IMPORTANT POINT
Mandatory compliance with Section 52A of the NDPS Act is essential for the validity of evidence in narcotics cases, and failure to adhere to this provision creates reasonable doubt.

ORDER :

(Birendra Kumar, J.) :

1. This is an appeal against judgment of conviction recorded on 02.07.2024 in Sessions Case No.45/2021, whereunder the appellant was found guilty and was sentenced for offence under Section 8/22 of NDPS Act. Rigorous imprisonment of 10 years and a fine of Rs.1,00,000/- was awarded against the appellant and in default of payment of fine, further two years rigorous imprisonment was additionally awarded.

2. The prosecution case is that on 30.09.2020, Mr. Ram Pratap Verma, SHO Hindumalkot Police Station along with his police team was on patrolling near Aam Kotha Khakhan Road. The informant saw the appellant carrying a plastic bag on his shoulder. The appellant was intercepted and from his possession Tramadol Hydrochloride Tablets were recovered. Total weight of the tablets was 3 Kg. 900 Gms. Since the appellant had no license to carry those tablets, the appellant was arrested at the spot and FIR No.240/2020 was registered with Hindumalkot Police Station. The samples were taken out at the spot and since no independent and respectable witness was there, the police constables who were party to the raiding team were made witnesses of the search and seizure. The samples were taken to forensic examination and after expiry of six months the provisions of Section 52 A (2) were said to have been complied. During trial, prosecution examined 12 witnesses of. All are police constables and certain documents were marked as exhibits.

3. The main ground of challenge is non-compliance of the mandate of Section 52 A of the NDPS Act in the matter of preparing inventory, taking photographs of the inventory and taking out samples in presence of the Magistrate in whose presence the aforesaid exercise is to be done according to law. The requirement of compliance of Section 52 A of the NDPS Act to sustain conviction was considered on several occasion by the Hon’ble Supreme Court. Since the exercise under Section 52 A (2) is mandatory for the reason that under Sub-section 4 thereof the same would be taken as primary evidence during trial in respect of such offences even after destruction of the seized contraband, therefore, compliance of Sub-section 2 in true spirit is necessary.

4. The aforesaid provision was considered by Hon’ble Supreme Court in Mangilal Vs. The State of Madhya pradesh reported in 2023 INSC 634. Para-4, 5 & 6 of the judgment are being reproduced below:-

“4. Sub-section (1) of Section 52A of the NDPS Act facilitates the Central Government a mode to be prescribed to dispose of the seized narcotic substance. The idea is to create a clear mechanism for such disposal both for the purpose of dealing with the particular case and to safeguard the contraband being used for any illegal purpose thereafter.

5. Sub-section (2) of Section 52A of the NDPS Act mandates a competent officer to prepare an inventory of such narcotic drugs with adequate particulars. This has to be followed through an appropriate application to the Magistrate concerned for the purpose of certifying the correctness of inventory, taking relevant photographs in his presence and certifying them as true or taking drawal of samples in his presence with due certification. Such an application can be filed for anyone of the aforesaid three purposes. The objective behind this provision is to have an element of supervision by the magistrate over the disposal of seized contraband. Such inventories, photographs and list of samples drawn with certification by Magistrates would constitute as a primary evidence. Therefore, when there is non-compliance of Section 52A of the NDPS Act, where a certification of a magistrate is lacking any inventory, photograph or list of samples would not constitute primary evidence.

6. The obvious reason behind this provision is to inject fair play in the process of investigation. Section 52A of the NDPS Act is a mandatory rule of evidence which requires the physical presence of a Magistrate followed by an order facilitating his approva