issued pursuant

thereto held as follows: -

(i) First, it held that Section 52A provides for disposal of seized narcotic

substances whereby the officer empowered under Section 53 is first

required to prepare an inventory of the seized substances, record details

Special Leave Petition (Crl.) No. 14420 of 2024 Page 17 of 65

relating to their description, quality, quantity and packaging along with

any other marks relevant for the purpose of identification of the same.

It further held that since the aspect of disposal is clearly provided only

under Section 52A of the NDPS Act and no other provision, any

destruction or disposal of such substances can only be done with a clear

direction or order from the competent magistrate and as per the

procedure envisaged under the said provision and Clause 3.9 of the

standing order thereunder. The relevant observations read as under: -

“28. Section 52-A provides for disposal of seized narcotic

drugs and psychotropic substances [...]

xxx xxx xxx

93. The only course of action the prosecution should have

resorted to is to obtain an order from the competent court

of the Magistrate as envisaged under Section 52-A of the

Act in terms whereof the officer empowered under Section

53 upon preparation of an inventory of narcotic drugs

containing such details relating to their description,

quality, quantity, mode of packing, marks, numbers or such

other identifying particulars of the narcotic drugs or

psychotropic substances or the packing in which they are

packed, country of origin and other particulars as he may

consider relevant to the identity of the narcotic drugs or

psychotropic substances in any proceedings thereunder [...]

94. We must also notice a distinction between Section

110(1-B) of the 1962 Act and Section 52-A(2) of the Act as

sub-section (4) thereof, namely, that the former does not

contain any provision like sub-section (4) of Section 52-

A. It is of some importance to notice that Para 3.9 of the

Standing Order requires pre-trial disposal of drugs to be

obtained in terms of Section 52-A of the Act. Exhibit PJ can

be treated as nothing other than an order of authentication

as it is a certificate under Section 110(1-B) of the 1962 Act

as the aspect of disposal clearly provided for under Section

Special Leave Petition (Crl.) No. 14420 of 2024 Page 18 of 65

52-A of the Act is not alluded to. [...] authority for disposal

would require a clear direction of the court in terms of

Section 52-A of the Act. Fourthly, the High Court failed

and/or neglected to consider that physical evidence being

the property of the court and being central to the trial must

be treated and disposed of in strict compliance with the

law.”

(Emphasis supplied)

(ii) Secondly, it held that the guidelines issued by way of the Standing

Order(s) for the purposes of Section 52A cannot be blatantly flouted

and substantial compliance of the same is necessary to ensure that the

sanctity of physical evidence remains intact. The relevant observations

read as under: -

“89. Guidelines issued should not only be substantially

complied with, but also in a case involving penal

proceedings, vis-à-vis a departmental proceeding, rigours

of such guidelines may be insisted upon. Another important

factor which must be borne in mind is as to whether such

directions have been issued in terms of the provisions of the

statute or not. When directions are issued by an authority

having the legal sanction granted therefor, it becomes

obligatory on the part of the subordinate authorities to

comply therewith.

xxx xxx xxx

91. The logical corollary of these discussions is that the

guidelines such as those present in the Standing Order

cannot be blatantly flouted and substantial compliance

therewith must be insisted upon for so that sanctity of

physical evidence in such cases remains intact. [...]”

(Emphasis supplied)

(iii) Lastly, it held that any failure on the part of the authorities in

substantially complying with the procedure contemplated under the

Special Leave Petition (Crl.) No. 14420 of 2024 Page 19 of 65

Standing Order(s) would lead to drawing of an adverse inference

against the prosecution if there exists any discrepancies in the physical

evidence. It further held that while such discrepancies in physical

evidence when examined individually may not be fatal but an overall

view with respect to such discrepancies can create an overarching dent

on the credibility of the prosecution’s case. The relevant observations

read as under: -

“92. Omission on the part of the prosecution to produce

evidence in this behalf must be linked with a second

important piece of physical evidence that the bulk quantity

of heroin allegedly recovered indisputably has also not

been produced in court. The respondents contended that the

same had been destroyed. However, on what authority it

was done is not clear. Law requires that such an authority

must flow from an order passed by the Magistrate.

xxx xxx xxx

95. The High Court proceeded on the basis that non-

production of physical evidence is not fatal to the

prosecution case but the fact remains that a cumulative

view with respect to the discrepancies in physical evidence

creates an overarching inference which dents the credibility

of the prosecution. [...]

xxx xxx xxx

119. [...]

4. Finding on the discrepancies, although if individually

examined, may not be fatal to the case of the prosecution

but if cumulative view of the scenario is taken, the

prosecution's case must be held to be lacking in

credibility.”

(Emphasis supplied)

Special Leave Petition (Crl.) No. 14420 of 2024 Page 20 of 65

Accordingly, this Court while setting aside the order of conviction

passed by the High Court held that the destruction of the seized substance

in violation of Section 52A coupled with the omission on the part of the

prosecution in producing either the substance itself prior to its disposal, the

sample taken therefrom or the original seals on the container without any

explanation along with several other significant discrepancies in its

recovery and storage created serious doubt over the prosecution’s case. The

relevant observations read as under: -

“96. Last but not the least, physical evidence relating to three

samples taken from the bulk amount of heroin was also not

produced. Even if it is accepted for the sake of argument that

the bulk quantity was destroyed, the samples were essential to

be produced and proved as primary evidence for the purpose

of establishing the fact of recovery of heroin as envisaged

under Section 52-A of the Act.

97. The fate of these samples is not disputed. Although two of

them were kept in the malkhana along with the bulk, but were

not produced. No explanation has been offered in this regard.

So far as the third sample, which allegedly was sent to the

Central Forensic Science Laboratory, New Delhi is concerned,

it stands admitted that the discrepancies in the documentary

evidence available have appeared before the court, namely:

(i) While original weight of the sample was 5 gm, as

evidenced by Exts. PB, PC and the letter accompanying

Ext. PH, the weight of the sample in the laboratory was

recorded as 8.7 gm.

(ii) Initially, the colour of the sample as recorded was

brown, but as per the chemical-examination report, the

colour of powder was recorded as white.

98. We are not oblivious of the fact that a slight difference in

the weight of the sample may not be held to be so crucial as to

disregard the entire prosecution case as ordinarily an officer

in a public place would not be carrying a good scale with him.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 21 of 65

Here, however, the scenario is different. The place of seizure

was an airport. The officers carrying out the search and

seizure were from the Customs Department. They must be

having good scales with them as a marginal increase or

decrease of quantity of imported articles whether contraband

or otherwise may make a huge difference under the Customs

Act.

99. We cannot but also take notice of other discrepancies in

respect of the physical evidence which are:

(i) The bulk was kept in cotton bags as per the panchnama,

Ext. PC, while at the time of receiving them in the

malkhana, they were packed in a tin as per the

deposition of PW 5.

(ii) The seal, which ensures sanctity of the physical

evidence, was not received along with the materials

neither at the malkhana nor at CFSL, and was not

produced in court.

100. Physical evidence of a case of this nature being the

property of the court should have been treated to be

sacrosanct. Non-production thereof would warrant drawing of

a negative inference within the meaning of Section 114(g) of

the Evidence Act. While there are such a large number of

discrepancies, if a cumulative effect thereto is taken into

consideration on the basis whereof the permissive inference

would be that serious doubts are created with respect to the

prosecution's endeavour to prove the fact of possession of

contraband by the appellant.”

(Emphasis supplied)

16. In Union of India v. Jarooparam reported in (2018) 4 SCC 334, it was alleged

by the prosecution that 7.2 kg of opium had been recovered from the accused

persons therein. This Court in appeal, upheld the order of acquittal on the

following two grounds: -

(i) First, although the sealed samples were drawn from the seized

substance in presence of the executive magistrate in consonance with

Special Leave Petition (Crl.) No. 14420 of 2024 Page 22 of 65

the procedure envisaged under Section 52A of the NDPS Act and the

Standing Order(s) thereunder, yet instead of the seized substance

thereafter being destroyed / disposed in terms of the procedure laid

therein, the executive magistrate specifically returned the remaining

seized substances to the investigating officer as the trial court therein

had specifically directed to preserve the same as the other co-accused

therein was still absconding. In such circumstances, the explanation

offered by the prosecution for its failure to produce the remaining seized

substances before the trial court that the same had been destroyed was

disbelieved as doubtful by this Court, as no such destruction or disposal

had taken place in terms of Section 52A of the NDPS Act. This Court

held that any destruction or disposal of the seized substance could have

taken place only in terms of the procedure envisaged under Section 52A

of the NDPS Act and only after obtaining an order in this regard from

the competent magistrate. The relevant observations read as under: -

“9. From the above proceedings, it is crystal clear that the

remaining seized stuff was not disposed of by the Executive

Magistrate. The contraband stuff as also the samples sealed

as usual were handed over physically to the Investigating

Officer Harvinder Singh (PW 6). Also the trial court in its

judgment specifically passed instructions to preserve the

seized property and record of the case in safe custody, as

the co-accused Bhanwarlal was absconding. The trial court

more specifically instructed to put a note with red ink on the

front page of the record for its safe custody. In such a

situation, it assumes importance that there was nothing on

record to show as to what happened to the remaining bulk

quantity of contraband. The absence of proper explanation

Special Leave Petition (Crl.) No. 14420 of 2024 Page 23 of 65

from the prosecution significantly undermines its case and

reduces the evidentiary value of the statements made by the

witnesses.

10. Omission on the part of the prosecution to produce the

bulk quantity of seized opium would create a doubt in the

mind of the Court on the genuineness of the samples drawn

and marked as A, B, C, D, E, F from the allegedly seized

contraband. However, the simple argument that the same

had been destroyed, cannot be accepted as it is not clear

that on what authority it was done. Law requires that such

an authority must flow from an order passed by the

Magistrate. On a bare perusal of the record, it is apparent

that at no point of time any prayer had been made by the

prosecution for destruction of the said opium or disposal

thereof otherwise. The only course of action the prosecution

should have resorted to is for its disposal is to obtain an

order from the competent court of Magistrate as envisaged

under Section 52-A of the Act. It is explicitly made under

the Act that as and when such an application is made, the

Magistrate may, as soon as may be, allow the application.

[...]

11. There is no denial of the fact that the prosecution has

not filed any such application for disposal/destruction of

the allegedly seized bulk quantity of contraband material

nor was any such order passed by the Magistrate. Even no

notice has been given to the accused before such alleged

destruction/disposal. It is also pertinent here to mention

that the trial court appears to have believed the prosecution

story in a haste and awarded conviction to the respondent

without warranting the production of bulk quantity of

contraband. But, the High Court committed no error in

dealing with this aspect of the case and disbelieving the

prosecution story by arriving at the conclusion that at the

trial, the bulk quantities of contraband were not exhibited

to the witnesses at the time of adducing evidence.”

(Emphasis supplied)

Special Leave Petition (Crl.) No. 14420 of 2024 Page 24 of 65

(ii) Secondly, the other aspect which weighed with this Court in

disbelieving the prosecution’s case was the fact that the independent

witnesses therein had also turned hostile and did not support the alleged

recovery of the seized substances. This Court further took note of other

discrepancies in the prosecution’s case against the accused therein,

more particularly the alleged confessional statement, whereby this

Court had no hesitation in upholding the order of acquittal passed by

the High Court. The relevant observations read as under: -

“12. Turning to the other discrepancies in the prosecution

case, PWs 1 and 2 the independent witnesses portrayed by

the prosecution have turned hostile and did not support its

case. It is manifest from the record that they had simply put

their signatures on the papers at the whims of the

investigating agency. Another aspect that goes in favour of

the accused is that, the version of prosecution that the

respondent voluntarily made the confessional statement

cannot be believed in the light of admission by Narcotics

Officer (PW 5), a key prosecution witness, that the

statement of the respondent-accused under Section 67 of the

Act was recorded while he was in his custody and the time

was not mentioned on the statements. This fact further gets

corroborated with the statement of PW 6 also that the

statement of the accused was recorded after arrest and

while in custody. Thus, it cannot be said that the statement

of the accused confessing the crime was voluntarily made

under the provisions of the Act.”

(Emphasis supplied)

17. In yet another decision of this Court in Yusuf @ Asif v. State reported in 2023

SCC OnLine SC 1328 it was held that Section 52A of the NDPS Act, more

particularly, sub-sections (2), (3) and (4) prescribes the procedure and manner

Special Leave Petition (Crl.) No. 14420 of 2024 Page 25 of 65

for seizure of narcotics substances. It observed that as per the said provision,

where any contraband or narcotic substance is seized, the same has to be

forwarded to the officer empowered under Section 53 of the NDPS, who in

turn would prepare the inventory of such material along with the description

of its quality, mode of packing and identifying marks etc. Thereafter, an

application has to be made in terms of Section 52A sub-section (3) whereby

the magistrate shall certify the correctness of the inventory prepared and

permit drawing samples from such substance in his presence. It further held,

that as per Mohanlal (supra) only those samples which were drawn in

presence of the magistrate in terms of Section 52A would constitute primary

evidence for the purpose of trial. 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. The relevant observations

read as under: -

“10. [...] it would be relevant to refer to the provisions of

Section 52A (2), (3) and (4) of the NDPS Act. The aforesaid

provisions provide for the procedure and manner of seizing,

preparing the inventory of the seized material, forwarding the

seized material and getting inventory certified by the Magistrate

concerned. It is further provided that the inventory or the

photographs of the seized substance and any list of the samples in

connection thereof on being certified by the Magistrate shall be

recognized as the primary evidence in connection with the

offences alleged under the NDPS Act.

xxx xxx xxx

12. A simple reading of the aforesaid provisions, as also stated

earlier, reveals that when any contraband/narcotic substance is

seized and forwarded to the police or to the officer so mentioned

Special Leave Petition (Crl.) No. 14420 of 2024 Page 26 of 65

under Section 53, the officer so referred to in sub-section (1) shall

prepare its inventory with details and the description of the seized

substance like quality, quantity, mode of packing, numbering and

identifying marks and then make an application to any Magistrate

for the purposes of certifying its correctness and for allowing to

draw representative samples of such substances in the presence of

the Magistrate and to certify the correctness of the list of samples

so drawn.

13. Notwithstanding the defence set up from the side of the

respondent in the instant case, no evidence has been brought on

record to the effect that the procedure prescribed under sub-

sections (2), (3) and (4) of Section 52A of the NDPS Act was

followed while making the seizure and drawing sample such as

preparing the inventory and getting it certified by the Magistrate.

No evidence has also been brought on record that the samples

were drawn in the presence of the Magistrate and the list of the

samples so drawn were certified by the Magistrate. The mere fact

that the samples were drawn in the presence of a gazetted officer

is not sufficient compliance of the mandate of sub-section (2) of

Section 52A of the NDPS Act.

xxx xxx xxx

15. In Mohanlal's case, the apex court while dealing with

Section 52A of the NDPS Act clearly laid down that it is manifest

from the said provision that upon seizure of the contraband, it has

to be forwarded either to the officer-in-charge of the nearest

police station or to the officer empowered under Section 53 who

is obliged to prepare an inventory of the seized contraband and

then to make an application to the Magistrate for the purposes of

getting its correctness certified. It has been further laid down that

the samples drawn in the presence of the Magistrate and the list

thereof on being certified alone would constitute primary evidence

for the purposes of the trial.”

(Emphasis supplied)

Accordingly, this Court, while setting aside the order of conviction, held

that since i) the samples from the seized substance were neither drawn in

presence of the magistrate nor was the inventory duly certified by it; AND

Special Leave Petition (Crl.) No. 14420 of 2024 Page 27 of 65

ii) there being a serious doubt about the correctness of the samples sent for

analysis, they cannot be treated as a primary evidence, thereby vitiating the

whole trial. The relevant observations read as under: -

“8. We have heard learned Senior counsel for the appellant. The

main plank of his argument is that the entire action of seizure and

sampling is wholly illegal. It was done in violation of the

mandatory provisions of Section 52A (2) of the NDPS Act as the

procedure prescribed therein was not followed in drawing the

samples and seizing the alleged narcotic substance. Further, there

is a serious doubt about the correctness of samples sent for

analysis as to whether they were actually the samples of the seized

contraband.

xxx xxx xxx

16. In the absence of any material on record to establish that the

samples of the seized contraband were drawn in the presence of

the Magistrate and that the inventory of the seized contraband was

duly certified by the Magistrate, it is apparent that the said seized

contraband and the samples drawn therefrom would not be a valid

piece of primary evidence in the trial. Once there is no primary

evidence available, the trial as a whole stands vitiated.”

(Emphasis supplied)

18. The scope of Section 52A of the NDPS Act was again looked into by this

Court in its decision in Mangilal v. State of Madhya Pradesh reported in 2023

SCC OnLine SC 862. In the said case, the narcotic substance in the nature of

poppy straw was alleged to have been recovered from the accused persons

therein. In the trial, the prosecution was permitted to keep the seized substance

at the police station so that it could be produced later on, however, the

prosecution failed in doing so, citing that the same had been disposed /

destroyed, although no such order of disposal in terms of Section 52A was

Special Leave Petition (Crl.) No. 14420 of 2024 Page 28 of 65

produced before the court. This Court whilst setting aside the order of

conviction held as under: -

(i) First, it held that Section 52A sub-section (1) enables the Central

Government to prescribe a particular mode and procedure for disposal

of seized narcotic substance. The underlying object of the said provision

being to ensure that such substances after being seized are safely

disposed of rather than being used or recirculated for illegal means.

Sub-section (2) of Section 52A mandates the competent officer to

prepare an inventory of the substances so seized along with the requisite

details. Thereafter, an application has to be made to the appropriate

magistrate for the purpose of certifying the inventory as true, taking

adequate photographs and drawing samples in his presence, and only

thereafter may the seized substances be destroyed by way of a

certificate of destruction by the magistrate under the said provision. The

object of this provision is to have an element of supervision by the

magistrate over the disposal of seized contraband. The entire procedure

envisaged under Section 52A of the NDPS Act is meant to inject fair-

play in the investigation. It further held that Section 52A of the NDPS

Act is a mandatory rule of evidence and where there is non-compliance

of the same or where the photographs, inventory or samples lack the

certification of a magistrate, they will not constitute primary evidence.

The relevant observations read as under: -

Special Leave Petition (Crl.) No. 14420 of 2024 Page 29 of 65

“4. 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. The

idea is to create a clear mechanism for such disposal both

for the purpose of dealing with the particular case and to

safeguard the contraband being used for any illegal

purpose thereafter.

5. 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. The objective behind this provision is to have an

element of supervision by the magistrate over the disposal

of seized contraband. Such inventories, photographs and

list of samples drawn with certification by Magistrates

would constitute as a primary evidence. Therefore, when

there is non-compliance of Section 52A of the NDPS Act,

where a certification of a magistrate is lacking any

inventory, photograph or list of samples would not

constitute primary evidence.

6. 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. In due compliance of Section 52A(1) of

the NDPS Act the Ministry of Finance (Department of

Revenue) issued a Notification No. G.S.R. 339(E) dated

10.05.2007 which furnishes an exhaustive manner and

mode of disposal of drugs ending with a certificate of

destruction.”

(Emphasis supplied)

Special Leave Petition (Crl.) No. 14420 of 2024 Page 30 of 65

(ii) Secondly, it held that the provisions of the NDPS Act are both stringent

and rigorous and as such any proposed disposal or destruction of the

seized substance must take place only by way of an application as per

the mandate of Section 52A of the NDPS Act and strictly in consonance

of the guidelines issued thereunder. It further held that wherever any

issues arise as to the seizure, recovery sampling or disposal of narcotics

substances, the onus would lie on the prosecution to prove the

compliance of the procedure envisaged under the said provision.

Physical material being a factor to establish seizure and recovery, non-

production of the same would lead to an adverse inference within the

meaning of Section 114(g) of the Indian Evidence Act, 1872 (for short,

the “Evidence Act”). The relevant observations read as under: -

“7. To be noted, the aforesaid notification was in existence

at the time of the commission of the offence alleged in the

case on hand, stood repealed with effect from 23.12.2022

vide Notification No. G.S.R.899(E). In any case a

notification issued in derogation of the powers conferred

under sub-section (1) of Section 52A of the NDPS Act can

never contradict the main provision, particularly sub-

Section (2). However, any guideline issued by way of a

notification in consonance with Section 52A of the NDPS

Act has to be followed mandatorily.

8. 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

Special Leave Petition (Crl.) No. 14420 of 2024 Page 31 of 65

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). The

procedure contemplated through the notification has an

element of fair play such as the deposit of the seal,

numbering the containers in seriatim wise and keeping

them in lots preceded by compliance of the procedure for

drawing samples. [...]”

(Emphasis supplied)

(iii) Lastly, it held that the order of conviction was unsustainable as there

was a serious doubt with respect to the seizure. No explanation had been

offered either for the non-production of the seized material or the

manner in which they were disposed-off. The executive magistrate

therein denied passing any order in terms of Section 52A of the NDPS

Act. Two witnesses to the seizure turned hostile while the third witness

was not examined. Moreover, one of the police officers himself had

deposed as to the existence of the same seized material even before the

occurrence. Thus, this Court taking a cumulative view of the material

irregularities held that the same rendered the very case of the

prosecution doubtful, and thus, acquitted the accused without

hesitation. The relevant observations read as under: -

“11. The memorandum of informer's information dated

20.05.2010 exhibited under P-3 indicates signature of two

witnesses, P.W.2 and P.W.6, both of them turned hostile.

Though they admitted their signature it was clearly deposed

that they were not present at the scene of occurrence. In our

Special Leave Petition (Crl.) No. 14420 of 2024 Page 32 of 65

considered view the Court below have wrongly construed

the evidence, in fact these two witnesses were party to most

of the exhibits running upto 13. Search warrant under

Exhibit P-4 acknowledged the fact that procedure

contemplated under the NDPS Act has not been followed.

As noted, one of the witnesses to the seizure memo has not

been examined while the other turned hostile. Both the

witnesses to the arrest memo have not been examined. [...]

12. We further find that memorandum under Section 27 of

the Act, as witnessed by the two witnesses, P.W.3 and P.W.4

would be of no value in evidence as there is no discovery of

new fact involved. Be that as it may, these witnesses also

turned hostile. The record would also indicate that an order

was passed by the trial Judge permitting the prosecution to

keep the seized materials within the police station, to be

produced at a later point of time. This itself is a sufficient

indication that the mandate of Section 52A has not been

followed. There is no explanation either for non-production

of the seized materials or the manner in which they are

disposed of. No order passed by the Magistrate allowing the

application, if any, filed under Section 52A of the NDPS

Act. P.W.10, Executive Magistrate has deposed to the fact

that he did not pass any order for the disposal of the

narcotics substance allegedly seized. Similarly, P.W.12

who is In-charge of Malkhana also did not remember any

such order having been passed. [...]

13. There is a serious doubt with respect to the seizure.

P.W.5 who was a police officer himself had deposed on the

existence of the very same seized materials even before the

occurrence. This testimony which destroys the very basis of

the prosecution case has not even been challenged.

14. Both the Courts have mechanically placed reliance on

the FSL Report while taking the statement of P.W.11 as the

gospel truth. The views expressed by him can at best be

taken as opinion at least on certain aspects. There are too

many material irregularities which create a serious doubt

on the very case of the prosecution. On a proper analysis

we have no hesitation in holding that the impugned

judgments are liable to be set aside and the appellant is to

be acquitted by rendering the benefit of doubt.”

Special Leave Petition (Crl.) No. 14420 of 2024 Page 33 of 65

19. In Simarnjit Singh v. State of Punjab reported in 2023 SCC OnLine SC 906

this Court relying upon Mohanlal (supra) held that drawing of samples at the

time of seizure in the absence of the magistrate is not in conformity with the

mandate of Section 52A sub-section (2) of the NDPS Act and creates a serious

doubt about the prosecution’s case that the substance recovered was a

contraband. The relevant observations read as under: -

“9. Hence, the act of PW-7 of drawing samples from all the

packets at the time seizure is not in conformity with the law laid

down by this Court in the case of Mohanlal. This creates a serious

doubt about the prosecution's case that substance recovered was

a contraband.”

20. In Mohammed Khalid & Anr. v. State of Telangana reported in (2024) 5

SCC 393, the case of the prosecution therein was that 80kg of ganja had been

allegedly recovered from the accused persons therein. Although, three

samples were allegedly drawn on the spot from the seized substance yet the

same was neither done in the presence of a magistrate nor were the samples

certified by one, as required under Section 52A of the NDPS Act. This Court

set-aside the order of conviction on the ground that there were glaring

loopholes in the prosecution’s case that made it doubtful as to whether the

samples drawn remained untampered or in safe custody from the time of

seizure till it reached the FSL. It observed that the FSL report did not disclose

about the seals on the sample and although it was stated that two samples were

sent to FSL, yet in fact a total of three samples actually reached the lab.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 34 of 65

Similarly, the remaining substance that were seized also had no seal. During

the safekeeping of the seized material, the containers for storing the same were

changed without any explanation. In view of the aforesaid, this Court held that

the non-compliance of the procedure under Section 52A of the NDPS Act for

drawing the samples along with the doubtfulness over the safe custody of the

sample packets rendered the FSL report as nothing but a waste paper which

cannot be read in evidence. The relevant observations read as under: -

“24. The FSL report (Ext. P-11) does not disclose about the panch

chits and seals and signature of the accused on samples. The

property deposited in the Court (muddamal) was not having any

official seals. The witness also admitted that he did not take any

permission from the Court for changing the original three packets

of muddamal ganja to seven new bags for safekeeping.

25. These glaring loopholes in the prosecution case give rise to an

inescapable inference that the prosecution has miserably failed to

prove the required link evidence to satisfy the Court regarding the

safe custody of the sample packets from the time of the seizure till

the same reached the FSL. Rather, the very possibility of three

samples being sent to the FSL is negated by the fact that the

seizure officer handed over one of the three collected samples to

the accused. Thus, there remained only two samples whereas three

samples reached the FSL. This discrepancy completely shatters

the prosecution case.

26. Admittedly, no proceedings under Section 52-A of the NDPS

Act were undertaken by the investigating officer PW 5 for

preparing an inventory and obtaining samples in the presence of

the jurisdictional Magistrate. In this view of the matter, the FSL

report (Ext. P-11) is nothing but a waste paper and cannot be read

in evidence. The accused A-3 and A-4 were not arrested at the

spot.”

(Emphasis supplied)

Special Leave Petition (Crl.) No. 14420 of 2024 Page 35 of 65

21. In Narcotics Control Bureau v. Kashif reported in 2024 SCC OnLine SC

3848 the accused therein was enlarged on bail by the High Court on the ground

that there had been a delay in following the procedure envisaged under Section

52A of the NDPS Act, more particularly in drawing the samples from the

seized Tramadol tablets. This Court in appeal whilst setting aside the High

Court’s order releasing the accused therein on bail, held as under: -

(i) First, that the object behind insertion of Section 52A of the NDPS Act

was to provide for a mechanism for the early disposal of the seized

narcotic drugs and psychotropic substances, having regard to the

hazardous nature, vulnerability to theft, substitution, constraints of

proper storage space and other relevant considerations. The relevant

observations read as under: -

“20. Now, so far as Section 52A is concerned, the

language employed therein itself is very clear that the

said provision was inserted for an early disposal of the

seized narcotic drugs and psychotropic substances,

having regard to the hazardous nature, vulnerability to

theft, substitution, constraints of proper storage space

and other relevant considerations. Apart from the plain

language used in the said section, its Heading also

makes it clear that the said provision was inserted for

the Disposal of the seized narcotic drugs and

psychotropic substances. As per the well settled rule of

interpretation, the Section Heading or Marginal note

can be relied upon to clear any doubt or ambiguity in

the interpretation of any provision and to discern the

legislative intent. The Section Heading constitutes an

important part of the Act itself, and may be read not only

as explaining the provisions of the section, but it also

affords a better key to the constructions of the provisions

Special Leave Petition (Crl.) No. 14420 of 2024 Page 36 of 65

of the section which follows than might be afforded by a

mere preamble.”

21. The insertion of Section 52A with the Heading

“Disposal of seized narcotic drugs and psychotropic

substances” along with the insertion of the words “to

provide for the forfeiture of property derived from or

used in, illicit traffic in narcotics drugs and psychotropic

substances, to implement the provisions of International

Conventions on Narcotics Drugs and Psychotropic

Substances”, in the long title of the NDPS Act, by Act 2

of 1989 w.e.f. 29.05.1989, leaves no room of doubt that

the said provision of Section 52A was inserted for an

early disposal of the seized narcotic drugs and

psychotropic substances, as one of the measures

required to be taken to implement the provisions of the

International Conventions on Narcotics Drugs and

Psychotropic Substances. The Heading of Section 52A

i.e. Disposal of seized narcotic drugs and psychotropic

substances delineates the object and reason of the

insertion of said provision and such Heading cannot be

underscored. From the bare reading of Section 52A also

it is very much discernible that sub-section (1) thereof

empowers the Central Government, having regard to the

hazardous nature, vulnerability to theft, substitution,

constraint of proper storage space or any other relevant

consideration, to specify narcotic drugs, psychotropic

substances for the purpose of their disposal as soon as

may be after their seizure, by such officer and in such

manner as the Central Government may determine after

following the procedure specified in sub-section (2).

22. Sub-section (2) of Section 52A prescribes the

procedure to be followed by the authorized officers for

the disposal of such contraband narcotics drugs and

psychotropic substances at the pre-trial stage. As per the

procedure laid down in the said sub-section, where any

narcotics drug, psychotropic substance or controlled

substances or conveyances has been seized and

forwarded to the officer-in-charge of the nearest police

station or to the officer empowered under section 53, the

concerned officer authorized as per sub-section (1) has

to prepare an inventory of such drugs or substances in

Special Leave Petition (Crl.) No. 14420 of 2024 Page 37 of 65

the manner as stated in the said provision, and then

make an application to the Magistrate for the purpose of

(a) certifying the correctness of the inventory so

prepared; or (b) taking, in presence of such Magistrate,

photographs of such drugs, substances or conveyances

and certifying such photographs as true; or (c) allowing

to draw representative samples of such drugs or

substances, in the presence of such Magistrate and

certifying the correctness of any list of samples so

drawn. Sub-section (3) requires that an application

made under sub-section (2), should be allowed by the

Magistrate as soon as may be, and sub-section (4)

thereof states that such inventory, photographs and the

list of samples so drawn, if any, under sub-section (2)

and certified by the Magistrate shall be treated as the

primary evidence in respect of the offence under the

Act.”

(Emphasis supplied)

(ii) Secondly, Section 52A sub-section (2) prescribes the procedure for the

purpose contemplated under sub-section (1) i.e., for the disposal of the

seized contraband. Any breach, deviation or delay in the said procedure

would at most be termed as an irregularity and not an illegality which

would nullify or vitiate the entire case of the prosecution. Mere non-

compliance of the procedure envisaged under Section 52A of the NDPS

Act will not entitle the accused to acquittal or bail, if there is sufficient

material to establish the search and seizure of the contraband in due

compliance of the mandatory provisions of the Act. The relevant

observations read as under: -

“23. As demonstrated above, sub-section (2) of Section

52A specifies the procedure as contemplated in sub-

section (1) thereof, for the disposal of the seized

Special Leave Petition (Crl.) No. 14420 of 2024 Page 38 of 65

contraband or controlled narcotic drugs and

psychotropic substances. Any deviation or delay in

making the application under subsection (2) by the

concerned officer to the Magistrate or the delay on the

part of the Magistrate in deciding such application

could at the most be termed as an irregularity and not

an illegality which would nullify or vitiate the entire case

of the prosecution. The jurisprudence as developed by

the courts so far, makes clear distinction between an

“irregular proceeding” and an “illegal proceeding.”

While an irregularity can be remedied, an illegality

cannot be. An irregularity may be overlooked or

corrected without affecting the outcome, whereas an

illegality may lead to nullification of the proceedings.

Any breach of procedure of rule or regulation which

may indicate a lapse in procedure, may be considered as

an irregularity, and would not affect the outcome of

legal proceedings but it can not be termed as an

illegality leading to the nullification of the proceedings.

24. Section 52A was inserted only for the purpose of

early disposal of the seized contraband drugs and

substances, considering the hazardous nature,

vulnerability to theft, constraint of proper storage space

etc. There cannot be any two opinions on the issue about

the early disposal of the contraband drugs and

substances, more particularly when it was inserted to

implement the provisions of International Convention on

the Narcotics Drugs and Psychotropic Substances,

however delayed compliance or non-compliance of the

said provision by the concerned officer authorised to

make application to the Magistrate could never be

treated as an illegality which would entitle the accused

to be released on bail or claim acquittal in the trial,

when sufficient material is collected by the Investigating

Officer to establish that the Search and Seizure of the

contraband substance was made in due compliance of

the mandatory provisions of the Act.

25. It is significant to note that as per Section 54 of the

said Act, the courts are entitled to presume, unless and

until the contrary is proved that the accused had

committed an offence under the Act in respect of any

Special Leave Petition (Crl.) No. 14420 of 2024 Page 39 of 65

narcotic drug or psychotropic substance etc. for the

possession of which he failed to account

satisfactorily. Therefore, unless such statutory

presumption is rebutted by the accused during the

course of trial, there would be a prima

facie presumption that the accused had committed the

offence under the Act, if he is found to have possessed

the contraband drug and substance, and if he fails to

account satisfactorily, as contemplated in the said

provision of Section 54. An anomalous situation would

arise if a non-compliance or delayed compliance of

Section 52A is held to be vitiating the trial or entitling

the accused to be released on bail, though he is found to

have possessed the contraband substance, and even if

the statutory presumption is not rebutted by him. Such

could not be the intention of the legislature.

xxx xxx xxx

36. At this stage, we must deal with the recent judgments

in case of Simarnjit v. State of Punjab, (Criminal

Appeal No. 1443/2023), in case of Yusuf @

Asif v. State (2023 SCC OnLine SC 1328), and in case

of Mohammed Khalid v. State of Telangana ((2024) 5

SCC 393) in which the convictions have been set aside

by this Court on finding non-compliance of Section 52A

and relying upon the observations made in case

of Mohanlal. Apart from the fact that the said cases have

been decided on the facts of each case, none of the

judgments has proposed to lay down any law either with

regard to Section 52A or on the issue of admissibility of

any other evidence collected during the course of trial

under the NDPS Act. Therefore, we have considered the

legislative history of Section 52A and other Statutory

Standing Orders as also the judicial pronouncements,

which clearly lead to an inevitable conclusion that

delayed compliance or non-compliance of Section 52A

neither vitiates the trial affecting conviction nor can be

a sole ground to seek bail. In our opinion, the decisions

of Constitution Benches in case of Pooran

Mal and Baldev Singh must take precedence over any

observations made in the judgments made by the

benches of lesser strength, which are made without

Special Leave Petition (Crl.) No. 14420 of 2024 Page 40 of 65

considering the scheme, purport and object of the Act

and also without considering the binding precedents.

xxx xxx xxx

39. The upshot of the above discussion may be

summarized as under:

(i) The provisions of NDPS Act are required to be

interpreted keeping in mind the scheme, object and

purpose of the Act; as also the impact on the society as

a whole. It has to be interpreted literally and not

liberally, which may ultimately frustrate the object,

purpose and Preamble of the Act.

(iii) The purpose of insertion of Section 52A laying down

the procedure for disposal of seized Narcotic Drugs and

Psychotropic Substances, was to ensure the early

disposal of the seized contraband drugs and substances.

It was inserted in 1989 as one of the measures to

implement and to give effect to the International

Conventions on the Narcotic drugs and psychotropic

substances.

(iv) Sub-section (2) of Section 52A lays down the

procedure as contemplated in sub-section (1) thereof,

and any lapse or delayed compliance thereof would be

merely a procedural irregularity which would neither

entitle the accused to be released on bail nor would

vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to

have been committed in conducting the search and

seizure during the course of investigation or thereafter,

would by itself not make the entire evidence collected

during the course of investigation, inadmissible. The

Court would have to consider all the circumstances and

find out whether any serious prejudice has been caused

to the accused.

(vi) Any lapse or delay in compliance of Section 52A by

itself would neither vitiate the trial nor would entitle the

accused to be released on bail. The Court will have to

consider other circumstances and the other primary

evidence collected during the course of investigation, as

Special Leave Petition (Crl.) No. 14420 of 2024 Page 41 of 65

also the statutory presumption permissible under

Section 54 of the NDPS Act.”

(Emphasis supplied)

22. From the above exposition of law, it is clear that the underlying object behind

Section 52A of the NDPS Act and the Standing Order(s) / Rules thereunder is

only to provide for a mechanism and procedure for the safe and early disposal

of narcotics substances and seized contraband to prevent such substances from

endangering lives due to prolonged storage, ceasing to be of any evidentiary

value due to degradation or spoilage, or from falling into wrong hands or being

recirculated into the market due to theft etc.

23. Although it is true that Chapter V of the NDPS Act more particularly,

Section(s) 42 to 57 form a unique scheme of provisions that prescribe several

procedural safeguards and conditions that have to be mandatorily adhered to,

right from the process of conducting search till the seizure and recovery of the

contraband, its safe-keep and handling, yet it does not mean that a mere delay

or non-compliance of the same, would result in the trial being vitiated, or the

entire case of prosecution crumbling.

24. What is discernible from the various decisions referred to by us, is that mere

non-compliance of the procedure under Section 52A or the Standing Order(s)

/ Rules thereunder will not by itself render the trial vitiated or into an automatic

Special Leave Petition (Crl.) No. 14420 of 2024 Page 42 of 65

acquittal. In all instances where this Court set-aside the order of conviction, it

did so not solely for the reason that there was a violation of Section 52A but

because of and on the strength of the other discrepancies or shortcomings in

the prosecution’s case that rendered it doubtful. In Jarooparam (supra) the

order of acquittal had been upheld as the independent witnesses had also

turned hostile and not supported the case of the prosecution. Similarly, in

Mangilal (supra) aside from the non-compliance of Section 52A, the order of

conviction was held unsustainable as some of the witnesses to the seizure

either turned hostile or were not examined at all and due to discrepancies in

the very case of the prosecution. In Mohammed Khalid (supra) also, the

conviction was set-aside as the FSL report was found to be very doubtful and

in complete contradiction of the seizure that had taken place. Thus, this Court

whilst setting aside the order of conviction has consistently looked for

something more than just a mere non-compliance of the procedure under

Section 52A that renders the case of the prosecution doubtful.

25. In Noor Aga (supra) the order of conviction had been set-aside not just on the

ground of violation of Section 52A but due to several other discrepancies in

the physical evidence as to the colour and weight, and due to the lack of any

independent witnesses. In fact, this Court despite being conscious of the

procedural deficiencies in the said case in terms of Section 52A observed that

the matter may have been entirely different if there were no other

Special Leave Petition (Crl.) No. 14420 of 2024 Page 43 of 65

discrepancies or if the other material on record were found to be convincing

or supported by independent witnesses. The relevant observations read as

under: -

“107. The seal was not even deposited in the malkhana. As no

explanation whatsoever has been offered in this behalf, it is

difficult to hold that sanctity of the recovery was ensured. Even

the malkhana register was not produced.

xxx xxx xxx

108. There exist discrepancies also in regard to the time of

recovery. The recovery memo, Exhibit PB, shows that the time

of seizure was 11.20 p.m. PW 1 Kulwant Singh and PW 2 K.K.

Gupta, however, stated that the time of seizure was 8.30 p.m.

The appellant's defence was that some carton left by some

passenger was passed upon him, being a crew member in this

regard assumes importance (see Jitendra para 6). The

panchnama was said to have been drawn at 10 p.m. as per PW

1 whereas PW 2 stated that panchnama was drawn at 8.30 p.m.

Exhibit PA, containing the purported option to conduct

personal search under Section 50 of the Act, only mentioned

the time when the flight landed at the airport.

xxx xxx xxx

111. In a case of this nature, where there are a large number

of discrepancies, the appellant has been gravely prejudiced by

their non-examination. It is true that what matters is the quality

of the evidence and not the quantity thereof but in a case of this

nature where procedural safeguards were required to be

strictly complied with, it is for the prosecution to explain why

the material witnesses had not been examined. The matter

might have been different if the evidence of the investigating

officer who recovered the material objects was found to be

convincing. The statement of the investigating officer is wholly

unsubstantiated. There is nothing on record to show that the

said witnesses had turned hostile. Examination of the

independent witnesses was all the more necessary inasmuch as

there exist a large number of discrepancies in the statement of

official witnesses in regard to search and seizure of which we

may now take note.”

(Emphasis supplied)

Special Leave Petition (Crl.) No. 14420 of 2024 Page 44 of 65

26. Non-compliance or delayed compliance with the procedure prescribed under

Section 52A of the NDPS Act or the Rules / Standing Order(s) thereunder may

lead the court to draw 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. Such delay or deviation from Section 52A of the NDPS Act or the

Standing Order(s) / Rules thereunder will not, by itself, be fatal to the case of

the prosecution, unless there are discrepancies in the physical evidence which

may not have been there had such compliance been done. What is required is

that the courts take a holistic and cumulative view of the discrepancies that

exist in the physical evidence adduced by the prosecution and correlate or link

the same with any procedural lapses or deviations. Thus, whenever, there is

any deviation or non-compliance of the procedure envisaged under Section

52A, the courts are required to appreciate the same keeping in mind the

discrepancies that exist in the prosecution’s case. In such instances of

procedural error or deficiency, the courts ought to be extra-careful and must

not overlook or brush aside the discrepancies lightly and rather should

scrutinize the material on record even more stringently to satisfy itself of the

aspects of possession, seizure or recovery of such material in the first place.

27. In such circumstances, particularly where there has been lapse on the part of

the police in either following the procedure laid down in Section 52A of the

Special Leave Petition (Crl.) No. 14420 of 2024 Page 45 of 65

NDPS Act or the prosecution in adequately proving compliance of the same,

it would not be appropriate for the courts 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. Similarly, irrespective of any failure to follow the

procedure laid under Section 52A of the NDPS Act, if the other material on

record adduced by the prosecution inspires confidence and satisfies the court

regarding both the recovery and possession of the contraband from the

accused, then even in such cases, the courts can without hesitation proceed for

conviction notwithstanding any procedural defect in terms of Section 52A of

the NDPS Act.

28. In Khet Singh v. Union of India reported in (2002) 4 SCC 380 this Court held

that the Standing Order(s) issued by the NCB and the procedure envisaged

therein is only intended to guide the officers and to see that a fair procedure is

adopted by the officer-in-charge of the investigation. It further observed that

there may, however, be circumstances in which it would not be possible to

follow these guidelines to the letter, particularly in cases of chance recovery

or lack of proper facility being available at the spot. In such circumstances of

procedural illegality, the evidence collected thereby will not become

inadmissible and rather the courts would only be required to consider all the

Special Leave Petition (Crl.) No. 14420 of 2024 Page 46 of 65

circumstances and find out whether any serious prejudice had been caused to

the accused or not. Further it directed, that in such cases of procedural lapses

or delays, the officer would be duty bound to indicate and explain the reason

behind such delay or deficiency whilst preparing the memo. The relevant

observations read as under: -

“5. It is true that the search and seizure of contraband article

is a serious aspect in the matter of investigation related to

offences under the NDPS Act. The NDPS Act and the Rules

framed thereunder have laid down a detailed procedure and

guidelines as to the manner in which search and seizure are to

be effected. If there is any violation of these guidelines, the

courts would take a serious view and the benefit would be

extended to the accused. The offences under the NDPS Act are

grave in nature and minimum punishment prescribed under the

statute is incarceration for a long period. As the possession of

any narcotic drug or psychotropic substance by itself is made

punishable under the Act, the seizure of the article from the

appellant is of vital importance.

xxx xxx xxx

10. The instructions issued by the Narcotics Control Bureau,

New Delhi are to be followed by the officer-in-charge of the

investigation of the crimes coming within the purview of the

NDPS Act, even though these instructions do not have the force

of law. They are intended to guide the officers and to see that

a fair procedure is adopted by the officer-in-charge of the

investigation. It is true that when a contraband article is seized

during investigation or search, a seizure mahazar should be

prepared at the spot in accordance with law. There may,

however, be circumstances in which it would not have been

possible for the officer to prepare the mahazar at the spot, as

it may be a chance recovery and the officer may not have the

facility to prepare a seizure mahazar at the spot itself. If the

seizure is effected at the place where there are no witnesses

and there is no facility for weighing the contraband article or

other requisite facilities are lacking, the officer can prepare

the seizure mahazar at a later stage as and when the facilities

are available, provided there are justifiable and reasonable

Special Leave Petition (Crl.) No. 14420 of 2024 Page 47 of 65

grounds to do so. In that event, where the seizure mahazar is

prepared at a later stage, the officer should indicate his

reasons as to why he had not prepared the mahazar at the spot

of recovery. If there is any inordinate delay in preparing the

seizure mahazar, that may give an opportunity to tamper with

the contraband article allegedly seized from the accused.

There may also be allegations that the article seized was by

itself substituted and some other items were planted to falsely

implicate the accused. To avoid these suspicious

circumstances and to have a fair procedure in respect of search

and seizure, it is always desirable to prepare the seizure

mahazar at the spot itself from where the contraband articles

were taken into custody.

xxx xxx xxx

16. Law on the point is very clear that even if there is any sort

of procedural illegality in conducting the search and seizure,

the evidence collected thereby will not become inadmissible

and the court would consider all the circumstances and find

out whether any serious prejudice had been caused to the

accused. If the search and seizure was in complete defiance of

the law and procedure and there was any possibility of the

evidence collected likely to have been tampered with or

interpolated during the course of such search or seizure, then,

it could be said that the evidence is not liable to be admissible

in evidence.”

(Emphasis supplied)

29. A similar view as above was reiterated in the decision of State of Punjab v.

Makhan Chand reported in (2004) 3 SCC 453 wherein this Court after

examining the purport of Section 52A of the NDPS Act and the Standing

Order(s) issued thereunder, held that the procedure prescribed under the said

order is merely intended to guide the officers to see that a fair procedure is

adopted by the officer in charge of the investigation and they were not

inexorable rules. The relevant observations read as under: -

Special Leave Petition (Crl.) No. 14420 of 2024 Page 48 of 65

“10. This contention too has no substance for two reasons.

Firstly, Section 52-A, as the marginal note indicates, deals with

“disposal of seized narcotic drugs and psychotropic

substances”. Under sub-section (1), the Central Government,

by a notification in the Official Gazette, is empowered to

specify certain narcotic drugs or psychotropic substances,

having regard to the hazardous nature, vulnerability to theft,

substitution, constraints of proper storage space and such

other relevant considerations, so that even if they are material

objects seized in a criminal case, they could be disposed of

after following the procedure prescribed in sub-sections (2)

and (3). If the procedure prescribed in sub-sections (2) and (3)

of Section 52-A is complied with and upon an application, the

Magistrate issues the certificate contemplated by sub-section

(2), then sub-section (4) provides that, notwithstanding

anything to the contrary contained in the Indian Evidence Act,

1872 or the Code of Criminal Procedure, 1973, such inventory,

photographs of narcotic drugs or substances and any list of

samples drawn under sub-section (2) of Section 52-A as

certified by the Magistrate, would be treated as primary

evidence in respect of the offence. Therefore, Section 52-A(1)

does not empower the Central Government to lay down the

procedure for search of an accused, but only deals with the

disposal of seized narcotic drugs and psychotropic substances.

11. Secondly, when the very same Standing Orders came up for

consideration in Khet Singh v. Union of India this Court took

the view that they are merely intended to guide the officers to

see that a fair procedure is adopted by the officer in charge of

the investigation. It was also held that they were not inexorable

rules as there could be circumstances in which it may not be

possible for the seizing officer to prepare the mahazar at the

spot, if it is a chance recovery, where the officer may not have

the facility to prepare the seizure mahazar at the spot itself.

Hence, we do not find any substance in this contention.”

(Emphasis supplied)

30. Thus, from above it is clear that 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 ensure that a fair procedure is adopted by the officer-

Special Leave Petition (Crl.) No. 14420 of 2024 Page 49 of 65

in-charge of the investigation, and as such what is required is substantial

compliance of the procedure laid therein. We say so because, due to varying

circumstances, there may be situations wherein it may not always be possible

to forward the seized contraband immediately for the purpose of sampling.

This could be due to various factors, such as the sheer volume of the

contraband, the peculiar nature of the place of seizure, or owing to the

volatility of the substance so seized that may warrant slow and safe handling.

There could be situations where such contraband after being sampled cannot

be preserved due to its hazardous nature and must be destroyed forthwith or

vice-verse where the nature of the case demands that they are preserved and

remain untouched. Due to such multitude of possibilities or situations, neither

can the police be realistically expected to rigidly adhere to the procedure laid

down in Section 52A or its allied Rules / Orders, nor can a strait-jacket formula

be applied for insisting compliance of each procedure in a specified timeline

to the letter, due to varying situations or requirements of each case. Thus, what

is actually required is only a substantial compliance of the procedure laid

down under Section 52A of the NDPS Act and the Standing Order(s) / Rules

framed thereunder, and any discrepancy or deviation in the same may lead the

court to draw an adverse inference against the police as per the facts of each

and every case. When it comes to the outcome of trial, it is only after taking a

cumulative view of the entire material on record including such discrepancies,

that the court should proceed either to convict or acquit the accused. Non-

Special Leave Petition (Crl.) No. 14420 of 2024 Page 50 of 65

compliance of the procedure envisaged under Section 52A may be fatal only

in cases where such non-compliance goes to the heart or root of the matter. In

other words, the discrepancy should be such that it renders the entire case of

the prosecution doubtful, such as instances where there are significant

discrepancies in the colour or description of the substance seized from that

indicated in the FSL report as was the case in Noor Aga (supra), or where the

contraband was mixed in and stored with some other commodity like

vegetables and there is no credible indication of whether the narcotic

substance was separated and then weighed as required under the Standing

Order(s) or Rules, thereby raising doubts over the actual quantity seized as

was the case in Mohammed Khalid (supra), or where the recovery itself is

suspicious and uncorroborated by any witnesses such as in Mangilal (supra),

or where the bulk material seized in contravention of Section 52A was not

produced before the court despite being directed to be preserved etc. These

illustrations are only for the purposes of brining clarity on what may constitute

as a significant discrepancy in a given case, and by no means is either

exhaustive in nature or supposed to be applied mechanically in any proceeding

under the NDPS Act. It is for the courts to see what constitutes as a significant

discrepancy, keeping in mind the peculiar facts, the materials on record and

the evidence adduced. At the same time, we may caution the courts, not to be

hyper-technical whilst looking into the discrepancies that may exist, like slight

differences in the weight, colour or numbering of the sample etc. The Court

Special Leave Petition (Crl.) No. 14420 of 2024 Page 51 of 65

may not discard the entire prosecution case looking into such discrepancies as

more often than not an ordinarily an officer in a public place would not be

carrying a good scale with him, as held in Noor Aga (supra). It is only those

discrepancies which particularly have the propensity to create a doubt or false

impression of illegal possession or recovery, or to overstate or inflate the

potency, quality or weight of the substance seized that may be pertinent and

not mere clerical mistakes, provided they are explained properly. Whether, a

particular discrepancy is critical to the prosecution’s case would depend on

the facts of each case, the nature of substance seized, the quality of evidence

on record etc.

31. At the same time, one must be mindful of the fact that Section 52A of the

NDPS Act is only a procedural provision dealing with seizure, inventory, and

disposal of narcotic drugs and psychotropic substances and does not

exhaustively lay down the evidentiary rules for proving seizure or recovery,

nor does it dictate the manner in which evidence is to be led during trial. It in

no manner prescribes how the seizure or recovery of narcotic substances is to

be proved or what can be led as evidence to prove the same. Rather, it is the

general principles of evidence, as enshrined in the Evidence Act that governs

how seizure or recovery may be proved.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 52 of 65

32. Thus, the prosecution sans the compliance of the procedure under Section 52A

of the NDPS Act will not render itself helpless but can still prove the seizure

or recovery of contraband by leading cogent evidence in this regard such as

by examining the seizing officer, producing independent witnesses to the

recovery, or presenting the original quantity of seized substances before the

court. The evidentiary value of these materials is ultimately to be assessed and

looked into by the court. The court should consider whether the evidence

inspires confidence. The court should look into the totality of circumstances

and the credibility of the witnesses, being mindful to be more cautious in their

scrutiny where such procedure has been flouted. The cumulative effect of all

evidence must be considered to determine whether the prosecution has

successfully established the case beyond reasonable doubt as held in Noor

Aga (supra).

33. Even in cases where there is non-compliance with the procedural requirements

of Section 52A, it does not necessarily vitiate the trial or warrant an automatic

acquittal. Courts have consistently held that procedural lapses must be viewed

in the context of the overall evidence. If the prosecution can otherwise

establish the chain of custody, corroborate the seizure with credible testimony,

and prove its case beyond reasonable doubt, the mere non-compliance with

Section 52A may not be fatal. The emphasis must be on substantive justice

Special Leave Petition (Crl.) No. 14420 of 2024 Page 53 of 65

rather than procedural technicalities, and keeping in mind that the salutary

objective of the NDPS Act is to curb the menace of drug trafficking.

34. At this stage we may clarify the scope and purport of Section 52A sub-section

(4) with a view to obviate any confusion. Sub-section (4) of Section 52A

provides that every court trying an offence under the NDPS Act, shall treat the

inventory, photographs and samples of the seized substance that have been

certified by the magistrate as primary evidence.

35. What this provision entails is that, where the seized substance after being

forwarded to the officer empowered is inventoried, photographed and

thereafter samples are drawn therefrom as per the procedure prescribed under

the said provision and the Rules / Standing Order(s), and the same is also duly

certified by a magistrate, then such certified inventory, photographs and

samples has to mandatorily be treated as primary evidence. The use of the

word “shall” indicates that it would be mandatory for the court to treat the

same as primary evidence if twin conditions are fulfilled being (i) that the

inventory, photographs and samples drawn are certified by the magistrate

AND (ii) that the court is satisfied that the entire process was done in

consonance and substantial compliance with the procedure prescribed under

the provision and its Rules / Standing Order(s).

Special Leave Petition (Crl.) No. 14420 of 2024 Page 54 of 65

36. Even where the bulk quantity of the seized material is not produced before the

court or happens to be destroyed or disposed in contravention of Section 52A

of the NDPS Act, the same would be immaterial and have no bearing on the

evidentiary value of any inventory, photographs or samples of such substance

that is duly certified by a magistrate and prepared in terms of the said

provision. We say so, because sub-section (4) of Section 52A was inserted to

mitigate the issue of degradation, pilferage or theft of seized substances

affecting the very trial. It was often seen that, due to prolonged trials, the

substance that was seized would deteriorate in quality or completely disappear

even before the trial could proceed, by the time the trial would commence, the

unavailability of such material would result in a crucial piece of evidence to

establish possession becoming missing and the outcome of the trial becoming

a foregone conclusion. The legislature being alive to this fact, thought fit to

introduce an element of preservation of such evidence of possession of

contraband in the form of inventory, photographs and samples and imbued

certain procedural safeguards and supervision through the requirement of

certification by a magistrate, which is now contained in sub-section (4) of

Section 52A. In other words, any inventory, photographs or samples of seized

substance that was prepared in substantial compliance of the procedure under

Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder

would have to mandatorily be treated as primary evidence, irrespective of the

Special Leave Petition (Crl.) No. 14420 of 2024 Page 55 of 65

fact that the bulk quantity has not been produced and allegedly destroyed

without any lawful order.

37. Section 52A sub-section (4) should not be conflated as a rule of evidence in

the traditional sense, i.e., it should not be construed to have laid down that

only the certified inventory, photographs and samples of seized substance will

be primary evidence and nothing else. The rule of ‘Primary Evidence’ or ‘Best

Evidence’ is now well settled. In order to prove a fact, only the best evidence

to establish such fact must be led and adduced which often happens to be the

original evidence itself. The primary evidence for proving possession will

always be the seized substance itself. However, in order to mitigate the

challenges in preservation of such substance till the duration of trial, due to

pilferage, theft, degradation or any other related circumstances, the legislature

consciously incorporated sub-section (4) in Section 52A to bring even the

inventory, photographs or samples of such seized substance on the same

pedestal as the original substance, and by a deeming fiction has provided that

the same be treated as primary evidence, provided they have been certified by

a magistrate in substantial compliance of the procedure prescribed. This,

however, does not mean that where Section 52A has not been complied, the

prosecution would be helpless, and cannot prove the factum of possession by

adducing other primary evidence in this regard such as by either producing the

bulk quantity itself, or examining the witnesses to the recovery etc. What

Special Leave Petition (Crl.) No. 14420 of 2024 Page 56 of 65

Section 52A sub-section (4) of the NDPS Act does is it creates a new form of

primary evidence by way of a deeming fiction which would be on par with the

original seized substance as long as the same was done in substantial

compliance of the procedure prescribed thereunder, however, the said

provision by no means renders the other evidence in original to be excluded

as primary evidence, it neither confines nor restricts the manner of proving

possession to only one mode i.e., through such certified inventory,

photographs or samples such that all other material are said to be excluded

from the ambit of ‘evidence’, rather it can be said that the provision instead

provides one additional limb of evidentiary rule in proving such possession.

Thus, even in the absence of compliance of Section 52A of the NDPS Act, the

courts cannot simply overlook the other cogent evidence in the form of the

seized substance itself or the testimony of the witnesses examined, all that the

courts would be required in the absence of any such compliance is to be more

careful while appreciating the evidence.

38. In the present case, the only ground that has been canvassed by the appellant

herein is that Section 52A of the NDPS Act and Rule 10 of the NDPS Rules,

2022 had been contravened inasmuch as the investigating officer had allegedly

mixed all 73 packets of the seized contraband together and thereafter

proceeded to draw two samples of 100-100 gms each from the mixture. This

Special Leave Petition (Crl.) No. 14420 of 2024 Page 57 of 65

according to the appellant renders the accuracy and reliability of the samples

as doubtful. The said ground is being reproduced below: -

“5.4 BECAUSE the investigating officer mixed all 73 packets

of the seized contraband (Ganja) and took two samples of 100-

100 gram each from the mixture which is in clear violation of

the statutory provisions under Section 52A of the Act, 1985 and

Rule 10 of the NDPS Rule 2022 which requires proper

sampling and preservation of evidence in a manner that

ensures the integrity and originality of the seized material.

BECAUSE this non-compliance of Section 52A of the Act, 1985

and Rule 10 of the NDPS Rules, 2022 creates serious doubts

about the accuracy and reliability of the evidence produced by

the prosecution, thus vitiating the trial.

BECAUSE the officer incharge mixed all 73 packets of the

seized Ganja before drawing samples from each packets, the

said irregularity compromises the integrity of the seized

contraband and violates the mandatory procedure under

Section 52A of the Act, 1985.”

39. The High Court in its Impugned Judgment & Order rightly rejected the said

contention on the ground that it was nothing but a bald allegation, and that

there was nothing to evince such contravention.

40. Having gone through the materials on record, we are in complete agreement

with the reasoning of the High Court. Although, from the testimony of PW-15

i.e., the officer-in-charge of the police station where the seized substance was

forwarded it may appear that the seized substances were simplicter mixed

together without following the procedure of segregating similar packets of

same quality and nature into lots and thereafter taking representative samples

therefrom, yet a closer reading of the Trial Court’s judgment would reveal that

Special Leave Petition (Crl.) No. 14420 of 2024 Page 58 of 65

the police officers herein had duly followed the procedure prescribed to the

letter and spirit.

41. As per Clause 2.5 of the Standing Order No. 1 of 89 i.e., the relevant standing

order in force at the time of seizure, where multiple packages or packets are

seized, they first have to be subjected to an identification test by way of a

colour test to ascertain which packets are of the same sized, weigh and

contents. Thereafter, all packets which are identical to each other in all

respects will be bunched in lots, in the case of ganja, they may be bunched in

lots of 40 packets each. Thereafter from each lot, one sample and one in

duplicate has to be drawn. The relevant clause reads as under: -

“2.5 However, when the packages/containers seized together are

of identical size and weight, bearing identical markings, and the

contents of each package given identical results on colour test by

the drug identification kit, conclusively indicating that the

packages are identical in all respects, the packages/containers

may be carefully bunched in lots of ten packages/containers

except in the case of ganja and hashish (charas), where it may be

bunched in lots of 40 such packages/containers. For each such lot

of packages/containers, one sample (in duplicate) may be drawn.”

42. As per Clause 2.8 of the Standing Order No. 1 of 89, while drawing a sample

from a particular lot, representative samples are to be drawn, in other words,

equal quantity has to be taken from each packet in a particular lot, that then

has to be mixed to make one composite sample. The relevant clause reads as

under: -

“2.8 While drawing one sample (in duplicate) from a

particular lot, it must be ensured that representative samples

Special Leave Petition (Crl.) No. 14420 of 2024 Page 59 of 65

in equal quantity are taken from each package/container of

that lot and mixed together to make a composite whole from

which the samples are drawn for that lot.”

43. As aforementioned in the preceding paragraphs, the above Standing Order

came to be repealed by the enactment of the NDPS Rules in 2022. However,

as per Rule 29 of the aforesaid NDPS Rules, notwithstanding such repeal of

the erstwhile Standing Order(s), all actions that were done on the basis of such

order or guidelines shall be deemed to have been done under the

corresponding provision of these Rules. Furthermore, the procedure that was

delineated in Clause(s) 2.5 and 2.8 of the said Standing Order have been

reincorporated as Rule 10 and 11 in the NDPS Rules without any significant

alteration.

44. The Trial Court in para 34 has clearly observed 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 relevant

observations read as under: -

“All the 73 packets were opened and the contents inside them

were matched and an identification panchnama was also

prepared. Two sample packets of 100 grams each were

prepared from the mixed ganja, after which two sample packets

of 100 grams each and the remaining ganja were filled in 6

plastic bags and sealed and seizure proceedings were carried

out.”

Special Leave Petition (Crl.) No. 14420 of 2024 Page 60 of 65

45. 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.

46. Even otherwise, if the contention of the appellants was to be accepted in toto

such procedural lapse has absolutely no bearing on the overall case of the

prosecution and by extension the conviction of the appellant inasmuch as the

entire material on record clearly establishes the recovery and seizure of the

ganja at the instance of the accused.

47. Before we close this judgment, we may address one another aspect as regards

Section 52A of the NDPS Act. Wherever any non-compliance or

contravention of either the provision or the Rules / Standing Order(s)

thereunder is alleged, the same must be something tangible and not a mere

bald assertion or superficial claim. The accused must impute something

palpable to make good its case that there has been non-compliance of the

mandate of the said provision.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 61 of 65

48. We are conscious of the fact that this Court in Mangilal (supra) held that in a

given case, the onus would be on the prosecution to satisfy the court as regards

the compliance with the mandate of Section 52A of the NDPS Act. The

relevant observations read as under: -

“8. 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. [...]”

(Emphasis supplied)

49. However, a close reading of the aforesaid decision reveals that this onus on

the prosecution will only encumber once such an issue of non-compliance

arises for consideration. Although, we are in complete agreement with the

aforesaid observations inasmuch as it would be for the prosecution to establish

and prove compliance of Section 52A of the NDPS Act, yet at the same time,

we are of the considered opinion, that mere assertion by the accused that there

has been non-compliance of the said provision may not be sufficient. The

initial burden will always be on the accused to lay down the foundational facts

for establishing that there has been a non-compliance of Section 52A of the

NDPS Act, either by leading evidence of their own or by relying upon the

evidence of the prosecution itself such as by putting direct and specific

Special Leave Petition (Crl.) No. 14420 of 2024 Page 62 of 65

questions to the police officers and key witnesses. Such burden on the accused

to establish contravention of Section 52A of the NDPS Act will only be on the

mere preponderance of probabilities, whereas once the foundational facts are

established that raises an issue as regards the non-compliance of Section 52A

of the NDPS Act, the onus will entirely 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.

50. We summarize our final conclusion as under: -

(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.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 63 of 65

(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 sub-

section (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

Special Leave Petition (Crl.) No. 14420 of 2024 Page 64 of 65

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.

Special Leave Petition (Crl.) No. 14420 of 2024 Page 65 of 65

(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.

51. The appeal, therefore, fails and is hereby dismissed.

52. Pending application(s), if any, stands disposed of.

…………………………………………… J.

(J.B. Pardiwala)

…………………………………………… J.

(R. Mahadevan)

New Delhi,

06

th

January, 2025.