Supreme Court on Section 52A of NDPS Act, Primary Evidence, and Drug Seizure Lapses

The appeallant "Bharat Aambale" was convicted under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) for possessing illegal substances and he was sentenced to 15 years of rigorous imprisonment and a fine of ₹1 lakh by a Special Judge.

Aambale then appealed to the High Court of Chhattisgarh, but the High Court upheld the conviction which resutled in the present appealed to the Supreme Court. The primary argument raised by Aambale was that the conviction was invalid due to non-compliance with Section 52A of the NDPS Act.

The Section 52A of the NDPS Act was introduced to address practical challenges in managing seized narcotic substances, and was designed to provide a legally sanctioned mechanism for the disposal of seized substances. It was also designed to address issues with the long term storage of seized substances that led to problems such as degradation, theft or diversion back into illicit markets. The section also allows for the disposal of seized drugs and psychotropic substances due to their hazardous nature, vulnerability to theft, and storage constraints

The Supreme Court in the judgment examined the legislative history and the scope of Section 52A of the NDPS Act. The Apex Court noted that this section was brought in to overcome the practical difficulties faced by the seizing authorities regarding the custody of seized narcotic substances. Prior to this amendment in 1989, there were no clear-cut methods of disposal for such substances, which created problems of storage, delays in trials, and even of theft and misuse of the same. Section 52A hence requires a formal disposal, preparing an inventory, taking photographs, and drawing samples under the supervision of a magistrate

The Supreme Court observed that the purpose of Section 52A is to ensure a streamlined, legally sanctioned mechanism for disposing of seized substances, without compromising the legal process or the evidentiary value of the seized material. The court also looked at prior cases where convictions were overturned due to non-compliance with Section 52A.

Legislative Intent: Section 52A was introduced to address issues related to the storage and handling of seized drugs and to implement international conventions related to narcotics. It empowers the Central Government to prescribe the procedure for the disposal of seized narcotic substances.

Procedure for Disposal: Upon seizing drugs, the officer in charge must prepare an inventory, apply to a magistrate to certify the inventory, take photographs, and allow for representative samples to be taken in the magistrate's presence. The magistrate then certifies the correctness of the inventory, photographs, and the list of samples.

Primary Evidence: The certified inventory, photographs, and samples are considered primary evidence during the trial.

Substantial Compliance: While strict adherence to the procedure is ideal, substantial compliance with Section 52A is what is required. Minor deviations might be overlooked if the overall integrity of the evidence is maintained.

Not a Sole Ground for Acquittal: Non-compliance with Section 52A doesn't automatically invalidate the trial or warrant an acquittal, particularly if other evidence sufficiently establishes the seizure and possession of the contraband.

The Apex Court further emphasises that the courts must take a holistic view of the case, considering all the evidence and circumstances. Discrepancies should be critically examined, but the focus should be on whether the overall evidence establishes the guilt of the accused beyond a reasonable doubt.

On the "Onus of Proof" with respect to Section 52A, the Apex Court observed that it is concious of the fact that in case of Mangilal vS State of Madhya Pradesh 2023 (Click to Download) it held that the initial burden is on the prosecution to satisfy the court when such an issue arose for consideration, however, on careful reading of the Mangilal (supra) decision this onus on the prosecution will only encumber once such an issue of non-compliance arises for consideration, and but for the non-compliance, the Apex Court held the intial burdern on accused and has held "The initial burden will always be on the accused to lay down the foundational facts for establishing that there has been a non-compliance of Section 52A of the NDPS Act, either by leading evidence of their own or by relying upon the evidence of the prosecution itself such as by putting direct and specific questions to the police officers and key witnesses."

Thus, the Court put it on the accused to show a possible non-compliance of section 52A, after which the burden shifts to the prosecution to prove that either there was compliance, or that the non-compliance did not affect the case. While properly certified inventory, photographs and samples are primary evidence according to Section 52A, sub-section 4, it does not mean that other evidence such as witness testimony and even the original seized material cannot also be considered primary evidence.

**Section 52A is both procedural and evidentiary; it ensures the safe disposal of drugs and provides a way to maintain reliable evidence. The procedure under Section 52A and related rules should be substantially complied with, but minor procedural lapses are not always fatal to the prosecution's case. **

The Apex Court emphasises on th core issue is the reliability of evidence related to the seizure, and not merely technical adherence to rules. the Supreme Court also cautioned the Courts that they should not be hyper-technical and must look at the totality of circumstances when evaluating discrepancies in the evidence.

Thus the Apex Court highlighted that mere allegations of non-compliance with Section 52A are insufficient; the accused must show tangible evidence that there was an actual breach of the procedure.

Coram: Justice J.B. Pardiwala and Justice R. Mahadevan
Between: Bharat Aambale VS the State Of Chhattisgarh
Date of Judgment: 06-01-2025