1. Judgment in S.C.No.564/2019 on the files of the Special Court under the trial of Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as 'the NDPS Act' for short) cases (Additional District Court), North Paravur, is under challenge at the instance of the sole accused in the above case.

2. Heard the learned counsel for the appellant and the learned Public Prosecutor in detail. I have gone through the judgment impugned and the records available.

3. Here, the prosecution case is that, the accused was nabbed on the allegation that he had committed offence punishable under Section 22(c) of the NDPS Act when he was found in possession of 9 LSD (Lysergic Acid Diethylamide) stamps, having a total weight of 0.190 gram at about 5.55 pm on 27.06.2018 in contravention of the prohibition contained in the NDPS Act.

4. The learned Special Judge proceeded with trial and recorded evidence confined to that of PW1 to PW7, Exts.P1 to P13 and MO1 on the side of the prosecution. DW1 was examined on the side of the defence. The learned Special Judge, on appreciation of evidence, found that the accused/appellant was guilty of the offence punishable under Section 22(c) of the NDPS Act and sentenced him as under:

                  “49. In the result, the accused is sentenced to undergo rigorous imprisonment for a period of ten (10) years and to pay fine of ₹1,00,000/-(Rupees One lakh only), for the offence under Section 22(c) of the Act. In default of payment of fine, the accused shall undergo rigorous imprisonment for a period of six (6) months.”

5. At the time of hearing, the learned counsel for the accused/appellant submitted that in this case, the provisions of Section 52A of the NDPS Act were not complied with. Further, the contraband was not at all tendered in evidence before any Court. Therefore, the finding entered by the learned Special Judge, without proving the possession of the contraband which was not at all tendered in evidence, either under Section 52A of the NDPS Act or by physical production of the remaining samples, would vitiate the trial and in such a case, the judgment impugned would require interference.

6. Whereas it is submitted by the learned Public Prosecutor that in paragraph No.33 of the judgment, the learned Special Judge had discussed about the inventory of the seized contraband prepared by the Magistrate under Section 52A(2) of the NDPS Act, and the same contained the certificate of the Magistrate as contemplated under Section 52A(3) of the NDPS Act and in fact, in such a case, non-compliance of Section 52A of the NDPS Act could not be found. Therefore, the judgment impugned could not be interfered merely on the ground of non-compliance of the provisions of Section 52A of the NDPS Act.

7. Having appraised the rival contentions, the points arise for consideration are;

                  1. Whether the Special Court went wrong in finding possession of the contraband by the accused/appellant without tendering the inventory of the seized contraband prepared under Section 52A of the NDPS Act?

                  2. Whether the learned Special Judge is right in holding that the accused/appellant committed offence punishable under Section 22(c) of the NDPS Act?

                  3. Whether the impugned judgment would require any interference?

                  4. Orders to be passed.

8. Point Nos.1 to 4:

As regards to non-compliance of Section 52A of the NDPS Act is concerned, the learned Public Prosecutor has placed heavy reliance on the decision in Bharat Aambale v. State of Chhattisgarh reported in (2025) INSC 78 whereby the Apex Court summarized the conclusions regarding compliance of Section 52A of the NDPS Act as under;

                  "50. We summarize our final conclusion as under:

                  (I) Although S.52A is primarily for the disposal and destruction of seized contraband in a safe manner yet it extends beyond the immediate context of drug disposal, as it serves a broader purpose of also introducing procedural safeguards in the treatment of narcotics substance after seizure inasmuch as it provides for the preparation of inventories, taking of photographs of the seized substances and drawing samples therefrom in the presence and with the certification of a magistrate. Mere drawing of samples in presence of a gazetted officer would not constitute sufficient compliance of the mandate under S.52A sub-section (2) of the NDPS Act.

                  (II) Although, there is no mandate that the drawing of samples from the seized substance must take place at the time of seizure as held in Mohanlal (supra), yet we are of the opinion that the process of inventorying, photographing and drawing samples of the seized substance shall as far as possible, take place in the presence of the accused, though the same may not be done at the very spot of seizure.

                  (III) Any inventory, photographs or samples of seized substance prepared in substantial compliance of the procedure prescribed under S.52A of the NDPS Act and the Rules/Standing Order(s) thereunder would have to be mandatorily treated as primary evidence as per S.52A sub section (4) of the NDPS Act, irrespective of whether the substance in original is actually produced before the court or not.

                  (IV) The procedure prescribed by the Standing Order(s)/ Rules in terms of S.52A of the NDPS Act is only intended to guide the officers and to see that a fair procedure is adopted by the officer in charge of the investigation, and as such what is required is substantial compliance of the procedure laid therein.

                  (V) Mere non compliance of the procedure under S.52A or the Standing Order(s)/Rules thereunder will not be fatal to the trial unless there are discrepancies in the physical evidence rendering the prosecution's case doubtful, which may not have been there had such compliance been done. Courts should take a holistic and cumulative view of the discrepancies that may exist in the evidence adduced by the prosecution and appreciate the same more carefully keeping in mind the procedural lapses.

                  (VI) If the other material on record adduced by the prosecution, oral or documentary inspires confidence and satisfies the court as regards the recovery as well as conscious possession of the contraband from the accused persons, then even in such cases, the courts can without hesitation proceed to hold the accused guilty notwithstanding any procedural defect in terms of S.52A of the NDPS Act.

                  (VII) Non compliance or delayed compliance of the said provision or rules thereunder may lead the court to drawing an adverse inference against the prosecution, however no hard and fast rule can be laid down as to when such inference may be drawn, and it would all depend on the peculiar facts and circumstances of each case.

                  (VIII) Where there has been lapse on the part of the police in either following the procedure laid down in S.52A of the NDPS Act or the prosecution in proving the same, it will not be appropriate for the court to resort to the statutory presumption of commission of an offence from the possession of illicit material under S.54 of the NDPS Act, unless the court is otherwise satisfied as regards the seizure or recovery of such material from the accused persons from the other material on record.

                  (IX) The initial burden will lie on the accused to first lay the foundational facts to show that there was non compliance of S.52A, either by leading evidence of its own or by relying upon the evidence of the prosecution, and the standard required would only be preponderance of probabilities.

                  (X) Once the foundational facts laid indicate noncompliance of S.52A of the NDPS Act, the onus would thereafter be on the prosecution to prove by cogent evidence that either (i) there was substantial compliance  with  the  mandate  of S.52A of the NDPS Act OR (ii) satisfy the court that such non - compliance does not affect its case against the accused, and the standard of proof required would be beyond a reasonable doubt."

9. Subsequently, in a decision of the Apex Court in Rajwant Singh v. State of Haryana [2025 KHC 7071], the Apex Court referred Bharat Aambale (supra) and held as under;

                  “10.  From the above exposition of law, it is clear that the initial burden lies on the accused to first lay the foundational facts to show that there was non compliance of S.52A on a preponderance of probabilities, either by leading evidence of its own or by relying upon the evidence of the prosecution. In the present case, no question whatsoever was put by the defence counsel to PW -7 as regards S.52A of the NDPS Act. Moreover, apart from a mere bald assertion that there has been a contravention of the mandate of S.52A of the NDPS Act, nothing cogent has been pointed out to us by the appellant herein that would show that there had been a violation of the requirements of S.52A of the NDPS Act.”

10. In view of the rival submissions made, this Court directed the Special Court to forward the documents referred to in paragraph No.33 of the judgment and at this juncture, the learned Special Judge has produced the inventory prepared under Section 52A of the NDPS Act. Going by the evidence of the detecting Officer, who was examined as PW1, or any other evidence, it could not be found that the inventory was tendered in evidence by the procedure known to the law or the same was marked in evidence. Instead, the property list alone was marked in evidence.

11. It is well settled law that when the contraband is decisive in finding an offence committed by the accused on the basis of its possession or use, it is the duty of the prosecution to prove the allegation beyond reasonable doubt, either by producing the contraband in physical form or the inventory prepared by the Magistrate under Section 52A of the NDPS Act before the court and tendering the same in evidence to justify the recovery of the same in the manner known to law.

12. Going by the ratio laid down in Bharat Aambale’s case (supra), and otherwise, sub-section (4) of Section 52A of the NDPS Act, introduced with effect from 29.05.1989, makes it clear that notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 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 of narcotic drugs, psychotropic substances, controlled 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.

13. Thus, it is the duty of the prosecution to produce the contraband seized in its original form and tender it in evidence, or to tender the inventory prepared under Section 52A of the NDPS Act, which occupies the status of the primary evidence in substitution of the contraband recovered. In the instant case, despite production of the inventory prepared under Section 52A of the NDPS Act and the discussion of the same by the learned Special Judge, in fact, the same was not tendered or marked in evidence. At this juncture, the argument advanced by the learned counsel for the accused/appellant that the opportunity of the accused/appellant to cross-examine the witness based on the inventory regarding its genuineness and shortfalls was denied and such a document cannot be relied on by the Court without tendering the same in evidence is having force. In view of the above, the finding of guilt recorded by the learned Special Judge is found to be unsustainable in law and the same would require interference.

                  In the result, this appeal is allowed.

                  Conviction and sentence imposed against the appellant/accused are set aside and the matter is remanded back to the Special Court for the limited purpose of recording the evidence to tender inventory prepared under Section 52A of the NDPS Act, in continuation of the evidence already recorded, and thereafter to render judgment after hearing both sides. The Special Judge is directed to expedite the trial as directed and complete the same within a period of six weeks from the date of receipt of the judgment.

Registry is directed to forward a copy of this judgment to the Special Court. On receipt of the copy of the judgment, the learned Special Judge is directed to issue production warrant against the accused with a specific date for his production, who is already in custody in continuation of his earlier custody, as bail was not granted by the Special Judge in a case involving commercial quantity, in view of the bar under Section 37 of the NDPS Act without satisfying the twin requirements mentioned therein.