High Court Acquits Ndps Accused Due To Non-compliance With Section 52a: Procedural Safeguards Outweigh Substantial Seizure

Introduction

This appeal is based on the judgment and order dated November 15, 2022, of the High Court of Karnataka, Kalaburagi Bench in Criminal Appeal No. 200230 of 2023 and Criminal Appeal No. 200147 of 2023, in which the High Court closely examined compliance with the procedural mandate under the Narcotic Drugs and Psychotropic Substances Act, 1985(the NDPS Act). This momentous decision, handed out on July 5, 2024, deftly balanced substantive justice with procedural adherence in narcotics cases, a topic that has sparked intense public attention and legal complexity in India. The NDPS Act, enacted in 1985, remains India's primary legislation for drug control and regulation. It was enacted to unify and update the law governing narcotic drugs, improve enforcement provisions, and meet international obligations under several accords. The Act forbids the production, manufacture, cultivation, possession, sale, purchase, shipping, storing, and consumption of narcotic narcotics and psychotropic substances, with the exception of medical and scientific research under license. 
The important provisions under the NDPS Act, which are relevant for the present case, are Section 20(b)(ii), 20(B), and 20(C); these provide the punishment for contravention in relation to cannabis (ganja) and vary with the quantum of the same involved in the offence committed. Section 50 lays down the conditions under which a search of persons shall be carried out—the right of the accused to be searched before a gazetted officer or a magistrate. Section 52A is the backbone of the present case, which talks about the disposal of seized narcotic drugs and psychotropic substances. It contains a detailed inventory, certification by the magistrate, and proper handling of samples.  The present case has its origin in an incident that took place on 19 February 2019, whereby the police, Humnabad, Bidar District, recovered 30 kgs of ganja from two accused persons. These legal proceedings, which concluded with the current judgment of the High Court, clearly highlight some of the critical aspects of NDPS cases, procedural compliance while seizing and handling drugs; forensic evidence in narcotic cases; interpretation and application of Section 52A of the NDPS Act; and the balancing of effective law enforcement with individual rights protection. What makes this case very important is that it deals with the consequence of infringement of the provisions under Section 52A, read with the purpose behind the insertion of this provision, to safeguard the integrity of the seized substance and to prevent tampering or misconduct during investigations. It is this judgment of the High Court acquitting the accused due to procedural lapses, even when a substantial quantity of contraband was seized, which shows the importance of these procedural safeguards in the criminal justice system in India. The judgment affects the case at bar and leads to a precedent that may be carried forward into all future cases under the NDPS Act throughout the country. It raises pertinent questions about investigative practices, the burden on the judiciary, and probably legislative review for revamping procedural requirements so that they serve and not thwart investigation and prosecution of drug offenses. 
Information was received in the Humnabad Police Station of Bidar district on the February 19, 2019, from a credible source that two persons were transporting the contraband substances. On having such information, the police raided near Gate-I of the Humnabad Bus Stand and apprehended the two accused persons along with the recovery of 30 kilograms of ganja. Subsequent to the seizure, a First Information Report was registered in Crime No.24/2019 and the accused was charged for offences under Sections 20(b)(ii), 20(B) and 20(C) of the NDPS Act. After investigation, the charge sheet was filed against both the accused persons for the aforesaid offences. Trial Court Proceedings The Trial Court framed charges against the accused to which the accused pleaded not guilty and claimed trial. The prosecution examined eight witnesses from PW1 to PW8 and marked 11 documents from Ex.P1 to Ex.P11 and 17 material objects from MO1 to MO17. The accused's remarks have been recorded under Section 313 of the Criminal Procedure Code, however no defense evidence was presented. One document was designated as Ex.D1 on behalf of the defendants. After hearing both sides' arguments, the Trial Court convicted the accused for offenses under Sections 20(b)(ii), 20(B), and 20(C) of the NDPS Act. They were sentenced to 10 years of rigorous imprisonment, a fine of ₹20,000 each, and an additional five months of simple imprisonment in default of payment.  Appeal to the High Court Against the judgment of the Trial Court, the accused preferred appeals before the High Court of Karnataka, Kalaburagi Bench. The appeals challenged the conviction inter alia on the ground that there were procedural lapses in effecting seizure and examination of the contraband substance.
It was submitted on behalf of appellants by their counsel that there is a huge delay in forwarding seized contraband article to FSL, for sending the same for chemical examination. In effect, it was their argument that this delay created room for tampering with the evidence. Indeed, their argument was hinged on the fact that in narcotic cases, the integrity of the seized substance is very important, and any delay in examining it is likely to affect this integrity. This delay, appellants argued, raises a doubt as to whether the authenticity of the substance finally tested was not compromised, thus creating a break in the chain. The crucial submission made by the appellants is that the FSL officer, who issued the report—Ex.P10—was not examined by the prosecution at the trial. This omission, they submitted, was of great consequence as it deprived the defense of the opportunity to cross-examine the expert who carried out the chemical analysis. It was urged that the report Ex.P10 without the testimony of the FSL officer could not be accepted as it lacked the necessary corroboration and should be excluded. The admissibility and reliability of the scientific evidence led by the prosecution thus stand attacked at the very threshold by this contention. The appellants placed before us their major contention relating to non-compliance with Section 52A of the NDPS Act. Their counsel pointed out that: a) No inventory of the seized contraband was prepared and certified by the jurisdictional Magistrate as mandated under the Act. b) The samples were not drawn in the presence of a Magistrate. c) There was no certification by the Magistrate of the inventory or the samples before they were sent to the FSL.
These procedural lapses cannot, according to the appellants, be brushed away as technicalities since they are an integral part of the safeguards that ensure the integrity of the evidence in a narcotic case. The appellants have further submitted that the violation of the mandatory provisions renders the seizure and testing procedure, in its entirety, void.  In continuation with the aforesaid arguments, the appellants have submitted that the non-observance of proper procedure allows the possibility of tampering with the evidence. They further argued that there was no assurance that the substance tested was the same as that allegedly seized from them without the safeguards provided by Section 52A. Their contention was that due to procedural lapses, the key pieces of evidence – Ex.P2, the seizure panchnama; Ex.P3, the photographs; and Ex.P10, the FSL report – were inadmissible. It was based on recent judgments of the Supreme Court, which have given due importance to the mandatory compliance of Section 52A. 
The prosecution has placed heavy reliance upon the credibility and consistency in the testimonies of the official witnesses. They, however, implored the court to disregard the evidence of the panch witnesses, PW2 and PW3, as they did not support the prosecution's case but the evidence of the official witnesses, more specifically those of PW1, the gazetted officer, PW5, the Investigating Officer, PW6, the first informant and Sub-Inspector, and PW7 and PW8, the police constables and members of the raiding team, was unassailable and consistent. It was the contention of the prosecution that these official witnesses had no motive to falsely implicate the accused and their testimonies are to be given due weight. The prosecution heavily relied on the FSL report (Ex.P10) which confirmed the seized substance was cannabis (ganja).  They further stated that this scientific evidence only confirmed the nature of the seized drug, which is a necessary component of the offense under the NDPS Act. The prosecution, in turn, claimed that the FSL report was critical evidence supporting the recovery and the offense. The prosecution pointed to compliance on their part with Section 50 of the NDPS Act, wherein the accused are supposed to be informed of his right to be searched in the presence of a gazetted officer or magistrate. They referred to Ex.P1, the notice issued to the accused, as evidence of this compliance. This, they submitted, showed that they had not acted outside the parameters of the law in conducting the search and seizure operation. The prosecution also placed much emphasis on the substantial quantity of ganja seized – 30 kgs. It was submitted that this large quantity itself was indicative of the serious nature of the offence and the involvement of the accused in drug trafficking. It was the prosecution's case that the large quantity of the seized contraband should be taken as strong circumstantial evidence against the accused. In regard to the appellants' contention about the tampering, the prosecution claimed to have maintained the chain of custody of the seized substance. They, however, contended that the procedures from seizure to sending samples to the FSL were proper to ensure that the evidence was not tampered with or contaminated. The prosecution contended that the seizure panchnama, official witnesses, and the FSL report, when considered collectively, provided more than enough evidence to establish the charge beyond a reasonable doubt. They maintained that insignificant procedural flaws, if any, shouldn't be allowed to override the massive body of evidence that implicates the accused in guilt.
The High Court meticulously examined all the evidence and arguments placed before it. Some important points in this court judgment are as follows: It may be noted at the outset that the contraband, 30 kgs of ganja, was recovered from the accused; a pathname, Ex. P2, was prepared for the same. Samples were collected at the time of seizure by PW6 in the presence of PW1, a gazetted officer. The samples were subsequently sent to the FSL for chemical examination, and the report Ex.P10 confirmed the substance as cannabis. The accused has the right to have a search conducted before a gazetted officer or magistrate, as stated in Section 50 of the NDPS Act, which the court acknowledged was followed while serving the accused with a notice. The courts have determined that there was insufficient adherence to the provisions outlined in Section 52A of the NDPS. Particularly: a) No inventory of the seized contraband was prepared and certified before the jurisdictional magistrate. b) Samples were not drawn in the presence of a magistrate. c) The magistrate did not certify the inventory or samples before they were sent to the FSL. Legal Analysis of Section 52A The Court has gone into an exhaustive analysis of Section 52A of the NDPS Act, which provides for disposal of the seized narcotic drugs and psychotropic substances. It was emphasized by the court that the provision under Section 52A is mandatory and not directory in nature. It contemplates preparation of an inventory of the seized substances in detail, which has to be certified by a magistrate. The samples have to be drawn in the presence of a magistrate. Further, the court held that under Section 52A(4), the certified inventory, photographs, and list of samples are treated as primary evidence in the trial of cases under the NDPS Act. The court clarified that the objective of this section is to ensure that the inquiry procedure is impartial and that there is no malpractice or tampering with chemicals that have been confiscated. 
The significant rulings were cited by the High Court in support of its ruling: State of Madhya Pradesh v. Mangilal (2023 INSC 634): The Supreme Court ruled that the NDPS Act's Section 52A constituted an obligatory rule of evidence.  It emphasized that some magistrate supervision must be made available for the disposal of the seized contraband. Therefore, the court held that the non-compliance with Section 52A would mean that inventories, photographs, or list of samples are not primary evidence. Mohammed Khalid and Another vs. State of Telangana (2024 INSC 158): The Supreme Court held that in the absence of proceedings under Section 52A, the FSL report becomes inadmissible and cannot be read as evidence.   Yusuf @ Asif v. State, 2021 INSC 912: The Supreme Court has reiterated that only the samples drawn in the presence of a magistrate and the certified list thereof would constitute primary evidence for the trial. It has been held that the lack of such basic evidence invalidates the entire trial. Reasons and Decision of the Court, Based on the analysis and case laws given above, the High Court has concluded that  The court found clear non-compliance with Section 52A of the NDPS Act. Evidence Invalidation: On account of non-compliance of the said case, the seizure of the contraband, the samples drawn, and the FSL report cannot be considered as valid pieces of primary evidence. The Court held that the entire trial, without primary evidence, stands vitiated. In view of the procedural lapses viewed in juxtaposition with the consequent invalidity of crucial evidence, the conviction and sentence passed by the Trial Court were set aside. The appellants/accused were, consequently, acquitted for all charges brought against them. Judgment Implications 
This judgment holds the following important implications for prosecution under the NDPS Act. It reiterates the requirement for strict compliance with the procedural formalities under Section 52A of the NDPS Act.  The judgment has further emphasized that the magistrate is required to play a very important role in certifying the inventories and supervising the drawing of samples from the seized substances. It elucidates that evidence, such as FSL reports, is rendered inadmissible in case of non-compliance with Section 52A. The case reveals how even substantial quantities of contraband seizures go on to result in acquittal because of procedural lapses. It highlights that these techniques are protective measures against possible manipulation or other irregularities that can surface over the course of inquiries. A Critical Evaluation The ruling draws attention to a number of important factors such as act of Balance, although a strict reading of Section 52A guards against possible misuse, it also has the potential to result in the exoneration of anyone caught in possession of significant quantities of illegal drugs. Procedural vs. Substantive Justice: What this case brings to the fore is the classic debate between procedural and substantive justice. Where the accused were found in possession of 30 kg of ganja, they were acquitted on account of procedural non-compliance. What this case brings to the fore is the requirement for better training and awareness amongst the investigating officers concerning the vital provisions of procedure under the NDPS cases. It raises questions as to whether the legislative intent behind Section 52A is being fulfilled or whether it's becoming a technical ground for acquittals. Different degrees of magistrate certification could add to the already burdened court system. 

Conclusion

A major precedent in NDPS cases is established by the rulings in Criminal Appeal Nos. 200230 of 2023 and Criminal Appeal Nos. 200147 of 2023. It primarily reiterates that procedural compliances, especially those under Section 52A of the NDPS Act, are sacrosanct. The decision of the High Court to acquit the accused due to procedural lapses despite recovery of a huge quantity of contraband goes to show that procedural safeguards are quite critical. This case will amply demonstrate how this delicate balance is required to be maintained between ensuring procedural fairness and securing the broader objectives of narcotic control laws. It is a severe reminder to investigating agencies about the imperative need for scrupulous adherence to statutory procedures. It also raises pertinent questions regarding the efficacy of the existing legal provisions and whether they adequately serve the cause of justice and public safety. Further ahead, this case may lead to introspection into investigative practices in NDPS cases and may even lead to demands for legislative review so that though the procedural requirements are necessary they do not unwittingly act as a hindrance to the effective prosecution of drug offenses. It also highlights how important it is for law enforcement personnel to receive refresher training and continuous education on the latest legislative standards and court interpretations in this intricate area of the law. In the end, this decision highlights the importance of following the law and maintaining procedural fairness in the criminal justice system, especially when dealing with serious crimes covered by special statutes like the NDPS Act. It is an important reminder that no matter how complex the circumstances, situations involving drugs and psychotropic substances cannot compromise the fundamentals of the rule of law.

FAQs: 

1.    What does Section 52A of the NDPS Act deals with? 
Ans: Section 52A is the backbone of the present case, which talks about the disposal of seized narcotic drugs and psychotropic substances. It contains a detailed inventory, certification by the magistrate, and proper handling of samples.  
2.    What is the judgement of the court in Sharukh v. State of Karnataka? 
The court reiterates the requirement for strict compliance with the procedural formalities under Section 52A of the NDPS Act.  The judgment has further emphasized that the magistrate is required to play a very important role in certifying the inventories and supervising the drawing of samples from the seized substances. It elucidates that evidence, such as FSL reports, is rendered inadmissible in case of non-compliance with Section 52A.
3.    What are the important provisions under the NDPS Act for this specific case? 
The important provisions under the NDPS Act, which are relevant for the present case, are Section 20(b)(ii), 20(B), and 20(C); these provide the punishment for contravention in relation to cannabis (ganja) and vary with the quantum of the same involved in the offence committed.
4.    Is section 52A of the NDPS Act is mandatory rule of evidence? 
According to the State of Madhya Pradesh v. Mangilal (2023 INSC 634), the Supreme Court ruled that the NDPS Act's Section 52A constituted a mandatory rule of evidence.