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The Supreme Court has said that non-compliance or delayed compliance with the procedure prescribed under Section 52A of the NDPS Act or the Rules or Standing Orders 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, it said.

"Such delay or deviation from Section 52A of the NDPS Act or the Standing Orders or 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," a bench of Justices J B Pardiwala and R Mahadevan said.

The court underscored that the object behind Section 52A of the NDPS Act and the Standing Orders and Rules issued thereunder is only to provide for a mechanism and procedure for the safe and early disposal of narcotics substances and seized contraband to prevent such substances from endangering lives due to prolonged storage, ceasing to be of any evidentiary value due to degradation or spoilage, or from falling into wrong hands or being recirculated into the market due to theft etc.

"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," the bench said.

Mere non-compliance of the procedure under Section 52A or the Standing Orders and Rules thereunder will not by itself render the trial vitiated or into an automatic acquittal. In all instances where the top 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, the bench said.

"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 scrutinise 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," the bench said.

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, the court said.

"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," the bench said.

The court dismissed an appeal filed by one Bharat Aambale against the Chhattisgarh High Court's judgment which declined to interfere with the trial court's decision convicting him for offences under the NDPS Act and sentencing him to 15 years in jail with Rs one lakh as fine.

The appellant contended 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, which rendered the accuracy and reliability of the samples as doubtful.

Agreeing with the High Court's conclusion, the bench said, "Wherever any non-compliance or contravention of either the provision or the Rules or Standing Orders 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."

The court summarised its final conclusions:-

(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, yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.

(III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under Section 52A of the NDPS Act and the Rules / Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per Section 52A subsection (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.

(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.

Case Title: Bharat Aambale Vs The State of Chhattisgarh