2025 (1) TMI 1614 - SC - Indian Laws

Section 52A non-compliance alone not fatal to conviction; procedural lapses need link to substantive evidence discrepancies

Bharat Aambale Versus The State of Chhattisgarh

SC held that mere non-compliance with Section 52A of the NDPS Act does not automatically vitiate conviction; procedural lapses may attract adverse ... Non-compliance with Section 52A of the NDPS Act - Whether the conviction could be said to have stood vitiated because of the non-compliance of Section 52A of the NDPS, Act? - HELD 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 [2018 (5) TMI 120 - SUPREME COURT] the order of acquittal had been upheld as the independent witnesses had also turned hostile and not supported the case of the prosecution. In Noor Aga [2008 (7) TMI 853 - SUPREME COURT] the order of conviction had been set-aside not just on the ground of violation of Section 52A but due to several other discrepancies in the physical evidence as to the colour and weight, and due to the lack of any independent witnesses. In fact, this Court despite being conscious of the procedural deficiencies in the said case in terms of Section 52A observed that the matter may have been entirely different if there were no other discrepancies or if the other material on record were found to be convincing or supported by independent witnesses. 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. 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 - 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. 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 - 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. 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. Appeal dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether non-compliance or delayed compliance with Section 52A of the NDPS Act (and allied Standing Orders / Rules) vitiates the trial or warrants acquittal/bail as a matter of law. 2. What is the legal scope and purpose of Section 52A(1)-(4) NDPS Act, including the evidentiary status conferred by Section 52A(4) on inventories, certified photographs and samples. 3. What degree of compliance with Section 52A / Standing Orders / Rules is required (strict literal compliance vs. substantial compliance) and when procedural lapses become fatal. 4. How the burden of proof shifts between accused and prosecution when non-compliance with Section 52A is alleged. 5. Whether samples drawn in the absence of a Magistrate or certified otherwise than in terms of Section 52A constitute primary evidence. ISSUE-WISE DETAILED ANALYSIS - 1. Whether non-compliance with Section 52A vitiates trial Legal framework: Section 52A provides a pre-trial procedure for inventorying, photographing and drawing representative samples of seized narcotics, and Section 52A(4) deems certified inventories/photographs/samples to be primary evidence. The Standing Orders (and later NDPS Rules) prescribe detailed sampling, storage and disposal procedures. Precedent treatment: Prior judgments have set aside convictions where non-compliance co-existed with significant discrepancies (e.g., non-production of bulk, conflicting FSL reports, hostile witnesses). Other decisions have emphasized that Standing Orders are guidance and that in certain exigencies strict literal compliance may be impracticable. Interpretation and reasoning: Section 52A was inserted to enable early, safe disposal and to protect evidentiary integrity; it is a procedural provision aimed at safeguarding evidence. Mere lapse or delay in following Section 52A is at most a procedural irregularity and does not automatically nullify trial or mandate acquittal or bail where independent primary evidence proves seizure and possession. Ratio vs. Obiter: Ratio - delayed or non-compliance with Section 52A, by itself, will not vitiate the trial; whether it does depends on cumulative facts and whether the non-compliance goes to the root of the prosecution's case. Obiter - policy-oriented explanations about international conventions and legislative history. Conclusion: Non-compliance with Section 52A does not ipso facto vitiate conviction or entitle release; courts must examine whether procedural lapses, in combination with other discrepancies, render the prosecution's case doubtful. ISSUE-WISE DETAILED ANALYSIS - 2. Scope and evidentiary effect of Section 52A(4) Legal framework: Section 52A(4) mandates that inventories, photographs and lists of samples certified by a Magistrate shall be treated as primary evidence in NDPS trials, notwithstanding provisions of Evidence Act / CrPC. Precedent treatment: Courts have treated such certified material as an alternative form of primary evidence where the procedure has been substantially complied with and certification exists; courts have also refused to treat uncertified or improperly handled samples as primary evidence. Interpretation and reasoning: The provision creates a deeming fiction - certified inventories/photographs/samples in substantial compliance become primary evidence to mitigate loss/degradation/theft risks. It is not intended to exclude other modes of proving seizure (e.g., production of bulk material, eyewitness testimony). The mandatory language ('shall') is conditional on (i) certification by the Magistrate and (ii) the court's satisfaction that the procedure was substantially complied with. Ratio vs. Obiter: Ratio - certified materials under Section 52A(4) are to be treated as primary evidence if procedure and certification requirements are met. Obiter - clarification that Section 52A(4) does not convert certified materials into the only permissible primary evidence. Conclusion: Certified inventories/photographs/samples constitute primary evidence when requirements are met; absence of such compliance does not bar prosecution from proving seizure by other cogent evidence. ISSUE-WISE DETAILED ANALYSIS - 3. Standard of compliance required (substantial compliance) and consequences of deviations Legal framework: Standing Orders/Rules prescribe sampling/storage/disposal methodology (including lotting, representative sampling, sealing, preservation, application to Magistrate). Section 52A(3) expects Magistrates to allow applications 'as soon as may be.' Precedent treatment: Authorities establish a distinction between procedural irregularities (remediable) and illegality (which may nullify proceedings). Cases where convictions were set aside involved cumulative, material discrepancies (e.g., different colour/weight, missing seals, changed containers, hostile witnesses) that struck at the credibility of recovery. Interpretation and reasoning: Given operational realities (chance recovery, lack of facilities, hazardous nature, volume), rigid literalism is impractical. The correct approach is substantial compliance: adherence to core objectives and procedures so as not to cause prejudice or create doubt about authenticity/chain of custody. Only deviations that go to the heart of the prosecution's case (i.e., render seizure/chain of custody dubious) will be fatal. Ratio vs. Obiter: Ratio - required standard is substantial compliance; only material discrepancies impacting the integrity of evidence will vitiate the trial. Obiter - examples of what may amount to material discrepancy (illustrative, not exhaustive). Conclusion: Courts must evaluate deviations contextually; minor clerical or explainable deviations are not fatal, while serious, cumulative discrepancies that undermine the seizure or samples will justify acquittal. ISSUE-WISE DETAILED ANALYSIS - 4. Burden allocation when non-compliance is alleged Legal framework: The Act and precedents allocate evidentiary burdens in criminal trials; Section 52A compliance may be contested as part of defence strategy. Precedent treatment: Recent authorities indicate that once an accused raises credible foundational facts suggesting non-compliance, the onus shifts to the prosecution to prove substantial compliance or that the lapse does not affect the case beyond reasonable doubt. Interpretation and reasoning: The initial burden to raise a plausible issue of non-compliance lies with the accused on the preponderance of probabilities (by evidence or specific interrogation of prosecution witnesses). If foundational facts are shown, prosecution must discharge the higher burden (beyond reasonable doubt) to demonstrate either substantial compliance or that non-compliance is innocuous to the case's core. Ratio vs. Obiter: Ratio - two-tier burden: (i) accused must first establish foundational facts of non-compliance on preponderance; (ii) prosecution must then prove substantial compliance or non-prejudice beyond reasonable doubt. Obiter - procedural modalities for adducing such foundational facts. Conclusion: Accused cannot rely on bald assertions; tangible foundational facts must be laid to shift the evidentiary burden onto the prosecution, which then must satisfy the court beyond reasonable doubt. ISSUE-WISE DETAILED ANALYSIS - 5. Validity of samples drawn in absence of Magistrate / drawn before seizure / in presence of gazetted officer Legal framework: Section 52A(2)-(4) contemplate drawing samples in the presence of a Magistrate and certification; Standing Orders require representative sampling and lotting procedures. Precedent treatment: Jurisprudence holds that samples drawn and certified in Magistrate's presence constitute primary evidence; samples drawn only in presence of a gazetted officer do not satisfy Section 52A(2) and cannot be treated as primary evidence under Section 52A(4). Several convictions were set aside where samples were not drawn/certified in compliance and where custody doubts existed. Interpretation and reasoning: Section 52A does not mandate sampling at the seizure spot but mandates Magistrate's certification for primary-evidence status. Samples drawn without Magistrate's presence may still be admissible under general evidentiary principles, but they will not attain the statutory primacy and will be subjected to stringent scrutiny for chain-of-custody and possible tampering. Ratio vs. Obiter: Ratio - statutory primary evidence status attaches only to samples drawn and certified in Magistrate's presence; absence of such procedure reduces evidentiary value and calls for careful judicial scrutiny. Obiter - operational permissibility of drawing samples in exigent circumstances, subject to explanation and substantiation. Conclusion: Samples drawn absent Magistrate certification are not primary evidence under Section 52A(4); their admissibility depends on overall proof of seizure, chain of custody and absence of prejudice. APPLICATION TO PRESENT MATTER (SUMMATIVE POINTS & CONCLUSION) 1. Section 52A's object is safe/early disposal and to fortify evidentiary mechanisms; it does not displace other modes of proving seizure. 2. Substantial compliance with Section 52A and Rules/Standing Orders is required; procedural lapses are irregularities unless they materially affect the integrity of evidence. 3. Accused must plead and demonstrate foundational facts of non-compliance; thereafter prosecution must prove substantial compliance or non-prejudice beyond reasonable doubt. 4. Certified inventories/photographs/samples are primary evidence if the twin conditions of certification and substantial compliance are satisfied; absence of certification does not automatically invalidate other primary evidence. 5. In the case before the Court the asserted mixing of packets and sampling was either shown to be in accordance with the prescribed lotting/representative sampling procedure or, even if the allegation were accepted, did not materially affect the prosecution's overall case; accordingly non-compliance contention was rejected and conviction sustained.