Does mere non-compliance with Section 52-A of the NDPS Act by itself vitiate the trial or cause an automatic acquittal?

Paragraph 31We may note that this Court, in Narcotics Control Bureau v. Kashif[^8] and in Bharat Aambale v. State of Chhattisgarh,[^9] has held that mere non-compliance of the procedure provided under Section 52-A of the NDPS Act or the Standing Orders/Rules made thereunder may not, by itself, vitiate the trial or result in an automatic acquittal. The determinative factor would be whether, and to what extent, such non-compliance has caused prejudice to the accused. Section 52-A of the NDPS Act was incorporated in the Act with the object of providing a statutory mechanism to eliminate the possibility of investigational taint in the procedure of drawing of samples and to ensure expeditious disposal of seized narcotic drugs. Under this provision, the Investigating Agency is obligated to present the seized contraband before the Executive Magistrate/Judicial Magistrate, who is required to cause the representative samples to be drawn in his presence and certify the correctness of the inventory so prepared, the photographs taken thereof and the list of samples so drawn. Upon such certification, the inventory, photographs and list of samples may be treated as primary evidence of the seized goods, thereby obviating the necessity of producing the muddamal before the trial Court.

Paragraph 32This Court has held that minor lapses or procedural delay in compliance with the said provision may not, by itself, result in an automatic acquittal. However, total non-compliance would definitely be a relevant factor to be taken into account while assessing the mandatory requirement of proving that the samples were kept in a safe and secure condition, i.e., the link evidence from the time of seizure till the time the samples came to be deposited in the FSL.

Paragraph 33Having gone through the evidence led by the prosecution, we find that no effort whatsoever was made by the Inspector/seizure officer (PW-7) to undertake the procedure provided under Section 52- A of the NDPS Act for drawing representative samples in presence of a Magistrate and thus, there is total non-compliance with the said provision.