This Court in its recent decision in Bharat Aambale v. State of Chhattisgarh [2025 INSC 78] summarized the position of law as regards the scope of Section 52A of the NDPS Act and the consequences of any non-compliance of the same as under: -
“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 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.
(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 noncompliance 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 noncompliance 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.”{Para 9}
10. From the above exposition of law, it is clear that the initial
burden lies on the accused to first lay the foundational facts to
show that there was non-compliance of Section 52A on a
preponderance of probabilities, either by leading evidence of its
own or by relying upon the evidence of the prosecution. In the
present case, no question whatsoever was put by the defence counsel to PW-7 as regards Section 52A of the NDPS Act. Moreover, apart from a mere bald assertion that there has been a contravention of the mandate of Section 52A of the NDPS Act, nothing cogent has been pointed out to us by the appellant herein that would show that there had been a violation of the requirements of Section 52A of the NDPS Act.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.201 OF 2019
RAJWANT SINGH Vs THE STATE OF HARYANA
Dated: 09th JANUARY 2025.
This appeal arises from the judgment and order dated
15.05.2018 passed by the High Court of Punjab and Haryana at
Chandigarh in CRA-S-2377-SB-2004 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 Court,
Kurukshetra dated 21.10.2004 holding the appellant herein guilty of
the offence punishable under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) and
sentenced him to undergo rigorous imprisonment for ten years with a
fine of Rs.1 lakh.
2. The case of the prosecution may be summarised as under:-
The police had information that the appellant herein and one
Dara Singh were dealing in narcotics. The information was that both
are drug peddlers. On 23.04.2002, a vigil was kept on the movements of the appellant herein and Dara Singh. According to the case of
the prosecution, the appellant herein was travelling in a Contessa
car bearing registration No.HR 01-E-0948. The car was intercepted.
The car was searched and the appellant was found to be the only
person in the car and he was on the wheels. From the rear seat of
the car, three bags filled with poppy straw were recovered and two
bags containing poppy straws were recovered from the trunk of the
car. The contraband was seized at the spot. The case against the
co-accused Dara Singh was that he was following the car on a
motorcycle. The trial court held Dara Singh guilty of the alleged
offence however, he came to be acquitted by the High Court.
3. At the end of the investigation, chargesheet was filed for the
offences enumerated above. The trial court framed charge to which
the appellant pleaded not guilty and claimed to be tried. The
prosecution examined in all eight witnesses. The prosecution also
led documentary evidence in support of its case. The further
submission of the appellant herein was recorded under Section 313
of the Code of Criminal Procedure, 1973. In the further statement,
the appellant said that he was falsely implicated in the crime.
4. The trial court ultimately held the appellant herein guilty of
the offence and sentenced him as above. The High Court dismissed
the appeal and affirmed the judgment and order of conviction. In
such circumstances, the appellant is here before this Court with
the present appeal.
5. We have heard Ms. Jaspreet Gogia, the learned counsel
appearing for the appellant-convict and Mr. Devendra Kumar Saini,
the learned counsel appearing for the State of Haryana.
6. The only argument canvassed before us by the learned counsel
appearing for the appellant is that the conviction could be said to
have stood vitiated because of non-compliance of Section 52A of the
NDPS Act. In support of her submission, she relied upon the
decision of this Court in the case of Mohammed Khalid and Another
vs. State of Telangana (2024) 5 SCC 393, more particularly, para
(26) therein. Para (26) reads thus:-
“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.”
7. We are of the view that Section 52A talks about the disposal
of seized narcotic drugs and psychotropic substances. Even for the
purpose of invoking Section 52A, a foundation has to be laid by
putting appropriate relevant questions in that regard to the
investigating officer. Out of the blue, the appellant cannot
contend that Section 52A was not complied with. We have looked into
the evidence of PW-7 – Mahavir Singh, ASI, who had at the relevant
point of time attached to the Kurukshetra Police Station. In his
examination-in-chief, he has deposed as under:-
“ On 23.4.2002 I was posted as ASI in Police station,
Babain. On that day, a telephonic information was
received in the police station to be effect that
Rajwant Singh @ Billu son of Mohinder Singh, Jat Sikh,
resident of Ambassi, District Ambala and Dara Saini,
resident of Machhrouli, District Kurukshetra are
habitual of smuggling of narcotics and that Rajwant
Singh on that date in car bearing registration no.
HR- 01E-0948 of sky blue colour and associate Dare
Salmi on his motorcycle make Rajdoot had gone to bring
the narcotics and would come through villages Dhantori,
Machhrouli, Kharindwa, Buhawa and would go in the area
of Barara and if the nakabandi would be held then they
could be apprehended with the narcotics. It was also
informed that the aforesaid car was for the smuggling
purpose. On receipt of this information I recorded the
formal FIR Ex. PE and formed a raiding party consisting
of HC Rohtash Singh, C-I Umed and me and held a
nakabandi on Yara-Buhawa road in a government jeep
driven by Constable Prem Singh. Prior to proceeding to
the place of nakabandi I had sent the special report to
the Higher officers. I had also made a request to send
a Gazetted Officer at the place of nakabandi. ASI/SHO
police station Babain and Dy. S.P. Anil Kumar Dhawan
reached at the place of nakabandi.
At 4.35 p.m. a contessa car bearing no.HR-O1E-0948
came from the side of village Yara followed by a
motorcycle make Rajdoot. The car was got stopped by
signal which was seine driven by accused Rajwant Singh
present in the court today. The motorcyclist on seeing
the car stopped by us turned back and fled away. The
car driver on interrogation told his name Rajwant Singh
@ Billu son of Mohinder Singh, Jat Sikh, resident of
Kambassi. He also told that the motorcyclist who was
following the car was his associate and his name was
Dara Saini of village Machhoruli. On checking of the
car three gunny begs were found lying on the rear seat
of the car whereas two gunny bees were found kept in
the dicky of the car. On checking Ore all the five
gunny bags were found to contain poppy husk. Two
samples of 250 grams each were taken out from each bag
and the residue poppy husk of each bag was found to be
36-500 Kgs. The samples of 250 grams were weighed with
the help of spring balance; whereas the residue were
weighed with the help of farsi kanda", The residue were
sealed on the respective gunny bags and the samples
were converted into parcels. The residues and the
samples were sealed with my seal MS, and the Dy. S.P.
also affixed his seal AKD and ASI Baljit Singh SHO P.S.
Babain affixed is seal DS on the samples, residues.
Specimen seal impressions of all the three seals was
prepared separately and then the sample residue and
specimen seal impression were taken into possession
vide recovery memo Ex.PD attested by HC Rohtash Kumar,
Constable Urned Singh and Dy. S.P. Anil Dhawan. I
handed over my seal to HC Rohtash Kumar; whereas the
SHO and the Dy. S.P. retained their seals with them
after use. The contessa car No.HR-O1E-0948 was also
taken into posses-ion vine recovery memo Ex.PD. I also
prepared the report Ex.PA under section 57 of the Act
and put up the same to Baljit Singh ASI/SHO. After the
recovery of the poppy husk notice EX. PF u/s 50 of the
Act was served upon accused Rajwant Singh to the effect
that poppy husk had been recovered from his possession
and if he wanted to he produced before a Gazetted
Officer. The accused Raj Want Singh vide his reply
Ex.PF/1 opted not to be produced before any Gazetted
Officer. The accused was arrested after serving him the
grounds of his arrest vide memo Ex.PG attested by HC
Rohtash Kumar and Constable Umed Singh. A memo of
personal search Ex.PG/1 was prepared at the time of
arrest of Rajwant Singh and a golden ring and a wrist
watch were taken into possession. I prepared the rough
site plan Ex.PH with correct marginal notes on it and
recorded the statement of the witnesses. On return in
the police station after completion of the
investigation at the spot, I deposited the case
property intact with the MHC and put the accused behind
the bar. On 24.4.2002 the accused got recorded his
disclosure statement Ex.PJ to the effect that he had
kept concealed 4 gunny bags of poppy husk in the Sugarcane field near G.T. road in the area of village
Dhantori and he could get the same recovered. But no
recovery could be effected from the sugar-cane field in
pursuance of the disclosure statement. On 2.5.2002 I
recorded the statements of MHC Balbir Singh, Constable
Rajiv Kumar and HC Baljit Singh. On 27.5.2002 the
accused was arrested in this case who had surrendered
in the Court. The residue case property is Ex.Pl which
consists of 5 gunny bags containing poppy husk and the
car no. HR-O1E-0948 is Ex.P2.
xxx by Shri J.S. Waraich, Advocate for Dara Saini,
and Shri Amit Choudhary, Advocate for Rajwant.
The secret information was received by me at 2:15
p.m. I took departure from the police station after
recording the formal FIR at 2.30 p.m. I had informed to
SHO Baljit Singh and at Head Quarter Kurukshetra
through wireless regarding this information with a
request to reach at the spot. The place of nakabandi
and recovery is at a distance of 9 K.M. from police
station Babain. We had reached at the place of
nakabandi at 3.10 p.m. the nakabandi was held by way of
parking the jeep on the road. The car was got stopped
by hand signal. It is correct that on signal the person
to whom the signal is made may stop or may flee away as
per the circumstances. The car was got stopped at 4.35
p.m. The independent witness could not be joined as
none was available on the road. Village Buhawa is
situated at a distance of 1 1/2 K.M. from the place of
recovery whereas village Yara is at a distance of 1
K.M. No person was present in the fields or on the road
at that time. No Sarpanch, Lambardar or Panch from
Villages Buhawa and Yara were summoned at the spot at
the time of nakabandi or thereafter. I had not sent any
specific information under section 42 to the Higher
authorities but I had sent the copies of FIR to the
Higher Authorities to serve as a special report. In
addition to that I had also informed SHO Babain and
head quarter (Police), Kurukshetra regarding the secret
information and holding of nakabandi. SHC Baljit Singh
was not present in the police station at the time of
receipt of secret information. He was in the field area
and he was informed through wireless. I do not know for
what purpose SHO had gone in the area. After our
arrival at the place of nakabandi first of all ASI/SHO
Baljit Singh reached there and thereafter Dy. S.P.
reached there. Dy.S.P. reached at the spot after 15
minutes of the arrival of the SHO. There were three
officials with the Dy. S.P. SHO was accompanied by one
Constable. The motorcyclist was at a distance of 200
yards from the car. It is correct that when we got
stopped the car the Motorcycle turned back and ran
away. Dare Saini was not earlier known to me. I do not
know if Dara Saini accused is a patient of paralyses
since 1998 or he is under the constant treatment of PGI
Chandigarh. The car was stopped by the accused Rajwant
Singh just near to us, on our signal. The car driver
did not try to run away. The spring balance was with me
in the investigating bag; whereas the farsi kanda was
brought from village Yara by Constable Prem Singh in
the jeep. I do not know from whom the farsi kanda was
borrowed. The owner of the farsi kanda was not called
at the spot. I do not remember the colour of farsi
kande again said it was of sky colour. Farsi kanda had
five weights i.e. 1 Kg., 2 Kg., 5 Kg., 10 Kg. 500
grams. It is correct that to weigh the weight of 1
quintal, 1 Kg. weight is used on farsi kanda. The each
bag was weighed separately. The weight spring was of 5
Kg. It was pen type and not watch type I affixed three
seals of mine on the samples and residues, three seals
were affixed by the SHO on them. The Dy. S.P. affixed
his one seal on each parcel. The seal of the SHO and of
mine were made of silver whereas the seal of Dy.S.P.
was some what of iron. My seal was square type
(CHAKAUR); whereas the seals of SHO was round; whereas
the seal of Dy.S.P. was not round but was of lengthy
shape. It took about 3 and a half hours in completing
the proceedings at the spot. There was the field of
Devi Chand Pandit in the Northern side, field of
Krishan Pandit in the Southern side and there are roads
in the Eastern and Western side. The description of the
surroundings of the place of nakabandi had been asked
by from a passers bye at my arrival at the place of
nakabandi. I did not ask the name of the passers bye.
We reached in the police station from the place of
nakabandi at about 8.00 p.m. It is correct that I had
mentioned the weight of the golden ring as 6 tola in
the memo of personal search. It is incorrect that
nothing was covered from the possession of accused. It
is further incorrect that the car was found parked
abundant. It is further incorrect that the number HRO1E-0948 was of a scooter. It is further incorrect that
on enquiry it was found that scooter was of Rajwant
Singh prior to this case. It is incorrect that I have
falsely implicated accused Rajwant Singh or Dara Saini
accused in this case. It is incorrect that I have
deposed falsely.”
8. We have looked into the entire cross-examination of PW-7 and
we do not find any question put by the defence counsel to PW-7 as
regards Section 52A of the NDPS Act.
9. This Court in its recent decision in Bharat Aambale v. State
of Chhattisgarh [2025 INSC 78] summarized the position of law as
regards the scope of Section 52A of the NDPS Act and the
consequences of any non-compliance of the same as under: -
“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 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.
(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 noncompliance 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 noncompliance 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.”
10. From the above exposition of law, it is clear that the initial
burden lies on the accused to first lay the foundational facts to
show that there was non-compliance of Section 52A on a
preponderance of probabilities, either by leading evidence of its
own or by relying upon the evidence of the prosecution. In the
present case, no question whatsoever was put by the defence counsel
to PW-7 as regards Section 52A of the NDPS Act. Moreover, apart
from a mere bald assertion that there has been a contravention of
the mandate of Section 52A of the NDPS Act, nothing cogent has been
pointed out to us by the appellant herein that would show that
there had been a violation of the requirements of Section 52A of
the NDPS Act.
11. The reliance of the appellant herein on the decision of this
Court in Mohammed Khalid (supra) to assail the order of conviction
10
is completely misplaced. In the said, this Court had set-aside the
conviction of the accused therein not solely on the ground of noncompliance of Section 52A of the NDPS Act, but on the strength of
the other 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. In
the said case, this Court found 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 had actually reached the lab.
12. In the present case, the High Court in its impugned judgment
and order of conviction had clear observed that after drawing the
samples from the seized substance, they were put into separate
parcels and were sealed bearing the initials of PW-7. Unlike
Mohammed Khalid (supra) there is nothing on record that would even remotely indicate that the samples that were drawn were not sealed or that the chain of custody of the said samples to the FSL was in any way compromised.
13. In such circumstances, we do not find any error much less any
error of law in the impugned judgment of the High Court. In the
result, this appeal fails and is hereby dismissed. We are informed
that so far the appellant has undergone four years of the sentence
imposed by the trial court. When this appeal came to be admitted at
the time of the admission of the appeal, he was ordered to be
released on bail. The appellant shall now surrender before the
trial court who in turn, shall hand him over to the jail
authorities for the purpose of serving his remaining part of the
sentence. He shall surrender within a period of four weeks from
today.
14. Pending application(s), if any, shall stand disposed of.
…………………………………………………………………………J.
[J.B. PARDIWALA]
…………………………………………………………………………J.
[R. MAHADEVAN]
NEW DELHI;
09th JANUARY 2025
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