NDPS charges should use Magistrate-certified drug weight, excluding packaging, Himachal Pradesh High Court rules

The petitioner was apprehended with alleged charas that weighed 1 kg and 2 grams at the spot, including its carry bag and polythene wrapping. During inventory proceedings under Section 52A of the NDPS Act, the Magistrate removed the bag and wrapping, homogenised the substance, and certified its weight as 996 grams.

The Special Judge framed a charge under Section 20(b)(ii)(c) of the Act, relying on the spot weight. The petitioner challenged that order, contending that the inventory weight should determine the applicable charge.

Whether, when framing a charge under the NDPS Act, the court should use the spot weight that includes packaging or the quantity certified in the Section 52A inventory proceedings.

Whether the trial court was required to consider the certified inventory weight when sifting the prosecution material at the charge-framing stage.

Section 52A(4) of the NDPS Act requires the trial court to treat the certified inventory, photographs, and sample list prepared under Section 52A(2) as primary evidence in respect of the offence.

At the charge-framing stage under Section 228 CrPC (Section 251 BNSS), the court must sift the prosecution material to determine whether the facts, taken at face value, disclose the offence, without weighing evidence or probabilities.

The court relied on Union of India v. Prafulla Kumar Samal, P. Vijayan v. State of Kerala, and Ghulam Hassan Beigh v. Mohammad Maqbool Magrey for that approach.

It also referred to the principle that possession under the NDPS Act must be conscious, discussed in Avtar Singh v. State of Punjab, Madan Lal v. State of H.P., and Rakesh Kumar Raghuvanshi v. State of Madhya Pradesh.

It considered Bharat Aambale v. State of Chhattisgarh on the evidentiary significance of Section 52A proceedings.

The inventory proceedings formed part of the material before the Special Judge and recorded that the charas weighed 996 grams after the carry bag and polythene wrapping were removed.

The court held that the certified inventory weight was the relevant quantity for determining the charge, because Section 52A(4) makes the inventory primary evidence and the packaging was not part of the contraband in the accused’s conscious possession.

By framing the charge on the spot weight, the trial court failed to account for that material when sifting the evidence.

It quashed the order framing the charge under Section 20(b)(ii)(c) and directed the trial court to reframe the charge under Section 20(b)(ii)(b), taking the 996-gram inventory weight into account.