Unexplained Delay in Producing Contraband, Absence of Specimen Seal — Integrity of Prosecution Doubtful: Kerala High Court Acquits Under NDPS Act

“As there is no evidence forthcoming regarding the person in whose custody the contraband was kept, the conditions under which it was kept in the police station or elsewhere, the unexplained delay in producing the contraband before the Court coupled with the absence of the specimen seal… the integrity of the prosecution case becomes doubtful”, held the Kerala High Court while setting aside the conviction of a man under the NDPS Act for alleged possession of commercial quantity of Buprenorphine.

On 7 November 2025, Bench of Justice Bechu Kurian Thomas of the Kerala High Court allowed the criminal appeal filed under the Narcotic Drugs and Psychotropic Substances Act, 1985, acquitting the appellant of charges under Section 22(c). The Court found serious procedural lapses and doubts about the integrity of the chain of custody, thereby granting the benefit of doubt to the accused.

“NDPS Cases Must Stand on Procedural Sanctity — Delay and Missing Seal Taint Seizure Integrity”

In a case involving alleged possession of 194 ampules of Buprenorphine, the Kerala High Court acquitted the appellant noting that the contraband seized on 21-10-2011 was only produced before court on or after 27-10-2011, and no explanation was offered about the interim custody or storage conditions. In the absence of any evidence about who held the drugs during the crucial period, and with the seizure mahazar lacking the specimen seal, the Court held that prosecution failed to establish an unbroken chain of custody, thereby vitiating the conviction.

The decision highlights the rigorous procedural requirements under the NDPS Act, and reaffirms that non-compliance with mandatory safeguards and unexplained custody gaps can lead to acquittal, regardless of the quantity involved.

The appellant, Aneesh, was convicted by the Additional Sessions Court-VIII, Ernakulam for possessing 174 ampules of Lupigesic and 24 unlabelled ampules, each allegedly containing Buprenorphine, a psychotropic substance. The seizure took place on 21 October 2011 near Aquinas College in Kochi. The Trial Court found him guilty under Section 22(c) NDPS Act and sentenced him to 13 years of rigorous imprisonment and a fine of ₹1,00,000.

Challenging the conviction, the appellant raised multiple contentions including:

Non-compliance with Sections 42, 50, 52A, and 57 of the NDPS Act

Unexplained delay in production of contraband before the Magistrate

No specimen seal in the seizure mahazar

Discrepancy in charge framing — quantity measured in millilitres, not grams

The Court framed six distinct legal issues, evaluating each procedural safeguard under the NDPS Act, and their effect on the conviction.

Compliance with Sections 42 and 57: Proven Satisfactorily

The Court held that Exhibits P1 (intimation of search) and P13 (report of arrest/seizure) were received by the superior officer on the same day (21-10-2011). Despite a minor ambiguity in handwritten dates, the Court accepted PW6’s unchallenged testimony on his numeric style, concluding that compliance with Section 42 and 57 was established.

“Law requires compliance of Section 42 as mandatory... both Exhibit P1 and Exhibit P13 were received by the immediate official superior within the time limits prescribed by law.”

Compliance with Section 50: Mandatory Right Informed — Accused Opted for Gazetted Officer

Section 50, which mandates informing the accused of the right to be searched before a Gazetted Officer or Magistrate, was held to be complied with. The appellant was informed of his rights, and upon requesting, was searched in the presence of a Gazetted Officer (Circle Inspector, Fort Kochi).

“Though an endeavour should be made to take the suspect before a Magistrate, such a requirement cannot be elevated to the status of a mandatory condition.”

The Court clarified that carrying contraband in a bag does not amount to personal search under Section 50, but since 12 ampules were also found in the pocket, Section 50 was applicable. The procedure was duly followed.

Section 52A: Not Applicable as Entire Contraband Was Produced

Rejecting the argument based on non-compliance with Section 52A, the Court ruled that the entire seized contraband was produced before the trial court and hence, no representative sampling was involved.

“Section 52A applies only where representative samples are produced — when full contraband is produced, non-compliance is not fatal.”

The Court cited Kashif (2024) and Bharat Aambale (2025) to reaffirm that procedural lapses under Section 52A do not vitiate trial unless discrepancies in evidence arise, which was not the case here due to complete production.

Millilitres vs. Grams: Conversion Established via Chemical Report

Though the contraband quantity was initially mentioned in millilitres, the Exhibit P20 chemical report clearly indicated strength of Buprenorphine as 0.299 mg/ml. This meant the total content seized was 116 grams, which is well above the commercial quantity threshold (20g) under the NDPS Act.

“The reference to millilitres in the quantum of contraband seized and the charge framed has not affected the prosecution case.”

Thus, the charge was not defective and no prejudice was caused.

Delay in Production of Contraband: Fatal to Prosecution Case

The core flaw identified by the Court was the unexplained delay in producing the seized drugs before the Magistrate.

Contraband seized on 21-10-2011

Property list (Ex.P14) dated 22-11-2011, bears seal of 28-11-2011

Thondi number only assigned on 27-10-2011

No evidence of custody between 21st and 27th October

Crucially, no effort was made to explain the delay or trace interim custody, and the seizure mahazar (Ex.P11) did not contain the specimen seal.

“The documentary evidence adduced do not disclose as to who was in custody of the contraband from the date of seizure till 28-10-2011... The integrity of the prosecution case becomes doubtful.”

Citing Faijas v. State of Kerala and Renjith v. State of Kerala, the Court emphasized that unexplained delays and missing seals impair evidentiary reliability, entitling the accused to benefit of doubt.

Cumulative Doubts and Lack of Custody Evidence Justify Acquittal

While procedural compliance under Sections 42, 50, 52A was broadly satisfied, the integrity of the chain of custody — a cornerstone in NDPS prosecutions — was found seriously compromised.

“The cumulative effect of the above factors persuade this Court to give the benefit of doubt to the appellant and the impugned judgment is liable to be interfered with.”

In a detailed and well-reasoned judgment, the Kerala High Court underscored that NDPS prosecutions rest heavily on procedural sanctity, and unexplained delay or custody lapses can undermine the case entirely, even in cases involving commercial quantities.

The conviction and sentence imposed by the Trial Court were set aside, and the appellant was acquitted. The Court directed that any fine amount deposited by the appellant be refunded.

Date of Decision: 7 November 2025