Holding

A lapse or delay in complying with Section 52A is merely a procedural irregularity that does not vitiate the trial nor justify bail; bail must be granted only after satisfying the mandatory requirements of Section 37.

Summary

The Narcotics Control Bureau (NCB) seized large quantities of Tramadol and Zolpidem tablets in multiple operations and arrested Kashif and co‑accused. Kashif applied for bail, which the Delhi High Court granted solely on the ground that the NCB had not complied with Section 52A of the NDPS Act within a reasonable time, without recording the mandatory findings under Section 37. The NCB appealed, raising the question of how Section 52A should be interpreted and whether a delay or lapse in its compliance can vitiate the trial or justify bail. The Supreme Court held that Section 52A was enacted for early disposal of seized contraband and that any delay constitutes only a procedural irregularity, not an illegality, and therefore does not invalidate the trial nor entitle the accused to bail; bail must be decided in accordance with the mandatory conditions of Section 37. The Court also affirmed that procedural lapses do not render evidence inadmissible and that the statutory presumption under Section 54 remains applicable. Consequently, the appeal was allowed, the High Court’s bail order was set aside, and the matter was remanded for fresh consideration with a four‑week extension of bail.

Issues considered

Whether non‑compliance or delayed compliance with Section 52A of the NDPS Act vitiates the trial or entitles the accused to bail.
Whether procedural irregularities under Section 52A amount to illegality.
Whether the mandatory conditions of Section 37 must be satisfied before granting bail in NDPS cases.
Whether evidence obtained from a search and seizure despite procedural lapses is inadmissible.
Interpretation of the purpose and scope of Section 52A in the context of early disposal of seized narcotics.

Legislation cited

Headnote

Issue for Consideration Interpretation of Section 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985. Headnotes† Narcotic Drugs and Psychotropic Substances Act, 1985 – Interpretation of: Held: The provisions of NDPS Act are required to be interpreted keeping in mind the Act; as also the impact on the society as a whole – It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. [Para 39(i)] Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37 – Nature of: Held: While

Subjects

Section 52A of the NDPS ActProcedural irregularityProcedural IllegalityLapseDelayed complianceStatutory presumptionNullify or vitiate the entire case of the prosecutionVitiating the trialContraband substanceBail

Judgment

[2024] 12 S.C.R. 1406 : 2024 INSC 1045

Narcotics Control Bureau
v.
Kashif
(Criminal Appeal No. 5544 of 2024)
20 December 2024
[Bela M. Trivedi* and Satish Chandra Sharma, JJ.]

Issue for Consideration
Interpretation of Section 52A of the Narcotic Drugs and Psychotropic
Substances Act, 1985.

Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 –
Interpretation of:
Held: The provisions of NDPS Act are required to be interpreted
keeping in mind the scheme, object and purpose of the Act; as
also the impact on the society as a whole – It has to be interpreted
literally and not liberally, which may ultimately frustrate the object,
purpose and Preamble of the Act. [Para 39(i)]

Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.37 – Nature of:
Held: While considering the application for bail, the Court must
bear in mind the provisions of Section 37 of the NDPS Act which
are mandatory in nature – Recording of findings as mandated in
Section 37 is sine qua non is known for granting bail to the accused
involved in the offences under the NDPS Act. [Para 39(ii)]

Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.52A – Purpose of:
Held: The purpose of insertion of Section 52A laying down the
procedure for disposal of seized Narcotic Drugs and Psychotropic
Substances, was to ensure the early disposal of the seized
contraband drugs and substances – It was inserted in 1989 as one
of the measures to implement and to give effect to the International
Conventions on the Narcotic drugs and psychotropic substances.
[Para 39(iii)]

*Author
[2024] 12 S.C.R. 1407

Narcotics Control Bureau v. Kashif

Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.52A – Consequence of any lapse or delayed compliance:
Held: Sub-section (2) of Section 52A lays down the procedure as
contemplated in sub-section (1) thereof, and any lapse or delayed
compliance thereof would be merely a procedural irregularity which
would neither entitle the accused to be released on bail nor would
vitiate the trial on that ground alone. [Para 39(iv)]

Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.52A – Would any procedural irregularity or illegality found
to have been committed in conducting the search and seizure
during the course of investigation or thereafter, would by itself
make the entire evidence inadmissible:
Held: Any procedural irregularity or illegality found to have been
committed in conducting the search and seizure during the course
of investigation or thereafter, would by itself not make the entire
evidence collected during the course of investigation, inadmissible –
The Court would have to consider all the circumstances and find
out whether any serious prejudice has been caused to the accused.
[Para 39(v)]

Narcotic Drugs and Psychotropic Substances Act, 1985 –
ss.52A, 54 – Statutory presumption:
Held: Any lapse or delay in compliance of s.52A by itself would
neither vitiate the trial nor would entitle the accused to be released
on bail – The Court will have to consider other circumstances
and the other primary evidence collected during the course of
investigation, as also the statutory presumption permissible u/s.
54 of the NDPS Act. [Para 39(vi)]

Narcotic Drugs and Psychotropic Substances Act, 1985 –
ss.52A, 37 – The High Court solely on the ground of belated
compliance of s.52A of the NDPS Act granted bail to the
respondent – Correctness:
Held: The High Court without considering as to whether the twin
conditions mentioned in clause (b) sub-section (1) of s.37 were
fulfilled or not, concluded without any material on record that
s.37 was not attracted as there was non-compliance of s.52A of
the said Act within reasonable time – The Appellant-NCB having
opposed the bail application, it was obligatory on the part of the
1408 [2024] 12 S.C.R.

Supreme Court Reports

High Court to record a satisfaction on the cumulative conditions
namely, that there were reasonable grounds for believing that
the respondent- accused was not guilty of the alleged offences
and that he was not likely to commit any offence while on bail,
as contemplated in s.37(1)(b) of the said Act – The non-recording
of such satisfaction which is mandatory in nature, has rendered
the impugned order of High Court fallacious and untenable – As
far as s.52A is concerned, sub-section (2) of s.52A specifies the
procedure as contemplated in sub-section (1) thereof, for the
disposal of the seized contraband or controlled narcotic drugs and
psychotropic substances – Any deviation or delay in making the
application under subsection (2) by the concerned officer to the
Magistrate or the delay on the part of the Magistrate in deciding
such application could at the most be termed as an irregularity
and not an illegality which would nullify or vitiate the entire case
of the prosecution – It is settled that an irregularity may be
overlooked or corrected without affecting the outcome, whereas
an illegality may lead to nullification of the proceedings – Also, as
per s.54 of the said Act, the courts are entitled to presume, unless
and until the contrary is proved that the accused had committed
an offence under the Act in respect of any narcotic drug or
psychotropic substance etc. for the possession of which he failed
to account satisfactorily – An anomalous situation would arise if a
non-compliance or delayed compliance of s.52A is held to be
vitiating the trial or entitling the accused to be released on bail,
though he is found to have possessed the contraband substance,
and even if the statutory presumption is not rebutted by him – Such
could not be the intention of the legislature – Thus, the impugned
order based on the inferences and surmises, in utter disregard
of the statutory provision of the Act and in utter disregard of the
mandate contained in s.37 of the Act, and granting bail to the
accused merely on the ground that the compliance of s.52A was
not done within reasonable time, is highly erroneous and deserves
to be quashed and set aside. [Paras 11, 23, 25, 40]

Case Law Cited
Pooran Mal v. Director of Inspection (Investigation) New Delhi and
Others [1974] 2 SCR 704; State of Punjab v. Baldev Singh [1999]
3 SCR 977 : (1999) 6 SCC 172 – followed.
Hira Singh and Another v. Union of India and Another [2020] 4 SCR
1130 : (2020) 20 SCC 272; State of M.P. v. Kajad [2001] Supp.
[2024] 12 S.C.R. 1409

Narcotics Control Bureau v. Kashif

2 SCR 617 : (2001) 7 SCC 673; NCB v. Mohit Aggarwal [2022] 7
SCR 600 : (2022) 18 SCC 374; State of H.P. v. Pirthi Chand and
Another [1995] Supp. 6 SCR 29 : (1996) 2 SCC 37 – relied on.
Eastern Coalfields Limited v. Sanjay Transport Agency and Another
[2009] 9 SCR 690 : (2009) 7 SCC 345; Union of India v. Mohanlal
and Another [2016] 1 SCR 651 : (2016) 3 SCC 379; Simarnjit v.
State of Punjab (Criminal Appeal No.1443/2023); Yusuf @
Asif v. State, 2023 SCC Online SC 1328; Mohammed Khalid and
Another v. State of Telangana [2024] 3 SCR 23 : (2024) 5 SCC
393; K.P. Varghese v. Income Tax Officer, Ernakulam and Another
[1982] 1 SCR 629 : (1981) 4 SCC 173; Khet Singh v. Union of
India [2002] 2 SCR 598; State of Punjab v. Makhan Chand [1997]
3 SCR 959 – referred to.

Books and Periodicals Cited
Maxwell on Interpretation of Statutes, Tenth Edition.

List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; Opium
Act, 1857; Opium Act, 1878; Dangerous Drugs Act, 1930; Narcotic
Drugs and Psychotropic Substances (Seizure, Storage, Sampling
and Disposal) Rules, 2022.

List of Keywords
Section 52A of the Narcotic Drugs and Psychotropic Substances Act,
1985; Procedural irregularity; Procedural Illegality; Lapse; Delayed
compliance; Statutory presumption; Nullify or vitiate the entire case
of the prosecution; Vitiating the trial; Contraband substance; Bail.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
5544 of 2024
From the Judgment and Order dated 18.05.2023 of the High Court
of Delhi at New Delhi in BA No. 253 of 2023

Appearances for Parties
Tushar Mehta, SG, Arvind Kumar Sharma, Advs. for the Appellant.
Akshay Bhandari, Ashish Batra, Advs. for the Respondent.
1410 [2024] 12 S.C.R.

Supreme Court Reports

Judgment / Order of the Supreme Court

Judgment

Bela M. Trivedi, J.

1. Leave granted.
2. The instant Appeal arises out of the impugned Order dated 18.05.2023
passed by the High Court of Delhi at New Delhi in Bail Application No.
253 of 2023, granting bail to the respondent. It assumes importance
as the said Bail Application has been allowed by the High Court solely
on the ground of belated compliance of Section 52A of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter referred
to as ‘the NDPS Act’), misinterpreting the said provision, and without
recording the findings as mandated in Section 37 of the said Act. Since
the impugned order involving seminal issue on the interpretation of
Section 52A of the said Act is likely to have wide repercussions, we
deem it proper to delve into the same in little greater depth.

3. PREFATORY FACTS:
(i) As per the case of the prosecution, on 24.02.2022 an information
was received by a Junior Intelligence Officer – Shri Sunil Kumar
of the Appellant-Bureau with regard to a parcel bearing AWB No.
7702909491 lying with DHL Express, Raman Road, Kirti Nagar,
New Delhi, suspected to contain psychotropic substances. On
the basis the said information, a team of the Appellant-Bureau
along with the supervisor- Mr. Ankur Singh as an independent
witness reached DHL office at about 3.40 p.m. on 24.02.2022.
The suspected parcel was opened, and it was found to have
contained 11 lace rolls and 3 pieces of clothes. On opening one
lace roll, it was found to have contained 120 strips of Tramadol
tablets and each strip had 10 tablets. The remaining lace rolls
were also opened and a total of 13200 strips of Tramadol
tablets were found. The spot Panchnama was prepared and
the suspected contraband was seized and sealed in presence
of independent witness and deposited in the Malkhana on the
very day i.e. 24.02.2022.
(ii) Subsequently, on enquiry it was discovered that the parcel
was booked through a firm named OGS Groups by one of
[2024] 12 S.C.R. 1411

Narcotics Control Bureau v. Kashif

the accused named Ganesh Chaudhary. The said Accused -
Ganesh Chaudhary having been apprehended by the team
of Appellant -Bureau on 28.02.2022, he made a disclosure
statement, on the basis of which a second seizure was made at
Terminal 3, IGI Airport, New Delhi from the consignment number
IZ98X1W70451682510. A recovery of 15000 Zolpidem tablets
was made from the said consignment. On 02.03.2022, on the
basis of the disclosure statement made by the accused-Ganesh
Chaudhary another recovery of 19440 Tramadol tablets was
made from 3 packages at Global India Express Pvt. Ltd., which
were sent by the co-accused Tamir Ali for being couriered to
USA. The said case properties were also sealed and deposited
in the Malkhana on the same day.
(iii) On 06.03.2022 the said Accused Tamir Ali disclosed that his
three associates namely, the Respondent – Kashif and other
two Accused - Rizwan and Zahid were also involved in sending
NRx tablets to USA. On the basis of the information given by
him, the Respondent - Accused Kashif was arrested along
with the other two accused on 07.03.2022. A statement of the
Respondent - Kashif was recorded from which it was disclosed
that he was involved in sending the parcel to the co-accused
Ganesh Chaudhary through a bus conductor. The Appellant -
Bureau thereafter filed a complaint before the Special Judge,
NDPS Act, Patiala House Courts, against the Respondent -
Kashif and six other accused, for the offences punishable under
Section 8, 22(c), 23(c) and 29 of the NDPS Act.
4. The Respondent - Accused filed the Bail Application being No.
253/2023 directly before the High Court of Delhi, which allowed the
same holding inter alia that there was non-compliance of Section
51A within reasonable time, which gave rise to apprehension that
sample could have been tempered with, and that in case of wrongly
drawn samples, the benefit of doubt had to accrue to the accused. As
transpiring from the impugned order, the learned counsel appearing
for the Respondent - Accused had restricted his arguments only to
the issue of violation of the Standing Order No.1 of 88 and delay in
filing the application before the Magistrate for drawing the sample
under Section 52A of NDPS Act. The High Court also therefore
decided the Bail application, confining itself to the issue whether the
application under Section 52A was made within reasonable time and
the effect of delay, if any.
1412 [2024] 12 S.C.R.

Supreme Court Reports

5. We have heard learned Solicitor General of India, Mr. Tushar
Mehta and Mr. Akshay Bhandari, learned counsel appearing for the
Respondent at length on the interpretation of Section 52A of the
said Act.

OBJECTS OF NDPS ACT: -
6. At the outset, it may be noted that prior to the enactment of NDPS
Act, 1985 the statutory control over narcotic drugs was exercised
in India through number of Central and State enactments like the
Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act,
1930. With the passage of time and developments in the field of illicit
drug traffic and drug abuse at national and international level, many
deficiencies in the said enactments were noticed by the Parliament,
which led to enactment of a comprehensive legislation on Narcotic
Drugs and Psychotropic substances i.e. NDPS Act, 1985. The said
Act was enacted in 1985 mainly to consolidate and amend the laws
relating to narcotic drugs, and to make stringent provisions for the
control and regulation of operations relating to narcotic drugs and
psychotropic substances. Various provisions of the Act have been
amended from time to time considering the need to do so by the
Parliament.
7. A three-judge bench in case of Hira Singh and Another Vs. Union
of India and Another1 expressing serious concern about the problem
of drug addicts and mafia at the national and international level
had observed that the provisions of NDPS Act are required to be
interpreted keeping in mind the object and purpose of the said Act
and the impact on the society as a whole. It was also observed that
the Act is required to be interpreted literally and not liberally which
may ultimately frustrate the object, purpose and Preamble of the Act.
The precise observations made therein are reproduced hereunder:
“10.5. The problem of drug addicts is international and
the mafia is working throughout the world. It is a crime
against the society and it has to be dealt with iron hands.
Use of drugs by the young people in India has increased.
The drugs are being used for weakening of the nation.
During the British regime control was kept on the traffic

1 (2020) 20 SCC 272
[2024] 12 S.C.R. 1413

Narcotics Control Bureau v. Kashif

of dangerous drugs by enforcing the Opium Act, 1857 the
Opium Act, 1875 and the Dangerous Drugs Act, 1930.
However, with the passage of time and the development in
the field of illicit drug traffic and during abuse at national and
international level, many deficiencies in the existing laws
have come to notice. Therefore, in order to remove such
deficiencies and difficulties, there was urgent need for the
enactment of a comprehensive legislation on narcotic drugs
and psychotropic substances, which led to enactment of the
NDPS Act. As observed hereinabove, the Act is a special
law and has a laudable purpose to serve and is intended
to combat the menace otherwise bent upon destroying the
public health and national health. The guilty must be in
and the innocent ones must be out. The punishment part
in drug trafficking is an important one but its preventive
part is more important. Therefore, prevention of illicit traffic
in the Narcotic Drugs and Psychotropic Substances Act,
1985 came to be introduced. The aim was to prevent illicit
traffic rather than punish after the offence was committed.
Therefore, the courts will have to safeguard the life and
liberty of the innocent persons. Therefore, the provisions
of the NDPS Act are required to be interpreted keeping
in mind the object and purpose of the NDPS Act; impact
on the society as a whole and the Act is required to be
interpreted literally and not liberally which may ultimately
frustrate the object, purpose and Preamble of the Act.
Therefore, the interpretation of the relevant provisions of
the statute canvassed on behalf of the accused and the
intervener that quantity of neutral substance(s) is not to
be taken into consideration and it is only actual content of
the weight of the offending drug, which is relevant for the
purpose of determining whether it would constitute “small
quantity or commercial quantity”, cannot be accepted”

COMPLIANCE OF THE MANDATE UNDER SECTION 37:
8. There has been consistent and persistent view of this Court that in
the NDPS cases, where the offence is punishable with minimum
sentence of ten years, the accused shall generally be not released on
bail. Negation of bail is the rule and its grant is an exception. While
1414 [2024] 12 S.C.R.

Supreme Court Reports

considering the application for bail, the court has to bear in mind
the provisions of Section 37 of the NDPS Act, which are mandatory
in nature. The recording of finding as mandated in Section 37 is a
sine qua non for granting bail to the accused involved in the offences
under the said Act. Apart from the granting opportunity of hearing to
the Public Prosecutor, the other two conditions i.e., (i) the satisfaction
of the court that there are reasonable grounds for believing that the
accused is not guilty of the alleged offence and that (ii) he is not
likely to commit any offence while on bail, are the cumulative and
not alternative conditions.
9. In State of M.P. vs. Kajad,2 this Court while considering the scope of
Section 37 in the light of the scheme of the Act, had observed that: -
“A perusal of Section 37 of the Act leaves no doubt in the
mind of the court that a person accused of an offence,
punishable for a term of imprisonment of five years or more,
shall generally be not released on bail. Negation of bail is
the rule and its grant an exception under sub-clause (ii) of
clause (b) of Section 37(1). For granting the bail the court
must, on the basis of the record produced before it, be
satisfied that there are reasonable grounds for believing
that the accused is not guilty of the offences with which
he is charged and further that he is not likely to commit
any offence while on bail. It has further to be noticed that
the conditions for granting the bail, specified in clause
(b) of sub-section (1) of Section 37 are in addition to the
limitations provided under the Code of Criminal Procedure
or any other law for the time being in force regulating the
grant of bail. Liberal approach in the matter of bail under
the Act is uncalled for.”
10. Similarly, recently a three-Judge Bench in NCB vs. Mohit Aggarwal,3
considering the earlier judgments on the parameters of bail available
under Section 37 of the said Act held that:
“The length of the period of his custody or the fact that the
charge-sheet has been filed and the trial has commenced

2 (2001) 7 SCC 673
3 (2022) 18 SCC 374
[2024] 12 S.C.R. 1415

Narcotics Control Bureau v. Kashif

are by themselves not considerations that can be treated
as persuasive grounds for granting relief to the respondent
under Section 37 of the NDPS Act.”
11. So far as the facts of the present case are concerned, it appears that
a complaint case has been filed by the NCB against the respondent
and six others before the Special Court, for the offences under
Section 8, 22(c), 23(c) and 29 of the NDPS Act. The respondent-
accused filed the bail application directly in the High Court without
first approaching the Special Court, and curiously the High Court
without considering as to whether the twin conditions mentioned
in clause (b) sub-section (1) of Section 37 were fulfilled or not,
concluded without any material on record that Section 37 was not
attracted as there was non-compliance of Section 52A of the said Act
within reasonable time. The Appellant - NCB having opposed the bail
application, it was obligatory on the part of the High Court to record
a satisfaction on the cumulative conditions namely, that there were
reasonable grounds for believing that the Respondent - Accused
was not guilty of the alleged offences and that he was not likely to
commit any offence while on bail, as contemplated in Section 37(1)
(b) of the said Act. The non-recording of such satisfaction which is
mandatory in nature, has rendered the impugned order of High Court
fallacious and untenable. However, since the High Court has released
the respondent-accused on bail solely on the ground that there was
non-compliance of Section 52A of the said Act within reasonable
time, let us consider the scope and ambit as also the repercussions
of non-compliance or belated compliance of the said provision.
12. Section 52A of the Act reads as under:
“52A. Disposal of seized narcotic drugs and
psychotropic substances.—(1) The Central Government
may, having regard to the hazardous nature, vulnerability
to theft, substitution, constraint of proper storage space or
any other relevant consideration, in respect of any narcotic
drugs, psychotropic substances, controlled substances or
conveyances, by notification in the Official Gazette, specify
such narcotic drugs, psychotropic substances, controlled
substances or conveyance or class of narcotic drugs, class
of psychotropic substances, class of controlled substances
1416 [2024] 12 S.C.R.

Supreme Court Reports

or conveyances, which shall, as soon as may be after their
seizure, be disposed of by such officer and in such manner
as that Government may, from time to time, determine after
following the procedure hereinafter specified.
(2) Where any narcotic drugs, psychotropic substances,
controlled substances or conveyances has been seized
and forwarded to the officer-in-charge of the nearest
police station or to the officer empowered under section
53, the officer referred to in sub-section (1) shall prepare
an inventory of such narcotic drugs, psychotropic
substances, controlled substances or conveyances
containing such details relating to their description, quality,
quantity, mode of packing, marks, numbers or such other
identifying particulars of the [narcotic drugs, psychotropic
substances, controlled substances or conveyances] or the
packing in which they are packed, country of origin and
other particulars as the officer referred to in sub-section
(1) may consider relevant to the identity of the narcotic
drugs, psychotropic substances, controlled substances or
conveyances in any proceedings under this Act and make
an application, to any Magistrate for the purpose of—
(a) certifying the correctness of the inventory so prepared;
or
(b) taking, in the presence of such magistrate, photographs
of such drugs, substances or conveyances and certifying
such photographs as true; or
(c) allowing to draw representative samples of such drugs
or substances, in the presence of such magistrate and
certifying the correctness of any list of samples so drawn.
(3) Where an application is made under sub-section (2), the
Magistrate shall, as soon as may be, allow the application.
(4) Notwithstanding anything contained in the Indian
Evidence Act, 1872 (1 of 1972) or the Code of Criminal
Procedure, 1973 (2 of 1974), every court trying an offence
under this Act, shall treat the inventory, the photographs
of narcotic drugs, psychotropic substances, controlled
[2024] 12 S.C.R. 1417

Narcotics Control Bureau v. Kashif

substances or conveyances] and any list of samples drawn
under sub-section (2) and certified by the Magistrate, as
primary evidence in respect of such offence.”

POSITION PRIOR TO INSERTION OF SECTION 52A: -
13. It may be noted that though the NDPS Act came into force on
14.11.1985, Section 52A was inserted by the Act 2 of 1989, which
came into force with effect from 29.05.1989. For the purpose of proper
interpretation of Section 52A, it would be beneficial to peep into its
historical background, and the position with regard to the search,
seizure, drawing of sample, etc. prevailing prior to the insertion of
Section 52A. Prior to insertion of Section 52A in the Act, the Central
Government in exercise of the powers under Section 4(3) of the
NDPS Act vide notification dated 17.03.1986, had constituted the
Narcotics Control Bureau (NCB) conferring upon it the powers and
functions of Central Government for taking measures in respect of
matters contained in Section 4(2) of the Act. It was noticed by the
NCB that different Investigating Officers of various enforcement
agencies were adopting different procedures in drawing samples from
seized narcotic drugs and psychotropic substances, etc. Therefore,
with a view to bring uniformity of approach in such matters and to
provide for a secured system of handling of drug samples, the NCB
had issued the Standing Instructions No. 1 of 88 vide the Notification
dated 15.03.1988. The said Notification of the Standing Instructions
no. 1 of 88 pertained to the procedure to be followed for drawing
samples from the seized narcotic drugs and psychotropic substances,
numbering of samples drawn, sealing, mode of packing, dispatch
of samples to the concerned laboratory for test etc. The relevant
clauses of the said Standing Instructions No. 1 of 88 pertaining to
the place and time of drawal of sample, disposal of Remnant sample/
duplicate sample and the drug, read as under:
“1.5. Place and time of drawal of sample:
Samples from the Narcotic Drugs and Psychotropic
Substances seized, must be drawn on the spot of recovery,
in duplicate, in the presence of search (Panch) witnesses
and the person from whose possession the drug is
recovered, and a mention to this effect should invariably
be made in the Panchanama drawn on the spot.
1418 [2024] 12 S.C.R.

Supreme Court Reports

1.21. Custody of duplicate sample
Duplicate sample of all seized narcotic drugs and
psychotropic substances must be preserved and kept
safely in the custody of the Investigating officer alongwith
the case property. Normally duplicate sample may not be
used but in case of loss of original sample in transit or
otherwise or on account of trial court passing an order for
a second test, the duplicate sample will be utilized.
1.22. Disposal of Test Memo
As soon as the test result in original or duplicate or both
test memos are received, the same will be filled in the
Court, trying the case, alongwith, chargesheet/complaint
by the Investigating officer. He will keep an attested copy
of the same in his case file.
1.23. Disposal of Remnant sample/duplicate sample
and the drug
At present, the remnant sample/duplicate sample and
seized narcotic drugs and psychotropic substances can be
disposed of after the proceedings of prosecution is over
or by obtaining an order from such court under Section
110 of the Customs Act, 1962 and/or 451 of Cr.P.C. While
obtaining the order of the court under the aforesaid section
it is necessary that specific order in respect of the remnant
sample/ duplicate sample is also obtained.
After such order has been obtained, the drug or substance
along with the samples including remnants shall be
disposed of in the manner prescribed. Please acknowledge
the receipt of the standing order.”
14. Thereafter, recognizing the importance of dispatch, transit, receipt,
safe custody, storage, proper accounting and disposal destruction
of the seized/confiscated drugs and the need for evolving a uniform
procedure, the NCB issued the Standing Order No. 2 of 88 vide the
Notification dated 11.04.1988. The NCB vide the said Standing Order
formulated the procedure to be followed by all the Central and State
drug law enforcement agencies for seizure, sampling, storage etc. It
was mentioned in clause 3.1 thereof that “all drugs should be properly
classified, carefully weighed and sampled on the spot of seizure.” The
[2024] 12 S.C.R. 1419

Narcotics Control Bureau v. Kashif

clause 3.2 thereof stated that “the procedures set out in Standing
Order No.1 of 88 should be scrupulously followed”. The clause 5.2
directed the respective enforcement agencies to constitute a three-
member Committee, making it responsible to advise the respective
investigating officers on the steps to be initiated for expeditious disposal
of the seized drugs.

NECESSITY FOR INSERTION OF SECTION 52A AND THE
POSITION THEREAFTER:
15. The necessity to insert Section 52A arose in view of the International
Convention of 1988 held by the United Nations, which adopted
“United Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances, 1988”. Another convention under the
aegis of South Asian Association for Regional Cooperation (SAARC)
also came to be held in December, 1988, in which it was resolved
that Member-States will take measures for early destruction or lawful
disposal of narcotic drugs and psychotropic substances. India being
Member-State, was a signatory to the said conventions. The Central
Government therefore introduced a Bill in Parliament, i.e., the Narcotic
Drugs or Psychotropic Substances (Amendment) Bill, 1988, specifically
mentioning that it was for giving effect to the International Conventions.
Resultantly, the statutory provision as contained in Section 52A for
disposal of seized narcotic drugs and psychotropic substances came
to be inserted in the Act with effect from 29.05.1989.
16. The insertion of Section 52A was followed by the Standing Order
No. 1 of 89 dated 13.06.1989. The said Standing Order No. 1 of
1989 came to be issued by the Central Government in exercise of
the powers conferred by sub-section (1) of Section 52A of the said
Act as it was considered necessary and expedient to determine the
manner in which the narcotic drugs and psychotropic substances
should be disposed of after their seizure, having regard to their
hazardous nature, vulnerability to theft, substitution and constraints
of proper storage space. Clause 2.1 of the said Standing Order No.1
of 1989 stated that all drugs shall be properly classified, carefully
weighed and sampled on the spot of seizure. The said standing order
also provided about the drawal of samples on the spot of recovery,
quantity to be drawn for sampling, etc. It also provided a detailed
procedure with regard to the method of drawal of representative
samples, storage of samples, dispatch of samples, preparation of
1420 [2024] 12 S.C.R.

Supreme Court Reports

inventory, etc., and also provided for an early disposal of drugs and
other articles by having recourse to the provisions of sub-section (2)
of Section 52A of the Act. The relevant part of the Standing Order
No. 1/89 reads as under: -
“SECTION II – GENERAL PROCEDURE FOR SAMPLING,
STORAGE, ETC.
3.1. Preparation of inventory
After sampling, a detailed inventory of such packages/
containers shall be prepared for enclosure with the
panchnama. Original wrappers shall also be preserved
for evidentiary purposes.
SECTION III – RECEIPT OF DRUGS IN GODOWNS
AND PROCEDURE
3.2. Custody of drugs in godowns – storage procedure
All drugs shall invariably be stored in safes and vaults
provided with a double-locking system. Agencies of the
central and state governments may specifically designate
their godowns for storage purposes. The godowns
should be selected keeping in view their security angle,
juxtaposition to courts, etc.
3.3. Maintenance of godown and procedure for deposit
of drugs
Such godowns, as a matter of rule, shall be placed under
the overall supervision and charge of a gazetted officer
of the respective enforcement agency, who shall exercise
utmost care, circumspection and personal supervision
as far as possible. Each seizing officer shall deposit the
drugs fully packed and sealed in the godown within 48
hours of such seizure, with a forwarding memo indicating
NDPS Crime Number as per Crime and Prosecution (C
& P Register) under the new law, name of the accused,
reference of test memo, description of the drugs, total
number of packages/containers etc.
3.8. Prescription of periodical reports and returns
The heads of the respective enforcement agencies (both
central and state governments) may prescribe such
[2024] 12 S.C.R. 1421

Narcotics Control Bureau v. Kashif

periodical reports and returns, as they may deem fit, to
monitor the safe receipt, deposit, storage, accounting and
disposal of seized drugs.
3.9. Pre-trial disposal of drugs
Since the early disposal of drugs assumes utmost
consideration and importance, the enforcement agencies
may obtain orders for pre-trial disposal of drugs and other
articles (including conveyance, if any) by having recourse to
the provisions of sub-section (2) of Section 52A of the Act.
SECTION IV – ACTION TO BE TAKEN BY POLICE AND
OTHER EMPOWERED OFFICERS FOR PRE-TRIAL
DISPOSAL
4. Follow-up action to be taken by police and
empowered officers
Application to magistrate for pre-trial disposal
Where any narcotic drug or psychotropic substance has
been seized and forwarded to the officer-in-charge of the
nearest police station or to the officer empowered under
Section 53, the officer, referred to in paragraph 3.3 of the
Order shall prepare an inventory of such narcotic drugs or
psychotropic substances containing such details relating
to their description, quality, quantity, mode of packing,
marks, numbers or such other identifying particulars of the
narcotic drugs or psychotropic substances or the packing
in which they are packed, country of origin and such other
particular as may be considered relevant to the identity of
the aforesaid drugs in any proceedings under the Act and
make an application to any magistrate for the purpose of:
(a) Certifying the correctness of the inventory so
prepared; or
(b) Taking, in the presence of such magistrate, photographs
of such drugs or substances and certifying such
photographs as true; or
(c) Allowing to draw representative samples of such drugs
or substances, in the presence of such magistrate,
1422 [2024] 12 S.C.R.

Supreme Court Reports

and certifying the correctness of any list of samples
so drawn.
4.1. Magistrate to allow application
Where an application is made under sub section (2) of
Section 52A of the Act, the magistrate shall, as soon as
may be, allow the application.
4.2. Courts to treat documents and list of samples
certified by magistrate as “primary evidence.”
Notwithstanding anything contained in the Indian Evidence
Act, 1872 (1of 1872) or the Code of Criminal Procedure,
1973 (2 of 1974), every court trying an offence under this
Act shall treat the inventory, the photographs, or narcotic
drugs or psychotropic substances and any list of samples
drawn under subsection (2) ibid and certified by the
magistrate, as primary evidence in respect of such offence.
4.3. Grounds to be enumerated in application.
While preferring an application under section 52A to
any magistrate, emphasis may be laid on “expediency
of disposal”. The grounds that may be highlighted may
pertain to:
(i) Risk of pilferage, theft and substitution;
(ii) Constraints of storage and hazardous nature;
(iii) High potential and vulnerability of abuse;
(iv) High temptations to traffickers;
(v) Diminution in the value of other articles (including
conveyances) due to long storage, etc.”
17. The Central Government thereafter had issued a Notification dated
16.01.2015 i.e. G.S.R. 38(E) in exercise of the powers conferred
by Section 52A, specifying the narcotic drugs and psychotropic
substances, controlled substances and conveyances to be disposed
of, the officers who shall dispose them of and the manner of their
disposal.
18. It is very much pertinent to note that the Standing Instructions
No. 1 of 88 dated 15.03.1988 and the Standing Order No. 2 of 88
[2024] 12 S.C.R. 1423

Narcotics Control Bureau v. Kashif

dated 11.04.1988 issued by the NCB, and the Standing Instructions
No. 1 of 89 dated 13.06.1989 and G.S.R. 38(E) dated 16.01.2015
issued by the Central Government, having been issued in exercise
of its powers conferred under the Act, had the statutory force and
the procedure mentioned therein with regard to the classification,
weighing and drawing of samples on the spot of seizure and disposal
of the remaining drugs, substances and other articles etc. remained
in force and were acted upon all throughout till the Notification
dated 23.12.2022 came to be issued by the Central Government,
in exercise of the powers conferred by Section 76 read with Section
52A of the said Act.
19. Vide the said Notification, the Rules called “Narcotic Drugs and
Psychotropic Substances (Seizure, Storage, Sampling and Disposal)
Rules, 2022” came to be published. The said Rules provided for the
procedure to be followed for the Seizure and Storage, Sampling,
Disposal of the seized material. The Rule 29 of the said Rules,
repealed the Standing Order No. 1 of 88 dated 15.03.1988, Standing
Order No. 2 of 88 dated 11.04.1988 issued by the NCB, and the
Standing Order No.1 of 89 dated 13.06.1989 and the G.S.R. 38(E)
issued by the Government of India, alongwith the other Notifications.
However, sub-rule (2) of Rule 29 stated that notwithstanding such
repeal, anything done or any action taken or purported to have been
done or taken under the Standing Order or notification repealed by
sub-rule (1), shall in so far as it is not inconsistent with the provisions
of the said Rules, be deemed to have been done or taken under the
corresponding provision of the said Rules.
20. Now, so far as Section 52A is concerned, the language employed
therein itself is very clear that the said provision was inserted for
an early disposal of the seized narcotic drugs and psychotropic
substances, having regard to the hazardous nature, vulnerability
to theft, substitution, constraints of proper storage space and other
relevant considerations. Apart from the plain language used in the said
section, its Heading also makes it clear that the said provision was
inserted for the Disposal of the seized narcotic drugs and psychotropic
substances. As per the well settled rule of interpretation, the Section
Heading or Marginal note can be relied upon to clear any doubt or
ambiguity in the interpretation of any provision and to discern the
legislative intent. The Section Heading constitutes an important part of
the Act itself, and may be read not only as explaining the provisions
1424 [2024] 12 S.C.R.

Supreme Court Reports

of the section, but it also affords a better key to the constructions of
the provisions of the section which follows than might be afforded
by a mere preamble.4
21. The insertion of Section 52A with the Heading “Disposal of seized
narcotic drugs and psychotropic substances” along with the insertion
of the words “to provide for the forfeiture of property derived from or
used in, illicit traffic in narcotics drugs and psychotropic substances,
to implement the provisions of International Conventions on Narcotics
Drugs and Psychotropic Substances”, in the long title of the NDPS
Act, by Act 2 of 1989 w.e.f. 29.05.1989, leaves no room of doubt
that the said provision of Section 52A was inserted for an early
disposal of the seized narcotic drugs and psychotropic substances,
as one of the measures required to be taken to implement the
provisions of the International Conventions on Narcotics Drugs and
Psychotropic Substances. The Heading of Section 52A i.e. Disposal
of seized narcotic drugs and psychotropic substances delineates
the object and reason of the insertion of said provision and such
Heading cannot be underscored. From the bare reading of Section
52A also it is very much discernable that sub-section (1) thereof
empowers the Central Government, having regard to the hazardous
nature, vulnerability to theft, substitution, constraint of proper storage
space or any other relevant consideration, to specify narcotic drugs,
psychotropic substances for the purpose of their disposal as soon
as may be after their seizure, by such officer and in such manner as
the Central Government may determine after following the procedure
specified in sub-section (2).
22. Sub-section (2) of Section 52A prescribes the procedure to
be followed by the authorized officers for the disposal of such
contraband narcotics drugs and psychotropic substances at the pre-
trial stage. As per the procedure laid down in the said sub-section,
where any narcotics drug, psychotropic substance or controlled
substances or conveyances has been seized and forwarded to
the officer-in-charge of the nearest police station or to the officer
empowered under section 53, the concerned officer authorized
as per sub-section (1) has to prepare an inventory of such drugs
or substances in the manner as stated in the said provision, and

4 Eastern Coalfields Limited vs. Sanjay Transport Agency and Another, (2009) 7 SCC 345
[2024] 12 S.C.R. 1425

Narcotics Control Bureau v. Kashif

then make an application to the Magistrate for the purpose of
(a) certifying the correctness of the inventory so prepared; or (b)
taking, in presence of such Magistrate, photographs of such drugs,
substances or conveyances and certifying such photographs as
true; or (c) allowing to draw representative samples of such drugs
or substances, in the presence of such Magistrate and certifying
the correctness of any list of samples so drawn. Sub-section (3)
requires that an application made under sub-section (2), should
be allowed by the Magistrate as soon as may be, and sub-section
(4) thereof states that such inventory, photographs and the list of
samples so drawn, if any, under sub-section (2) and certified by
the Magistrate shall be treated as the primary evidence in respect
of the offence under the Act.
23. As demonstrated above, sub-section (2) of Section 52A specifies
the procedure as contemplated in sub-section (1) thereof, for the
disposal of the seized contraband or controlled narcotic drugs and
psychotropic substances. Any deviation or delay in making the
application under sub-section (2) by the concerned officer to the
Magistrate or the delay on the part of the Magistrate in deciding
such application could at the most be termed as an irregularity and
not an illegality which would nullify or vitiate the entire case of the
prosecution. The jurisprudence as developed by the courts so far,
makes clear distinction between an “irregular proceeding” and an
“illegal proceeding.” While an irregularity can be remedied, an illegality
cannot be. An irregularity may be overlooked or corrected without
affecting the outcome, whereas an illegality may lead to nullification
of the proceedings. Any breach of procedure of rule or regulation
which may indicate a lapse in procedure, may be considered as an
irregularity, and would not affect the outcome of legal proceedings
but it can not be termed as an illegality leading to the nullification
of the proceedings.
24. Section 52A was inserted only for the purpose of early disposal
of the seized contraband drugs and substances, considering the
hazardous nature, vulnerability to theft, constraint of proper storage
space etc. There cannot be any two opinions on the issue about
the early disposal of the contraband drugs and substances, more
particularly when it was inserted to implement the provisions of
International Convention on the Narcotics Drugs and Psychotropic
1426 [2024] 12 S.C.R.

Supreme Court Reports

Substances, however delayed compliance or non-compliance of
the said provision by the concerned officer authorised to make
application to the Magistrate could never be treated as an illegality
which would entitle the accused to be released on bail or claim
acquittal in the trial, when sufficient material is collected by the
Investigating Officer to establish that the Search and Seizure of
the contraband substance was made in due compliance of the
mandatory provisions of the Act.
25. It is significant to note that as per Section 54 of the said Act, the
courts are entitled to presume, unless and until the contrary is
proved that the accused had committed an offence under the Act in
respect of any narcotic drug or psychotropic substance etc. for the
possession of which he failed to account satisfactorily. Therefore,
unless such statutory presumption is rebutted by the accused during
the course of trial, there would be a prima facie presumption that the
accused had committed the offence under the Act, if he is found to
have possessed the contraband drug and substance, and if he fails
to account satisfactorily, as contemplated in the said provision of
Section 54. An anomalous situation would arise if a non-compliance
or delayed compliance of Section 52A is held to be vitiating the trial
or entitling the accused to be released on bail, though he is found to
have possessed the contraband substance, and even if the statutory
presumption is not rebutted by him. Such could not be the intention
of the legislature.
26. It is further pertinent to note that as per the settled legal position
even the evidence collected by an illegal search or seizure could
not be excluded or discarded. Whether the evidence collected by an
illegal search or seizure is admissible or not has been considered by
this Court in a series of decisions and one of the earliest decisions
is the decision of the Constitution Bench in case of Pooran Mal
Vs. Director of Inspection (Investigation) New Delhi and Others
(supra). It was observed therein that:
“24. So far as India is concerned its law of evidence is
modelled on the rules of evidence which prevailed in
English Law, and Courts in India and in England have
consistently refused to exclude relevant evidence merely
on the ground that it is obtained by illegal search or
seizure.”
[2024] 12 S.C.R. 1427

Narcotics Control Bureau v. Kashif

27. Of course, the subsequent Constitution Bench in case of State of
Punjab vs. Baldev Singh,5 while considering the question whether
the procedure laid down under Section 50 of NDPS Act is mandatory
or not, has explained that the judgment in Pooran Mal case cannot
be understood to have laid down the law that an illicit article seized
during a search of a person on a prior information, conducted in
violation of the provisions of Section 50 of the Act, can by itself
be used as evidence of unlawful possession of the illicit article on
the person from whom the contraband has been seized during the
illicit search. The Constitution Bench therefore further held that the
question of admissibility of evidence, which may be relevant to the
question in issue, has to be decided in the context and the manner
in which the evidence was collected and was sought to be used.
28. In case of State of H.P. vs. Pirthi Chand and Another 6 this Court
following the observations made by the Constitution Bench in Pooran
Mal case held as under: -
“4. It is to be seen whether the accused has been afforded
such a right and whether the authorized officer has violated
the mandatory requirement, as a question of fact, has to be
proved at the trial. In Pooran Mal v. Director of Inspection
(Investigation) [(1974) 1 SCC 345: 1974 SCC (Tax) 114]
a Constitution Bench of this Court had held that power of
search and seizure, is, in any system of jurisprudence, an
overriding power of the State for the protection of social
security and that power is necessarily regulated by law. A
search by itself is not a restriction on the right to hold and
enjoy property, though seizure is a temporary restriction
to the right of possession and enjoyment of the property
seized. However, the seizure will be only temporary and
limited for the purpose of the investigation. The power of
search and seizure is an accepted norm in our criminal
law envisaged in Sections 96 to 103 and 165 of the
Criminal Procedure Code, 1973 (for short “the Code”).
The Evidence Act permits relevancy as the only test of
admissibility of evidence. The evidence obtained under

5 (1999) 6 SCC 172
6 (1996) 2 SCC 37
1428 [2024] 12 S.C.R.

Supreme Court Reports

an illegal search and seizure does not exclude relevant
evidence on that ground. It is wrong to invoke the spirit of
the Constitution to exclude such evidence. The decisions
of the American Supreme Court spelling out certain
constitutional protections in regard to search and seizure
are not applicable to exclude the evidence obtained on an
illegal search. Courts in India refuse to exclude relevant
evidence merely on the ground that it is obtained by illegal
search and seizure. When the test of admissibility of
evidence lies in relevancy, unless there is an express or
necessarily implied prohibition in the Constitution or other
law, evidence obtained as a result of illegal search and
seizure is not liable to be shut out. Search and seizure
is not a new weapon in the armoury of those whose duty
it is to maintain social security in its broadest sense. If
the safeguards are generally on the lines adopted by the
Code, they would be regarded as adequate and render
the restrictions imposed as reasonable measures.
5. It would be seen that the organised traffic in contraband
generates deleterious effect on the national economy
affecting the vitals of the economic life of the community. It
is settled law that illegality committed in investigation does
not render the evidence obtained during that investigation
inadmissible. In spite of illegal search property seized, on
the basis of said search, it still would form basis for further
investigation and prosecution against the accused. The
manner in which the contraband is discovered may affect
the factum of discovery but if the factum of discovery is
otherwise proved then the manner becomes immaterial”.
29. Again, in Khet Singh vs. Union of India (supra) this Court after
considering number of earlier decisions held that:
“16. Law on the point is very clear that even if there is
any sort of procedural illegality in conducting the search
and seizure, the evidence collected thereby will not
become inadmissible and the court would consider all the
circumstances and find out whether any serious prejudice
had been caused to the accused. If the search and seizure
was in complete defiance of the law and procedure and
[2024] 12 S.C.R. 1429

Narcotics Control Bureau v. Kashif

there was any possibility of the evidence collected likely to
have been tampered with or interpolated during the course
of such search or seizure, then, it could be said that the
evidence is not liable to be admissible in evidence”.
30. In State of Punjab Vs. Makhan Chand (supra), this Court upheld
the conviction, where the contraband was recovered during a chance
recovery, even though the procedure under Section 52A was not
followed. It was observed therein in para 10:
“10. This contention too has no substance for two reasons.
Firstly, Section 52-A, as the marginal note indicates, deals
with “disposal of seized narcotic drugs and psychotropic
substances”. Under sub-section (1), the Central Government,
by a notification in the Official Gazette, is empowered to
specify certain narcotic drugs or psychotropic substances,
having regard to the hazardous nature, vulnerability to
theft, substitution, constraints of proper storage space
and such other relevant considerations, so that even
if they are material objects seized in a criminal case,
they could be disposed of after following the procedure
prescribed in sub-sections (2) and (3). If the procedure
prescribed in sub-sections (2) and (3) of Section 52-A is
complied with and upon an application, the Magistrate
issues the certificate contemplated by sub-section (2), then
sub-section (4) provides that, notwithstanding anything to
the contrary contained in the Indian Evidence Act, 1872
or the Code of Criminal Procedure, 1973, such inventory,
photographs of narcotic drugs or substances and any list
of samples drawn under sub-section (2) of Section 52-A
as certified by the Magistrate, would be treated as primary
evidence in respect of the offence. Therefore, Section
52-A (1) does not empower the Central Government to
lay down the procedure for search of an accused, but
only deals with the disposal of seized narcotic drugs and
psychotropic substances.”
“11. Secondly, when the very same Standing Orders came
up for consideration in Khet Singh v. Union of India [(2002)
4 SCC 380] this Court took the view that they are merely
intended to guide the officers to see that a fair procedure
1430 [2024] 12 S.C.R.

Supreme Court Reports

is adopted by the officer in charge of the investigation.
It was also held that they were not inexorable rules as
there could be circumstances in which it may not be
possible for the seizing officer to prepare the mahazar
at the spot, if it is a chance recovery, where the officer
may not have the facility to prepare the seizure mahazar
at the spot itself. Hence, we do not find any substance
in this contention.”
31. From the above decisions, the position that emerges is that this
Court in catena of decisions, has approved the procedure of spot
searches and seizures in compliance with the Standing Orders and
the Notifications issued by the NCB and the Central Government,
and upheld the convictions on being satisfied about the search and
seizure made by the officers as per the provisions of the Act and
being satisfied about the scientific evidence of F.S.L. reports etc. Even
otherwise, in view of the law laid down by the Constitution Benches
in case of Pooran Mal and in case of Baldev Singh, any procedural
illegality in conducting the search and seizure by itself, would not
make the entire evidence collected thereby inadmissible. The Court
would have to decide the admissibility of evidence in the context and
the manner in which the evidence was collected and was sought to
be used during the course of trial. The evidence collected during the
course of investigation in legal and proper manner and sought to
be used in the course of trial with regard to the seized contraband
substance could not be simply brushed aside, on the ground of
procedural irregularity if any, committed by the concerned officer
authorised in making application to the Magistrate as contemplated
under Section 52A of the Act.
32. Significantly, the Authorised Officer can make the application under
sub-section (2) of Section 52A for three purposes – (a) for certifying
the correctness of the inventory prepared by him; or (b) taking in
presence of such magistrate, photographs of the seized drugs,
substances and conveyances and certifying such photographs as
true; or (c) allowing to draw representative samples of such drugs
or substances, in the presence of such Magistrate, and certifying
the correctness of any list of samples so drawn. The use of the
conjunction “OR” made in between the three purposes mentioned
therein, itself makes it explicitly clear that the purposes for which the
[2024] 12 S.C.R. 1431

Narcotics Control Bureau v. Kashif

application could be made under sub-section (2) are alternative and
not cumulative in nature. Such provision specifying multiple alternative
purposes could not be construed as a mandatory provision muchless
its non-compliance fatal to the case of prosecution.
33. Though it is true that the inventory certified, photographs taken and
the list of samples drawn under sub-section (2) has to be treated by
the Court as primary evidence in view of sub-section (3), nonetheless
the documents like Panchnama, seizure memo, arrest memo etc.
prepared by the Investigating Officer on the spot or during the course
of investigation are also primary evidence within the meaning of
Section 62 of the Evidence Act, carrying the same evidentiary value
as any other primary evidence. Such primary evidence with regard
to Search and Seizure of the contraband substance could not be
overlooked merely because some lapse or non-compliance is found
of Section 52A of the Act.
34. In our opinion reliance placed by the High Court on the decision
of this Court in Union of India Vs. Mohanlal and Another,7 is
thoroughly misplaced. In the said case, the issue of pilferage of
contraband was the main issue. The Court after noticing the non-
compliance of the procedure laid down in the Standing Order No.
1 of 89 dated 13.06.1989, and the possibility of the pilferage of
contraband goods and their return to the market place for circulation,
had appointed an amicus curiae for making a realistic review of
the procedure for search, disposal or destruction of the narcotics
and remedial steps that need to be taken to plug the loopholes, if
any. The Court, thereafter, had raised the queries with regard to
the seizure, storage, disposal/destruction and also with regard to
the judicial supervision in respect of the seized narcotic drugs and
psychotropic substances. The prime focal in case of Mohanlal was
the disposal of seized contraband goods as contemplated in Section
52A. Though it held that the process of drawing samples has to be
done in presence of and under the supervision of the Magistrate,
it nowhere held that non-compliance or delayed compliance of the
procedure prescribed under Section 52A (2) would vitiate the trial
or would entitle the accused to be released on bail.

7 (2016) 3 SCC 379
1432 [2024] 12 S.C.R.

Supreme Court Reports

35. None of the provisions in the Act prohibits sample to be taken on the
spot at the time of seizure, much less Section 52A of the said Act. On
the contrary, as per the procedure laid down in the Standing Orders
and Notifications issued by the NCB and the Central Government
before and after the insertion of Section 52A till the Rules of 2022
were framed, the concerned officer was required to take samples
of the seized contraband substances on the spot of recovery in
duplicate in presence of the Panch witnesses and the person in
whose possession the drug or substance recovered, by drawing a
Panchnama. It was only with regard to the remnant substance, the
procedure for disposal of the said substance was required to be
followed as prescribed in Section 52A.
36. At this stage, we must deal with the recent judgments in case of
Simarnjit vs. State of Punjab, (Criminal Appeal No.1443/2023), in
case of Yusuf @ Asif vs. State (2023 SCC Online SC 1328), and
in case of Mohammed Khalid and Another vs. State of Telangana
((2024) 5 SCC 393) in which the convictions have been set aside by
this Court on finding non-compliance of Section 52A and relying upon
the observations made in case of Mohanlal. Apart from the fact that
the said cases have been decided on the facts of each case, none of
the judgments has proposed to lay down any law either with regard
to Section 52A or on the issue of admissibility of any other evidence
collected during the course of trial under the NDPS Act. Therefore,
we have considered the legislative history of Section 52A and other
Statutory Standing Orders as also the judicial pronouncements, which
clearly lead to an inevitable conclusion that delayed compliance or
non-compliance of Section 52A neither vitiates the trial affecting
conviction nor can be a sole ground to seek bail. In our opinion,
the decisions of Constitution Benches in case of Pooran Mal and
Baldev Singh must take precedence over any observations made
in the judgments made by the benches of lesser strength, which are
made without considering the scheme, purport and object of the Act
and also without considering the binding precedents.
37. It hardly needs to be reiterated that every law is designed to further
ends of justice and not to frustrate it on mere technicalities. If the
language of a Statute in its ordinary meaning and grammatical
construction leads a manifest contradiction of the apparent purpose
of the enactment, a construction may be put upon it which modifies
the meaning of the words, or even the structure of the sentence.
[2024] 12 S.C.R. 1433

Narcotics Control Bureau v. Kashif

It is equally settled legal position that where the main object and
intention of a statute are clear, it must not be reduced to a nullity by
the draftsman’s unskillfulness or ignorance of the law. In Maxwell on
Interpretation of Statutes, Tenth Edition at page 229, the following
passage is found: -
“Where the language of a statute, in its ordinary meaning
and grammatical construction, leads to a manifest
contradiction of the apparent purpose of the enactment, or
to some inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon
it which modifies the meaning of the words, and even the
structure of the sentence. … Where the main object and
intention of a statute are clear, it must not be reduced to
a nullity by the draftsman’s unskilfulness or ignorance of
the law, except in a case of necessity, or the absolute
intractability of the language used.”
38. As observed by this Court in K.P. Varghese vs. Income Tax Officer,
Ernakulam and Another,8 a statutory provision must be so construed,
if it is possible, that absurdity and mischief may be avoided. Where
the plain and literal interpretation of statutory provision produces
a manifestly absurd and unjust result, the Court may modify the
language used by the Legislature or even do some violence to it, so
as to achieve the obvious intention of the Legislature and produce
a rational construction and just result.
39. The upshot of the above discussion may be summarized as under:
(i) The provisions of NDPS Act are required to be interpreted
keeping in mind the scheme, object and purpose of the Act; as
also the impact on the society as a whole. It has to be interpreted
literally and not liberally, which may ultimately frustrate the
object, purpose and Preamble of the Act.
(ii) While considering the application for bail, the Court must bear
in mind the provisions of Section 37 of the NDPS Act which
are mandatory in nature. Recording of findings as mandated
in Section 37 is sine qua non is known for granting bail to the
accused involved in the offences under the NDPS Act.

8 (1981) 4 SCC 173
1434 [2024] 12 S.C.R.

Supreme Court Reports

(iii) The purpose of insertion of Section 52A laying down
the procedure for disposal of seized Narcotic Drugs and
Psychotropic Substances, was to ensure the early disposal of
the seized contraband drugs and substances. It was inserted in
1989 as one of the measures to implement and to give effect
to the International Conventions on the Narcotic drugs and
psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the procedure as
contemplated in sub-section (1) thereof, and any lapse or
delayed compliance thereof would be merely a procedural
irregularity which would neither entitle the accused to be released
on bail nor would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to have been
committed in conducting the search and seizure during the
course of investigation or thereafter, would by itself not make
the entire evidence collected during the course of investigation,
inadmissible. The Court would have to consider all the
circumstances and find out whether any serious prejudice has
been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by itself
would neither vitiate the trial nor would entitle the accused
to be released on bail. The Court will have to consider other
circumstances and the other primary evidence collected during
the course of investigation, as also the statutory presumption
permissible under Section 54 of the NDPS Act.
40. The impugned order based on the inferences and surmises, in utter
disregard of the statutory provision of the Act and in utter disregard
of the mandate contained in Section 37 of the Act, and granting bail
to the accused merely on the ground that the compliance of Section
52A was not done within reasonable time, is highly erroneous and
deserves to be quashed and set aside. Since, the High Court has
not considered the application of the respondent on merits and has
also not considered the mandatory requirement under Section 37(1)
(b) of the Act, we deem it appropriate to remand the case to the High
Court for deciding the bail application of the respondent afresh on
merits and in accordance with law.
41. Since, we are remanding the matter for fresh consideration on merits,
we are extending the period of bail granted to the respondent for four
[2024] 12 S.C.R. 1435

Narcotics Control Bureau v. Kashif

weeks, with a request to the High Court to decide the application
afresh as expeditiously as possible, and preferably within four weeks.
In case the same is not disposed of within four weeks it shall be
open for the High Court to pass appropriate orders with regard to
extension/non-extension of the said period.
42. Having regard to the facts and circumstances of the case, we request
the Chief Justice to place the Bail application of the Respondent before
the Bench other than the Bench which has passed the impugned
order, for deciding it afresh.
43. The Appeal stands allowed.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Ankit Gyan