Introduction
For the past few years, defense counsels in NDPS cases have relied heavily on the argument that delayed compliance with Section 52A (drawing of samples before a Magistrate) is fatal to the prosecution’s case. Reliance was often placed on judgments like Union of India v. Mohanlal (2016) to argue that if the “primary evidence” (certified samples) was not collected immediately, the accused was entitled to bail or acquittal.
However, in a significant ruling delivered on December 20, 2024, the Supreme Court in Narcotics Control Bureau v. Kashif has clarified that procedural lapses under Section 52A do not automatically entitle an accused to bail, nor do they render the seizure inadmissible.
The Case Matrix
- Case: Narcotics Control Bureau v. Kashif (Criminal Appeal No. 5544 of 2024).
- Facts: The NCB seized a commercial quantity of Tramadol and Zolpidem from courier parcels.
- The High Court’s Order: The Delhi High Court granted bail to the accused solely on the ground that the application under Section 52A for drawing samples was not made within a “reasonable time,” leading to an apprehension of tampering. Crucially, the High Court did not record satisfaction regarding the “twin conditions” under Section 37.
The Supreme Court’s Verdict
The Supreme Court set aside the High Court order, terming it “fallacious and untenable”. The Bench of Justice Bela M. Trivedi and Justice Satish Chandra Sharma laid down the following key principles:
1. Section 52A is Directory, Not Mandatory for Bail
The Court held that Section 52A was inserted primarily for the disposal of hazardous drugs and to implement international conventions.
- Procedural Irregularity: Any delay or lapse in complying with Section 52A(2) is merely a “procedural irregularity,” not an “illegality.” While an illegality vitiates proceedings, an irregularity can be remedied.
- No Automatic Bail: A lapse in Section 52A compliance cannot be the sole ground to grant bail or claiming acquittal9.
2. Section 37 is Mandatory
The Court reiterated that in commercial quantity cases, the “twin conditions” of Section 37 are non-negotiable.
- The Court must record satisfaction that there are reasonable grounds to believe the accused is (i) not guilty and (ii) not likely to commit an offence while on bail.
- The High Court erred by bypassing Section 37 and granting bail merely on procedural grounds.
3. Admissibility of Seizure Evidence
One of the most critical aspects of this judgment is the observation on “Illegal Search.” Citing Constitution Bench judgments in Pooran Mal and Baldev Singh, the Court held:
- Evidence Remains Admissible: Even if a search or seizure is illegal or irregular, the evidence collected is not automatically inadmissible.
- Prejudice Test: The Court must examine the evidence in context to see if “serious prejudice” was caused to the accused. It cannot simply discard the seizure memo or panchnama.
- Primary Evidence: While the Magistrate-certified inventory is primary evidence, the seizure memo and arrest memo prepared by the IO are also primary evidence under Section 62 of the Evidence Act and cannot be overlooked.
4. Clarification on Prior Judgments
The defense relied on recent judgments like Simarnjit Singh v. State of Punjab and Yusuf @ Asif v. State, where convictions were set aside due to Section 52A non-compliance.
The Supreme Court clarified that these were fact-specific decisions and did not lay down a law that 52A non-compliance always vitiates the trial. The Constitution Bench decisions taking a stricter view on evidence admissibility must take precedence.
Impact on Legal Practice
This judgment closes the “technical loophole” of delayed sampling for bail applications.
- For Prosecution: It strengthens the case against “technical acquittals.”
- For Defense: Bail arguments must now focus on the merits (proving the accused is not guilty under Section 37) rather than just procedural delays in sampling. Arguments regarding “tampering” must be proven by showing specific prejudice, not just by citing delay.
Disclaimer: This article is for academic and informational purposes only and does not constitute legal advice. For specific case inquiries, please consult a legal professional.