Presumption Under NDPS Act Does Not Arise Unless Prosecution Proves Possession: Karnataka High Court Affirms Acquittal in 5.8 Kg Heroin Case

“Search Without Following Statutory Procedure is No Search in Law” – In a scathing judgment that underscores the strict compliance required under the Narcotic Drugs and Psychotropic Substances Act, 1985, the Karnataka High Court dismissed an appeal filed by the Narcotics Control Bureau (NCB) challenging the acquittal of four accused in a high-stakes heroin trafficking case. Delivering the verdict in Intelligence Officer, Narcotics Control Bureau, South Zonal Unit, Chennai vs. R. Subhash & Others, Justice G. Basavaraja held that the trial court's acquittal was well-founded, as the prosecution had failed to observe mandatory safeguards under the NDPS Act, thereby vitiating the entire proceedings.

The case pertained to the alleged seizure of 5.800 kilograms of heroin from a Maruti van at JOSS Toll Plaza, Tumkur on 5th December 2004, and the subsequent arrest of Subhash (A1), who was allegedly part of an international drug trafficking conspiracy orchestrated from within the walls of a Bengaluru prison.

The NCB filed a criminal appeal under Section 378(4) CrPC after the Special Judge (NDPS), Tumkur, acquitted the accused on 14 October 2011, finding numerous procedural lapses in the search, seizure, recording of statements, and overall investigation.

“Presumption under Section 35 and 54 NDPS Act cannot arise when prosecution fails to establish possession”

The High Court categorically held that the presumption of culpable mental state under Section 35 and presumption of possession under Section 54 of the NDPS Act are not automatic and can only be invoked once the foundational facts, particularly possession, are proved beyond reasonable doubt.

Justice Basavaraja observed, “The prosecution has failed to prove that A1 was found in possession of 5.800 kilograms of heroin... There is no occasion to apply the presumption under Section 35 or 54.” He went on to conclude that, “The search and seizure and recovery of contraband article is not proved. The possession of the same by A1 is also not proved.”

“Non-compliance with Section 42 of the NDPS Act goes to the root – Entire Proceedings Stand Vitiated”

A central pillar of the Court’s reasoning was the failure of the prosecution to comply with the mandatory provisions of Section 42, which governs search and seizure based on prior information in a non-public place.

Referring to the landmark ruling in State of Punjab v. Balbir Singh, the Court stated, “It is well settled that if the officer had prior information and failed to record and transmit the same as mandated under Section 42, the entire prosecution is rendered void.”

Justice Basavaraja found that, “From the very evidence of the NCB officers themselves, it is clear that there was prior information and the search took place in a vehicle parked near the toll gate. The officers cannot take refuge under Section 43 to justify this seizure.”

The Court held that “The trial court was justified in concluding that the non-compliance with Section 42 fatally undermines the legality of the search.”

“Statement Under Section 67 Containing Legal Jargon is Not Voluntary – Retracted Confession Has No Evidentiary Value”

A key feature of the prosecution’s case was a purported confessional statement under Section 67 of the NDPS Act given by Subhash (A1), which allegedly implicated the co-accused in a drug trafficking conspiracy. The High Court, however, rejected the evidentiary value of this statement, finding that it was not voluntary and made in circumstances of restraint, compulsion and coercion.

Justice Basavaraja noted with concern that “The accused was kept overnight in a room by armed officers, without access to friends, family or counsel. He was not even informed of his right to legal assistance. Such a statement cannot be said to be voluntary.”

The Court pointed out the use of legal and technical terminology in the so-called voluntary statement and observed, “The language used in the statement, including phrases such as ‘under Section 67 of the NDPS Act’, ‘Court of law’, and ‘NCB seal number 12’, indicates that the statement was not written by the accused of his own accord, but dictated.”

It was concluded that the statement, “being involuntary, hit by Section 36 of the Indian Evidence Act, carries no evidentiary value.”

“Independent Panch Witnesses Turned Hostile – Prosecution’s Story Stands Uncorroborated”

The High Court also took serious note of the fact that the independent witnesses, who were allegedly present at the time of the search and seizure, turned hostile and denied any recovery of heroin in their presence.

“The contradiction between official witnesses and panch witnesses casts serious doubt on the prosecution’s version of events,” said Justice Basavaraja.

Further, the driver of the van, Mahendra Kumar, was neither cited nor examined as a witness, despite his alleged presence throughout the journey and search. The Court remarked that “This omission raises a fundamental question: If the driver was present during the seizure, why was he not examined? The failure to produce this crucial witness is inexplicable and fatal.”

“Criminal Conspiracy Cannot Be Established on Retractions and Hearsay”

The prosecution sought to implicate accused A2 to A4 solely on the basis of the confession of A1 and a pre-seizure information report (Exhibit P17). The Court held that this was grossly inadequate to establish criminal conspiracy under Sections 27A and 29 of the NDPS Act.

Referring to the delay in arraying A4 (an undertrial in another case) as an accused five months after the alleged seizure, the Court said, “There is absolutely no independent evidence linking A2 to A4 with the seized narcotics, and no admissible material showing their participation in any conspiracy.”

On the legal issue, the Court held that a retracted confession of a co-accused has no probative value unless it is corroborated by independent evidence, which was entirely lacking in the present case.

“Presumption of Innocence Becomes Stronger After Acquittal – Appellate Interference Requires Perversity”

Citing the Supreme Court’s decisions in Chandrappa v. State of Karnataka and Constable Surendra Singh v. State of Uttarakhand, the High Court reiterated that an acquittal cannot be reversed unless the findings are perverse or the trial court has ignored material evidence.

Justice Basavaraja stated, “The trial court's view is not only plausible but supported by evidence. There is no perversity or illegality in the reasoning. Merely because a different view is possible, appellate interference is not warranted.”

 “Strict Compliance With NDPS Safeguards Is Not Optional – It Is the Backbone of a Fair Trial”

Dismissing the appeal, the High Court left no room for ambiguity:

“In the instant case, the prosecution has failed to prove the possession, failed to comply with mandatory procedures, and relied on a confession that was neither voluntary nor corroborated. In such circumstances, the trial court was correct in acquitting the accused. This Court finds no reason to interfere.”

Date of Decision: 19 December 2025