NDPS Act | Failure To Comply With Section 52A And Unexplained Delay In Forensic Sampling Vitiates Prosecution Case: Patna High Court

"The failure of the prosecution to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself." Patna High Court, in a significant ruling dated 08 October 2026, set aside a conviction under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), holding that procedural lapses in search, seizure, and sampling render the prosecution case unworthy of credence.

A bench of Justice Sandeep Kumar observed that where the foundational facts of non-compliance with Section 52A are established, the prosecution cannot rely on statutory presumptions to secure a conviction.

The appellants, Ritesh Kumar and Robin Rai, were convicted by the Trial Court for the alleged possession of 500 grams of charas each, recovered during a police raid at a cinema hall in Muzaffarpur on 23 December 2011. The prosecution relied upon the testimony of raiding party members and a Forensic Science Laboratory report to secure a five-year rigorous imprisonment sentence. The appellants challenged this, citing malicious prosecution and total procedural failure.

The primary questions before the Court were whether the prosecution established the seizure from the conscious possession of the accused, whether the sampling process met the requirements of Section 52A of the NDPS Act, and whether the forensic report could be relied upon without a clear chain of custody.

The Court meticulously dissected the prosecution’s procedural failures, noting that while Section 52A is not mandatory in every technical sense, its substantial non-compliance, coupled with other infirmities, creates a "farce" of a trial.

Complete Neglect of Section 52A Mandate

The bench highlighted that no inventory of the seized substance was prepared, no application was made to a Magistrate for certification, and no representative samples were drawn in a Magistrate's presence. Referring to the Supreme Court's decision in Union of India vs. Mohanlal, the Court held that the officer-in-charge is duty-bound to approach the Magistrate to ensure the integrity of the sampling process.

"The non-compliance with Section 52A is not a matter of inference, rather it is apparent from the prosecution’s own record."

Chain of Custody and Forensic Integrity

The Court found the delay in sending the sample to the laboratory—nearly one year—to be fatal. The sample was produced in court on 24 December 2011, but reached the laboratory only on 05 March 2013. The prosecution failed to produce a malkhana register or explain who held the sample during the intervening period.

"No witness has deposed as to where the sample remained during the period of nearly a year between the grant of permission and its receipt at the laboratory... on account of which the report of the Forensic Science Laboratory loses all significance."

Hostile Witnesses and Unreliable Evidence

The independent seizure witnesses denied that any seizure took place in their presence and were declared hostile. The Court noted that since the official raiding party members also contradicted each other regarding the offer of search before a Magistrate, their testimony lacked the requisite trustworthiness to support a conviction.

Inadmissibility of Confessional Statements

The Court rejected the prosecution's reliance on the appellants' alleged "disclosure" that the substance was charas. Citing Tofan Singh vs. State of Tamil Nadu, the bench reiterated that officers empowered under the NDPS Act are "police officers," and any confession made to them is barred by Section 25 of the Indian Evidence Act.

"The alleged disclosure by the appellants has, therefore, to be eschewed altogether. Therefore, what remains is the forensic report, which cannot be conclusive proof in the absence of a link to the seized material."

Absence of Foundational Evidence

The Court concluded that the presumption under Section 54 of the NDPS Act could not be invoked. The presumption arises only upon the prosecution proving the seizure of a narcotic drug from the conscious possession of the accused—a threshold the state failed to cross in this case. The Court set aside the conviction and acquitted both appellants, directing the refund of any fines paid.

Date of Decision: 08 October 2026