Mere Non-Compliance Of Procedure U/S 52A NDPS Act Won’t Be Fatal To Trial Unless There Are Discrepancies In Physical Evidence: SC
The Apex Court dismissed a Criminal Appeal of an accused against the High Court's Judgment by which his conviction under the NDPS Act was upheld.

The Supreme Court held that mere non-compliance of the procedure under Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) will not be fatal to the trial unless there are discrepancies in the physical evidence.
The Court held thus in a Criminal Appeal filed by an accused challenging the Judgment of the Chhattisgarh High Court by which his Appeal was dismissed and his conviction was upheld.
The two-Judge Bench of Justice J.B. Pardiwala and Justice R. Mahadevan observed, “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.”
The Bench explained that, although Section 52A of NDPS Act 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.
AOR Sameer Shrivastava represented the Appellant/Accused while AAG Bishwajit Dubey represented the Respondent/State.
Facts of the Case
The Appellant-accused was convicted for the offence punishable under Section 20(b) (ii) (c) of the NDPS Act. He filed an Appeal before the Apex Court against the Judgment and Order passed by the High Court by which his Appeal was dismissed and the Court thereby affirmed the Judgment and Order of conviction passed by the Special Judge (NDPS Act). He was held guilty of the said offence and was sentenced to undergo rigorous imprisonment for a period of 15 years along with a fine of Rs. 1 lakh.
The only contention raised by the counsel for the Appellant was that the conviction could be said to have stood vitiated because of the non-compliance of Section 52A of the NDPS Act. The counsel relied upon the Supreme Court’s decision in the case of Union of India v. Mohan Lal & Anr. (2016), stating that the non-compliance of Section 52A of the NDPS Act along with the relevant Rules, would vitiate the entire trial and the conviction. Hence, the case was before the Apex Court.
Reasoning
The Supreme Court after hearing the contentions of the counsel, noted, “… whenever, there is any deviation or non-compliance of the procedure envisaged under Section 52A, the courts are required to appreciate the same keeping in mind the discrepancies that exist in the prosecution’s case. In such instances of procedural error or deficiency, the courts ought to be extra-careful and must not overlook or brush aside the discrepancies lightly and rather should scrutinize the material on record even more stringently to satisfy itself of the aspects of possession, seizure or recovery of such material in the first place.”
The Court added that 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 adequately proving compliance of the same, it would not be appropriate for the Courts 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 from the other material on record.
“Similarly, irrespective of any failure to follow the procedure laid under Section 52A of the NDPS Act, if the other material on record adduced by the prosecution inspires confidence and satisfies the court regarding both the recovery and possession of the contraband from the accused, then even in such cases, the courts can without hesitation proceed for conviction notwithstanding any procedural defect in terms of Section 52A of the NDPS Act”, it further said.
The Court elucidated that what is actually required is only a substantial compliance of the procedure laid down under Section 52A of the NDPS Act and the Standing Order(s) / Rules framed thereunder, and any discrepancy or deviation in the same may lead the Court to draw an adverse inference against the police as per the facts of each and every case.
“Non-compliance of the procedure envisaged under Section 52A may be fatal only in cases where such non-compliance goes to the heart or root of the matter. … It is for the courts to see what constitutes as a significant discrepancy, keeping in mind the peculiar facts, the materials on record and the evidence adduced. At the same time, we may caution the courts, not to be hyper-technical whilst looking into the discrepancies that may exist, like slight differences in the weight, colour or numbering of the sample etc.”, it also enunciated.
Moreover, the Court observed that Section 52A of the NDPS Act is only a procedural provision dealing with seizure, inventory, and disposal of narcotic drugs and psychotropic substances and does not exhaustively lay down the evidentiary rules for proving seizure or recovery, nor does it dictate the manner in which evidence is to be led during trial and it in no manner prescribes how the seizure or recovery of narcotic substances is to be proved or what can be led as evidence to prove the same, rather, it is the general principles of evidence, as enshrined in the Evidence Act that governs how seizure or recovery may be proved.
“Even in cases where there is non-compliance with the procedural requirements of Section 52A, it does not necessarily vitiate the trial or warrant an automatic acquittal. Courts have consistently held that procedural lapses must be viewed in the context of the overall evidence”, it remarked.
The Court said that even in the absence of compliance of Section 52A of the NDPS Act, the Courts cannot simply overlook the other cogent evidence in the form of the seized substance itself or the testimony of the witnesses examined, all that the Courts would be required in the absence of any such compliance is to be more careful while appreciating the evidence.
“… 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. … Wherever any non-compliance or contravention of either the provision or the Rules / Standing Order(s) thereunder is alleged, the same must be something tangible and not a mere bald assertion or superficial claim. The accused must impute something palpable to make good its case that there has been non-compliance of the mandate of the said provision”, it further emphasised.
The Court observed that mere assertion by the accused that there has been non-compliance of the said provision may not be sufficient and the initial burden will always be on the accused to lay down the foundational facts for establishing that there has been a non-compliance of Section 52A of the NDPS Act, either by leading evidence of their own or by relying upon the evidence of the prosecution itself such as by putting direct and specific questions to the police officers and key witnesses.
The Court, therefore, summarized the following points –
(I) 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. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under Section 52A sub-section (2) of the NDPS Act.
(II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure, yet 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.
(III) 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 sub-section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.
(IV) 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.
(V) 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.
(VI) 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.
(VII) 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.
(VIII) 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 from the other material on record.
(IX) 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.
(X) 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.
Accordingly, the Apex Court dismissed the Appeal and upheld the conviction of the accused.
Cause Title- Bharat Aambale v. The State of Chhattisgarh (Neutral Citation: 2025 INSC 78)
Appearance:
Appellant: AOR Sameer Shrivastava, Advocates Palak Mathur, and Priyanka Shrivastava.
Respondent: AAG Bishwajit Dubey, Standing Counsel Vinayak Sharma, and AOR Ravinder Kumar Yadav.