Mere Non-Compliance Or Delay In Procedure Under Section 52A NDPS Act Is An Irregularity, Not An Illegality Entitling Accused To Bail: Calcutta High Court

"Mere non-compliance of the procedure envisaged under Section 52-A of the NDPS Act will not entitle the accused to acquittal or bail, if there is sufficient material to establish the search and seizure of the contraband in due compliance of the mandatory provisions of the Act, " Calcutta High Court, in a significant judgment, has held that a delay or breach in the procedure for certifying inventory under Section 52A of the Narcotic Drugs and Psychotropic Substances (NDPS) Act constitutes a mere irregularity rather than an incurable illegality.

A single-judge bench of Justice Tirthankar Ghosh observed that such procedural lapses do not automatically entitle an accused to bail or acquittal, especially when the rigors of Section 37 of the NDPS Act regarding commercial quantities are not overcome.

The matter arose from the arrest of the petitioner, Vinod T, on February 21, 2025, following the recovery of 104.6 kg of Ganja from a hired Ertiga car he was driving from Siliguri to Kolkata. The police registered a case under Section 20(b)(ii)(C) of the NDPS Act. The petitioner sought bail, alleging that the inventory was forwarded to the Magistrate five days after the seizure, violating the "forthwith" requirement of Section 52A, and that the contraband was weighed using a borrowed vegetable vendor's scale, rendering the quantification unreliable.

The primary question before the court was whether a five-day delay in complying with the inventory requirements under Section 52A of the NDPS Act vitiates the seizure and entitles the accused to bail. The court also considered whether procedural grievances regarding the weighing of contraband and lack of independent witnesses could override the statutory presumption of guilt at the bail stage.

Section 52A Procedure Is For Disposal, Not A Ground For Automatic Bail

The court noted that Section 52A was primarily inserted to ensure the early disposal of hazardous and vulnerable seized substances. Citing recent jurisprudence, the bench emphasized that any deviation in making an application to the Magistrate for inventory certification is an "irregular proceeding" that can be remedied.

Court Distinguishes Between Irregularity and Illegality

Drawing from the Supreme Court's observations in Bharat Aambale v. State of Chhattisgarh (2025), the court highlighted the clear distinction between an irregular and an illegal proceeding. While an illegality may lead to the nullification of proceedings, a procedural lapse in the timing of inventory certification does not affect the outcome of the case if the search and seizure were otherwise conducted in compliance with mandatory provisions.

"Any breach of procedure of rule or regulation which may indicate a lapse in procedure, may be considered as an irregularity, and would not affect the outcome of legal proceedings but it cannot be termed as an illegality leading to the nullification of the proceedings."

Presumption Of Guilt Under Section 54 Of The NDPS Act

The bench observed that under Section 54 of the Act, courts are entitled to presume that an accused has committed an offence if they fail to satisfactorily account for the possession of a narcotic drug. The court held that an "anomalous situation" would arise if delayed compliance with Section 52A were allowed to vitiate a trial even when the accused is found in possession of contraband.

"It would be contrary to legislative intent if non-compliance with Section 52-A entitled an accused to bail even when they are found in possession of contraband and the statutory presumption under Section 54 has not been rebutted."

Section 37 Rigors Remain Paramount For Commercial Quantities

In evaluating the bail plea, the court reiterated the "twin conditions" of Section 37, which require the court to be satisfied that there are reasonable grounds for believing the accused is not guilty. The bench noted that the State had prima facie demonstrated compliance with the law and that the issues raised by the petitioner—such as the weighing machine used and corrections in the seizure list—were matters for trial.

Court Rejects Arguments On Lack Of Witnesses And CCTV

The court found the petitioner's arguments regarding the absence of independent witnesses to be "without foundation," noting that the State had provided evidence of videography and the presence of local witnesses during the search. The court opined that the additional issues canvassed by the petitioner did not favour his release at this stage.

The High Court concluded that the procedural delays alleged under Section 52A have no relevance in overcoming the high threshold for bail under Section 37 when dealing with commercial quantities of narcotics. Consequently, the court dismissed the bail application.

Date of Decision: 10 June 2026