Sec. 52A Of NDPS Act Is Procedural And Not Mandatory – By A. Rangadham

Date:

A. Rangadham
A. Rangadham

This Article pertaining to Sec. 52A Of NDPS Act Is Procedural And Not Mandatory is Authored by A. Rangadham, Superintendent (AR), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Hyderabad. This article is an analysis of the Supreme Court’s judgement in the case of Bharat Aambale Versus The State Of Chhattisgarh. 

The appeal is preferred against the conviction on the grounds that it is vitiated on account of non-compliance of Section 52A of the NDPS Act.

Court Findings:

  • Section 52A of the NDPS Act came into existence in 29-05-1989, more particularly concerning the management of seized narcotic substances. It lays down a comprehensive procedure for the disposal of seized narcotic drugs and psychotropic substances. In this endeavour, Standing Order (i) No. 1 of 88 dated 15.03.1988, (ii) 2 of 88 dt. 11.04.1988, (iii) 1 of 89 dt. 13-06-1989 and notifications dt. 10-05-2007 and 16-01-2015 have been issued. These standing orders were repealed with the enactment of the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022 (for short, the “NDPS Rules”), [GSR 899(E) dt. 23-12-2022] that consolidated the entire framework and procedure to be followed for the seizure, storage, sampling and disposal of the seized material.
  • The scope of S. 52A is extended to serve the broader purpose of strengthening the evidentiary framework under the NDPS Act. It provides for the preparation of inventories and certification by magistrates and enhances the credibility and reliability of evidence presented during trial.
  • In the following cases, the Hon’ble Supreme Court has set aside the conviction on account of non-compliance of Sec. 52A (ibid): –
  • Noor Aga v. State of Punjab & Anr. – (2008) 16 SCC 417 – In this case, no proceedings were conducted under Sec. 52A and the seized material was not produced during Trial, claiming that the seized contraband was destroyed.  The court held that substantial compliance of the Standing orders issued for the purposes of 52A is required. Failure to comply will lead to drawing of adverse inference against prosecution.
  • Union of India v. Jarooparam – (2018) 4 SCC 334 – 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.  Any destruction or disposal of the seized substance should take place only in terms of the procedure envisaged under Section 52A of the NDPS Act.
  • Yusuf @ Asif v. State – 2023 SCC OnLine SC 1328 – 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
  • Mangilal v. State of Madhya Pradesh – 2023 SCC OnLine SC 862 – No explanation had been offered either for the non-production of the seized material or the manner in which they were disposed-off. There is no order passed by the Magistrate allowing the application, if any, filed under Section 52A of the NDPS Act.
  • Simarnjit Singh v. State of Punjab – 2023 SCC OnLine SC 906 – Drawing of samples at the time of seizure in the absence of the magistrate is not in conformity with the mandate of Section 52A sub-section (2) of the NDPS Act and creates a serious doubt about the prosecution’s case that the substance recovered was a contraband.
  • Mohammed Khalid & Anr. v. State of Telangana – (2024) 5 SCC 393 – 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. The remaining substance that were seized also had no seal. 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.
  • Narcotics Control Bureau v. Kashif – 2024 SCC OnLine SC 3848 – Section 52A sub-section (2) prescribes the procedure 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 noncompliance 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 underlying object behind Section 52A of the NDPS Act and the Standing Order(s) / Rules thereunder is only to provide for a mechanism and procedure for the safe and early disposal of narcotics substances and seized contraband.
  • 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. 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.
  • Mere non-compliance or delayed 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 the cases cited above, acquittal was not based on the sole reason of violation of the procedure prescribed u/s 52A but on the strength of other discrepancies noticed.
  • The Courts have to 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. 
  • In case 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.
  • 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, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act.
  • In Khet Singh v. Union of India – (2002) 4 SCC 380, it was held that in certain circumstances, it would not be possible for the investigating agencies to follow the guidelines to the letter. Due to such procedural illegality, the evidence collected thereby will not become inadmissible and 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. Similar view was taken in the case of State of Punjab v. Makhan Chand – (2004) 3 SCC 453.
  • 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.
  • The courts ae cautioned 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 discard the entire prosecution case looking into such discrepancies. 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.
  • Section 52A is only a procedural provision and does not 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 is the general principles of evidence, as enshrined in the Evidence Act that governs how seizure or recovery may be proved. 
  • The scope and purport of Sec. 52A(4) is that the Trial Court shall treat the inventory, photographs and samples of the seized substance that have been certified by the magistrate as primary evidence, subject to following the procedure laid down in the provision and its Rules / Standing Orders.
  • 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. [Author’s Note: It seems that the Hon’ble Supreme Court has missed the substantive part of Sec. 52A(1), which categorically states that – “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”. This makes it clear that after the procedure contemplated in Sec. 52A(2) is followed, no permission of the Court is required for disposal of the seized contraband.]. 
  • Sec. 52A(4) creates a deeming fiction wherein it creates a new form of primary evidence. However, it does not mean that the other evidence in original is excluded as primary evidence. It is rather that the provision provides one additional limb of evidentiary rule in proving possession. Thus, in absence of compliance with 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.
  • Regarding Burden of proof of non-compliance of Sec. 52A the Court held 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 show that there has been a non-compliance of Section 52A of the NDPS Act and will only be on the mere preponderance of probabilities. The onus will then shift 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.

Conclusions drawn by the Supreme Court:

  1. The court concluded 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. 
  2. On substantial compliance of Sec. 52A and the standing orders issued thereof, the inventory, photographs and samples have to be treated as primary evidence, irrespective of whether the substance in original is actually produced before the court or not. 
  3. The Standing orders / Rules issued are only a guide to the officers and mere non-compliance of the same will not be fatal to the case. 
  4. Where there is lapse on the part of the police officers, the Court has to resort to statutory presumption as provided u/s 54 of the NDPS Act.

Author’s Note:

  1. The Standing Orders (i) No. 1 of 88 dated 15.03.1988, (ii) 2 of 88 dt. 11.04.1988, (iii) 1 of 89 dt. 13-06-1989 and notifications dt. 10-05-2007 and 16-01-2015 were repealed and GSR (E) 899 dt. 23-12-2022 was issued consequent to the directions issued by the Hon’ble Supreme Court in the case of UOI v. Mohanlal – (2016) 3 SCC 379. 
  2. The Court felt that multiplicity of Standing Orders / Notifications leads to confusion in the minds of Investigating officers. In Mohanlal (supra) the Court held that drawing of samples at the scene of offence does not arise as there is no provision under the NDPS Act to do so and resorted to interpretation of Sec. 52A, wherein it was provided that samples are to be drawn before the Magistrate.
  3. The Hon’ble Court in the case of Mohanlal (supra), held that the directions to drawn samples at the scene of offence in Standing Orders issued is not in consonance with the provisions of NDPS Act, resulting in issue of GSR (E) 899 dt. 23-12-2022, wherein it is held that samples for the purpose of testing is also to be done before the Magistrate.
  4. The Counsels on record in the said case failed to bring to the notice of the court that Section 76 provides that the central government can frame rules to provide for the manner of drawing of samples and testing and analysis of such samples and that the above standing orders are issued in pursuance of section 76. 
  5. It is felt that samples should be drawn during the panchanama proceedings in the presence of the accused and witnesses at the time of seizure for the purpose of sending to the laboratory as part of the investigation. The samples drawn in the presence of the Magistrate and certified by the magistrate is meant to be primary evidence during trial so that the seized contraband can be disposed of as provided under Sec. 52A(1).
  6. Sec. 52A is meant for certification of inventory, photographs and samples drawn, so as to provide for alternate method of submission of primary evidence thereby enabling the disposal of the seized contraband.  It is felt that the courts may reconsider the purpose of Sec. 52A, inasmuch as the drawing of samples is not meant for sending the same to the laboratories for testing and it is only for the purpose of primary evidence.
  7. The Hon’ble Supreme Court in the instant judgment has rightly held that the object of section 52A is only to provide for a mechanism and procedure for the safe and early disposal of narcotic substances and seized contraband. Hence drawing samples for the purpose of testing and drawing samples before the magistrate for its certification are two different activities and should not be conflated. 
  8. The deeming fiction created by virtue of Sec. 52A(4), must be given full force and the courts must not insist on producing before the court the entire material seized during investigation as it would defeat the very purpose of enacting section 52A, which is disposal of the seized contraband and conveyance even before completion of Trial. 
  9. The Honorable Court concluded that the process of inventory, photograph and drawing of samples must take place in the presence of the accused though the same may not be done at the very spot of seizure. Section 52A mandates that an application for inventory photographs and drawing of samples before the magistrate is done after the seizure. Hence the question of the proceedings under section 52A at the spot of seizure does not arise. 
  10. It has to be understood that drawing samples to confirm the nature of the material seized and drawing of samples for the purpose of it being primary evidence are two different events and the courts must clearly distinguish the two aspects of drawing samples.
  11. It is felt that the investigating agencies, while registering cases under the NDPS Act, may comply with all the procedural safeguards incorporated in the Act to boost the chances of conviction and not rely on legal jugglery to get convictions under the NDPS Act.

Read More: Supreme Court Summaries Section 52A Of NDPS Act

Mariya Paliwala
Mariya Paliwalahttps://jurishour.in/
Mariya is the Senior Editor at JurisHour. She has 5+ years of experience on covering tax litigation stories from the Supreme Court, High Courts and various tribunals including CESTAT, ITAT, NCLAT, NCLT, etc. Mariya graduated from MLSU Law College, Udaipur (Raj.) with B.A.LL.B. and also holds an LL.M. She started as a freelance tax reporter in the leading online legal news companies like LiveLaw & Taxscan.

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