Section 52A Of NDPS Act, 1985 – Legal Uncertainty

This Article pertaining to Section 52A Of NDPS Act, 1985 – Legal Uncertainty is Authored by A. Rangadham, Superintendent (AR), Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Hyderabad.

Section 52A of the NDPS Act, 1985 provides for the manner of disposal of the seized narcotic drugs, psychotropic substances, controlled substances and conveyances.

Section 52A(1) mandates that the disposal can take place after following the procedure prescribed under Sec. 52A(2). Sub-clause (2) of 52A states that where any narcotic drugs, psychotropic substance, control substance or conveyance has been seized, the empowered officer shall prepare an inventory of the seized items containing such details relating to their description, quality, quantity, mode of packing, marks, numbers, or such other identifying particulars and make an application to any magistrate for the purpose of (i) certifying the correctness of the inventory; or (ii) taking in the presence of such magistrate photographs of such drugs, substance or conveyance and certifying such photographs as true; or (iii) allowing to draw representative samples of such drugs or substance in the presence of such magistrate and certifying the correctness of any list of samples so drawn.

Once the procedure prescribed under sub-clause 2 of section 52A is complied, sub-clause (4) of section 52A mandates that notwithstanding anything contained in the Indian Evidence Act or the Code of Criminal Procedure, (i) the inventory, (ii) the photographs, and (iii) any list of samples certified by the magistrate is to be treated as ‘primary evidence’.

The Legislature in its wisdom normally lays down the broad principles in an Act under which the Executive branch has to function. The nitty gritty of implementation of the Act is generally sub-delegated by way of powers to make rules. The NDPS Act, details the contours of the law for the purpose of making stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. Section 76 provides that the Central Government may make Rules for carrying out the purposes of the Act. Sec. 76(2)(de) provides for power to make Rules for ‘the disposal of all articles or things confiscated under this Act’. Similarly, Sec. 76(2)(df) provides for power to make Rules for ‘the drawing of samples and testing and analysis of such samples’.

In exercise of the powers conferred under Sec. 76 (ibid), the Central Government issued Standing Order 1/88 pertaining to the place and time of drawing of sample among other matters. After Sec. 52A was inserted in the NDPS Act, 1985 w.e.f. 29-05-1989, the Central Government issued Standing Order 1/89 notifying the manner of disposal and the items that could be disposed. It was however unfortunate, that the Central Government did not state in the above said two standing orders from where the powers were derived to issue the said instructions.  However, it is settled law that, as long as the Government had the power to issue any orders, mere non-mentioning of the section granting the powers in its order will not vitiate the orders. Refer: Pournami Oil Mills and Others vs. State of Kerala and Anr. – 1986 (Supp) SCC 728

Following the valid and legally issued instruction vide 1/88, 2/88 and 1/89, the empowered officers under NDPS Act, 1985 were drawing samples at the time of seizure and sending the samples, so drawn, to the authorized government laboratories for analysis and testing. The procedure adopted for drawing the samples at the scene of offence was upset by the Hon’ble Supreme Court in the case of Union of India Vs. Mohanlal and Another [(2016) 3 SCC 379] by holding that there is no provision under the NDPS Act for drawing of samples and that only Sec. 52A provides for drawing of samples and therefore concluded that samples have to be drawn before the Magistrate. Another factor that seems to have weighed for this proposition is that all investigating agencies submitted before the Hon’ble Supreme Court (barring Directorate of Revenue Intelligence) that samples are being drawn before the Magistrate, which apparently was a wrong submission.  The Hon’ble Supreme Court held that Standing Order 1/88 and 1/89 are not proper to the limited extent of drawing of samples at the time of seizure and directed the Central Government to issue consolidated instructions in this regard. Following the directions issued by the Hon’ble Supreme Court the Central Government issued G.S.R 899(E) dt. 23-12-2022 called “Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022”.

In this backdrop, the need for analysis of the judgement of the Hon’ble Supreme Court in the case of Narcotics Control Bureau v. Kashif dt. 20-12-2024 in Crl. A. No. 5544 of 2024 arises.

The above cited judgement seems to veer away from the proposition laid down by the Hon’ble Supreme Court in the case of UOI v. MohanLal & Anr (supra)

The salient points of the Judgment dt. 20-12-2024:

• The NDPS Act is enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances
• The provisions of NDPS Act are required to be interpreted keeping in mind the object and purpose of the Act and the impact on the society as a whole
• The Act is required to be interpreted literally and not liberally which may ultimately frustrate the object purpose and preamble of the Act.
• While considering the application for bail, the court has to bear in mind the provisions of section 37 of the NDPS Act which are mandatory in nature. Under the NDPS Act negation of bail is the rule and its grant is an exception
• The two conditions to be considered while granting bail i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offense and (ii) that he is not likely to commit any offence while on bail are the cumulative and not alternative conditions.
• The non-recording of such satisfaction which is mandatory in nature, renders the bail order fallacious and untenable
• Standing Instructions no. 1 of 88 pertained to 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.
• To give effect to the International Conventions, Section 52A for disposal of seized narcotic drugs and psychotropic substances came to be inserted in the Act with effect from 29.05.1989
• The insertion of Section 52A was followed by the Standing Order No. 1 of 89 dated 13.06.1989. The said Standing Order came to be issued as it was considered necessary and expedient to determine the manner in which the narcotic drugs and psychotropic substances should be disposed of after their seizure, having regard to their hazardous nature, vulnerability to theft, substitution and constraints of proper storage space. It also provided about the drawing of samples on the spot of recovery, quantity to be drawn for sampling, etc.
• This was followed by Notification G.S.R 38(E) dt. 16-01-2015 which provided for manner of disposal of the seized narcotic drugs and psychotropic substances, controlled substances and conveyances
• The above standing orders and notification having been issued in exercise of its powers conferred under the Act, had statutory force and the procedure mentioned therein with regard to the classification, weighing and drawing of samples on the spot of seizure and disposal of the remaining drugs, substances and other articles etc. remained in force and were acted upon all throughout till the Notification dated 23.12.2022 came to be issued by the Central Government
• Sec. 52A was inserted only for the purpose of disposal of the seized narcotic drugs and psychotropic substances at the pre-trial stage.
• Sec. 52A(4) states that the inventory, photographs and samples certified by the Magistrate shall be treated as primary evidence.
• Any deviation or delay in making the application under 52A(2) by the officer concerned to the Magistrate or the delay on the part of the Magistrate in deciding such application could at the most be termed as an irregularity and not an illegality which would nullify or vitiate the entire case of the prosecution.
• The prime focal in case of Mohanlal was the disposal of seized contraband goods as contemplated in Section 52A. Though it held that the process of drawing samples has to be done in presence of and under the supervision of the Magistrate, it nowhere held that non-compliance or delayed compliance of the procedure prescribed under Section 52A (2) would vitiate the trial or would entitle the accused to be released on bail.
• None of the provisions in the Act prohibits sample to be taken on the spot at the time of seizure, much less Section 52A of the said Act.
• Delayed compliance or non-compliance of Section 52A neither vitiates the trial affecting conviction nor can be a sole ground to seek bail.
• Every law is designed to further ends of justice and not to frustrate it on mere technicalities.

The Hon’ble Supreme Court in the case of Mohd. Arbaz & Ors v. State of NCT of Delhi in Special Leave to Appeal (Crl.) No(s).8164-8166/2021 vide interim order dt. 18-07-2024 issued directions to the States and Union Territories to inform the court the follow up action taken by the States in compliance of the directions issued by the Court in Union of India versus Mohanlal and another (2016) 3 SCC 379. Further, vide interim order dt. 13-11-2024 directed the State Counsels to formulate the questions that arises for consideration before this Reference Bench and to focus on the irreversible consequences as also the mandatory nature of the procedural compliances, with a view to safeguard the interest of the accused as well as the prosecution.

Going by the judgement of the Hon’ble Supreme Court in the case of Kashif and the interim orders in Mohd. Arbaz, it appears that the Apex Court is doubting the correctness of the decision in Mohanlal regarding drawing of samples before the Magistrate. In Kashif, the Hon’ble Court has categorically held that drawing samples on the spot prior to issue of GSR 899(E) dt. 23-12-2022 cannot vitiate the case. It also held that Sec. 52A is inserted only for the purpose of disposal of the seized contraband.

It would be appropriate, to revert back to drawing of samples at the time of seizure and the question may be framed before the Supreme Court in the case of Mohd. Arbaz regarding drawing the samples before the Magistrate, which is contrary to the provisions of NDPS Act and the Standing Orders issued thereof. The uncertainty has to be settled.