Failure to Examine Gazetted Officer and Magistrate Who Certified Seizure Goes to Root of Fair Trial Under NDPS Act : Calcutta High Court

“Procedural Irregularities Cannot Be Brushed Aside in NDPS Cases”, Division Bench of the Calcutta High Court comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray suspended the conviction and sentence of two appellants convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), citing serious procedural lapses in seizure, sampling, and compliance with statutory safeguards.

The order came in where the appellants were convicted for allegedly transporting 81.303 kilograms of ganja, a quantity categorized as “commercial” under the NDPS Act. The Court, however, held that arguable points had been raised which, coupled with the long custody of over 2 years and 10 months, warranted suspension of sentence and grant of bail pending appeal, subject to strict conditions.

“Mixing Up 80 Packets of Ganja into 2 Nylon Bags Without Judicial Oversight Is a Grave Procedural Lapse”

One of the most significant observations in the judgment pertains to the violation of the Standing Order No. 1 of 1989 on sampling and seizure, which lays down mandatory procedure for dealing with narcotic substances.

The Bench observed:

“Although 80 packets of contraband were recovered during the raid, the said contraband in 80 packets were mixed up and were taken to the learned Judicial Magistrate for inventory and also for certification purposes… There is no material to show when and how the said 80 packets were mixed up and who ordered for such mixture. This goes against the basic duties of the Raiding Officers.”

Further, the Court noted that only 24 grams from each of the two mixed sacks were sent for forensic analysis, without clarity on whether each of the 80 packets actually contained contraband. The mixing of the entire recovery into two nylon bags, according to the Court, compromised the identity and sanctity of evidence.

“The law does not allow the seizing or the Officer making inventory to mix up the seized contrabands. This failure strikes at the root of the prosecution case.”

Non-Examination of Gazetted Officer and Magistrate Undermines Section 52-A NDPS Compliance

The High Court expressed serious concern over the non-examination of the Gazetted Officer and the Judicial Magistrate, both of whom were key to the prosecution's assertion of compliance with statutory procedures under Sections 50 and 52-A of the NDPS Act.

Although the prosecution claimed that the search was conducted in the presence of Gazetted Officer Avijit Biswas, the Court found:

“The said Gazetted Officer was not examined as a witness nor his presence in the spot can be ascertained from other reliable documents.”

Similarly, the Magistrate who issued the Inventory Certificate under Section 52-A was not examined, rendering the procedural chain of custody prima facie incomplete and unreliable.

“As the Judicial Magistrate who issued the certificate under Section 52-A was not made a witness, and the prosecution is unable to show that the 80 packets seized were properly classified, weighed, and sampled, serious doubts arise at this stage.”

Section 50 NDPS – Not Mere Formality If Both Vehicle and Person Searched

The State had argued that Section 50 of the NDPS Act, which mandates informing the accused of their right to be searched before a Magistrate or Gazetted Officer, was not applicable, as the recovery was made from a secret chamber of the vehicle, not from the body of the accused.

However, the High Court noted that both the persons and the vehicle were searched, triggering compliance with Section 50. Citing Sk. Raju @ Abdul Haque @ Jagga vs. State of West Bengal [(2018) 9 SCC 708], the Bench observed:

“Once personal search is undertaken, Section 50 of NDPS Act is attracted, even if recovery is from the bag.”

The absence of any valid explanation or evidence of compliance, such as an endorsed notice or the presence of an officer during the search, cast a shadow over the legality of the entire operation, the Court held.

Rigours of Section 37 NDPS Act Not a Bar Where Prima Facie Infirmities Exist

Despite the bar under Section 37 of the NDPS Act against granting bail in commercial quantity cases, the Court held that serious procedural lapses and arguable legal issues provide sufficient ground to consider bail pending appeal.

“The rigors of Section 37 of NDPS Act cannot stand in the way in view of such materials on record in favour of the present appellants.”

Citing precedents including Dadu @ Tulsidas v. State of Maharashtra [(2000) 8 SCC 437], Dilip v. State of M.P. [(2007) 1 SCC 450], and the recent Ranjan Kumar Chadha v. State of H.P. [2023 SCC OnLine SC 1262], the Court concluded that procedural safeguards are not empty formalities and failure to follow them cannot be ignored, even at the stage of sentence suspension.

Appellants Granted Bail Pending Appeal with Stringent Conditions

In conclusion, the Court allowed CRAN 2 of 2025, suspending the sentence of conviction and fine dated 25.04.2025, and directed release of the appellants on bail.

All findings, the Court clarified, are prima facie in nature and not to influence the final adjudication of the appeal.

Date of Decision: 22 January 2026