Court’s Decision
The Kerala High Court set aside the conviction and sentence of an individual who had been convicted under Section 22(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, for alleged possession of psychotropic substances. Justice Johnson John held that the prosecution had failed to comply with mandatory procedural safeguards under Section 50 of the NDPS Act and had not provided any explanation for the inordinate delay in forwarding the seized samples for chemical analysis. The Court observed that “when the prosecution fails to establish due compliance with Section 50, and custody of the contraband is not clearly accounted for, the accused is entitled to the benefit of reasonable doubt.” Consequently, the conviction was set aside, and the accused was acquitted.
Facts
The case arose from an incident on 14 September 2011, when a police patrol team allegedly found the accused in suspicious circumstances near the Harbour area of Kochi. Upon searching him, the police claimed to have recovered a white plastic kit containing three ampules of diazepam (2 ml each) and nine unlabelled ampules, along with ₹3,110 in cash. The seizure was made by the Sub-Inspector (PW1) of Harbour Police Station, who registered a case under Section 22(b) of the NDPS Act. The investigation was later conducted by the Circle Inspector (PW6), who filed a final report before the Additional Sessions Court, Ernakulam.
During the trial, the prosecution examined six witnesses (PWs 1 to 6) and produced ten exhibits (Exhibits P1–P10) and material objects (MOs 1–4). The accused denied the charges and did not lead any defence evidence. The trial court convicted him, sentencing him to four years of rigorous imprisonment and a fine of ₹30,000, with a further two years in default.
Issues
- Whether the search and seizure conducted by the Sub-Inspector complied with the mandatory requirements of Section 50 of the NDPS Act.
- Whether the delay in forwarding the seized samples for chemical analysis affected the integrity of the prosecution’s case.
- Whether the prosecution failed to prove the chain of custody of the contraband articles between the date of seizure and the date of submission to the court.
- Whether the conviction and sentence imposed by the trial court could be sustained in light of these deficiencies.
Petitioner’s Arguments
Counsel for the appellant contended that the alleged recovery and subsequent conviction were vitiated by procedural violations. First, it was argued that the Sub-Inspector failed to prove compliance with Section 50 of the NDPS Act, which mandates that an accused be informed of the right to be searched in the presence of a Magistrate or Gazetted Officer. While PW1 claimed to have informed the accused and obtained written consent, no such document was ever produced in court.
Secondly, the defence emphasized that there was no evidence to show who was in custody of the seized contraband from 14 September 2011 to 10 October 2011—a span of nearly a month. The property list (Exhibit P5) and forwarding note (Exhibit P7) were both dated 10 October 2011, with no explanation for the delay in sending the samples for forensic analysis. This, counsel argued, violated established standards requiring dispatch of samples to the laboratory within 72 hours.
Citing Dilip v. State of Madhya Pradesh [(2007) 1 SCC 450] and Valsala v. State of Kerala [1993 Supp (3) SCC 665], it was urged that the NDPS Act imposes stringent procedural safeguards precisely because of the severe penalties involved. Any deviation or unexplained delay vitiates the prosecution’s case. The defence further referred to the Kerala Police Circular No. U6-111285/PHQ (39/2020), mandating the forwarding of samples for FSL analysis within 72 hours to ensure fairness and integrity in NDPS investigations.
Respondent’s Arguments
The Public Prosecutor defended the conviction, arguing that PW1’s evidence clearly established that the accused was informed of his rights under Section 50 and that the accused had voluntarily waived them. It was contended that the absence of a written consent document did not, by itself, render the search illegal.
The prosecution further maintained that the recovery of contraband and positive forensic findings were sufficient to sustain the conviction. The State urged that the delay in forwarding samples was procedural and did not affect the substance of the case, especially since the contraband was duly sealed and accounted for by the investigating officer.
Analysis of the Law
The High Court reaffirmed that Section 50 of the NDPS Act is both a right of the accused and a corresponding obligation on the investigating officer. It requires that the person about to be searched be informed of the right to have the search conducted before a Magistrate or a Gazetted Officer.
The Court referred to the Supreme Court’s landmark ruling in Ranjan Kumar Chadha v. State of Himachal Pradesh [AIR 2023 SC 5164], which comprehensively laid down ten guiding principles on compliance with Section 50. These included the necessity of informing the suspect of the right, recording refusal in writing, and ensuring that failure to comply renders recovery inadmissible.
Justice Johnson John observed that in the present case, no written consent was produced, and there was no evidence that the accused was duly informed in the prescribed manner. The Court emphasized that mere oral assertions of compliance by the officer cannot substitute for documentary proof.
Furthermore, the Court noted that the prosecution’s silence on the chain of custody and the absence of any explanation for the 26-day delay in sending the sample for analysis violated investigative fairness. The Court drew attention to Parminder Singh v. State of Haryana [2006 SCC OnLine P&H 1042], where a 25-day delay was held fatal for lack of explanation, and to the Police Headquarters Circular No. 39/2020, reiterating that samples should reach the forensic lab within 72 hours.
Precedent Analysis
- Ranjan Kumar Chadha v. State of Himachal Pradesh [AIR 2023 SC 5164] – Held that compliance with Section 50 is mandatory, and failure to do so renders recovery inadmissible.
- Dilip v. State of Madhya Pradesh [(2007) 1 SCC 450] – Stressed the necessity of adhering to procedural safeguards under Sections 41, 42, and 50 of the NDPS Act.
- Valsala v. State of Kerala [1993 Supp (3) SCC 665] – Reaffirmed that NDPS Act offences being grave, procedural requirements must be scrupulously followed.
- Parminder Singh v. State of Haryana [2006 SCC OnLine P&H 1042] – Held that unexplained delay in sending samples for analysis is fatal to prosecution.
- Varinder Kumar v. State of Himachal Pradesh [(2020) 3 SCC 321] – Clarified that Mohan Lal v. State of Punjab [(2018) 17 SCC 627] has no retrospective effect; earlier cases must be judged on their own facts.
These precedents guided the Court’s conclusion that the prosecution’s lapses in compliance, documentation, and chain of custody undermined the credibility of the entire case.
Court’s Reasoning
Justice Johnson John underscored that the burden of proving compliance with Section 50 lies squarely on the prosecution. The absence of written consent from the accused, failure to produce the plastic kit allegedly containing the contraband, and non-seizure of the motorcycle linked to the accused created multiple inconsistencies.
The Court observed:
“In the absence of any writing from the accused showing waiver of his right under Section 50, it cannot be held that the prosecution complied with the statutory mandate.”
Furthermore, the Court found that the investigation was perfunctory, with material evidence—such as the plastic kit—not produced, and no explanation offered for the missing chain of custody. These cumulative lapses, the Court held, entitled the accused to the benefit of reasonable doubt.
Conclusion
The Kerala High Court allowed the appeal, set aside the conviction and sentence, and acquitted the accused of the charge under Section 22(b) of the NDPS Act. The Court directed that the bail bond stand cancelled and that the appellant be released forthwith.
Justice Johnson John concluded that “non-compliance with procedural safeguards and failure to establish an unbroken chain of custody vitiate the very foundation of prosecution under the NDPS Act.”
Implications
This judgment reinforces the judiciary’s consistent insistence that procedural safeguards under the NDPS Act are mandatory and not mere formalities. It highlights that compliance with Sections 41, 42, and 50 and prompt forwarding of samples are vital to ensure fairness in drug-related prosecutions. The ruling serves as a caution to investigating officers that even minor procedural lapses can lead to acquittals in serious narcotics cases.
FAQs
1. What happens if the police fail to comply with Section 50 of the NDPS Act?
Failure to inform the accused of the right to be searched before a Magistrate or Gazetted Officer renders the recovery inadmissible, entitling the accused to acquittal.
2. Why is delay in sending samples to the forensic lab significant?
Such delay raises doubts about tampering or substitution of the sample, undermining the credibility of the prosecution’s case.
3. Can oral communication of rights under Section 50 suffice?
No. Courts insist on clear, preferably written evidence of compliance. Oral claims by officers, without supporting documentation, are insufficient.
