Sampling Under NDPS Act Must Be Done Under Magistrate’s Supervision — Anything Else Is Fatal to Prosecution – Kerala High Court Reiterates Supreme Court Mandate on Section 52A NDPS Act

“No sooner the seizure is effected, the officer is duty bound to approach the Magistrate — drawing samples in the absence of a Magistrate is not permissible” - In a significant ruling that exposes critical flaws in procedural compliance under the Narcotic Drugs and Psychotropic Substances Act, 1985, the Kerala High Court acquitted a man convicted under Sections 22(b) and 22(c) of the NDPS Act, holding that the prosecution had violated the mandatory statutory procedure prescribed under Section 52A(2) of the Act. Justice Johnson John found that the entire process of seizure and sampling in the case was not in conformity with law and had therefore vitiated the trial itself.

The appellant Askaf, who was accused of being in possession of 250 ampoules of Buprenorphine, along with Diazepam injections, was found guilty by the Special Court (NDPS Cases), Vatakara. However, the High Court reversed the conviction on the sole ground that samples were not drawn in the manner prescribed under Section 52A, which mandates that sampling must be done in the presence and under the supervision of a Magistrate.

The High Court squarely placed reliance on the landmark judgment of the Supreme Court in Union of India v. Mohanlal, where it was categorically held:

“The process of drawing of samples has to be in the presence and under the supervision of the Magistrate and the entire exercise has to be certified by him to be correct.”

In the present case, the Detecting Officer (PW1) had prepared the samples at the spot of seizure, and no Magistrate was present, nor was there any application moved before the Magistrate as required by Section 52A(2)(c). This, the Court observed, was a complete departure from the statutory framework, and not a mere procedural irregularity that could be overlooked.

The Court quoted the authoritative guidance from the Mohanlal ruling:

“There is no provision in the Act that mandates taking of samples at the time of seizure... the question of drawing of samples at the time of seizure, which more often than not takes place in the absence of the Magistrate, does not arise under the scheme of Section 52A.”

Justice Johnson John observed that the entire chain of custody, sampling, and certification must be supervised and certified by the Magistrate, and failure to do so not only creates a break in the evidentiary chain but also renders the prosecution inherently unreliable.

He further noted that despite a Standing Order by the Central Government on the subject, statutory provisions must override such administrative instructions, and held:

“There is no gainsaid that such a conflict shall have to be resolved in favour of the statute on first principles of interpretation.”

The judgment also cited, where the Supreme Court had again reiterated that any deviation from the mandatory protocol under Section 52A will be fatal.

Holding that the Exhibit P1 seizure mahazar was silent on the prescribed procedure and that the prosecution had failed to place anything on record showing adherence to Section 52A, the High Court declared:

“The case of the prosecution is not free from suspicion... the accused is entitled to the benefit of reasonable doubt.”

The Court concluded that the trial was vitiated and directed the immediate release of the appellant from custody, unless required in any other case.

This decision reasserts the non-negotiable character of procedural compliance in NDPS prosecutions, especially with regard to sampling and preservation of evidence, and serves as a judicial reminder that substantive justice cannot be delivered when statutory procedure is ignored.

Date of Decision: 8 September 2025