NDPS Act | Non-Production Of Contraband In Trial Not Fatal If Seizure, Sample-Drawing Duly Recorded As Per S.52A : Supreme Court

In a significant ruling, the Supreme Court held that in matters under the Narcotic Drugs and Psychotropic Substances Act, the prosecution's case does not fail merely because the seized contraband is not produced in court, so long as the inventory and sample-drawing records are duly prepared and placed on record in compliance with Section 52A of the NDPS Act

A bench of Justices Manoj Misra and Ujjal Bhuyan set aside the Bombay High Court's Nagpur Bench order directing a retrial in an NDPS case solely on the ground that the seized contraband was not produced before the trial court. The Supreme Court held that a retrial may be ordered only in exceptional circumstances to prevent a miscarriage of justice, and that non-production of contraband cannot justify such a course where electronic evidence, duly certified under Section 65B of the Evidence Act, along with records of inventory preparation, has already been placed on record.

“mere non-production of the seized contraband during trial may not be fatal if there is reliable evidence in respect of its seizure, drawing of samples therefrom, and FSL report relating to the sample drawn from the seized material. However, to ensure that no adverse inference is drawn against the prosecution for non-production of the seized contraband, documents prepared in terms of the provisions of Section 52-A, inter alia, evidencing preparation of inventory of seized contraband and drawing of samples therefrom, would have to be brought on record.”, the Court observed.

The case arose from coordinated raids in which police seized nearly 147 kg of ganja from two locations. The trial court convicted two accused, including the Appellant, and acquitted two others. On appeal, however, the Gujarat High Court set aside the convictions and ordered a retrial, citing procedural lapses such as - failure to play a raid video in court during witness testimony, non-examination of the Chemical Examiner, and non-production of the bulk contraband in court.

Disagreeing with the High Court's reasoning, the judgment authored by Justice Manoj Misra said that non-production of the entire seized contraband is not automatically fatal if inventories, sealed samples, and FSL reports are duly prepared under Section 52A of the NDPS Act.

The Court observed that the trial record demonstrated the entire seizure process had been properly documented, establishing a clear link between the seizure and the forensic results, and therefore its absence in court was not fatal to the prosecution's case.

“From above, prima facie, there existed material to indicate that the seized contraband was sent in a sealed condition for preparation of inventory. Thereafter, inventory was prepared, samples were drawn and sealed; and the samples were sent to FSL in a sealed condition, which found the seal intact.”, the court said.

Reference was made to Jitendra and Another v. State of M. P (2004) 10 SCC 562, State of Rajasthan v. Sahi Ram (2019) 10 SCC 649 etc.

Further, the Court clarified that once an electronic evidence was certified under Section 65B(4) of the Evidence Act, it is admissible in evidence and there's no requirement that the evidence must be supplied to each witness. If clarification was needed, the appellate court could have recalled witnesses or admitted further evidence under Section 391 CrPC, instead of ordering a fresh trial, the court added.

“The High Court, however, observed that the representative sample was not opened before the Court at the time of recording of statement of the concerned witness. Be that as it may, this was not a ground to direct for a retrial when the appellate court has power to take additional evidence under Section 391 of CrPC, which, inter alia, can be exercised to exhibit a document or material already on the record of the Court. And if those defects are fatal to the prosecution, the appellate court is free to take its decision as may be warranted in the facts of the case. But, in any event, it cannot be a ground to direct a re-trial.”, the court observed.

Accordingly, the appeal was allowed and the matter was directed to be remitted to the High Court for fresh adjudication within six months.

Cause Title: KAILAS S/O BAJIRAO PAWAR VERSUS THE STATE OF MAHARASHTRA

Citation : 2025 LiveLaw (SC) 914

Click here to read/download the judgment

Appearance:

For Petitioner(s) :Mr. Anil Mardikar, Sr. Adv. Mr. Sachin Shanmukham Pujari, AOR

For Respondent(s) :Mr. Aditya Krishna, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Shrirang B. Varma, Adv.