Supreme Court of India
BHARAT AAMBALEversusTHE STATE OF CHHATTISGARH
- Citation
- 2025 INSC 78
- Decided
- 6 January 2025
- Disposal
- Dismissed
Holding
Non‑compliance with Section 52A does not automatically vitiate a trial; only substantial compliance is required and a conviction can stand if the prosecution’s case remains credible despite procedural lapses.
Summary
The appellant was convicted under Section 20(b)(ii)(c) of the NDPS Act for possession of ganja and appealed on the ground that the trial was vitiated by non‑compliance with Section 52A, which governs inventory, sampling and magistrate certification of seized narcotics. The Supreme Court examined the legislative purpose of Section 52A, the requirement of substantial compliance, and the burden of proof when an accused alleges procedural lapses. It held that mere procedural irregularities do not automatically invalidate a conviction; the prosecution must still prove the seizure and possession beyond reasonable doubt, and any non‑compliance is fatal only if it creates a serious doubt about the physical evidence. The Court found that the police had substantially complied with the procedure and that the evidence on record was sufficient to sustain the conviction. Consequently, the appeal was dismissed and the conviction upheld.
Issues considered
- Whether non‑compliance with Section 52A of the NDPS Act vitiates a conviction under Section 20(b)(ii)(c).
- What is the burden of proof when the accused alleges non‑compliance with Section 52A?
- Whether inventory, photographs and samples certified by a magistrate are mandatory primary evidence and, if absent, whether the prosecution’s case collapses.
- Whether procedural lapses under Section 52A constitute mere irregularities or fatal illegality.
Legislation cited
- Evidence Act, 1872s. 114(g)
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii)(c), s. 52A, s. 54
- Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022s. Rule 10, s. Rule 11, s. Rule 29
Subjects
Narcotic Drugs and Psychotropic Substances Act, 1985-s.52AConviction under section 20(b)(ii)(c)InventoryPhotographsPrimary evidenceNon-complianceTrial vitiatedConvictionBurden of proofPhysical evidenceDisposalSearchSeizure
Judgment
[2025] 1 S.C.R. 1524 : 2025 INSC 78
Bharat Aambale
v.
The State of Chhattisgarh
(Criminal Appeal No. 250 of 2025)
06 January 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
Appellant had been convicted by the Courts below under Section
20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act,
1985. The issue was whether the conviction could be said to have
been vitiated because of non-compliance of Section 52A of the
NDPS Act.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.52A – Purpose, Nature, Extent & Scope – Allegation of
non-compliance of s.52A – Onus on the accused or on the
prosecution – Required standard of proof:
Held: 1. On facts, 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 – Even otherwise, on facts, 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. [Para 45]
2. 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)
[2025] 1 S.C.R. 1525
Bharat Aambale v. The State of Chhattisgarh
of the NDPS Act – 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 – Any inventory,
photographs or samples of seized substance prepared in substantial
compliance of the procedure prescribed under Section 52A of
the NDPS Act and the Rules / Standing Order(s) thereunder
would have to be mandatorily treated as primary evidence as
per Section 52A subsection (4) of the NDPS Act, irrespective of
whether the substance in original is actually produced before the
court or not – 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 –
Mere non-compliance of the procedure under Section 52A or the
Standing Order(s) / Rules thereunder will not be fatal to the trial
unless there are discrepancies in the physical evidence rendering
the prosecution’s case doubtful, which may not have been there
had such compliance been done – Courts should take a holistic
and cumulative view of the discrepancies that may exist in the
evidence adduced by the prosecution and appreciate the same
more carefully keeping in mind the procedural lapses – 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 – 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 – 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
1526 [2025] 1 S.C.R.
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from the other material on record – 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 – 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. [Paras 50(I) to (X)]
Case Law Cited
Union of India v. Mohan Lal & Anr. [2016] 1 SCR 651 : (2016)
3 SCC 379; Noor Aga v. State of Punjab & Anr. [2008] 10 SCR
379 : (2008) 16 SCC 417; Union of India v. Jarooparam [2018] 1
SCR 618 : (2018) 4 SCC 334; Yusuf @ Asif v. State, 2023 SCC
OnLine SC 1328; Mangilal v. State of Madhya Pradesh [2023] 10
SCR 517 : 2023 SCC OnLine SC 862; Simarnjit Singh v. State of
Punjab, 2023 SCC OnLine SC 906; Mohammed Khalid & Anr. v.
State of Telangana [2024] 3 SCR 23 : (2024) 5 SCC 393; Narcotics
Control Bureau v. Kashif, 2024 SCC OnLine SC 3848; Khet Singh
v. Union of India [2002] 2 SCR 598 : (2002) 4 SCC 380; State of
Punjab v. Makhan Chand (2004) 3 SCC 453 – referred to.
List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985;
Negotiable Instruments Act, 1881; Opium Act, 1857; Opium
Act, 1878; Dangerous Drugs Act, 1930; Narcotic Drugs or
Psychotropic Substances (Amendment) Bill, 1988; Narcotic Drugs
and Psychotropic Substances (Seizure, Storage, Sampling and
Disposal) Rules, 2022; Evidence Act, 1872.
List of Keywords
Narcotic Drugs and Psychotropic Substances Act, 1985-s.52A;
Conviction under section 20(b)(ii)(c); Inventory; Photographs;
Primary evidence; Non-compliance; Trial vitiated; Conviction;
Burden of proof; Physical evidence; Disposal, search; Seizure.
[2025] 1 S.C.R. 1527
Bharat Aambale v. The State of Chhattisgarh
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
250 of 2025
From the Judgment and Order dated 08.07.2024 of the High Court
of Chhattisgarh at Bilaspur in CRA No. 731 of 2023
Appearances for Parties
Sameer Shrivastava, Ms. Palak Mathur, Ms. Priyanka Shrivastava,
Advs. for the Appellant.
Bishwajit Dubey, A.A.G., Vinayak Sharma, Ravinder Kumar Yadav,
Advs. for the Respondent.
Judgment / Order of the Supreme Court
Order
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.
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
1528 [2025] 1 S.C.R.
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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
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
[2025] 1 S.C.R. 1529
Bharat Aambale v. The State of Chhattisgarh
and prevent misuse. Additionally, the lack of clarity regarding the
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 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
1530 [2025] 1 S.C.R.
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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 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
[2025] 1 S.C.R. 1531
Bharat Aambale v. The State of Chhattisgarh
(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.”
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
1532 [2025] 1 S.C.R.
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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.
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 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
[2025] 1 S.C.R. 1533
Bharat Aambale v. The State of Chhattisgarh
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 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
1534 [2025] 1 S.C.R.
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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 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
[2025] 1 S.C.R. 1535
Bharat Aambale v. The State of Chhattisgarh
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 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
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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 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
[2025] 1 S.C.R. 1537
Bharat Aambale v. The State of Chhattisgarh
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)
(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
1538 [2025] 1 S.C.R.
Supreme Court Reports
amended by notification dated 16.01.2015 and thereafter issue
a certificate of destruction or disposal.
“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.”
[2025] 1 S.C.R. 1539
Bharat Aambale v. The State of Chhattisgarh
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.
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 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: -
1540 [2025] 1 S.C.R.
Supreme Court Reports
“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 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)
[2025] 1 S.C.R. 1541
Bharat Aambale v. The State of Chhattisgarh
(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 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
1542 [2025] 1 S.C.R.
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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)
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
[2025] 1 S.C.R. 1543
Bharat Aambale v. The State of Chhattisgarh
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. 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.
1544 [2025] 1 S.C.R.
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(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 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
[2025] 1 S.C.R. 1545
Bharat Aambale v. The State of Chhattisgarh
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 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
1546 [2025] 1 S.C.R.
Supreme Court Reports
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)
(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
[2025] 1 S.C.R. 1547
Bharat Aambale v. The State of Chhattisgarh
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 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
1548 [2025] 1 S.C.R.
Supreme Court Reports
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 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
[2025] 1 S.C.R. 1549
Bharat Aambale v. The State of Chhattisgarh
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 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
1550 [2025] 1 S.C.R.
Supreme Court Reports
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 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: -
[2025] 1 S.C.R. 1551
Bharat Aambale v. The State of Chhattisgarh
“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)
1552 [2025] 1 S.C.R.
Supreme Court Reports
(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 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
[2025] 1 S.C.R. 1553
Bharat Aambale v. The State of Chhattisgarh
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 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. [...]
1554 [2025] 1 S.C.R.
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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.”
19. In Simarnjit Singh v. State of Punjab reported in 2023 SCC OnLine
SC 906 this Court relying upon Mohanlal (supra) held that drawing
[2025] 1 S.C.R. 1555
Bharat Aambale v. The State of Chhattisgarh
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. 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
1556 [2025] 1 S.C.R.
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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)
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
[2025] 1 S.C.R. 1557
Bharat Aambale v. The State of Chhattisgarh
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 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
1558 [2025] 1 S.C.R.
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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 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
[2025] 1 S.C.R. 1559
Bharat Aambale v. The State of Chhattisgarh
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 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.
1560 [2025] 1 S.C.R.
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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 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
[2025] 1 S.C.R. 1561
Bharat Aambale v. The State of Chhattisgarh
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
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
1562 [2025] 1 S.C.R.
Supreme Court Reports
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 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
[2025] 1 S.C.R. 1563
Bharat Aambale v. The State of Chhattisgarh
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 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
1564 [2025] 1 S.C.R.
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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 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
[2025] 1 S.C.R. 1565
Bharat Aambale v. The State of Chhattisgarh
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)
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 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
1566 [2025] 1 S.C.R.
Supreme Court Reports
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 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
[2025] 1 S.C.R. 1567
Bharat Aambale v. The State of Chhattisgarh
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 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
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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: -
“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
[2025] 1 S.C.R. 1569
Bharat Aambale v. The State of Chhattisgarh
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-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.
1570 [2025] 1 S.C.R.
Supreme Court Reports
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-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 may not
[2025] 1 S.C.R. 1571
Bharat Aambale v. The State of Chhattisgarh
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.
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
1572 [2025] 1 S.C.R.
Supreme Court Reports
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 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).
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
[2025] 1 S.C.R. 1573
Bharat Aambale v. The State of Chhattisgarh
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 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
1574 [2025] 1 S.C.R.
Supreme Court Reports
itself, or examining the witnesses to the recovery etc. What 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 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.
[2025] 1 S.C.R. 1575
Bharat Aambale v. The State of Chhattisgarh
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 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.”
1576 [2025] 1 S.C.R.
Supreme Court Reports
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
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.”
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
[2025] 1 S.C.R. 1577
Bharat Aambale v. The State of Chhattisgarh
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.
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
1578 [2025] 1 S.C.R.
Supreme Court Reports
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 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.
(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
[2025] 1 S.C.R. 1579
Bharat Aambale v. The State of Chhattisgarh
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 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.
1580 [2025] 1 S.C.R.
Supreme Court Reports
(VIII) Where there has been lapse on the part of the police in either
following the procedure laid down in Section 52A of the NDPS
Act or the prosecution in proving the same, it will not be
appropriate for the court to resort to the statutory presumption of
commission of an offence from the possession of illicit material
under Section 54 of the NDPS Act, unless the court is otherwise
satisfied as regards the seizure or recovery of such material
from the accused persons from the other material on record.
(IX) The initial burden will lie on the accused to first lay the
foundational facts to show that there was non-compliance of
Section 52A, either by leading evidence of its own or by relying
upon the evidence of the prosecution, and the standard required
would only be preponderance of probabilities.
(X) Once the foundational facts laid indicate non-compliance of
Section 52A of the NDPS Act, the onus would thereafter be on
the prosecution to prove by cogent evidence that either (i) there
was substantial compliance with the mandate of Section 52A of
the NDPS Act OR (ii) satisfy the court that such non-compliance
does not affect its case against the accused, and the standard
of proof required would be beyond a reasonable doubt.
51. The appeal, therefore, fails and is hereby dismissed.
52. Pending application(s), if any, stands disposed of.
Result of the case: Appeal dismissed.
†
Headnotes prepared by: Bibhuti Bhushan Bose
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