Scope of section 52A of the NDPS ACT, 1985

1. The appellant stood charged and convicted under Section 8(b) read with Section 15(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”). The Additional Sessions Judge, Special Court NDPS, Jaora, District Ratlam, Madhya Pradesh, convicted the appellant and sentenced him to undergo rigorous imprisonment for 10 years. It was accordingly confirmed by the High Court of Madhya Pradesh. Aggrieved, the present appeal is filed.

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Scope of section 52A of the NDPS Act, 1985

1. 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.
2. 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 4 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 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.
3. 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 approval either for certifying an inventory or for a photograph taken apart from list of samples drawn. In due compliance of Section 52A(1) of the NDPS Act the Ministry of Finance (Department of Revenue) issued a Notification No. G.S.R. 339(E) dated 10.05.2007 which furnishes an exhaustive manner and mode of disposal of drugs ending with a certificate of destruction:
4. To be noted, the aforesaid notification was in existence at the time of the commission of the offence alleged in the case on hand, stood repealed with effect from 23.12.2022 vide Notification No. G.S.R.899(E). In any case a notification issued in derogation of the powers conferred under sub-section (1) of Section 52A of the NDPS Act can never contradict the main provision, particularly sub-Section (2). However, any guideline issued by way of a notification in consonance with Section 52A of the NDPS Act has to be followed mandatorily.
5. Before any proposed disposal/destruction mandate of Section 52A of the NPDS Act requires to be duly complied with starting with an application to that effect. A Court should be satisfied with such compliance while deciding the case. The onus is entirely on the prosecution in a given case to satisfy the Court when such an issue arises for consideration. Production of seized material is a factor to establish seizure followed by recovery. One has to remember that the provisions of the NDPS Act are both stringent and rigorous and therefore the burden heavily lies on the prosecution. Non-production of a physical evidence would lead to a negative inference within the meaning of Section 114(g) of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act). The procedure contemplated through the notification has an element of fair play such as the deposit of the seal, numbering the containers in seriatim wise and keeping them in lots preceded by compliance of the procedure for drawing samples. The afore-stated principles of law are dealt with in extenso in Noor Aga v. State of Punjab, (2008) 16 SCC 417 :
6. There is a serious doubt with respect to the seizure. P.W.5 who was a police officer himself had deposed on the existence of the very same seized materials even before the occurrence. This testimony which destroys the very basis of the prosecution case has not even been challenged.
7. Both the Courts have mechanically placed reliance on the FSL Report while taking the statement of P.W.11 as the gospel truth. The views expressed by him can at best be taken as opinion at least on certain aspects. There are too many material irregularities which create a serious doubt on the very case of the prosecution. On a proper analysis we have no hesitation in holding that the impugned judgments are liable to be set aside and the appellant is to be acquitted by rendering the benefit of doubt. 15. In the result, the appeal is allowed. The conviction and sentence rendered by the Additional Sessions Judge, Special Court NDPS, Jaora, District Ratlam, Madhya Pradesh in Special Sessions No. 19/2010 as confirmed by the High Court of Madhya Pradesh in Criminal Appeal No. 6163 of 2017 stands set aside. The appellant is acquitted of all the charges. Bond, if any, shall stand discharged.

Party

MANGILAL vs. THE STATE OF MADHYA PRADESH – CRIMINAL APPEAL NO. 1651 OF 2023 – July 12, 2023.

https://main.sci.gov.in/supremecourt/2019/22164/22164_2019_7_115_44955_Judgement_12-Jul-2023.pdf

Mangilal vs. The state of M.P 22164_2019_7_115_44955_Judgement_12-Jul-2023