No Shortcuts in NDPS Investigations – J&K High Court Rebukes Casual Approach of Investigating Officers

Jammu & Kashmir and Ladakh High Court has upheld the acquittal of two accused in a narcotics case, emphasizing that "suspicion, however strong, cannot take the place of legal proof." The Court found glaring lapses in the investigation, including contradictions in the prosecution’s case, improper sampling, and non-compliance with mandatory provisions of the NDPS Act. Delivering the judgment in Union Territory of Jammu and Kashmir v. Farman Ali & Anr., the Court reinforced that in cases under the NDPS Act, the prosecution must prove its case beyond reasonable doubt, failing which the accused is entitled to an acquittal.

The case originated from an incident on November 5, 2013, when a police patrolling party apprehended Farman Ali and Johnson alias Raki in Kathua. Upon search, the police allegedly recovered 10,000 capsules of Spasmo-Proxyvon, containing Tramadol, a psychotropic substance—6,000 capsules from Farman Ali and 4,000 from Johnson. FIR No. 413/2013 was registered, and the accused were charged under Sections 8, 21, and 22 of the NDPS Act. However, as the trial unfolded, significant contradictions emerged in the prosecution’s version of events.

The High Court meticulously examined the evidence and found severe procedural lapses in the investigation. The prosecution witnesses gave contradictory statements regarding the time of seizure—while some claimed the incident occurred at 5:30 AM, others placed it at 5:30 PM. There was also confusion regarding who actually authored the crucial seizure documents.

The most serious lapse was the violation of mandatory legal provisions in search, seizure, and sampling. The Court observed that Section 52A of the NDPS Act requires that seized contraband must be produced before a magistrate for sampling. In this case, the investigating officer, instead of following this procedure, drew the samples himself, and the Executive Magistrate merely affixed his seal without verifying the contents. Citing Union of India v. Mohan Lal & Anr. (2016), the Court reaffirmed that "the process of drawing of samples has to be in the presence and under the supervision of the Magistrate."

Further, the delay in sending the samples to the Forensic Science Laboratory (FSL) raised serious doubts about their integrity. Standard legal practice requires samples to be sent for analysis within 72 hours of seizure, yet the prosecution offered no explanation for the delay. The Court found this to be a serious lapse that compromised the entire case.

“Burden of Proof Lies on the Prosecution—Merely Possessing Contraband Is Not Enough”
The High Court dismissed the appeal, reaffirming the fundamental principle of criminal jurisprudence: “An accused is presumed to be innocent until proven guilty, and the burden of proof lies squarely on the prosecution.” The Court emphasized that the presumption under Sections 35 and 54 of the NDPS Act, which shifts the burden of proof to the accused, only applies when the prosecution first establishes a prima facie case. In this instance, the foundational facts were never proven beyond reasonable doubt.

The Court lamented that “despite the alarming rise in drug-related offenses, law enforcement agencies often conduct investigations in an unscientific, cavalier, and unfair manner, leading to acquittals.” It urged authorities to ensure strict compliance with the NDPS Act to prevent offenders from escaping due to procedural lapses.

Dismissing the appeal, the High Court upheld the acquittal of the accused, concluding that “when the prosecution’s case is riddled with contradictions and non-compliance with legal provisions, the benefit of doubt must go to the accused.”

Date of decision: 03/01/2025