Gauhati High Court Upholds NDPS Conviction, Cites Section 52A on Primary Evidence

Guwahati, Assam – The Gauhati High Court, in a significant ruling dated May 1, 2025, dismissed an appeal filed by Banamali Sarkar , upholding his conviction and sentence under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The division bench, comprising Hon'ble Mr. Justice Sanjay Kumar Medhi and Hon’ble Mr. Justice Kakheto Sema , affirmed the trial court's decision, emphasizing that a certified inventory and list of samples under Section 52A of the NDPS Act constitute primary evidence, making the physical production of the entire seized contraband in court not mandatory.

Background of the Case

The appellant, Banamali Sarkar , was convicted by the learned Special Judge, Bongaigaon, in Special (Nar) Case No. 46(BGN)/2021 by a judgment dated September 30, 2022. He was found guilty under Section 20(C) of the NDPS Act for the possession of 25.563 KGs of ganja and sentenced to 12 years of rigorous imprisonment along with a fine of Rs. 1,00,000.

The case originated from a GD Entry on May 21, 2021, based on secret information about stored contraband ganja. A subsequent raid led to the seizure of the ganja from the appellant's premises. A formal FIR was lodged on May 22, 2021. The trial court found the appellant guilty based on the evidence of 9 prosecution witnesses and one court witness.

Appellant's Contentions

The appellant, represented by Shri M. Biswas , raised several grounds challenging the conviction, including:

* Procedural Lapses: Alleged failure to prove chain of custody, non-examination of the Malkhana in-charge and the messenger who carried samples to the FSL.

* Sampling Issues: Discrepancies in sample marking, lack of homogeneous mixing, doubts about whether samples represented the entire seizure to confirm commercial quantity, and conflicting testimony on who drew the samples.

* Evidence Admissibility: Non-production of the seized contraband in court, alleged lack of proper certification on the inventory (Exhibit 7), and inconsistencies regarding the facsimile seal on sample packets.

* Witness Testimony: Claims that independent witnesses (PW1 and PW2) did not fully support the prosecution's case regarding the exact spot of seizure.

* Statutory Non-Compliance: Alleged violations of Sections 41 and 57 of the NDPS Act and non-adherence to Standing Orders of 1989. The appellant cited numerous judgments, including Karnal Singh Vs. State of Haryana , Vijay Jain Vs. State of Madhya Pradesh , and Noor Aga Vs. State of Punjab , to support his arguments regarding strict compliance with NDPS procedures and the necessity of producing primary evidence.

Respondent's Counter-Arguments

Ms. S. Jahan, learned Additional Public Prosecutor, Assam, defended the trial court's judgment, arguing:

* Due Procedure Followed: An authorization letter for the raid existed, and senior police officers were present during the operation. Section 41 of the NDPS Act was applicable, not Section 42.

* Section 52A Compliance: The provisions of Section 52A regarding inventory and sampling certification by the Magistrate were duly complied with.

* Chain of Custody Maintained: The seized materials were properly handled, inventoried, stored in the Malkhana, and samples were sent to the FSL promptly.

* Witness Support: Independent witnesses confirmed seizure from the appellant's premises.

* Non-Production of Contraband: Citing State of Rajasthan Vs. Sahi Ram , the APP contended that Section 52A obviates the need to produce the entire contraband if seizure is otherwise proven and samples are properly handled.

* Presumptions Applicable: Foundational facts were established, invoking presumptions under Sections 35 and 54 of the NDPS Act against the accused.

High Court's Analysis and Reasoning

The High Court meticulously examined the rival submissions and trial court records.

Initiation of Proceedings and Role of Independent Witnesses

The Court found that the case was initiated properly with a GD Entry followed by an FIR. Senior officers, including the O/C Bongaigaon and Dy. SP (HQ), were present during the search and seizure, indicating compliance with procedural safeguards regarding information to superior officers. Addressing the appellant's contention about independent witnesses (PW1 and PW2), the Court noted: > "Though in the cross-examination, the independent witnesses had stated that they did not see the exact spot from where the ganja was seized, there is nothing on record to refute the prosecution's case that the seizure was done from the premises of the appellant himself..." (Para 43) The Court found their versions consistent enough to support the seizure from the appellant's premises.

Chain of Custody, Sampling, and Certification

The Court dismissed concerns about the chain of custody, noting the prompt actions taken from seizure to FSL submission. Regarding the alleged lack of Magistrate's certification on the inventory (Exhibit 7), the Court physically verified the original records: > "...we have checked the original records and from the same, we have found that there is a due certification by the Magistrate. In fact, the record was also handed over to the learned counsel for the appellant who was satisfied from the same and had clarified that the same submission was made as because in the certified copy, the last part was not properly photocopied wherein the signature was left out." (Para 44)

Minor discrepancies, such as sample markings (A1, B1, C1 vs. A, B, C in forwarding letter) and who precisely drew the samples (PW6, a CJM staff, or police as per PW7, an office peon of SP's office), were deemed trivial or explainable, especially since sampling was done in the Magistrate's presence and duly certified. The non-examination of the messenger to the FSL was not considered fatal as the FSL officer (PW9) narrated the sequence upon receiving the sealed parcel.

Non-Production of Seized Contraband and Section 52A NDPS Act

A crucial aspect of the judgment was the Court's interpretation of Section 52A of the NDPS Act regarding the production of seized contraband. The Court held: > "Regarding the submission that the seized contraband was not produced in the Court, we are of the opinion that in view of the provisions of Section 52A of the Act, such production of the contraband in original is not at all necessary. Section 52A (4) clearly states that such inventory, photographs and any list of samples which have been duly certified by the Magistrate are to be treated as primary evidence notwithstanding anything contained in the Indian Evidence Act or the CrPC." (Para 48) The Court distinguished cases cited by the appellant where primary evidence (certified list of samples) was lacking, unlike the present case.

Application of Presumptions and Statutory Compliance

The Court found that the prosecution had established the foundational facts, thereby invoking the presumptions under Sections 35 and 54 of the NDPS Act against the appellant. > "We are also agreeable to the submission made by the learned APP regarding the information which was given by the concerned Police Officer. The submission that such information is to be treated to be under Section 57 and not 42(2) is acceptable as mentioning of a wrong provision of a statute will not be fatal." (Para 50) The Court concluded that mere denial by the appellant in his Section 313 CrPC (corresponding to Section 351 BNSS) examination could not overcome these presumptions.

Final Decision

Finding no grounds warranting interference with the trial court's judgment, the Gauhati High Court dismissed the appeal. > "In the conspectus of the aforesaid discussion and the materials on record, we are of the view that the conclusion arrived at by the learned Special Judge, Bongaigaon in convicting and sentencing the appellant vide judgment and order dated 30.09.2022 passed in Special (Nar) Case No. 46(BGN)/2021 does not warrant any interference." (Para 51)

The judgment reinforces the evidentiary value of certified inventories and samples under Section 52A of the NDPS Act and underscores that procedural objections must demonstrate actual prejudice to the accused, especially when foundational facts are robustly proven.