ROHIT BALA SUBRAMANIAM, vs THE INTELLIGENCE OFFICER,
- Court
- Madras High Court
CRL A.No.404 of 2018
IN THE HIGH COURT OF JUDICATURE OF MADRAS
Reserved on : 08.09.2026
Pronounced on : 30.10.2026
CORAM:
THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR
CRL.A.No.404 of 2018
Rohit Bala Subramaniam ... Appellant / Accused No.1
Vs.
The Intelligence Officer,
Narcotics Control Bureau,
Chennai Zonal Unit,
Chennai – 90. ... Respondent / Complainant
PRAYER: Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to call for records in C.C.No.36 of 2015, on
st
the file of the 1 Additional Special Court for Exclusive Trial of Cases
under NDPS Act, Chennai, and to set aside the judgment and order
of conviction and sentence dated 31.05.2018 passed against the
appellant
For Appellant : Mr.Anand Grover,
Sr.Counsel
For M/s.Ojas Law Firm
For Respondent : Mr.N.P.Kumar,
Spl.Public Prosecutor
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CRL A.No.404 of 2018
JUDGMENT
This Criminal Appeal is preferred under Section 374(2) of the
Code of Criminal Procedure by the first accused in C.C.No.36 of 2015
on the file of the I Additional Special Court for Exclusive Trial of
Cases under the NDPS Act, Chennai (“the Trial Court”), challenging
the judgment dated 31.05.2018.
st
2. The learned Judge, 1 Additional Special Court for Exclusive
Trial of Cases under the NDPS Act, found the Appellant/A1 found
guilty of the offences punishable under Section 8(c) read with
Sections 29, 21(a), 22(c), 27A and 28 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“the NDPS Act”) and imposed
the following sentences:-
S.NO OFFENCE SENTENCE
01 21(a) Rigorous imprisonment for 1 year
02. Section 29 Rigorous imprisonment for 10 years
and fine of ₹ 1,00,000 ; in default of
payment of fine, rigorous
imprisonment for 1 year
03 Section 22(c) Rigorous imprisonment for 10 years
and fine of ₹ 1,00,000 ; in default of
payment of fine, rigorous
imprisonment for 1 year
04 ection 27A Rigorous imprisonment for 10 years
and fine of ₹ 1,00,000 ; in default of
payment of fine, rigorous
imprisonment for 1 year
05 Section 28 Rigorous imprisonment for 10 years
and fine of ₹ 1,00,000 ; in default of
payment of fine, rigorous
imprisonment for 1 year
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CRL A.No.404 of 2018
3. The sentences were ordered to run concurrently and the
period of detention already undergone ordered to be set off under
Section 428 Cr.P.C.
4. In this case, one Roshan Nair / A2, convicted in the same
judgment. Though A2 filed an appeal in Crl.A.No.465 of 2018, the
same was dismissed as withdrawn on 07.01.2026, since A2 already
undergo the period of sentence imposed on him.
5 . The appellant is referred to as “A1” or “the appellant” and
the respondent as “NCB” or “the complainant”.
6. The case of the prosecution, as set out in the complaint
(Ex.P48) and spoken to by the witnesses, is briefly as follows:
(a) On 10.02.2015, at about 08.00 a.m., PW1 / Mr.Sheelbhadra
Samrat / Intelligence Officer, NCB, Chennai, received information
over office telephone that one Rohit Balasubramaniam, aged about
23, staying at Block T, Door No.205, Abode Valley Phase 3, 54 Kakkan
Street, Kattankulathur, Potheri, selling LSD and cocaine among
college students, if he and his house checked thoroughly, the said
narcotic drugs could be seized. PW1 reduced the information into
writing in English in his own handwriting, typed it (Ex.P1) and
submitted it to PW2 / Superintendent, at 08.10 a.m., who directed
him to take necessary action.
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CRL A.No.404 of 2018
(b) PW1, along with a team of NCB officers and two
independent witnesses, N.Kumar and S.Kumar (PW4), went to the
flat. According to PW1, when he knocked, A1 opened the door; PW1
introduced himself and his team, informed A1 of the information and
of his right under Section 50 of the Act to be searched before a
Gazetted Officer or a Magistrate, which A1 declined. On questioned,
A1 informed that he had LSD and cocaine, produced two covers, one
containing half-white powder and the other white and multi-coloured
papers. The powder tested with a field kit, answered positive for
cocaine, weighed two grams, sealed with NCB seal No.11 and
marked S1. The papers cntained 78 blots weighing one gram, sealed
and marked S2. The Flat had three bedrooms; A1 informed, he
occupied one and his friends occupied other two. Rs.40,000/- and a
rental agreement recovered from A1’s room, a PAN card and a
driving licence from him. His Samsung Mobile phone seized. The
mahazar (Ex.P2) and the test memo (Ex.P3) prepared on the spot and
the proceedings concluded at about 02.00 p.m.
(c) A1 accompanied the officers to the NCB office, where a
statement (Ex.P5) recorded under Section 67 of the Act. In it he is
said to have named 'A2', as the person from whom he purchased LSD
and an unnamed Nigerian National, as the source of cocaine. PW1
recorded this information (Ex.P6) at about 06.10 p.m. and submitted
it to PW2. At about 07.20 p.m., a team conducted search of Room
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CRL A.No.404 of 2018
No.204, Sri Venkateswara Residency, Tharamani, occupied by A2, in
the presence of PW6 and PW7, and recovered three sheets of blotter
paper contain 900, 900 and 720 blots, weighing about 30 grams.
(d) A1 arrested at 10.45 p.m. On 10.02.2015, both the accused
produced before the learned Judicial Magistrate, Ambattur, on
11.02.2015 and remanded. The seized articles deposited in the NCB
godown by PW2 on the night of 11/12.02.2015 and a report under
Section 57 of the Act (Ex.P23) sent. On 13.02.2015, on the letter of
the Trial Court (Ex.P26), samples marked S1, S2, S3, S5 and S7,
forwarded to the Customs House Laboratory, Chennai. The laboratory
report (Ex.P29) dated 20.04.2015 confirm, S1 answers the tests for
cocaine and S2, S3, S5 and S7 answer the tests for LSD. The remnant
samples and the report collected by PW5 on 23.04.2015 and
deposited in the Trial Court. The second samples of A2 (S4, S6, S8)
forwarded to CFSL, Hyderabad returned (Ex.P47). Call detail records
of two mobile numbers obtained from Vodafone (Ex.P45 series) and,
on completion of investigation, complaint filed on 21.07.2015.
7 . Charges framed against A1 under Section 8(c) read with
Sections 29, 21(a), 22(c), 27A and 28 of the NDPS Act. A1 pleaded
not guilty. The prosecution examined seven witnesses, namely, PW1
(seizing officer), PW2 (Superintendent), PW3 (Assistant Chemical
Examiner, Customs House Laboratory), PW4 (postman, the
independent witness to the search at A1’s flat), PW5 (Investigating
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CRL A.No.404 of 2018
Officer), and PW6 and PW7 (independent witnesses to the search at
A2’s room); marked Exs.P1 to P49 and M.O.1 to M.O.11. The second
independent witness to the search at A1’s flat, N.Kumar, was not
examined. When questioned under Section 313(1)(b) Cr.P.C., the
accused denied the circumstances and pleaded false implication. No
defence witness examined. Both the accused filed petitions retracting
their statements recorded under Section 67 of the Act, the first on
15.06.2016, and A1 filed two further petitions on 01.11.2016 and
01.03.2017.
8 . The Trial Court framed five questions: whether the seized
substances were cocaine and LSD; whether they were in the
possession of the accused; whether the mandatory provisions were
complied with; whether the prosecution had proved its case beyond
reasonable doubt; and whether the accused had discharged their
burden. It answered all of them against the accused. In substance, it
(i) accepted the report Ex.P29, as admissible under Section 293
Cr.P.C. and held that the quantity of LSD recovered from A1 two
grams, a commercial quantity, cocaine a small quantity; (ii) accepted
the evidence of PW1 as corroborated by PW4, through his statement
Ex.P31 and, as regards A2, by PW6 and PW7; (iii) held the statements
of A1 and A2 under Section 67 (Exs.P5 and P14) to be voluntary,
treated the retractions as an afterthought, and held that they could
form the basis of conviction, relying on Kanhaiyalal v. Union of
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CRL A.No.404 of 2018
India and Ram Singh v. Central Bureau of Narcotics ; (iv) held
possession to be “conscious possession” and invoked Sections 35, 54
and 66 of the NDPS Act and Section 106 of the Evidence Act to cast
the burden on the accused; and (v) held that all mandatory provisions
complied with. Taking note that the accused were young,
prosecution not proved their connection with offenders involved in
trafficking, no circumstance under Section 32-B shown, the Trial
Court imposed the minimum sentence.
9 . The appellant was in custody from 10.02.2015 until
15.09.2020, a period of about five years and seven months, when this
Court suspended the sentence and granted him bail in
Crl.M.P.No.5039 of 2020. The Special Leave Petition (Crl.) No.1024 of
2021 filed by the NCB against the order dismissed by the Hon’ble
Supreme Court on 05.08.2021. The appeal now taken up for final
hearing.
10 . Mr.Anand Grover, learned Senior Counsel for the appellant,
submitted that the prosecution case founded on prior information
that narcotic drugs kept in private premises, accordingly, Section 42
of the NDPS Act was attracted. PW1 admittedly reduced the
information into writing in his own handwriting, but the original
record not produced before the Court. He could give reasons and
admitted that it had not been shown to his superior officer. The
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document placed before PW2 was a typed note (Ex.P1), which PW1
admitted was ‘a combination of what is informed by the informant
and added by me’ and was ‘not the verbatim reproduction’ of the
informant’s statement. PW1 contradicts himself on whether he
informed PW2 of the handwritten note; PW2 confirms PW1 never
informed him. PW1 asserted that it is “not necessary” under Section
42(2) to submit the original information and its copy to the superior,
and both PW1 and PW2 were unaware of any information register.
Section 42(2) requires the copy forwarded to the immediate superior
officer to correspond to the information recorded under Section
42(1), as explained in State of Rajasthan v. Jag Raj Singh @
Hansa, (2016) 11 SCC 687 and in Kishan Chand v. State of
Haryana, (2013) 2 SCC 502 , the Hon'ble Supreme Court
emphasised strict compliance with Section 42 and held that the
doctrine of substantial compliance could not excuse the failure
established on the facts of that case. The learned Senior Counsel for
appellant further relied on Prasun Chakraborty v. Narcotic
Control Bureau (Calcutta High Court, 2019), Intelligence
Officer, NCB v. P. Balakrishnan @ Krishna @ Balan @ Rajan,
Crl.A. No. 71 of 2009 , decided on 27.02.2017 (Karnataka High
Court), and State of Rajasthan v. Babu Lal, (2009) 14 SCC 215 ,
in support of his contention that the failure to produce the original
record and other evidence of compliance materially undermined the
prosecution case. The appellant further relied on State of Punjab v.
Balbir Singh, (1994) 3 SCC 299, and Karnail Singh v. State of
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CRL A.No.404 of 2018
Haryana, (2009) 8 SCC 539 , in support of the contention that total
non-compliance with the mandatory requirements of Section 42
adversely affects the prosecution case. The appellant further
submitted that the respondent’s characterisation of the additions to
Ex.P1 as ‘minor’ was unsupported by evidence, since PW1 not
specified what information he added to the informant’s version.
11. The learned Senior Counsel further submitted that
Mahazar (Ex.P2) and test memo (Ex.P3), typed on the spot at the
time of seizure, bear the file number “N.C.B.F.No.48/1/1/2015/NCB-
MDS”. PW1 denies having allotted a file number and does not know,
how a file number could appear on documents drawn before the case
registered. This shakes the foundation of the prosecution case
(K.Kalyani v. State, Madras High Court, Crl.A.No.687 of 2012,
dated 12.03.2019. It is the further submission of learned Senior
Counsel that PW4, the independent witness examined, not supported
the prosecution case. He deposed that the officers took something
from inside the room, not aware what it was. He neither identified
the appellant or the contraband nor acknowledged his signature on
the mahazar. The Trial Court, however, disregarded his testimony in
Court and relied upon his earlier statement (Ex.P31), recorded under
Section 67 of the NDPS Act, without confronting him with the
relevant portions thereof in the manner prescribed by Section 145 of
the Evidence Act. It is his further submission that Ex.P31 could not
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be treated as substantive evidence and relied upon Tofan Singh v.
State of Tamil Nadu , subject to the distinction between a
confessional statement made by an accused and a statement made by
an independent witness. He further relied upon State of Haryana v.
Gurdial Singh, (1974) 4 SCC 494 , to contend that material
inconsistencies between the evidence given in Court and an earlier
statement undermine the prosecution case.
12. The learned Senior Counsel further submitted that the
other independent witness, though summoned under Ex.P43, not
examined, and no satisfactory explanation offered for his non-
examination. The Trial Court observed that serious efforts not made
to secure his attendance. The members of the raiding team were
neither identified by name nor examined. Neither PW1 nor PW4
identified the appellant in Court, relying upon Gopal Singh v. State
of Uttarakhand, 2025 INSC 263 . He submitted that the
uncorroborated testimony of PW1, an official witness, insufficient to
sustain the conviction, particularly in view of the contradiction
between PW1 and PW2 as to whether the Superintendent
accompanied the raid at A2’s premises. In support of this submission,
he relied upon Union of India v. Leen Martin, (2018) 4 SCC 490;
Bahadur Singh v. State of Madhya Pradesh, (2002) 1 SCC 606;
N. Raju v. State, 2014 SCC OnLine Mad 8393; and Mohammad
Burhan v. Directorate of Revenue Intelligence, 2017 SCC
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OnLine Del 10060 . Further, the flat had three rooms and the rental
agreement names three tenants, none of them, nor the landlord or
any neighbour, examined. The agreement is a photocopy, the original
not seized, and document was in force only till 18.12.2014 ie., two
months before the search. No belongings of the appellant recovered
from the flat and PW1 not remembered any sign of occupation. It
must be proved by independent evidence that the accused was in
exclusive possession of the premises and was conscious possessions
of the contraband.
13. Learned Senior Counsel further submitted that no
application made to the jurisdictional Magistrate for certification of
the inventory, taking photographs of the seized substances, or
drawing and certifying representative samples in accordance with
Section 52A. The only document produced before the learned
Magistrate, Ambattur, on 11.02.2015 was a list of properties filed
along with the remand application (Ex.P20). The procedure
prescribed under Standing Orders Nos. 1/88 and 1/89, including the
requirement of drawing representative samples in duplicate, had not
been followed, and PW1 was unaware of the relevant Standing
Orders. The entire seized quantities of S1 and S2 were allegedly sent
to the laboratory as samples, without satisfactory proof and chain of
custody that representative samples drawn in accordance with the
prescribed procedure. Relying upon Surepally Srinivas v. State of
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CRL A.No.404 of 2018
Andhra Pradesh, 2025 INSC 414, and Nadeem Ahamed v. State
of West Bengal, 2025 INSC 993 , learned Senior Counsel
contended that the cumulative procedural lapses undermined the
integrity of the seizure and sampling process and rendered the
prosecution's reliance on the forensic report unreliable. There is no
impression of the specimen seal on the mahazar or the forwarding
memo (Ex.P21). The seized articles remained untraced from 02.00
p.m. on 10.02.2015 until they deposited in the godown at midnight on
11/12.02.2015, godown register, seal movement register and any
documentary proof of custody of seal No.11 not produced. PW1
sealed S2 as one gram of LSD (78 blots) and S1 as two grams of
cocaine, but PW3 records S1 at 2.62 grams and S2 at 2.0 grams; the
difference cannot be explained by the weight of a thin plastic pouch.
14. It is his further contention that Ex.P29 is cryptic. It records
only that “chemical analysis and thin layer chromatography analysis
were conducted” without giving any test data or result. PW3 admits
that this was her first case of LSD, the test done was TLC, working
sheet not brought to Court or given to NCB, she has not counted the
blots or remember how many she tested, and she not weighed the
samples without the pouch. The UN Recommended Methods require
at least two uncorrelated parameters to establish identity, and
analysis of at least 50% of the blots. A report which does not disclose
the scientific tests and their results has no probative value (Mahmad
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Hanif Shaikh Ibrahim v. State of Gujarat, 1994 SCC OnLine
Guj 293 ; The Trial Court erred in holding that the accused should
have sought a re-test, as the burden is on the prosecution. The
prosecution case itself is that one gram of LSD seized from A1. The
Trial Court, on the footing that PW3 used a “melter scale” and PW1
an electronic scale, held the quantity to be two grams, thereby going
beyond the prosecution case.
15. The learned Senior Counsel further contended that after
Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, NCB officers
being police officers, statements under Section 67 are barred by
Section 25 of the Evidence Act and cannot be used to convict. The
Trial Court relied on them at almost every stage of its judgment.
There is no evidence whatsoever of financing, attempt or conspiracy;
the Trial Court did not even frame a point on them, gave no reasons,
and by itself found that the prosecution not proved the accused to be
in actual connection with offenders involved in trafficking. Financing
under Section 27A is distinct from sale and purchase (Ashraf v. State
of Kerala, 2009 SCC OnLine Ker 6502). ) The learned Senior Counsel
did not press the ground of violation of Section 50 of the NDPS Act,
since the alleged contraband was recovered from a room and not
from the appellant’s person. The appellant, in any event, disputed the
seizure per se. At the time of his arrest, the appellant was a final-
year student of Chemical Engineering and that, after released on
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bail, he completed his degree and cleared the entrance examination
for the three-year LL.B. course (AP LAWCET 2024). In these
circumstances, it was contended that no useful purpose would be
served by sending him back to prison.
16 . Per contra, Mr.N.P.Kumar, learned Special Public
Prosecutor appearing for the respondent, while supporting the
judgment of the Trial Court, submitted that recovery of cocaine and
LSD from A1 stood proved by the testimony of PW1, corroborated by
PW4 through his statement (Ex.P31) and by the statement of A1. The
additions found in the typed note (Ex.P1) were minor in nature and
that there had been substantial compliance with Section 42 of the
NDPS Act. The safeguards under Section 50 complied with and, in
any event, the alleged recovery from a room and not from the person
of the accused. The testimony of official witnesses could sustain a
conviction even where an independent witness turned hostile or not
examined. The Chemical Examiner’s report admissible in evidence
under Section 293 Cr.P.C. and the accused not sought re-testing or re-
sampling of the seized substances. According to him, the discrepancy
in the weight of the seized substances could be explained by the use
of different weighing instruments, namely, the electronic balance
used by PW1 and the Mettler balance used by PW3.
17. The learned Special Public Prosecutor further contended
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that once possession established, the presumptions under Sections
35 and 54 of the NDPS Act, Section 66 of the said Act, and Section
106 of the Indian Evidence Act comes into play, and the accused
failed to rebut the same. In support of his submissions, the learned
Special Public Prosecutor relied upon the following decisions,
Vijaysinh Chandubha Jadeja v. State of Gujarat ((2011) 1 SCC 609);
State of Punjab v. Baljinder Singh (2019); Surinder Kumar v. State of
Punjab ((2020) 2 SCC 563); Jeet Ram v. Narcotics Control Bureau,
Chandigarh (2020); Than Kunwar v. State of Haryana ((2020) 5 SCC
260); Dayalu Kashyap (2022 LiveLaw (SC) 100); Kallu Khan v. State
of Rajasthan ((2021) 8 SCC 735); Varinder Kumar v. State of
Himachal Pradesh (2019); Pattu Lal (1996); Sushil Kumar Tiwari v.
Hare Ram Sah (2025); Dharampal Singh v. State of Punjab (2010);
Baldev Singh v. State of Haryana ((2015) 17 SCC 554); Baljinder
Singh @ Ladoo v. State of Punjab (2024); Rakesh Kumar Raghuvanshi
v. State of Madhya Pradesh (2025); Y.S. Nataraja v. State of
Karnataka (2025); and Bharat Aambale v. State of Chhattisgarh
((2025) 8 SCC 452).
18 . The Court heard the submissioins made by both sides and
perused the typed set, depositions, exhibits and the judgment under
appeal.
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19. The points that arise for consideration before this Court,
are;
(1) Whether the search and seizure at the flat of
the appellant stands vitiated for non-compliance of
Section 42 of the NDPS Act;
(2) Whether the prosecution proved its case, by
reliable evidence, recovery of contraband from the
possession of the appellant;
(3) Whether, in the absence of the procedure
under Section 52A of the Act, and in view of the
discrepancies in the physical evidence, the
prosecution has proved that what was seized is what
was tested and produced in Court;
(4) Whether the report of the Chemical
Examiner (Ex.P29) can be relied upon to prove the
character of the substances;
(5) Whether the statements recorded under
Section 67 of the Act can be relied upon against the
appellant; and
(6) Whether the conviction under Sections 27A,
28 and 29 of the Act can be sustained, and the overall
conclusion.
20 . This is a statutory appeal against conviction, and this Court
is therefore bound to re-appreciate the entire evidence and arrive at
its own conclusions. The NDPS Act is a stringent statute. It reverses
the burden of proof in certain respects (Sections 35 and 54),
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prescribes high minimum sentences and restricts bail. It is for that
very reason that its procedural safeguards, which are meant to guard
against false implication, planting and manipulation of seized
material, have to be strictly scrutinised. The presumptions under
Sections 35 and 54 not a substitute for proof; they arise only when
the prosecution first establishes, by reliable evidence, the
foundational fact that contraband was recovered from the accused.
As the Hon’ble Supreme Court put it in Sanjeet Kumar Singh @
Munna Kumar Singh v. State of Chhattisgarh (2022 LiveLaw
(SC) 724), to raise the presumption under Section 54 it must first be
established that a recovery was made from the accused, and the
moment a doubt is cast on the most fundamental aspect, namely the
search and seizure, the accused is entitled to its benefit.
21 . Section 42(1) of the Act provides that where an officer
empowered under the section has reason to believe, from personal
knowledge or from information given by any person and taken down
in writing, that narcotic drugs or psychotropic substances are kept or
concealed in any building, he may enter and search it between
sunrise and sunset. Section 42(2) requires that where an officer takes
down any information in writing under sub-section (1), he shall within
seventy-two hours send a copy thereof to his immediate official
superior. The Constitution Bench in Karnail Singh v. State of
Haryana ((2009) 8 SCC 539) , after considering State of Punjab v.
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Balbir Singh ((1994) 3 SCC 299) , explained the position in
substance as follows: the information should ordinarily be taken
down in writing and a copy sent to the superior before the officer
acts on it; in emergent situations, where delay might result in escape
of the accused or the loss of evidence, recording and reporting may
follow soon after, with a satisfactory explanation; total non-
compliance with sub-sections (1) and (2) is impermissible, delayed
compliance with a satisfactory explanation is acceptable; and if the
officer had sufficient time and was not in an emergent situation, the
failure to record the information or to send a copy to the superior is a
suspicious circumstance. The Constitution Bench thus accepted that
compliance need not be a ritual, but it did not dispense with the core
of the provision, namely, that the information actually received is
reduced into writing and a copy of that very record reaches the
superior, so that the superior and the Court can later verify that the
action was based on genuine prior information.
22 . Tested against this standard, the evidence of the
prosecution itself discloses the following:
(a) PW1 was in the office when call came at about 08.00 a.m.
There was no emergency. By his own admission, the time gap
between recording the information and leaving for raid was two
hours and twenty minutes, and the journey took about an hour. There
was ample time to follow the procedure in letter and spirit and even
to approach for a warrant or authorisation.
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(b) PW1 says he first recorded the information in his own
handwriting and then typed it (Ex.P1). Ex.P1 itself contains recital
that “the above information was received, reduced to writing in my
own handwriting, and read over to the informant, who accepted it as
correct.”
(c) In cross-examination PW1 deposed: “I recorded the
information in pen. I don’t remember what happened to the
information written by me in pen. I can’t produce the information
written by me in the Court. I have not shown that document to my
immediate superior till today. The document was meant for my
personal use and hence I did not produce the document.” He added
that he accepts that Ex.P1 “is the combination of what is informed by
the informant and added by me” and that “it is true that Ex.P1 is not
the verbatim re-production of what is stated by the informant”. He
never deposed what he added. He further deposed, in answer to a
question under Section 42(2), that it is “not necessary” to submit the
original information and its copy to the immediate superior in NDPS
complaints.
(d) PW1 gave contradictory versions on whether he told PW2
about the handwritten note. First he deposed that he had not shown
the handwritten document to his superior, and later deposed that
after typing he informed the Superintendent about the writing and
the typing. PW2, on the other hand, deposed categorically that PW1
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CRL A.No.404 of 2018
not informed him that he originally recorded the information in his
own handwriting, and that no copy other than Ex.P1 given to him.
(e) Both PW1 and PW2 admitted that no information register is
maintained in the office. PW2 gave no outward number to Ex.P1 and
wrote neither his name nor the time below his signature, though he
says that Ex.P1 was placed before him at 08.10 a.m. He accepted that
the NCB Form-1 format given in the Drug Law Enforcement Field
Officer’s Handbook differs from Ex.P1, that Ex.P1 was not given to
him in a sealed envelope, and that the guidelines in the Handbook
were followed only in part because “some were not practicable”. PW1
professed no knowledge of the guidelines.
(f) PW1 deposed in chief that he left for the address with the
team at about 09.00 a.m., whereas the “time gap” he admitted in
cross-examination would take the departure to about 10.30 a.m.
23. The purpose of Section 42 is not served by mere existence
of a typed note bearing a time and an endorsement. What the Law
requires is a contemporaneous record of the information as received,
and a copy of that record in the hands of a senior officer, so that no
one can later alter, add to or antedate the information to justify a
search already conducted or planned. In this case the only document
that reached the superior was a typed note, authored by the very
officer who conducted the search, which he admits was not a
verbatim record of what the informant informed and into which he
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introduced matter of his own. The original record not sent to PW2
and, according to PW1, has been lost or is not with him; it was not
produced before the Trial Court. A copy of something which the
officer cannot produce, and which was never sent, is not a copy at all.
The submission that the “additions are minor” is a submission of
Special Prosecutor; PW1 has not said what he added, and the Court is
left to guess what the informant actually said. The statement of PW1
that it is not necessary to send the original information or a copy to
the superior shows a misconception of the provision and not
compliance with it.
24. This is not a case of delayed compliance accompanied by a
satisfactory explanation (the position the Constitution Bench
accepted), nor of a minor variance in the time of sending. It is a case
where the prosecution unable to prove that the information as
received taken down in writing, sent to the superior at all, in a
situation where the officer had enough time to do so. In terms of
Karnail Singh itself that is a suspicious circumstance, and it goes to
the root of the matter, as the search and seizure at A1’s flat is based
entirely on that information. The decisions of Hon'ble Supreme Court
in State of Rajasthan v. Jagraj Singh ((2016) 11 SCC 687 ,
reiterate that the information recorded and the copy sent to the
superior must correspond, and that the officer must show compliance
with the safeguard. Learned counsel for the respondent relied on the
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principle of substantial compliance. That principle presupposes that
the core of the provision has been complied with and is proved by
evidence. Here, even the core is not established.
25. I therefore hold that the prosecution has failed to prove
compliance with Section 42(1) and (2) of the NDPS Act. In the
circumstances, the search at the flat of the appellant, which
undertaken on prior information, is vitiated, and in any event the
evidence relating to it can only be received with great caution. As will
be seen below, the other infirmities in the prosecution case
independently lead to the same result. Point No.1 is answered
accordingly.
26 . The prosecution case is that, when questioned as to
whether he was in possession of any narcotic drugs, A1 stated that he
had LSD and cocaine and produced two covers. However, a statement
of this nature, made by an accused to an officer of the Narcotics
Control Bureau (NCB), who is a police officer for the purposes of the
NDPS Act, cannot, by itself, be relied upon as a confessional
statement against him. The prosecution must, therefore, establish
through independent and reliable evidence that the contraband in
fact found in the possession of and recovered from A1. Before the
Trial Court, the prosecution relied upon the testimony of PW1, the
earlier statement of PW4 (Ex.P31), and the statement of A1 recorded
under Section 67 of the NDPS Act (Ex.P5).
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27. PW4 , a Postman, examined as an independent witness to
the search at the flat. His deposition is in Tamil. He deposed that
about two years earlier, on the 10th of a month, after delivering a
post to Rohit Balasubramaniam at Abode Valley, he came out and
found four or five persons standing there, who said that they were
from the narcotic drugs control and that the parcel which he
delivered and the room had to be searched and that he should be a
witness; that he first said that he could not, and then, on their
showing identity cards, agreed to be a witness; that thereafter they
took something from inside, he did not know what, and then told him
that he could go, and he left for delivery. The learned Special Public
Prosecutor then showed him a statement of the complaint and asked
whether it was voluntary statement given by him, and he answered
“yes”. That statement marked as Ex.P31. Thereafter the matter
adjourned for cross-examination on the request of the learned
counsel for A1.
28. It is evident that PW4 does not speak to any of the material
facts. He does not say that A1 admitted possession, that anything was
produced by A1, that any powder or blots were weighed, tested,
sealed or seized in his presence, or that a mahazar was prepared and
he signed it. He says only that the officers took “something” from the
room, he does not know what it was. He not identified the appellant
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in Court, nor any of the seized articles. His version also differs from
that of PW1. PW1 says that he procured the two witnesses in a
nearby street before going to the address, explained the information
to them and took them to the flat. PW4 says that officers already
standing outside when he came out after delivering a parcel, and he
asked to witness the search of the room “and the parcel” that he
delivered. The complaint (Ex.P48) goes further and narrates that, in
his statement, PW4 admitted “the delivery of a big parcel to A1” and
that “the parcel handed over by A1 to the complainant contained
drugs”. No such parcel finds a place in the seizure narrative of PW1
or in the case property, and nobody explained about the parcel.
29. The Trial Court candidly noted that PW4 not fully
supported the prosecution, but chose to rely on Ex.P31 and held that
PW4 corroborated the prosecution case “to some extent”, mainly
because the witness not alleged that Ex.P31 obtained by force and
because the defence not put a suggestion denying that he gave it.
That approach is not correct in law, for the following reasons:
(a) The substantive evidence of a witness is his deposition in
Court. A statement recorded during investigation is not substantive
evidence; at best it can be used to contradict the witness, in the
manner provided in Section 145 of the Evidence Act, after the
witness confronted with the relevant portions. In this case, the
contents of Ex.P31 never put to PW4, and it marked on the strength
of one word of assent to a leading question on its identity.
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(b) Ex.P31 is a statement recorded by an officer of the NCB
under Section 67 of the Act. As held in Tofan Singh v. State of
Tamil Nadu ((2021) 4 SCC 1), NCB officers vested with the
powers of an officer in charge of a police station are police officers
and the statements made to them during investigation stand on the
same footing as statements to the police. The same reasoning applies
to a statement of a witness, to which Section 162 Cr.P.C. is attracted,
so that it can be used for the limited purpose of contradiction.
(c) Section 53A of the NDPS Act, on which the appellant relies,
makes certain statements recorded by officers during an inquiry
relevant for proving the truth of the facts stated therein, but only in
the situations mentioned in the section, and where the person is
examined as a witness, only if the Court is of opinion that, having
regard to the circumstances, the statement should be admitted in
evidence in the interest of justice. The Trial Court not referred to
Section 53A and recorded no such opinion. Nor could it have been
justified in doing so, because to prefer an unproved earlier statement
to the sworn testimony of the witness is the reverse of what the law
contemplates.
(d) The question whether PW4 stated the truth in Court cannot
be answered by reference to a statement which he was not
confronted with. The Hon’ble Supreme Court in State of Haryana v.
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Gurdial Singh ((1974) 4 SCC 494 , held that a conviction could not
be sustained where witnesses gave inconsistent versions before the
police and in Court. In the present case, the Trial Court did precisely
the opposite by relying on the pre-trial version while disregarding the
evidence given in Court. The Trial Court has in effect done opposite
of this, namely adopted the pre-trial version and ignored the evidence
in Court. It was also not for the accused to prove that PW4 not telling
the truth in Ex.P31 and the burden of proof remained throughout on
the prosecution. The finding of the Trial Court that PW4 corroborates
PW1 is thus perverse, and PW4 provides no support to the case of the
prosecution.
30. The other independent witness to the search at the flat,
N.Kumar, S/o. Natarajan, cited as a witness in the mahazar. PW5
deposed that summons dated 19.05.2015 served on him in person
(Ex.P43), but he not turned up. The prosecution not taken any steps
to secure his presence and gave no explanation for not examining
him. The Trial Court itself observed that he was a Government
servant who could have been found had persistent steps been taken,
and that serious effort not made. In addition, PW1 acted along with a
team of NCB officers, who, according to his own cross-examination,
helped in drawing the samples and in the search of the room. Their
names and number are not recorded in the mahazar, PW1 did not
identify them in his evidence, PW2 does not know who accompanied
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PW1, and none of them examined. Thus the entire evidence relating
to the search and seizure at the flat of A1 comes from PW1 alone.
31 . It is well settled that the testimony of official witnesses can,
by itself, sustain a conviction in an NDPS case and that non-
examination of independent witnesses is not necessarily fatal to the
prosecution, particularly where their non-examination is satisfactorily
explained. The decisions relied upon by the Trial Court and the
respondent, namely, Ajmer Singh v. State of Haryana, (2010) 3
SCC 746; State of Punjab v. Nirmal Singh, (2010) 1 SCC (Cri)
561; Ram Bali v. State of U.P.; and Mahiman Singh v. State of
Uttarakhand, recognise this principle. However, the evidence of
official witnesses must still be subjected to careful and cautious
scrutiny. In Nirmal Singh case , the Court proceeded on the basis
that the testimony of the official witnesses was free from infirmity
and that no material had been brought out to discredit their
evidence. The absence of independent corroboration, therefore,
assumes significance when assessing the reliability of the official
testimony, though it does not, by itself, render such testimony
unacceptable. In the present case, two independent witnesses were
associated with the seizure; one did not support the prosecution,
while the other not examined, and no explanation was offered for his
non-examination. In these circumstances, it becomes necessary to
examine whether the testimony of PW1, considered in the light of the
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evidence as a whole, is sufficiently reliable to sustain the conviction
without independent corroboration.
32. In my considered view PW1 is not a sterile witness. Apart
from the serious infirmity in the recording and reporting of the
information, which has been dealt with above, the following features
cast a doubt on his version:
(a) PW1 contradicted by PW2 on a material point. According to
the appellant, PW1 said that PW2, a Gazetted Officer, was with him
during the search of A2’s premises. PW2 states in his deposition that
neither he nor the Zonal Director went to the residence of A2 and
that he is not aware of the recording of A2’s statement; he also says
he is not aware that the drugs said to have seized from A2 actually
seized from him, and he does not know the names of the team
members who went with PW1.
(b) His account of the timing is inconsistent, as set out in
paragraph 12(f). He also did not record in the mahazar the names of
the officers or the number of persons in his team and said he “did not
think about that”.
(c) He had not investigated an LSD case earlier. He admitted
that LSD cannot be tested through a drug detection kit, and it was on
the confirmation of the accused that he came to know, what he seized
was LSD. The identification of the paper blots as LSD at the spot thus
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rested on the statement of the accused himself, which is inadmissible
and cannot be the basis for treating 78 blots as LSD.
(d) Neither the mahazar nor the evidence of PW1 states from
which place in the Flat, A1 took out the two covers. The complaint
records that the officers “found no narcotic drugs in the room” and
recovered only the cash and the rental agreement. The Trial Court
nevertheless proceeded on the footing, the contraband kept in a
“secret place” known only to A1, and this showed conscious
possession. There is no evidence of any secret place; this finding is
conjecture.
(e) PW1 informed that he used NCB seal No.11 for sealing S1
and S2 and that he returned the seal to the Superintendent after the
mahazar. PW2, the custodian of the seal, admits that he not
maintained any register showing at what time the seal given to PW1,
and PW1 had no documentary proof of having received or returned it.
The same seal again used at 07.20 p.m. for the search at A2’s room.
There is thus nothing to verify the custody of the seal.
(f) The Trial Court itself noted, at the conclusion of the
deposition of 16.03.2017, the difficulties in recording the evidence of
PW1, who answered in Hindi through a translator but able to write
answers in English, and the learned Special Public Prosecutor, who
knew Hindi, often intervened stating that the exact words of the
witness were not being recorded. While no fault is found with the
manner adopted by the Trial Court, the Court notes that the
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testimony of the principal witness, on which the whole case rests,
was recorded in circumstances which did not make for clarity.
33. No witness to the search at the flat of the appellant, neither
PW1 nor PW4, is shown to have identified the appellant in Court as
the person from whom the contraband recovered, and the learned
counsel for the respondent could not point to any portion of the
deposition to the contrary. The witnesses PW6 and PW7 identified A2
in the Court, and PW7 identified a photograph of A1 as the person
who used to visit the room of A2; but that has no bearing on the
search at A1’s flat. In Tukesh Singh v. State of Chhattisgarh
(2025 INSC 683, the Hon’ble Supreme Court held that
identification of the accused by the witness in open Court is of utmost
importance and that failure to identify the accused in Court as the
person whom the witness saw is fatal to the prosecution case. That
was a case of eyewitnesses to a crime, but the principle that the
prosecution must connect, through the testimony of a witness in
Court, the person in the dock with the act attributed to him applies
equally to a seizure witness, where the accused denies the recovery.
In a case where the other independent witness not examined and
PW4 not supportrf the prosecution, this omission is a further
infirmity in the evidence.
34. The Trial Court held that the room from which the
contraband seized occupied by A1, the other two rooms locked and
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not in joint possession, and therefore A1 alone had knowledge of the
contraband. These findings are not supported by evidence. The flat
had three bedrooms, a hall and kitchen. The only document linking
A1 to the flat is a rental agreement recovered from it. That
agreement is a photocopy, and the original not seized. Further, it
had been executed for eleven months from 19.01.2014 to 18.12.2014
and expired about two months before the search; PW1 admitted that
there was no agreement in force on 10.02.2015. It names three
persons as tenants, A1, Mr.Vidhyanandhan and Mr.Magesh Nadar,
with one Mr.Arjun Shridharan as landlord, signed on his behalf by
one Meghana, whose identity is not known. None of these persons,
nor any neighbour or watchman of the apartment, examined. No
personal belongings or articles of daily use of A1 seized from the Flat
and PW1 does not remember any signs of occupation. The mere fact
that the officers found A1 in the flat, cash and a photocopy of the
agreement found in a room does not establish that A1 was in
exclusive possession of the entire flat, still less of the covers
produced. Thus the finding of the trial Court, room was exclusively
occupied by A1, not established.
35. The Trial Court sought to bridge these gaps by Section 106
of the Evidence Act and Sections 35 and 54 of the NDPS Act. It held
that since the contraband handed over by A1 from a place known
only to him, it was for him to explain how it came to be there, and
that his failure to do so established “conscious possession”. This
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reasoning is circuitous. Section 106 does not relieve the prosecution
of its burden of proving the facts which constitute the offence; and
the presumptions under Sections 35 and 54 can only operate after
the prosecution has proved, by evidence on which the Court can rely,
that the contraband was found with the accused. In this case the
foundational fact has not been proved, for the reasons discussed
above. The question of the appellant explaining anything does not
therefore arise, and the fact that he led no defence evidence is of no
consequence. The Trial Court’s approach overlooks that the appellant
took a consistent stand, in cross-examination of the prosecution
witnesses and in his examination under Section 313 Cr.P.C., that he
falsely implicated.
36. The evidence of recovery of the contraband from the
appellant rests on the sole testimony of PW1, who is an interested
witness in the sense that he is the officer who conducted the search
and launched the prosecution; whose version is not corroborated by
the independent witness; who is unsupported by any other witness
and is contradicted in part by PW2; and whose handling of the
information, the seal and the identification of the substance leave
serious doubts. I hold that the prosecution has not proved, beyond
reasonable doubt, the recovery of cocaine and LSD from the
possession of the appellant. Point No.2 is answered in favour of the
appellant.
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37. Before taking up the remaining points, it is necessary to
note the status of NCB officers in law, which has a bearing on several
of the documents in this case. A three-Judge Bench of the Hon’ble
Supreme Court in Tofan Singh's case (cited supra) held that officers
of the NCB who are invested with the powers of an officer in charge
of a police station under Section 53 of the NDPS Act are “police
officers” within the meaning of Section 25 of the Evidence Act, and
that a confessional statement recorded by them under Section 67 of
the Act is inadmissible in the trial of an offence under the Act. The
Bench overruled the earlier decisions (Raj Kumar Karwal v. Union of
India and Kanhaiyalal v. Union of India) which had taken a contrary
view. The consequences of this for the statements recorded in this
case are considered under Point No.5.
38. Section 52A of the Act (as amended in 2014) provides for
the disposal of seized narcotic drugs and psychotropic substances.
Where such substances have been seized and forwarded to the officer
in charge of the nearest police station or the officer empowered
under Section 53, that officer is required to prepare an inventory of
the seized goods containing such details as to description, quality,
quantity, mode of packing, marks, numbers and other identifying
particulars, and to make an application to any Magistrate for the
purpose of (a) certifying the correctness of the inventory, or (b)
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taking, in the presence of the Magistrate, photographs of the drugs
and certifying them as true, or (c) allowing to draw representative
samples in the presence of the Magistrate and certifying the
correctness of the list of samples so drawn. Under sub-section (4),
the inventory, photographs and list of samples so certified by the
Magistrate are to be treated as primary evidence in respect of the
offence. The Standing Orders issued by the Narcotics Control Bureau
(Nos.1/88 and 1/89) similarly require that representative samples be
drawn from the seizure, in duplicate, and sent for analysis.
39. No application was made to any Magistrate under Section
52A(2). The only document that went before the learned Magistrate,
Ambattur, on 11.02.2015 was the remand application with a list of
properties annexed to it. No inventory certified, no photographs
taken in the presence of a Magistrate and no sample drawn in the
presence of a Magistrate. PW1 not even aware of the Standing
Orders. The whole of what seized from A1, that is the entire two
grams of powder (S1) and the entire sheet of 78 blots (S2), not
sampled but forwarded to the laboratory, on the requisition of the
NCB (Ex.P25) through a letter of the Trial Court (Ex.P26) dated
13.02.2015. The Trial Court not referred to Section 52A at all. It
simply observed that all mandatory provisions complied with by the
NCB officers.
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40. The Hon’ble Supreme Court has repeatedly emphasised the
importance of compliance with Section 52A of the NDPS Act. In
Union of India v. Mohan Lal, (2016) 3 SCC 379, the Court explained
the statutory procedure governing the preparation and certification
of inventories, photographs and representative samples. In Mangilal
v. State of Madhya Pradesh, 2023 INSC 634, and Yusuf @ Asif v.
State, 2023 INSC 912, the Court considered the consequences of
non-compliance with the prescribed procedure in the context of the
evidence relied upon to establish the identity of the seized
contraband. In Mohd. Khalid v. State of Telangana, 2024 INSC 158,
the Court held, in the circumstances of that case, that the FSL report
could not be read in evidence, observing that it was “nothing but a
waste paper and cannot be read in evidence”, in view of the failure to
undertake the proceedings contemplated under Section 52A for
preparation of the inventory and drawing of samples in the presence
of the jurisdictional Magistrate. The appellant also relied upon
Nadeem Ahamed v. State of West Bengal, 2025 INSC 993, and
Surepally Srinivas v. State of Andhra Pradesh, 2025 INSC 414, as
well as the decisions of this Court in N. Uganchand Kumawat v.
Inspector of Police, NIB-CID, State v. Krishnaveni and Pandi @
Sornapandi v. Inspector of Police. According to the appellant, these
decisions support the contention that merely producing a list of
properties before the Magistrate along with a remand application
does not constitute compliance with Section 52A of the NDPS Act.
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41. The respondent, on the other hand, relied upon Bharat
Aambale v. State of Chhattisgarh, (2025) 8 SCC 452, 2025 INSC 78.
In that decision, the Hon’ble Supreme Court held that mere non-
compliance with Section 52A, or with the Standing Orders and Rules
framed thereunder, would not, by itself, vitiate the trial. The effect of
such non-compliance must be assessed in the light of the evidence
and the circumstances of the case, particularly whether the
deficiencies give rise to discrepancies in the physical evidence that
render the prosecution case doubtful. The Court further explained
that the accused must first establish the foundational facts of non-
compliance on a preponderance of probabilities, relying either on
defence evidence or on the prosecution evidence itself. Once that
burden is discharged, the onus shifts to the prosecution to establish,
beyond reasonable doubt, either substantial compliance or that the
non-compliance has not affected its case. It is unnecessary, in the
present case, to determine whether Bharat Aambale is at variance
with the principles laid down in the earlier decisions. Even applying
the approach enunciated in Bharat Aambale, the question remains
whether the deficiencies established in the present case cast doubt
on the identity and integrity of the seized substances and,
consequently, on the prosecution’s reliance upon the forensic report.
As discussed below, the result is the same even on that basis.
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42. The foundational facts of non-compliance are established
by the prosecution’s own evidence. The prosecution offered no
explanation for non-compliance and has not shown that there was
substantial compliance. On the contrary, the record discloses the
following discrepancies in the physical evidence, which go to the root
of the matter:
(a) According to the mahazar and the evidence of PW1, S1
(powder) weighed two grams and S2 (78 blots) weighed one gram.
PW3 received S1 at 2.62 grams, with remnant at 1.60 grams, and S2
at 2.0 grams, with remnant at 1.1 grams, all along with the plastic
pouch, as recorded in Ex.P29. Thus S2, one gram at the spot, was
twice that at the laboratory. The explanation of the Trial Court, PW3
used a “melter” balance while PW1 used an electronic one is a
surmise unsupported by any evidence; neither witness said that the
balances give different readings, and the difference of a full gram on
one gram is not a matter of calibration. The respondent explained the
difference by the weight of pouch, but on that reasoning the pouch of
S2 would have to weigh about one gram, while that of S1 would, on
the same arithmetic, weigh about 0.62 gram; PW3 admitted that she
did not weigh any sample without pouch, and PW1 not weighed the
pouch. In Rajesh Jagdambha Avasthi v. State of Goa ((2005) 9
SCC 773 ), the Hon’ble Supreme Court observed that where the
quantity found by the analyst differs from the quantity said to have
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been sealed and sent, the credibility of the recovery proceedings is
eroded and a doubt arises as to whether what was seized was really
sent for examination.
(b) The whole seizure sent as the sample. Because the entire
contraband sent, there was no seizure left in the custody of the Court
except the remnants returned by the laboratory (M.O.1 and M.O.2).
Without the inventory, photographs and certified list of samples there
is no record before the Court, certified by an independent authority,
of what actually seized.
(c) It is pointed out that mahazar (Ex.P2), and forwarding
memo (Ex.P21), not bear the impression of the specimen seal of seal
No.11 which affixed on S1 and S2, so that the Court could not verify
that the articles sealed at the spot were the articles which reached
the laboratory. The Trial Court recorded no finding to the contrary.
(d) The seized articles sealed at about 02.00 p.m. on
10.02.2015, taken before the Magistrate on 11.02.2015, deposited in
godown by PW2 at about midnight on 11/12.02.2015. PW2 stated that
he maintains a godown register in which all deposits and removals
entered, but except for godown receipt, no entry from that register
produced, and no seal movement register maintained. Where the
articles were, and in whose custody, for about thirty-four hours not
established by any document. PW2 himself not even knew the
contents of the packets which he received from PW1.
(e) The remnant samples, M.O.1 to M.O.8, deposited before the
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Trial Court on 24.04.2015. PW3, who allegedly analysed the samples,
not identified the articles in Court, although the sealed covers
remained in the Court throughout the trial. PW5, who collected the
remnants from the laboratory, deposited them in Court, failed to
identify them. Neither PW1 nor PW4 identified the articles. The Trial
Court not opened the sealed covers to verify their contents. The
prosecution required to establish a reliable link between the
substances allegedly seized from the accused, those examined in the
laboratory, and those subsequently produced before the Court. The
mere production of a laboratory report does not, by itself,
conclusively establish that link (Vijay Pandey v. State of Uttar
Pradesh, 2019 SCC OnLine SC 942) . In the absence of
satisfactory identification connecting the remnant samples produced
in Court with the substances allegedly seized and analysed, the
evidentiary link remains unestablished ( Milan Sarcanski v. State,
1997 ALL MR (Cri) 496) .
(f) Ex.P2 (mahazar) and Ex.P3 (test memo), which PW1
deposed were typed and prepared at the spot during the search, bear
the file number of the case, “N.C.B.F.No.48/1/1/2015/NCB-MDS”.
PW1 denies having allotted that number and does not know who
allotted it. No explanation offered as to how a file number, which
would be allotted on registration of the case, appeared on documents
allegedly prepared before the registration. The Hon’ble Supreme
Court in Kamaljit Singh @ Pappu v. State of Punjab
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(Crl.A.No.424 of 2009, decided on 31.01.2019) found it
unfathomable that the FIR number could appear on seizure memos
drawn up before the registration of FIR, and treated the absence of
any explanation as indicative of unfairness in the investigation. This
Court has acquitted accused on that account in K.Kalyani v. State
(Crl.A.No.687 of 2012, 12.03.2019) and Rangan v. State
(Crl.A.No.304 of 2013, 20.11.2017). The unexplained appearance
of the file number in the present case cannot be ignored.
43. The prosecution thus not proved either substantial
compliance with Section 52A or that non-compliance has no bearing
on its case. The discrepancies in the physical evidence are exactly of
the kind which, in the words of Bharat Aambale, “may not have been
there had such compliance been done”. In the circumstances, the
non-compliance with Section 52A is fatal, and there is no reliable
proof that what tested and produced in Court is what seized from the
appellant. Point No.3 is answered accordingly.
44. Even if the question of Section 52A is put aside, the
reliance placed by the Trial Court on Ex.P29 cannot be sustained.
Ex.P29 says “chemical analysis and thin layer chromatography
analysis” conducted. It does not describe the tests, reagents or
standards used, results or the data from which the opinion is drawn.
For S1 it says that the sample “answers the tests for the presence of
cocaine” and for S2, S3, S5 and S7 that each “answers the tests for
the presence of LSD (Lysergide)”. The Hon’ble Supreme Court in
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State of H.P. v. Jai Lal ((1999) 7 SCC 280 , held that the report of
an expert must disclose the data on which the opinion is based and
the reasons for it, so that the Court can assess it for itself; and the
Gujarat High Court in Mahmad Hanif Shaikh Ibrahim v. State of
Gujarat (1994 SCC OnLine Guj 293) held that where the scientific
tests conducted and the results derived from them are not mentioned
in the report, the report has no probative value, as a bare ipse dixit is
not accepted in a criminal trial.
45. The oral evidence of PW3 does not cure this deficiency; it
accentuates it. She admitted that this was her first case of testing
LSD; the working sheet relating to testing is maintained in the
laboratory and “only the result is shown in the report”; she did not
bring the working sheet to Court and not given it to the NCB officers;
she did not test the S1 sample for the level of impurity and not aware
that impurity affects the accuracy of the report; not counted the
number of blots, not remembered how many blots she tested in S2,
and she weighed the samples along with the pouch and never without
it. She is a physical chemist. She did not identify the samples in
Court. She does not claim in her evidence that she applied any
technique of identification other than the “chemical analysis”, which
is not described and thin layer chromatography, which on the
appellant’s case is the only test actually performed, and the Trial
Court itself found that the other tests, mass spectrometry and
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ultraviolet photometry, could not be done because the instruments
not in working condition. The Court is not called upon in this case to
lay down the number of tests which will suffice in every case. It is
enough to conclude that on this record the prosecution neither
produced the data to show that identification done in accordance
with accepted standards, nor made the working sheet available, even
though the witness herself stated that it exists, and so the Court is
unable to be satisfied that S2, 78 blots said to be taken from the
appellant, were LSD.
46. The Trial Court brushed aside these infirmities on the
following grounds: (i) the UN Manual recommends several tests and
the examiner may choose any of them; (ii) the defence ought to have
sought re-testing or re-sampling and, not having done so, must be
presumed to have admitted the report; (iii) the report enjoys the
privilege of Section 293 Cr.P.C.; and (iv) that, as held in Bhabani
Basu v. State of Goa (Bombay High Court) and M.Veludurai v.
State ((2012) 1 LW (Crl) 70), the entire quantity of the substance
is to be taken into account and purity tests are not necessary. As to
(i), the freedom of examiner to choose among the recommended tests
does not relieve her of the duty to state which tests she chose and
what they showed. As to (ii) and (iii), the approach is wrong in
principle. Section 293 Cr.P.C. only makes the report admissible
without calling the expert; it does not make it conclusive or immune
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from scrutiny, and in this case PW3 in fact examined and her
evidence discloses the defects mentioned above. The burden of
proving that the substance seized is a narcotic drug or psychotropic
substance lies on the prosecution throughout, and the accused
cannot be presumed to have admitted the report merely because he
did not seek a re-test. As to (iv), the decisions cited deal with other
questions, namely, whether purity of a substance needs to be tested
for deciding the quantity; and in Bhabani Basu's case, the Bombay
High Court proceeded on the footing that the contraband analysed
was the same as that recovered from the accused and there had been
no tampering with the envelopes, which cannot be said in this case.
The Trial Court also took from the manual a description of the usual
form and dose of LSD and used it to fill gaps in the evidence. A
passage from a manual, which not proved through any witness in
relation to the sample in question, cannot be a substitute for proof.
47. The Trial Court also fell into error on the weight of LSD.
The prosecution case, in mahazar, arrest memo, complaint and
evidence of PW1, that one gram of LSD (78 blots) seized from A1. The
Trial Court held that the weight of LSD recovered from A1 “as per
the prosecution” two grams, on the strength of the weight recorded
by PW3 with the pouch, and in the same breath described the cocaine
seized from A1, which two grams on the prosecution case, as one
gram. A court cannot improve the prosecution case by substituting a
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weight which the prosecution does not allege, and the confusion
between the two substances shows that the Trial Court not applied
its mind to the facts. As the identity of the substances itself is not
reliably established, this Court need not decide whether the weight of
the blotting paper has to be taken into account for determining the
quantity of LSD, and leaves that question open. Point No.4 is
answered in favour of the appellant.
48. The Trial Court relied on the statement of A1 (Ex.P5, and
the further statement Ex.P11), and on that of A2 (Ex.P14), at almost
every stage of its reasoning. It held them to be voluntary, treated the
retractions filed after more than a year as an afterthought, and held,
following Kanhaiyalal and Ram Singh v. Central Bureau of
Narcotics, that a conviction could be based on them even without
corroboration. The judgment was pronounced on 31.05.2018, before
Tofan Singh . The law declared in Tofan Singh governs this appeal.
Under it, a statement made by an accused to an NCB officer under
Section 67, whether or not it is later retracted, is hit by Section 25 of
the Evidence Act and is inadmissible as a confession. The reasoning
of the Trial Court on voluntariness, on the delay in retraction and on
the absence of any complaint against the officers is therefore beside
the point, for the statements cannot be looked at against the
appellant at all. Its reliance on the statement of A2 (Ex.P14) against
A1 is equally impermissible; as the confession of a co-accused is a
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statement of the same kind, it is inadmissible, and Section 30 of the
Evidence Act has no application to a statement which is barred by
Section 25.
49. The Trial Court reasoned that the statement of A1 stood
corroborated by the recovery of 30 grams of LSD from A2 on the
basis of what A1 disclosed. The recovery from A2 would at best
attract Section 27 of the Evidence Act, which permits proof of only so
much of the information received from an accused in custody as
distinctly relates to the fact thereby discovered. The portion of Ex.P5
which led the officers to A2’s room is relevant, if at all, only to the
discovery of the room and of what found there. It cannot be used to
prove that A1 himself possessed contraband earlier in the day, or that
there was any conspiracy or financing. Nor can the remainder of
statement, namely account of purchases from A2 and from an
unnamed Nigerian National, of the online orders and the payments,
be read into evidence on the strength of the discovery. The
prosecution, moreover, did nothing to corroborate those disclosures.
Nothing done about the Nigerian National, about Vishnu Thomas,
whose name and address allegedly given, about the websites, the
bitcoin transactions, the profile or the HDFC account, nor about any
shipment on 02.02.2015 and 10.02.2015. The delivery by PW4 of a
postal article is not linked to any of these. Where the substance of a
statement is not investigated at all, there is no basis to treat it as
truthful in any event.
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50. The Trial Court referred to the call detail records (Ex.P45).
The record before this Court discloses that the mobile number said to
be used by A1 (8220306922) is identified as his number in the
statement Ex.P5; the CDR obtained related to the number of A2, and
PW5 admitted in cross-examination, according to the grounds of
appeal, that he conducted no investigation in respect of the number
attributed to A1. It is also pointed out that a call between the two
numbers is shown at 18.28.35 hours on 10.02.2015, at a time when
A1 was, on the prosecution’s own case, in the custody of NCB officers
since the conclusion of the mahazar at about 02.00 p.m., and his
phone had been seized (M.O.9). The prosecution offered no
explanation. Even otherwise, a record of calls between two persons is
no proof of possession of contraband, or of a conspiracy. Point No.5 is
answered in favour of the appellant.
51. The convictions under Sections 27A, 28 and 29 of the NDPS
Act are unsustainable on an independent footing. Section 27A
penalises the financing, directly or indirectly, of activities specified in
the Act, as well as harbouring persons engaged in such activities.
Section 28 deals with attempts to commit offences under the Act,
while Section 29 deals with abetment and criminal conspiracy. A
perusal of the records reveals that the Trial Court did not frame any
specific point for determination in respect of these offences, and its
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discussion of them is confined to recording the convictions under the
said provisions. Significantly, the Trial Court also recorded that “the
prosecution has not proved the fact that the accused are in actual
connection with the offenders who are involved in trafficking”. This
finding is difficult to reconcile with the convictions for financing,
attempt and criminal conspiracy and the sentence of ten years
rigorous imprisonment on each of those counts, which was imposed
without any reasons at all, cannot stand. None of the prosecution
witnesses testified to any act of financing or harbouring attributable
to A1. The only material relied upon in support of the allegation of
financing was the reference to online purchases through Bitcoin and
a bank account in the statements recorded under Section 67 of the
NDPS Act. In view of Tofan Singh v. State of Tamil Nadu, (2021) 4
SCC 1, a confessional statement made to an officer of the NCB
cannot be relied upon as substantive evidence of guilt. The
prosecution has also failed to establish the alleged financing through
independent and corroborative evidence. Financing illicit drug-
trafficking activities under Section 27A is distinct from merely
purchasing or selling a narcotic drug (Ashraf v. State of Kerala, 2009
SCC OnLine Ker 6502). Likewise, the prosecution not established any
agreement between A1 and A2 to commit an illegal act or to commit
a legal act by illegal means, as required to sustain a charge of
criminal conspiracy under Section 29. Nor has it established any act
constituting an attempt to commit an offence under Section 28. In
the absence of evidence establishing the essential ingredients of
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these offences, the convictions under Sections 27A, 28 and 29 of the
NDPS Act, together with the sentences imposed thereunder, cannot
be sustained. Point No. 6 is accordingly answered in favour of the
appellant.
52. The appellant did not press the plea of non-compliance with
Section 50 of the NDPS Act, as the contraband is alleged to have
been recovered from a room and not from his person, and he disputes
the seizure itself. The decisions cited by the respondent relating to
Section 50 (including Vijaysinh Chandubha Jadeja, Baldev Singh,
Surinder Kumar, Varinder Kumar, Than Kunwar, Jeet Ram and Kallu
Khan), and those on the effect of non-examination or non-support of
an independent witness, do not arise for decision, and the Court
leaves the point open. The respondent’s decisions on substantial
compliance with Section 42 and on Section 52A have been dealt with
above. None of the decisions cited by the respondent, as far as this
Court is able to see, takes the view that a conviction can be sustained
on the sole testimony of the seizing officer where the foundational
facts of the search itself are in doubt, where the other safeguards of
the Act have not been observed, and where the physical evidence is
discrepant.
53. To sum up, the prosecution case in respect of the appellant
suffers from the following infirmities, each of which is serious and
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which, taken together, are fatal: (i) the information on which the NCB
acted not taken down and reported in the manner required by
Section 42, and the original record has been withheld or lost; (ii) the
search and seizure at A1’s flat rests entirely on PW1, whose
testimony is contradicted in important respects, uncorroborated by
the only independent witness examined, and unsupported by the
other witness cited and the team members, none of whom were
produced; (iii) the exclusive and conscious possession of the flat and
of the contraband by A1 has not been proved; (iv) there was no
compliance with Section 52A, and there are material discrepancies in
the weight of the samples, the seals, the custody of the articles and
the identification of the case property; (v) the report of the Chemical
Examiner discloses no test data and is not supported by her oral
evidence; (vi) the statements under Section 67 on which the Trial
Court heavily relied are inadmissible; and (vii) there is no evidence of
any financing, attempt or conspiracy. The judgment under appeal was
reached by shifting the burden to the accused through Sections 35,
54 and 106, without the foundational facts being established, and by
ignoring the evidence of the prosecution witnesses elicited in cross-
examination. Such a conclusion cannot be upheld.
54. The gravity of the offences under the NDPS Act and the
concern of the legislature about the spread of drugs among the
young are not lost on this Court. But the greater the gravity of the
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offence and the severity of the punishment, the stricter must be the
insistence on the safeguards which the legislature itself has provided,
and the standard of proof beyond reasonable doubt cannot be diluted.
The prosecution has failed to meet that standard, and the appellant is
entitled to the benefit of doubt. The Court also notes, though it is not
a ground of this decision, the submission that the appellant, who was
a final-year engineering student at the time of his arrest, spent more
than five years in custody, completed his studies after being released
on bail and has since qualified for admission to a law course.
55 . In the result:
(i) The Criminal Appeal is allowed.
(ii) The judgment of conviction and sentence dated 31.05.2018
passed in C.C.No.36 of 2015 by the I Additional Special Court for
Exclusive Trial of Cases under NDPS Act, Chennai, insofar as it
relates to the appellant/Accused No.1, is set aside and the appellant
is acquitted of the charges under Section 8(c) read with Sections 29,
21(a), 22(c), 27A and 28 of the Narcotic Drugs and Psychotropic
Substances Act, 1985.
(iii) The bail bond executed by the appellant, pursuant to the
order dated 15.09.2020 in Crl.M.P.No.5039 of 2020 in Crl.A.No.404 of
2018, shall stand discharged, and the sureties, if any, shall stand
discharged from their bonds.
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(iv) The fine amount, if any, paid by the appellant shall be
refunded to him.
30 .10.2026
Index : Yes/No
Internet : Yes / No
mpk
To
st
1. The 1 Additional Special Court for Exclusive Trial of Cases
under NDPS Act,
Chennai.
2.The Intelligence Officer,
Narcotics Control Bureau,
Chennai Zonal Unit,
Chennai – 90.
3. The Public Prosecutor,
High Court,
Madurai.
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M.NIRMAL KUMAR, J.
mpk
Pre-Delivery Judgment made in
CRL.A.No.404 of 2018
30.10.2026
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