(Prayer: Criminal Revision Case filed under Section 438 r/w 442 of BNSS, 2023, to call for records and set aside the order dated 15.07.2026 passed in Crl.M.P.No.1473 of 2026 in CC.No.427 of 2025 pending on the file of Judicial Magistrate No.II (FAC), Tambaram, Chengalpattu.)

1. The criminal revision challenges the dismissal of the discharge petition filed by the petitioner against whom the final report has been filed by the respondent for the offence under Sections 8(c) and 20(b)(ii) (A) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [in short, ‘the NDPS Act’].

2. (i) It is the case of the prosecution that based on a secret information they reached the place where the petitioner was found and on identification by the secret informer, apprehended the petitioner; that when questioned, the petitioner gave evasive answers; that a search was conducted after complying with the mandate under Section 50 of the NDPS Act; that the petitioner was found in possession of 800gms of ganja in a polythene cover; that two samples each containing 50gms were drawn and were labelled as, ‘S1’ and ‘S2’; that the remaining 700gms was sealed and marked as, ‘P1’; and that thereafter, the petitioner was arrested and the final report was filed on 10.02.2025 under Sections 8(c) and 20(b)(ii)(A) of the NDPS Act.

                     (ii) The petitioner sought for discharge before the trial Court, inter alia on the ground that the respondent has not followed the mandatory provision under Section 52A of the NDPS Act and therefore, the petitioner is entitled to a discharge.

                     (iii) The respondent opposed the prayer and submitted that the Forensic Science Laboratory report which was received on 31.01.2025 confirmed that the contraband seized from the petitioner was ganja and hence, the final report was filed after a detailed investigation on 10.02.2025.

                     (iv) The learned Judge held that the point raised by the petitioner cannot be adjudicated in a discharge petition and opportunity must be given to the police to prove in trial the chain of custody of the contraband and since there was a prima facie case made out, the petitioner is not entitled to discharge.

3. (i) Mr.V.Raghavachari, the learned senior counsel for the petitioner would submit that the provisions under Section 52A of the NDPS Act are mandatory and non-compliance of the said provision would vitiate the prosecution case.

                     (ii) The learned senior counsel submitted that though the seizure was made on 19.03.2023, and samples were drawn and marked as S1 and S2, the prosecution has not explained as to what happened to the samples and the remaining contraband, which was marked as P1; that thereafter on 16.12.2024, the prosecution made an application to the learned Magistrate for drawing of samples for testing by the Forensic Science Laboratory; that in the Form-95 sent to the Magistrate on 17.12.2024, the total contraband is mentioned as 836gms and it is stated that it includes ‘P1’, ‘S1’ and ‘S2’, out of which ‘S3’ (sample weighing 52gms) and ‘S4’ (sample weighing 57 gms) were drawn from P1; that there is absolutely no explanation for the delay in producing the contraband before the learned Magistrate; that the chain of custody of the contraband has not been established by the prosecution; that the mandatory safeguards prescribed under the standing orders were not complied with: and that hence, the impugned prosecution cannot be sustained. He relied upon the judgment of the Hon’ble Supreme Court in Union of India v. Mohanlal, reported in (2016) 3 SCC 379, Yusuf @ Asif v. State, reported in 2023 SCC OnLine 1328, Srinivas Dalavoi v. Union of India, [judgment of the Karnataka High Court in dated 23.06.2025], in support of his submissions.

4. Mr.A.Amarnath, learned Additional Public Prosecutor would submit that Section 52A of the NDPS Act was inserted only for the purpose of disposal of the seized contraband and substances and hence any delayed compliance or non-compliance of the said provision cannot be construed as an illegality, which would be fatal to the case of the prosecution. He relied upon the judgment of the Hon’ble Supreme Court in Narcotics Control Bureau v. Kashif, reported in (2024) 11 SCC 372.

5. It is seen from the impugned order that the petitioner had earlier approached this Court by filing a criminal original petition seeking early disposal of the trial and also complaining about the non-furnishing of certain documents. This Court directed the prosecution to furnish copies and observed that the point raised by the petitioner regarding noncompliance of statutory provisions were factual and therefore, it has to be adjudicated only in a trial and fixed four months time limit for completion of trial.

6. It is in the light of the aforesaid observations that we have to examine the discharge petition. The procedure followed by the respondent prima facie appears to be not in accordance with law. Though the samples were drawn on the date of seizure i.e., on 19.03.2023, there is no explanation whatsoever as to why the samples and the contraband were not produced before the learned Magistrate immediately.

7. The Form-95 that was filed along with the final report shows that the contraband was produced on 16.12.2024 and the total is shown as 836gms, which includes S1 and S2, the two samples and the remaining contraband P1. There is no explanation as to how the quantity had increased to 836gms. There was no reason for drawing of the second set of samples, when according to the prosecution two samples were already drawn. There is no explanation as to what happened to the earlier samples and how the remaining contraband marked as ‘P1’ after the samples were drawn got mixed up with the samples ‘S1’ and S2’ as it is the case of the prosecution that ‘P1’ was sealed. Therefore, this Court is of the view that the petitioner has prima facie established that there is violation of Section 52A of the NDPS Act.

8. In Bharat Aambale v. State of Chhattisgargh, reported in (2025) 9 SCC 452, considering the various judgments including the judgment in Kashif’s case [supra], the Hon’ble Supreme Court has held as follows:

                     “56.1. Although Section 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 Section 52A sub-section (2) of the NDPS Act.

                     56.2. 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.

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

                     56.4. The procedure prescribed by the Standing Order(s) / Rules in terms of Section 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.

                     56.5. Mere non-compliance of the procedure under Section 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.

                     56.6. 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 Section 52A of the NDPS Act.

                     56.7. 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.

                     56.8. Where there has been lapse on the part of the police in either following the procedure laid down in Section 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 Section 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.

                     56.9. The initial burden will lie on the accused to first lay the foundational facts to show that there was non-compliance of Section 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.

                     56.10. Once the foundational facts laid indicate noncompliance of Section 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 Section 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. From the above dictum, it would be clear that though Section 52A of the NDPS Act was primarily inserted for the purpose of disposal and destruction of the seized contraband, it serves a broader purpose of introducing procedural safeguards in the treatment of the contraband after seizure.

10. The Hon’ble Supreme Court had held that mere noncompliance of Section 52A of the NDPS Act would not be fatal to the case unless, there are discrepancies in the physical evidence rendering the prosecution case doubtful and that the Courts should take a holistic and cumulative view of the discrepancies in the evidence and appreciate the same more carefully keeping in mind the procedural lapses.

11. The observations in paragraphs 56.8 to 56.10 in Bharat Aambale’s case [supra], would also suggest that where there is a lapse in compliance of Section 52A of the NDPS Act, it will not be proper for the Court to draw the statutory presumption under Section 54 of the NDPS Act and if the accused had discharged his initial burden by demonstrating that there was non-compliance of Section 52A of the NDPS Act either by leading evidence or by relying on the evidence of the prosecution, the onus would shift to prosecution to prove by cogent evidence either that there was substantial compliance or satisfy the Court that such noncompliance does not affect the case against the accused and the standard of proof required would be beyond reasonable doubt.

12. In this case, it is seen that the petitioner has demonstrated that there is non-compliance of Section 52A of the NDPS Act, besides demonstrating that the prosecution had not stated in the final report as to why the samples drawn at the time of seizure were not sent to the Forensic Science examination and what was the necessity for drawing one more sample by combining all the samples and the remaining contraband nearly after 638 days after the original seizure. The onus is now on the prosecution to lead evidence in terms of para 56.10 of Bharat Aambale’s case [supra]. It is needless to say that if the prosecution does not discharge that onus in terms of the said observation, the petitioner would be entitled to acquittal. However, the prosecution must be afforded an opportunity to establish that either there was substantial compliance or that the non-compliance did not affect its case against the accused. Hence, the petitioner cannot be discharged at this stage.

13. It is made clear that while appreciating the explanation or the evidence adduced by the prosecution, the learned Magistrate shall bear in mind the judgment of the Hon’ble Supreme Court in Bharat Aambale’s case [supra], in which the Courts have been directed to take a holistic and cumulative view of the discrepancies and appreciate the evidence in the light of the procedural lapses. In fact, this Court also in Crl.OP.No.9288 of 2026 in its order dated 15.04.2026 had observed that the points raised by the petitioner are factual in nature and directed the trial Court to expedite the trial.

14. Therefore, this Court is of the view that in the light of the facts and law laid down by the Hon’ble Supreme Court, the learned Magistrate shall appreciate the evidence to be adduced by the prosecution and take an appropriate decision. Since there is already a direction by this Court to complete the trial within a period of four months, and there are only seven witnesses, this Court is of the view that considering the age of the petitioner, the nature of the case and the infirmities that are pointed out, it is desirable that the learned Magistrate disposes of the trial within a period of three months from the date of receipt of a copy of this order.

15. With the above observations, the Criminal Revision is disposed of. Consequently, the connected Criminal Miscellaneous Petitions are closed.