Presumption Of Guilt Under Section 54 NDPS Act Not Available If Mandatory Sampling Procedure Under Section 52A Is Flouted: Calcutta High Court

"Where there has been lapse on the part of the police in either following the procedure laid down in Section 52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence under Section 54," Calcutta High Court, in a significant ruling, held that the statutory presumption of guilt under Section 54 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) cannot be invoked against an accused if the prosecution fails to ensure substantial compliance with the sampling and inventory procedures mandated under Section 52A.

A Division Bench comprising Justice Arijit Banerjee and Justice Apurba Sinha Ray observed that procedural safeguards in narcotics cases are not mere formalities but essential protections against the substitution or tampering of seized contraband.

The court noted that when foundational facts regarding non-compliance with requisite conditions under the Act are brought on record by the defense, the burden shifts to the prosecution to prove its case through other credible material. The bench emphasized that the "primary evidence" of seizure is the inventory certified by a Magistrate, and in its absence, the entire trial stands vitiated.

The case originated from a conviction and sentence dated July 19, 2024, passed by the Special Court, NDPS Act, Nadia. The four appellants—Jahiruddin Sk., Samir Das, Gopal Das, and Bijoy Biswas—were convicted for allegedly possessing 525 kilograms of narcotics under Sections 20(b)(ii)(c) and 29 of the NDPS Act. The prosecution alleged that the contraband was recovered from a truck, leading to the apprehension of the appellants at the spot.

The primary question before the court was whether the failure to draw samples in the presence of a Judicial Magistrate as per Section 52A of the NDPS Act renders the seizure illegal. The court was also called upon to determine whether the statutory presumption of guilt under Section 54 can be sustained when the prosecution fails to establish a transparent chain of custody and neglects mandatory videography of the search.

Court Explains Link Between Section 52A And Section 54 Presumption

The court conducted an in-depth analysis of the interplay between the procedural mandate of Section 52A and the evidentiary presumption under Section 54. It observed that Section 52A serves a broader purpose than just drug disposal; it introduces procedural safeguards to ensure the integrity of the substance after seizure. The bench noted that while Section 54 allows the court to presume an offence has been committed from the possession of illicit material, this presumption is conditional upon a valid seizure.

Presumption Of Guilt Requires Valid Proof Of Possession

The bench remarked that it is not appropriate for a court to resort to the statutory presumption of commission of an offence under Section 54 unless the court is otherwise satisfied regarding the seizure or recovery of such material. If the police lapse in following the procedure laid down in Section 52A, the very foundation of "conscious possession" becomes questionable.

"The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 52A... Once the foundational facts indicate non-compliance, the onus thereafter be on the prosecution to prove by cogent evidence that such non-compliance does not affect its case."

Magistrate’s Certification Is Essential For Primary Evidence

Referring to the Supreme Court's decisions in Union of India v. Mohanlal and Bharat Aambale v. State of Chattisgarh, the High Court reiterated that samples drawn in the presence of a Magistrate and the certified list thereof constitute "primary evidence" for the trial. In the present case, the samples were drawn at the spot by the Seizing Officer rather than in the presence of a Magistrate, which the court found to be a fatal deviation from the scheme of the Act.

Non-Compliance With Sampling Rules Vitiates Trial

The court highlighted that the Narcotic Drugs and Psychotropic Substances (Seizure, Storage, Sampling and Disposal) Rules, 2022, specifically Rule 8 and Rule 9, mandate that the Investigating Officer must apply to the Magistrate at the earliest for sampling. The bench found that the actions of the Seizing Officer and the Investigating Officer in this case were inconsistent with these rules, and thus their actions could not be protected by older Standing Orders that have since been repealed or modified by judicial pronouncements.

Lack Of Videography And Independent Witnesses Undermines Prosecution

The bench expressed strong dissatisfaction with the raiding party's failure to videograph the search and seizure process despite clear judicial directions in Kalu Sk. v. State of W.B. It noted that in the modern era, where most officers carry smartphones, the absence of video evidence creates a "serious doubt" regarding the prosecution's narrative, especially when independent witnesses either turn hostile or are not produced by the state.

"It is unfortunate that time and again Hon’ble Courts are directing the concerned Seizing Officers to make videography of the process of search and seizure but it appears that the said officers are not complying with the said direction for reasons best known to them."

Discrepancies In Contraband Weight And Malkhana Records

The court further pointed out significant discrepancies in the weight of the seized narcotics, noting that while 525 kgs were initially recorded, the inventory mentioned 549 kgs. No evidence was produced to support the prosecution's claim that moisture might have enhanced the weight. Additionally, the failure to produce the Malkhana register during the trial was viewed as a major lapse in establishing the chain of custody.

The High Court concluded that since the search, seizure, and possession were not proved through independent witnesses or requisite videography, the conditions to raise the statutory presumption under Section 54 were not met. Consequently, the court set aside the conviction, acquitted the four appellants, and ordered their immediate release.

Date of Decision: 24 June 2026