Non-Compliance with Section 52A NDPS Act Vitiates Trial: Gauhati High Court Acquits Accused in 77.36 kg Cannabis Case

High Court cites procedural lapses and failure to produce primary evidence as reasons for overturning conviction. In a significant judgment, the Gauhati High Court has overturned the conviction of Pinak Sankar Basu, who was previously sentenced to 12 years of rigorous imprisonment for possession and transportation of commercial quantities of cannabis under the NDPS Act. The bench, comprising Hon’ble Mr. Justice Manish Choudhury and Hon’ble Mr. Justice Robin Phukan, cited major procedural lapses and non-compliance with Section 52A of the NDPS Act as the grounds for acquittal.

The case originated from an FIR lodged by ASI Bichitra Kalita of Tihu Police Station on May 21, 2018, alleging that a silver Hyundai Accent car was transporting illegal cannabis. The police conducted a search and found 17 packets containing a total of 77.36 kg of cannabis. The occupants, Sankar Yadav and Pinak Sankar Basu, were arrested and charged under the NDPS Act. The trial court convicted both accused, sentencing them to 12 years in prison and imposing a fine of Rs. 1,50,000 each.

The court noted that the prosecution failed to produce the seized contraband physically during the trial. The court emphasized, “The best evidence would have been the seized material, which ought to have been produced during the trial and marked as material objects.” The court also observed that the procedural requirements under Section 52A of the NDPS Act, which mandate the preparation and certification of an inventory, photographs, and list of samples by a Magistrate, were not adhered to.

The court scrutinized the trial court’s handling of evidence and pointed out discrepancies in the seizure process. The inventory and photographs of the seized contraband were not produced in court, and the prosecution did not follow the mandatory procedures for certifying these documents. The court stated, “The prosecution had failed to lead primary evidence in the form of the seized contraband and the inventory, photographs, and list of samples certified by the Magistrate.”

The judgment discussed the stringent requirements for evidence under the NDPS Act, highlighting the necessity of strict compliance with procedural safeguards. “Non-compliance with Section 52A of the NDPS Act and failure to produce primary evidence vitiates the trial,” the court asserted. The court further remarked that procedural lapses resulted in an adverse presumption against the prosecution under Section 114(g) of the Indian Evidence Act.

Justice Choudhury stated, “In the absence of primary evidence, the other evidence led by the prosecution could not be termed as valid pieces of primary evidence to prove the charge framed against the accused-appellant.”

The Gauhati High Court’s judgment underscores the critical importance of adhering to procedural requirements in cases under the NDPS Act. By setting aside the conviction, the court has reinforced the need for meticulous compliance with statutory mandates to ensure the integrity of the judicial process. This landmark decision is expected to influence future cases, emphasizing the role of proper evidence handling and procedural diligence in upholding justice.

Date of Decision: July 19, 2024

Pinak Sankar Basu vs. The State of Assam & Sri Bichitra Kalita