# Bharat Aambale v. The State of Chhattisgarh

- **Citation:** 2025 INSC 78
- **Court:** Supreme Court of India
- **Decided:** 2025-01-06
- **Case number:** Criminal Appeal No. 250 of 2025
- **Bench:** J.B. Pardiwala, R. Mahadevan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bharat-aambale-v-the-state-of-chhattisgarh-38166
- **Pages:** 57

## Headnote

Appellant had been convicted by the Courts below under Section
20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act,
1985. The issue was whether the conviction could be said to have
been vitiated because of non-compliance of Section 52A of the
NDPS Act.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 -
s.52A - Purpose, Nature, Extent & Scope - Allegation of
non-compliance of s.52A - Onus on the accused or on the
prosecution - Required standard of proof:
Held: 1. On facts, it can be hardly be said that there has been any
procedural lapse in terms of Section 52A of the NDPS Act, rather
it appears that the police have strenuously followed the process
prescribed thereunder that was in force at the time of seizure and
sampling - Even otherwise, on facts, such procedural lapse has
absolutely no bearing on the overall case of the prosecution and
by extension the conviction of the appellant inasmuch as the entire
material on record clearly establishes the recovery and seizure of
the ganja at the instance of the accused. [Para 45]
2. 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)
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Bharat Aambale v. The State of Chhattisgarh
of the NDPS Act - 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 - 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 subsection (4) of the NDPS Act, irrespective of
whether the substance in original is actually produced before the
court or not - 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 -
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 - 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 - 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 - Where
there has been lapse on the part of the police

## Text

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[2025] 1 S.C.R. 1524 : 2025 INSC 78
Bharat Aambale
v.
The State of Chhattisgarh
(Criminal Appeal No. 250 of 2025)
06 January 2025
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
Appellant had been convicted by the Courts below under Section
20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act,
1985. The issue was whether the conviction could be said to have
been vitiated because of non-compliance of Section 52A of the
NDPS Act.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 -
s.52A - Purpose, Nature, Extent & Scope - Allegation of
non-compliance of s.52A - Onus on the accused or on the
prosecution - Required standard of proof:
Held: 1. On facts, it can be hardly be said that there has been any
procedural lapse in terms of Section 52A of the NDPS Act, rather
it appears that the police have strenuously followed the process
prescribed thereunder that was in force at the time of seizure and
sampling - Even otherwise, on facts, such procedural lapse has
absolutely no bearing on the overall case of the prosecution and
by extension the conviction of the appellant inasmuch as the entire
material on record clearly establishes the recovery and seizure of
the ganja at the instance of the accused. [Para 45]
2. 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)
[2025] 1 S.C.R.
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Bharat Aambale v. The State of Chhattisgarh
of the NDPS Act - 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 - 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 subsection (4) of the NDPS Act, irrespective of
whether the substance in original is actually produced before the
court or not - 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 -
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 - 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 - 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 - 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
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from the other material on record - The initial burden will lie on the
accused to first lay the foundational facts to show that there was
non-compliance 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 - Once the
foundational facts laid indicate non-compliance 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. [Paras 50(I) to (X)]
Case Law Cited
Union of India v. Mohan Lal & Anr. [2016] 1 SCR 651 : (2016)
3 SCC 379; Noor Aga v. State of Punjab & Anr. [2008] 10 SCR
379 : (2008) 16 SCC 417; Union of India v. Jarooparam [2018] 1
SCR 618 : (2018) 4 SCC 334; Yusuf @ Asif v. State, 2023 SCC
OnLine SC 1328; Mangilal v. State of Madhya Pradesh [2023] 10
SCR 517 : 2023 SCC OnLine SC 862; Simarnjit Singh v. State of
Punjab, 2023 SCC OnLine SC 906; Mohammed Khalid & Anr. v.
State of Telangana [2024] 3 SCR 23 : (2024) 5 SCC 393; Narcotics
Control Bureau v. Kashif, 2024 SCC OnLine SC 3848; Khet Singh
v. Union of India [2002] 2 SCR 598 : (2002) 4 SCC 380; State of
Punjab v. Makhan Chand (2004) 3 SCC 453 - referred to.
List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985;
Negotiable Instruments Act, 1881; Opium Act, 1857; Opium
Act, 1878; Dangerous Drugs Act, 1930; Narcotic Drugs or
Psychotropic Substances (Amendment) Bill, 1988; Narcotic Drugs
and Psychotropic Substances (Seizure, Storage, Sampling and
Disposal) Rules, 2022; Evidence Act, 1872.
List of Keywords
Narcotic Drugs and Psychotropic Substances Act, 1985-s.52A;
Conviction under section 20(b)(ii)(c); Inventory; Photographs;
Primary evidence; Non-compliance; Trial vitiated; Conviction;
Burden of proof; Physical evidence; Disposal, search; Seizure.
[2025] 1 S.C.R.
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Bharat Aambale v. The State of Chhattisgarh
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
250 of 2025
From the Judgment and Order dated 08.07.2024 of the High Court
of Chhattisgarh at Bilaspur in CRA No. 731 of 2023
Appearances for Parties
Sameer Shrivastava, Ms. Palak Mathur, Ms. Priyanka Shrivastava,
Advs. for the Appellant.
Bishwajit Dubey, A.A.G., Vinayak Sharma, Ravinder Kumar Yadav,
Advs. for the Respondent.
Judgment / Order of the Supreme Court
Order
1.
Leave Granted.
2.
This appeal is at the instance of a convict accused for the offence
punishable under Section 20(b) (ii) (c) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short the "NDPS Act") and
is directed against the judgment and order passed by the High Court
of Chhattisgarh, Bilaspur dated 8th July, 2024 in Criminal Appeal
No. 731 of 2023 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 Judge, (NDPS Act),
Mahasamund in Special Criminal Case No. H-29/2017 holding
the appellant herein guilty of the offence enumerated above and
sentencing him to undergo rigorous imprisonment for a period of
15 years and fine of Rs.1 lakh.
3.
The only contention raised before us by the learned counsel appearing
for the appellant herein is that the conviction could be said to have
stood vitiated because of the non-compliance of Section 52A of the
NDPS, Act.
4.
The learned counsel appearing for the appellant placed strong reliance
on the decision of this Court rendered in the case of Union of India
v. Mohan Lal & Anr. reported in (2016) 3 SCC 379 to make good
his submission that non-compliance of Section 52A of the NDPS
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Act along with the relevant rules, would vitiate the entire trial and
the conviction.
5.
Having heard the learned counsel appearing for the parties and
having gone through the materials on record, we are not impressed
with the submission as regards Section 52A of the NDPS Act.
Legislative History & Scope of Section 52A of the NDPS Act.
6.
Before proceeding with the analysis, it would be apposite to first
delve into the legislative history and purport of Section 52A of the
NDPS Act. Much before the enactment of NDPS Act, 1985 the
statutory control over narcotic drugs was exercised in India through
number of scattered legislations like the Opium Act, 1857, the Opium
Act, 1878 and the Dangerous Drugs Act, 1930. With the passage
of time and rampant increase in illicit drug trafficking and abuse
of several substances, many deficiencies in the older legislations
were noticed. This led to the enactment of the NDPS Act. The Act
was enacted to consolidate and amend the law relating to narcotic
drugs, to make stringent provisions for the control and regulation of
operations relating to narcotic drugs and psychotropic substances,
and to provide for the forfeiture of property derived from or involved
in the illicit drug trafficking.
7.
Section 52A of the NDPS Act came into existence as part of the
amendments made in 1989 following the original enactment of the
NDPS Act in 1985. It was inserted due to several practical challenges
that were encountered in the enforcement of the law, more particularly
concerning the management of seized narcotic substances. Before
its introduction, there was no specific statutory provision detailing
the disposal of such substances which led to logistical and financial
difficulties in storing seized drugs for prolonged periods, given
the large quantities often involved and the need for strict security
measures to prevent theft or misuse. The absence of clear guidelines
resulted in long delays in trials, as the seized substances had to be
preserved intact for being produced as evidence before the court.
This created a situation where seized drugs remained in storage
for years, increasing the risk of their degradation, theft, or diversion
back into illicit markets. This was further compounded by the highly
sensitive nature of narcotic drugs and psychotropic substances,
which required specialized storage facilities to maintain its integrity
[2025] 1 S.C.R.
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Bharat Aambale v. The State of Chhattisgarh
and prevent misuse. Additionally, the lack of clarity regarding the
disposal process often resulted in inconsistencies and inefficiencies,
particularly in the sampling, testing and reporting of such substances
which undermined the very trial itself and the overall effectiveness
of the NDPS Act. These issues highlighted the urgent need for a
streamlined, legally sanctioned mechanism for the disposal of seized
substances while ensuring that such disposal did not compromise
the integrity of the legal process or the evidentiary value of the
material in question.
8.
Over a period of time, it was also noticed by the Narcotics Control
Bureau (NCB) that different investigating officers of various
enforcement agencies and States were adopting different procedures
in drawing samples from seized narcotic drugs and psychotropic
substances, etc. Therefore, with a view to bring uniformity of approach
in such matters and to provide for a secured system of handling of
drug samples, the NCB had issued the Standing Order No. 1 of 88
vide the notification dated 15.03.1988 prescribing the procedure to
be followed for drawing samples from the seized narcotic drugs and
psychotropic substances, numbering of samples drawn, sealing, mode
of packing, dispatch of samples to the concerned laboratory for test
etc. Thereafter, recognizing the importance of dispatch, transit, receipt,
safe custody, storage, proper accounting and disposal destruction
of the seized/confiscated drugs and the need for evolving a uniform
procedure, the NCB issued the Standing Order No. 2 of 88 vide the
notification dated 11.04.1988 formulating the procedure for seizure,
sampling and storage of contraband.
9.
However, despite the aforesaid the necessity to insert Section 52A
was felt in view of the International Convention of 1988 held by the
United Nations, which adopted the United Nations Convention Against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 and
the South Asian Association for Regional Cooperation (SAARC) held
in December, 1988, where it was resolved that the Member-States
would take measures for early destruction or lawful disposal of
narcotic drugs and psychotropic substances. Since, India being a
Member-State, was a signatory to the said conventions, the Central
Government introduced a Bill in Parliament, i.e., the Narcotic Drugs
or Psychotropic Substances (Amendment) Bill, 1988, specifically to
give effect to the International Conventions in the substantive Act.
Accordingly, Section 52A of the NDPS Act came to be inserted by
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the Act 2 of 1989, which came into force with effect from 29.05.1989.
The said provision reads as under: -
"52A. Disposal of seized narcotic drugs and
psychotropic substances. -
(1) The Central Government may, having regard to the
hazardous nature, vulnerability to theft, substitution,
constraint of proper storage space or any other
relevant consideration, in respect of any narcotic drugs,
psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette,
specify such narcotic drugs, psychotropic substances,
controlled substances or conveyance or class of
narcotic drugs, class of psychotropic substances, class
of controlled substances or conveyances, which shall,
as soon as may be after their seizure, be disposed of
by such officer and in such manner as that Government
may, from time to time, determine after following the
procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances,
controlled substances or conveyances has been seized
and forwarded to the officer-in-charge of the nearest
police station or to the officer empowered under section
53, the officer referred to in sub-section (1) shall prepare
an inventory of such narcotic drugs, psychotropic
substances, controlled substances or conveyances
containing such details relating to their description, quality,
quantity, mode of packing, marks, numbers or such other
identifying particulars of the narcotic drugs, psychotropic
substances, controlled substances or conveyances or the
packing in which they are packed, country of origin and
other particulars as the officer referred to in sub-section
(1) may consider relevant to the identity of the narcotic
drugs, psychotropic substances, controlled substances or
conveyances in any proceedings under this Act and make
an application, to any Magistrate for the purpose of -
(a) certifying the correctness of the inventory so
prepared; or
[2025] 1 S.C.R.
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Bharat Aambale v. The State of Chhattisgarh
(b) taking in the presence of such magistrate,
photographs of such drugs, substances or
conveyances and certifying such photographs
as true; or
(c)
allowing to draw representative samples of such
drugs or substances, in the presence of such
magistrate and certifying the correctness of any
list of samples so drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1972) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an offence
under this Act, shall treat the inventory, the photographs
of narcotic drugs, psychotropic substances, controlled
substances or conveyances and any list of samples drawn
under sub-section (2) and certified by the Magistrate, as
primary evidence in respect of such offence."
10. Section 52A of the NDPS Act lays down a comprehensive procedure
for the disposal of seized narcotic drugs and psychotropic substances.
Sub-section (1) empowers the Central Government to prescribe
the manner in which such substances are to be disposed of. Subsection (2) provides that the officer in charge of the police station
or the officer authorized under Section 53, who has seized the
substances, shall prepare an inventory of the seized material. The
inventory must include details such as the description, quantity, mode
of packing (including the mode of conveyance being used such as
any vehicle), identifiable marks or numbers, country of origin and
other particulars as necessary of the substances so seized. This
inventory is to be forwarded to the magistrate having jurisdiction
over the case by way of an application. Under sub-section (3), the
magistrate, upon receiving the application, is required to certify the
correctness of the inventory so prepared. The certification process
involves taking photographs of the original seized substances
(including the mode of conveyance being used such as any vehicle),
verifying the correctness of the inventory prepared against the same,
and thereafter drawing representative samples in the presence of
the magistrate, which are then sealed and its details are entered
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into a list which is certified by the magistrate. These certified
samples, along with the inventory and photographs, are admissible
as evidence during trial under sub-section (4) and are to be treated
as primary evidence.
11. Thereafter, in order to formulate and prescribe a set procedure, the
Standing Order No. 1 of 1989 vide notification dated 13.06.1989
came to be issued which laid down the procedure to be followed
while conducting seizure of the contraband. Two subsequent
notifications in lieu of the said Standing Order came to be issued
dated 10.05.2007 and 16.01.2015 respectively, that dealt with the
procedure for disposal and destruction of seized contraband. Clause
2.1 of the said Standing Order No. 1 of 1989 stated that all drugs
shall be properly classified, carefully weighed and sampled on the
spot of seizure. The said Standing Order also provided about the
drawing of samples on the spot of recovery, quantity to be drawn
for sampling, etc. It also provided a detailed procedure with regard
to the method of drawing of representative samples, storage of
samples, dispatch of samples, preparation of inventory, etc., and
also provided for an early disposal of drugs and other articles by
having recourse to the provisions of sub-section (2) of Section 52A
of the Act. Ultimately, the aforesaid Standing Order(s) came to be
repealed with the enactment of the Narcotic Drugs and Psychotropic
Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022
(for short, the "NDPS Rules"), that consolidated the entire framework
and procedure to be followed for the seizure, storage, sampling and
disposal of the seized material.
12. Thus, it can be seen that the scope of Section 52A although primarily
for the disposal and destruction of seized contraband in a safe manner
yet extends beyond the immediate context of drug disposal, as it
serves a broader purpose of strengthening the evidentiary framework
under the NDPS Act. By providing for the preparation of inventories
and certification by magistrates, the provision enhances the credibility
and reliability of evidence presented during trial, minimizing the scope
for disputes or challenges related to the handling and disposal of
seized substances.
13. In Mohanlal (supra) this Court exhaustively explained the scope of
Section 52A of the NDPS Act, the Standing Order(s) issued thereunder
[2025] 1 S.C.R.
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Bharat Aambale v. The State of Chhattisgarh
and the procedure envisaged under the same for seizure, storage
and disposal of narcotic substances as follows: -
(i)
Section 52A sub-section (1) empowers the Central Government
to prescribe the procedure to be followed for seizure, storage
and disposal of narcotic substances, and in exercise of the
same, the aforesaid Standing Order(s) were issued (as amended
from time to time). The relevant observations read as under: -
"12. Section 52-A(1) of the NDPS Act, 1985 empowers
the Central Government to prescribe by a notification
the procedure to be followed for seizure, storage and
disposal of drugs and psychotropic substances. The
Central Government has in exercise of that power
issued Standing Order No. 1 of 1989 which prescribes
the procedure to be followed while conducting seizure
of the contraband. Two subsequent standing orders
one dated 10-5-2007 and the other dated 16-12015 deal with disposal and destruction of seized
contraband and do not alter or add to the earlier
standing order that prescribes the procedure for
conducting seizures. Para 2.2 of Standing Order
No. 1 of 1989 states that samples must be taken
from the seized contraband on the spot at the time
of recovery itself."
(ii) As per sub-section (2) of Section 52A, upon seizure of such
substance, the same has to be forwarded either to the officer-incharge of the nearest police station or to the officer empowered
under Section 53 who shall prepare an inventory as stipulated
under the said provision and then make an application to the
magistrate for the purposes of certifying the correctness of
the inventory, photographs etc. and to draw representative
samples therefrom in its presence. The relevant observations
read as under: -
"15. It is manifest from Section 52-A(2)(c) (supra)
that upon seizure of the contraband the same has
to be forwarded either to the officer-in-charge of the
nearest police station or to the officer empowered
under Section 53 who shall prepare an inventory
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as stipulated in the said provision and make an
application to the Magistrate for purposes of (a)
certifying the correctness of the inventory, (b)
certifying photographs of such drugs or substances
taken before the Magistrate as true, and (c) to
draw representative samples in the presence of the
Magistrate and certifying the correctness of the list
of samples so drawn."
(iii) As per Section 52A sub-section (3) as soon as the seizure is
effected and the contraband is forwarded, the officer concerned
is in law duty-bound to approach the magistrate as soon as
possible for the purposes mentioned above including grant of
permission to draw representative samples in his presence,
which will then be enlisted and certified. Thus, the entire process
of drawing of samples has to be in the presence and under the
supervision of the magistrate and the entire exercise has to be
certified as correct. The relevant observations read as under: -
"16. Sub-section (3) of Section 52-A requires that
the Magistrate shall as soon as may be allow the
application. This implies that no sooner the seizure
is effected and the contraband forwarded to the
officer-in-charge of the police station or the officer
empowered, the officer concerned is in law dutybound to approach the Magistrate for the purposes
mentioned above including grant of permission to
draw representative samples in his presence, which
samples will then be enlisted and the correctness
of the list of samples so drawn certified by the
Magistrate. In other words, the process of drawing
of samples has to be in the presence and under the
supervision of the Magistrate and the entire exercise
has to be certified by him to be correct."
(iv) Section 52A of the NDPS Act does not require drawing of
samples at the very time of seizure or even at the spot where
the contraband was seized. However, as per sub-section (4) of
Section 52A only those samples which are drawn in presence of
a magistrate and certified by it will constitute primary evidence
[2025] 1 S.C.R.
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Bharat Aambale v. The State of Chhattisgarh
for the purpose of the trial. The relevant observations read as
under: -
"17. The question of drawing of samples at the time
of seizure which, more often than not, takes place in
the absence of the Magistrate does not in the above
scheme of things arise. This is so especially when
according to Section 52-A(4) of the Act, samples
drawn and certified by the Magistrate in compliance
with sub-sections (2) and (3) of Section 52-A above
constitute primary evidence for the purpose of the
trial. Suffice it to say that there is no provision in
the Act that mandates taking of samples at the time
of seizure. That is perhaps why none of the States
claim to be taking samples at the time of seizure."
(Emphasis supplied)
(v) The scheme of the Act in general and Section 52A in particular,
does not brook any delay in the matter of making of an application
or the drawing of samples and certification. While no strict
time-frame can be prescribed into the said provision, yet the
entire process of sampling and certification ought to be done
in a reasonable period without any undue delay. The relevant
observations read as under: -
"19. [...] There is in our opinion no manner of doubt
that the seizure of the contraband must be followed by
an application for drawing of samples and certification
as contemplated under the Act. There is equally no
doubt that the process of making any such application
and resultant sampling and certification cannot be left
to the whims of the officers concerned. The scheme
of the Act in general and Section 52-A in particular,
does not brook any delay in the matter of making
of an application or the drawing of samples and
certification. While we see no room for prescribing
or reading a time-frame into the provision, we are
of the view that an application for sampling and
certification ought to be made without undue delay
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and the Magistrate on receipt of any such application
will be expected to attend to the application and do
the needful, within a reasonable period and without
any undue delay or procrastination as is mandated
by sub-section (3) of Section 52-A (supra). We hope
and trust that the High Courts will keep a close watch
on the performance of the Magistrates in this regard
and through the Magistrates on the agencies that are
dealing with the menace of drugs which has taken
alarming dimensions in this country partly because of
the ineffective and lackadaisical enforcement of the
laws and procedures and cavalier manner in which
the agencies and at times Magistracy in this country
addresses a problem of such serious dimensions."
(vi) As per Section 55 of the NDPS Act the officer-in-charge of a
police station shall take charge of and keep in safe custody
the remaining seized article pending orders of the magistrate
concerned for its disposal or destruction. Further, as per the
Standing Order(s), such seized substances must be stored in
appropriate safe vaults or godowns as prescribed thereunder
as far as possible. The relevant observations read as under: -
"20. The Narcotic Drugs and Psychotropic Substances
Act, 1985 does not make any special provision
regulating storage of the contraband substances.
All that Section 55 of the Act envisages is that
the officer-in-charge of a police station shall take
charge of and keep in safe custody the seized article
pending orders of the Magistrate concerned. There
is no provision nor was any such provision pointed
out to us by the learned counsel for the parties
prescribing the nature of the storage facility to be
used for storage of the contraband substances. Even
so the importance of adequate storage facilities for
safe deposit and storage of the contraband material
has been recognised by the Government inasmuch
as Standing Order No. 1 of 1989 has made specific
provisions in regard to the same. Section III of the
said Order deals with "Receipt of Drugs in Godowns
[2025] 1 S.C.R.
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Bharat Aambale v. The State of Chhattisgarh
and Procedure" which inter alia provides that all
drugs shall invariably be stored in "safes and vaults"
provided with double-locking system and that the
agencies of the Central and the State Governments
may specifically designate their godowns for storage
purposes and such godowns should be selected
keeping in view their security angle, juxtaposition to
courts, etc."
(Emphasis supplied)
(vii) As per Clause 4 of the notification dated 16.01.2015 amending
the Standing Order No. 1 of 1989, the officer in charge of the
police station shall within 30-days from the date of receipt of
chemical analysis report of the seized substances apply to the
magistrate for disposal of the remaining substance.
"27. Section 52-A as amended provides for disposal
of the seized contraband in the manner stipulated by
the Government under sub-section (1) of that section.
Notification dated 16-1-2015, in supersession of
the earlier Notification dated 10-5-2007 not only
stipulates that all drugs and psychotropic substances
have to be disposed of but also identifies the
officers who shall initiate action for disposal and
the procedure to be followed for such disposal.
Para 4 of the Notification, inter alia, provides that
officer in charge of the police station shall within
30 days from the date of receipt of chemical
analysis report of drugs, psychotropic substances
or controlled substances apply to any Magistrate
under Section 52-A(2) in terms of Annexure 2 to
the said Notification."
(viii) After the aforesaid application is allowed, the concerned officer is
required to submit details of the seized items to the Chairman of
the Drugs Disposal Committee for a decision on disposal along
with a copy to the officer in charge of the godown where such
substance is stored. Thereafter, the Drugs Disposal Committee
shall order the disposal in terms of the procedure envisaged
under Clauses 7 & 8, respectively of the Standing Order as
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amended by notification dated 16.01.2015 and thereafter issue
a certificate of destruction or disposal.
"28. Sub-para (2) of Para 4 provides that after the
Magistrate allows the application under sub-section
(3) of Section 52-A, the officer mentioned in sub-para
(1) of Para 4 shall preserve the certified inventory,
photographs and samples drawn in the presence of
the Magistrate as primary evidence for the case and
submit details of seized items to the Chairman of
the Drugs Disposal Committee for a decision by the
Committee on the question of disposal. The officer
shall also send a copy of the details along with the
items seized to the officer in charge of the godown.
Para 5 of the Notification provides for constitution of
the Drugs Disposal Committee while Para 6 specifies
the functions which the Committee shall perform. In
Para 7 the Notification provides for procedure to be
followed with regard to disposal of the seized items,
while Para 8 stipulates the quantity or the value up
to which the Drugs Disposal Committee can order
disposal of the seized items. In terms of proviso to
Para 8 if the consignments are larger in quantity or
of higher value than those indicated in the Table,
the Drugs Disposal Committee is required to send
its recommendations to the head of the department
who shall then order their disposal by a high-level
Drugs Disposal Committee specially constituted
for that purpose. Para 9 prescribes the mode of
disposal of the drugs, while Para 10 requires the
Committee to intimate to the head of the Department
the programme of destruction and vest the head of
the Department with the power to conduct a surprise
check or depute an officer to conduct such checks on
destruction operation. Para 11 deals with certificate of
destruction while Paras 12 and 13 deal with details
of sale to be entered into the godown register and
communication to be sent to the Narcotics Control
Bureau."
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Bharat Aambale v. The State of Chhattisgarh
14. At this stage it would be appropriate to refer to a few decisions of this
Court on the subject, to understand the instances where a conviction
had been set aside on account of non-compliance of Section 52A
of the NDPS Act.
15. In Noor Aga v. State of Punjab & Anr. reported in (2008) 16 SCC 417
the case of the prosecution therein was that 1.4 kg heroin concealed
in a cardboard container was allegedly recovered from the appellant
therein. However, neither the bulk quantity of heroin nor the cardboard
carton containing the same was ever produced before the court. The
explanation that was put forth by the prosecution for such omission
was that the original cardboard carton had gone missing whereas
the heroin which was seized had been destroyed. However, neither
any order of disposal in terms of Section 52A for the destruction of
the heroin nor any photographs or inventory details of the carton
in terms of the Standing Order(s) was placed before the court.
Moreover, the samples of the seized narcotic substance had also
been drawn in complete violation of the procedure envisaged under
the Standing Order(s) and had several discrepancies as regards the
weight and colour and uncorroborated by any independent witnesses.
The High Court however, convicted the appellant on the ground that
as per the record, all seized material had been duly sealed, thus,
the physical evidence could be said to have been intact and in safe
custody. In appeal, this Court speaking through Justice S.B. Sinha
after examining Section 52A and the aforesaid Standing Order(s)
issued pursuant thereto held as follows: -
(i)
First, it held that Section 52A provides for disposal of seized
narcotic substances whereby the officer empowered under
Section 53 is first required to prepare an inventory of the
seized substances, record details relating to their description,
quality, quantity and packaging along with any other marks
relevant for the purpose of identification of the same. It further
held that since the aspect of disposal is clearly provided only
under Section 52A of the NDPS Act and no other provision, any
destruction or disposal of such substances can only be done
with a clear direction or order from the competent magistrate
and as per the procedure envisaged under the said provision
and Clause 3.9 of the standing order thereunder. The relevant
observations read as under: -
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"28. Section 52-A provides for disposal of seized
narcotic drugs and psychotropic substances [...]
xxx
xxx
xxx
93. The only course of action the prosecution should
have resorted to is to obtain an order from the
competent court of the Magistrate as envisaged under
Section 52-A of the Act in terms whereof the officer
empowered under Section 53 upon preparation of an
inventory of narcotic drugs containing such details
relating to their description, quality, quantity, mode
of packing, marks, numbers or such other identifying
particulars of the narcotic drugs or psychotropic
substances or the packing in which they are packed,
country of origin and other particulars as he may
consider relevant to the identity of the narcotic drugs
or psychotropic substances in any proceedings
thereunder [...]
94. We must also notice a distinction between Section
110(1-B) of the 1962 Act and Section 52-A(2) of the
Act as sub-section (4) thereof, namely, that the former
does not contain any provision like sub-section (4)
of Section 52-A. It is of some importance to notice
that Para 3.9 of the Standing Order requires pretrial disposal of drugs to be obtained in terms of
Section 52-A of the Act. Exhibit PJ can be treated as
nothing other than an order of authentication as it is
a certificate under Section 110(1-B) of the 1962 Act
as the aspect of disposal clearly provided for under
Section 52-A of the Act is not alluded to. [...] authority
for disposal would require a clear direction of the court
in terms of Section 52-A of the Act. Fourthly, the High
Court failed and/or neglected to consider that physical
evidence being the property of the court and being
central to the trial must be treated and disposed of
in strict compliance with the law."
(Emphasis supplied)
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Bharat Aambale v. The State of Chhattisgarh
(ii) Secondly, it held that the guidelines issued by way of the
Standing Order(s) for the purposes of Section 52A cannot
be blatantly flouted and substantial compliance of the same
is necessary to ensure that the sanctity of physical evidence
remains intact. The relevant observations read as under: -
"89. Guidelines issued should not only be substantially
complied with, but also in a case involving penal
proceedings, vis-à-vis a departmental proceeding,
rigours of such guidelines may be insisted upon.
Another important factor which must be borne in mind
is as to whether such directions have been issued in
terms of the provisions of the statute or not. When
directions are issued by an authority having the legal
sanction granted therefor, it becomes obligatory on the
part of the subordinate authorities to comply therewith.
xxx
xxx
xxx
91. The logical corollary of these discussions is that
the guidelines such as those present in the Standing
Order cannot be blatantly flouted and substantial
compliance therewith must be insisted upon for so
that sanctity of physical evidence in such cases
remains intact. [...]"
(Emphasis supplied)
(iii) Lastly, it held that any failure on the part of the authorities
in substantially complying with the procedure contemplated
under the Standing Order(s) would lead to drawing of an
adverse inference against the prosecution if there exists any
discrepancies in the physical evidence. It further held that
while such discrepancies in physical evidence when examined
individually may not be fatal but an overall view with respect
to such discrepancies can create an overarching dent on the
credibility of the prosecution's case. The relevant observations
read as under: -
"92. Omission on the part of the prosecution to
produce evidence in this behalf must be linked
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with a second important piece of physical evidence
that the bulk quantity of heroin allegedly recovered
indisputably has also not been produced in court.
The respondents contended that the same had been
destroyed. However, on what authority it was done is
not clear. Law requires that such an authority must
flow from an order passed by the Magistrate.
xxx
xxx
xxx
95. The High Court proceeded on the basis that
non-production of physical evidence is not fatal to
the prosecution case but the fact remains that a
cumulative view with respect to the discrepancies in
physical evidence creates an overarching inference
which dents the credibility of the prosecution. [...]
xxx
xxx
xxx
119. [...]
4. Finding on the discrepancies, although if individually
examined, may not be fatal to the case of the
prosecution but if cumulative view of the scenario
is taken, the prosecution's case must be held to be
lacking in credibility."
(Emphasis supplied)
Accordingly, this Court while setting aside the order of conviction
passed by the High Court held that the destruction of the seized
substance in violation of Section 52A coupled with the omission on the
part of the prosecution in producing either the substance itself prior to
its disposal, the sample taken therefrom or the original seals on the
container without any explanation along with several other significant
discrepancies in its recovery and storage created serious doubt over
the prosecution's case. The relevant observations read as under: -
"96.