Prosecution's Failure To Examine Chemical Examiner To Corroborate Report Is A Serious Infirmity In NDPS Trials: Orissa High Court

In a latest judgement, Orissa High Court has held that the failure of the prosecution to examine the chemical examiner as a witness to corroborate their report constitutes a serious infirmity in trials under the Narcotic Drugs and Psychotropic Substances (NDPS) Act. A single-judge bench of Justice A.K. Mohapatra observed that an unproved expert report cannot form the basis for conviction under a statute where the identity of the substance as a narcotic drug is an essential ingredient of the offence.

The Court set aside the conviction of a man sentenced to 10 years of rigorous imprisonment, noting that the cumulative effect of multiple procedural infirmities, including the non-examination of the expert, rendered the prosecution case unreliable. The bench emphasized that the stringent nature of the NDPS Act requires the prosecution to discharge its initial burden of establishing foundational facts with absolute precision before the statutory reverse burden of proof can be invoked against the accused.

The Appellant, Dalsher Singh, was arrested on May 29, 2023, near Rayagada Railway Station for allegedly possessing 30.3 kg of Ganja. The trial court convicted him under Section 20(b)(ii)(C) of the NDPS Act, sentencing him to 10 years of rigorous imprisonment and a fine of Rs. 1 lakh. The Appellant challenged this before the High Court, arguing that the search was conducted without following mandatory safeguards and that the chemical report was never legally proved.

The primary question before the Court was whether the non-examination of the chemical examiner and the failure to produce the seized contraband in court vitiated the trial. The Court was also called upon to determine whether the search was a "chance recovery" or based on "prior information," thereby triggering the mandatory requirements of Section 50 of the NDPS Act.

Chemical Examination Report Must Be Corroborated By Expert Testimony

The Court highlighted that the chemical examination report is a foundational piece of evidence in NDPS cases to establish the nature of the seized substance. The bench noted that the chemical examiner who prepared the report was not examined as a witness by the prosecution, which it termed a "serious infirmity."

The Court observed that since the identity of the substance is a crucial aspect of the charge, the prosecution must prove the report through the expert to allow the defense an opportunity for cross-examination. It noted that the lack of such corroboration undermines the reliability of the evidence used to establish the very existence of a narcotic drug.

Failure To Produce Seized Contraband Leads To Negative Inference

Discussing the absence of primary evidence, the Court noted that the seized contraband was not produced before the trial court. Referring to the Supreme Court's dictum in Noor Aga v. State of Punjab, the bench observed that the production of seized material is a vital factor in establishing seizure followed by recovery.

The Court held that the non-production of physical evidence leads to a negative inference against the prosecution under Section 114 Illustration (g) of the Evidence Act, 1872. It remarked that in a stringent statute like the NDPS Act, the burden lies heavily on the state to prove the recovery through primary evidence, which was missing in the present case.

Search Based On Prior Information Triggers Mandatory Section 50 Compliance

The Court rejected the prosecution’s claim that the arrest was a result of a "chance recovery" during routine patrolling. Upon perusal of the record, the bench found that the forwarding letter mentioned the officers were "acting on information" and the command certificates directed them to "assist in raid."

Procedural Safeguards Under Section 50 Are Substantive Rights

The bench held that since the search was conducted based on prior information, compliance with Section 50 of the NDPS Act was inescapable. It observed that the officer was under a mandatory obligation to inform the appellant of his right to be searched before a Magistrate or a Gazetted Officer.

The Court emphasized that Section 50 is not a mere procedural formality but a substantive safeguard intended to protect innocent persons from false implication. It noted that any search conducted in violation of these safeguards renders the recovery suspect and the subsequent conviction unsustainable in law.

Non-Compliance With Section 52-A Regarding Inventory And Disposal

The Court further flagged the lack of evidence regarding the preparation of a certified inventory under Section 52-A of the NDPS Act. It noted that the prosecution failed to place on record any inventory detailing the description, quantity, or identifying marks of the alleged contraband certified by a Magistrate.

The bench held that while mere non-compliance with Section 52-A might not always vitiate a trial, in this case, coupled with the non-production of contraband and the unproved chemical report, it created an "additional layer of doubt." The Court reiterated that the destruction of the substance without following the prescribed procedure eliminates the primary evidence of the offence.

The High Court concluded that the prosecution failed to discharge its initial burden of establishing the foundational facts that legalise the search and recovery. Consequently, the Court held that the reverse burden provisions under Sections 35 and 54 of the NDPS Act could not be invoked. The appeal was allowed, the conviction was set aside, and the Appellant was ordered to be set at liberty forthwith.

Date of Decision: 22 May 2026